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Hemant Gupta, J.—The present appeal under Clause X of the Letters Patent is directed against an order passed by the learned Single Judge on 27.10.2009, whereby order of compulsory retirement passed against the respondent-writ petitioner w.e.f. 29.08.2003 as well as the adverse remarks recorded in the Annual Confidential Report for the year 2000-01 were set aside. The respondent (hereinafter referred to as ''the petitioner'') challenged the order (Annexure P-13), whereby he was retired in terms of clause (d) of Rule 3.26 of the Punjab Civil Services Rules, Volume-I, Part-I read with clause A(c) of Rule 5.32 of the Punjab Civil Services Rules, Volume-II, as applicable to the State of Haryana. The petitioner was also paid three months'' pay and allowances in lieu of the period of notice. The petitioner has also challenged the communication dated 10.10.2001 (Annexure P-1), whereby the adverse remarks for the year 2000-01 were communicated; the decision dated 15.03.2003 (Annexure P-4) declining his representation and the communication dated 31.07.2003 (Annexure P-8), whereby the decision regarding filing of another representation was communicated to the petitioner.
The petitioner joined as a Member of Haryana Civil Service (Judicial Branch) on 14.05.1981 and was promoted as Additional District & Sessions Judge in October, 1994. In the year 2000-01, the petitioner was graded ''Integrity Doubtful'' by the Hon''ble Administrative Judge, Rohtak. Such remarks was communicated to the petitioner on 10.10.2001. The petitioner submitted a representation on 18.12.2001 running into 15 pages, but styled as interim representation. The petitioner alleged that the remarks have been recorded by the Administrative Judge for the reason that he has not been able to help the Administrative Judge in settling of a loan account of his son, being the relation of the then Chief Minister (son of the petitioner is married with the grand-daughter of Shri Om Parkash Chautala). Such representation was placed before another Administrative Judge, as the Administrative Judge, who recorded the adverse remarks retired on 17.12.2001. The request of personal hearing was declined on 26.01.2002 vide Annexure P-2, but the representation was declined on 15.03.2003 vide Annexure P-4. However, Column No. 3 of the Annual Confidential Report in respect of ''judgments and orders'' was upgraded from ''C Below Average'' to ''B + Good''. After the rejection of the representation, the petitioner submitted another representation on 24.04.2003, which was put up before still another Administrative Judge. The same was declined on 31.07.2003 (Annexure P-8).
The matter of retention of the petitioner in service beyond 55 years of age was to be considered by the Full Court in its meeting held on 28.08.2003, but on 25.07.2003, the petitioner sent a communication (Annexure P-11) seeking voluntary retirement w.e.f. 10.11.2003 or from any earlier date by dispensing with the requirement of serving three months'' notice. The petitioner by that time has completed 22 years of service. The Full Court recommended the pre-mature retirement of the Petitioner in public interest and also rejected the request of the petitioner for voluntary retirement on 28.08.2003. Subsequently, on 29.08.2003, after the decision of the Full Court, the petitioner sought retirement w.e.f. 29.08.2003 and enclosed a draft of Rs. 64,500/- on account of pay and allowances in lieu of remaining period of notice of three months''. But on 02.09.2003, the order of retirement was passed on the recommendation of this Court by the State Government.
The Administrative Judge, who recorded the adverse remarks was impleaded as respondent No. 3, filed his affidavit dated 21.04.2004 pointing out that the adverse remarks were given to the petitioner on the basis of objective assessment and his work and conduct, taking into consideration all the relevant facts. The petitioner has taken the help of patently false and reckless allegations to mislead this Court. The petitioner was never asked for any favour in respect of loan borrowed by the son of the respondent and his co-Directors.
On behalf of the High Court, reference was made to a complaint received from one Ram Singh on which the Administrative Judge sought the report of the petitioner on 29.04.2003. It is also pointed out that the amount of salary and allowances after deducting Tax at Source was paid to the petitioner. In respect of request of voluntary retirement, it was stated that the same was declined and the bank draft of Rs. 64,500/- was returned to the petitioner in The learned Single Judge allowed the writ petition after noticing that there is no need to examine the veracity of the background as pleaded by the petitioner i.e. the remarks are aftermath of the incident referred by him.
The learned Single Judge recorded that the final representation was rejected without reference to Full Court, which contained additional pleas. The final representation was declined on 01.05.2004 (Annexure P-17). It was held that there was no material, which would support the remarks endorsed in the Annual Confidential Report of the petitioner, as no source, details of the cases, names of the persons are forthcoming from whom the petitioner had allegedly taken money while deciding the cases. It was also held that the remarks are recorded without any material and thus, based upon hunch and not sustainable. Consequently, the writ petition was allowed after quashing the adverse remarks as also the rejection of the request of the petitioner for voluntary retirement.
Learned counsel for the appellant has vehemently argued that the remarks in the Annual Confidential Report are based upon subjective assessment of the conduct of a Judicial Officer during the year in question. The first representation was considered by another Administrative Judge than the one, who recorded the Annual Confidential Report and recommended the rejection of the representation, which was accepted by the Full Court. The petitioner submitted another representation titled as final representation though substantially on the same grounds as were taken in the so-called interim representation running into 15 pages. Since it was based upon similar grounds, the same was rejected by another Administrative Judge. Such rejection was affirmed by the Full Court on 01.07.2004 (Annexure P-17). Relying upon Rajendra Singh Verma (Dead) through L.Rs Vs. Lt. Governor of NCT of Delhi and Another, , it is contended that order of premature retirement can be passed even without deciding the representation against the adverse remarks recorded. It is also contended that when the Administrative Judge records the adverse remarks, it is based upon numerous factors including the information received from the Advocates, litigant and general public. It need not to be a tangible material. Reliance was also placed upon the Division Bench judgments of this Court in CWP No. 13720 of 2013 titled ''Chaman Lal Mohal v. High Court of Punjab & Haryana at Chandigarh & another'' decided on 12.07.2013 and CWP No. 20138 of 2010 titled ''Anil Kumar Bimal v. State of Haryana & another'' decided on 12.07.2013, wherein the order of premature retirement was upheld holding that such an order passed in the collective wisdom of all the Judges does not warrant interference.
In Rajendra Singh Verma''s case (supra), the Hon''ble Supreme Court has held that Judicial service is not a service in the sense of an employment, but Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. It also held that uncommunicated adverse remarks can be taken into consideration at the time of considering pre-mature retirement case of an employee. The Court observed as under:
Judicial service is not a service in the sense of an employment as is commonly understood. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.
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This Court has consistently taken the view that an order of compulsory retirement is not a punishment and does not have adverse consequence and, therefore, the principles of natural justice are not attracted. What is relevant to notice is that this Court has held that an uncommunicated adverse ACR on record can be taken into consideration and an order of compulsory retirement cannot be set aside only for the reason that such uncommunicated adverse entry was taken into consideration. If that be so, the fact that the adverse ACR was communicated but none of the appellants had an opportunity to represent against the same, before the same was taken into consideration for passing the order of compulsory retirement, cannot at all vitiate the order of compulsory retirement.
In State of U.P. and Another Vs. Bihari Lal, this Court has ruled that before exercise of the power to retire an employee compulsorily from service, the authority has to take into consideration the overall record, even including some of the adverse remarks, which though for technical reasons, might have been expunged on appeal or revision. What is emphasised in the said decision is that in the absence of any mala fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the court/tribunal in exercise of its power of judicial review. According to this Court, what is needed to be looked into is whether a bona fide decision is taken in the public interest to augment efficiency in the public service.
The claim of the petitioner is required to be examined keeping in view the afore-stated salutary principles.
Mr. Bains learned counsel representing the petitioner vehemently argued that the adverse remarks were actuated by mala-fides of respondent No. 3, who wanted the help of the petitioner for settling loan account of his son. However, it is admitted that the petitioner never dealt with any matter in which son of the Administrative Judge was a party. The assertion of the petitioner that the Administrative Judge wanted his help to settle the loan account of his son was vehemently denied by the Administrative Judge. The Administrative Judge also averred that the fact that his son is a defaulter was known to many Judicial Officers in the State. Therefore, mere fact that the petitioner happens to be a relative of the then Chief Minister or that the son of the Administrative Judge was a defaulter of a loan, has no inference of the Administrative Judge seeking help from the petitioner. In fact, the learned Single has also not taken into consideration the said aspect.
In Rajendra Singh Verma''s case (supra), an argument was raised that without any material, the entry ''C (Integrity doubtful)'' cannot be recorded. The Court also considered the argument that before recording adverse entry, an opportunity of hearing should be granted to the Officer. The said arguments were dealt with in the following manner:
Another point which was pressed into service for consideration of the Court was that the procedure of recording ACR wherein the appellants were given adverse remarks was in violation of the rules and principles of natural justice and as there was no material which would justify adverse entries in the ACRs of the appellants, the same could not have been taken into consideration while passing orders of compulsory retirement.
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The argument that material was not supplied on the basis of which "C-Integrity Doubtful" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually the word "material" means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes, etc. When this Court is examining as to whether there was any "material" before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this "material" relates to substance, matter, data, information, etc. While considering the case of a judicial officer it is not necessary to limit the "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.
As observed by this Court in R.L. Butah Vs. Union of India (UOI) and Others, it is not necessary that an opportunity of being heard before recording adverse entry should be afforded to the officer concerned. In the said case, the contention that an inquiry would be necessary before an adverse entry is made was rejected as suffering from a misapprehension that such an entry amounts to the penalty of censure. It is explained by this Court in the said decision that:
(ii) ... Making of an adverse entry is not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the government servant concerned.
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Further, this Court in M.S. Bindra Vs. Union of India and Others, has used the phrase "preponderance of probability" to be applied before recording adverse entry regarding integrity of a judicial officer. There is no manner of doubt that the authority which is entrusted with a duty of writing ACR does not have right to tarnish the reputation of a judicial officer without any basis and without any "material" on record, but at the same time other equally important interest is also to be safeguarded i.e. ensuring that the corruption does not creep in judicial services and all possible attempts must be made to remove such a virus so that it should not spread and become infectious. When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making inquiries or the Full Court is that judicial officer concerned does not carry good reputation, such discreet inquiry and/or repeated verbal complaints would constitute material on the basis of which ACR indicating that the integrity of the officer is doubtful can be recorded. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR of the judicial officer was recorded, but while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of function being discharged by the judicial officer, the delicate nature of the exercise to be performed by the High Court on administrative side while recording the ACR and the mechanism/system adopted in recording such ACR.
The Hon''ble Supreme Court has considered the various judgments and taken a view that in the case of a Judicial Officer it is not necessary to limit the "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such evidence may not be forthcoming in many cases. Therefore, the argument that there was no tangible material on the basis of which adverse report could be recorded by the Administrative Judge lacks any merit.
There is no material or allegation pointing out any perversity in the process leading to recording of adverse ACR. The allegations of mala-fide were not even taken note by the Learned Single Judge. Therefore, no case is made out for interference in the collective wisdom of all the Judges as observed by the Hon''ble Supreme Court again in Rajendra Singh Verma''s case (supra), wherein it has been held to the following effect:
Further, in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court who go into the question and it is possible that in all cases evidence would not be forthcoming about integrity doubtful of a judicial officer. As observed by this Court in High Court of Punjab & Haryana v. Ishwar Chand Jain case (supra), at times, the Full Court has to act on the collective wisdom of all the Judges and if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence.
Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be the result of multiple factors simultaneously playing in the mind. Though the perceptions may differ, in the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order.
The representation against the adverse remarks was considered by another Administrative Judge and later by the Full Court. The same was rejected. So was the second representation, which was considered by the third Judge and again rejected by the Full Court. Thus, we do not find any substance in the argument raised that the adverse remarks are actuated by mala-fides.
In view of the above, the material, the basis of ACR, can be tangible or intangible information from any source. Thus, the recording of ACR on the subjective satisfaction of the Administrative Judge cannot be permitted to be disputed by the petitioner.
Another argument raised by Mr. Bains is that in fact the petitioner has sought voluntary retirement vide communication dated 25.07.2003, whereas the Full Court resolved to retire prematurely in the meeting held on 28.07.2003. Since the request of the petitioner for voluntary retirement was made before the recommendations of the Full Court to premature retire the petitioner, therefore, the rejection of the request of the petitioner for voluntary retirement is illegal. It is contended that the voluntary retirement would give additional five years of service for the purposes of pension; therefore, the request of the petitioner for voluntary retirement should have been accepted. It is also contended that the petitioner has even sent a draft of Rs. 64,500/- on 29.08.2003, therefore, there was no reason not to accept the request of voluntary retirement and passing an order of premature retirement.
Before considering the argument, the relevant Rule 5.32B of the Punjab Civil Services Rules, Volume-II, Chapter 5, reads as under:
5.32-B. (1) At any time a Government employee has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. However, a Government employee may make a request in writing to the appointing authority to accept notice of less than three months giving reason therefore. On receipt of a request, the appointing may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government employee shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority subject to rule 2.2 of Punjab Civil Service Rules, Volume II.
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub-rule (1) supra, the retirement shall become effective from the date of expiry of the said period;
Provided further that before a Government employee gives notice of voluntary retirement with reference to sub-rule (1) he should satisfy himself by means of a reference to the appropriate authority that he has, in fact, completed twenty years service qualifying for pension.
(3) The qualifying service as on the date of intended retirement of the Government employee seeking retirement under this rule or under clause (e) of rule 3.26 of Pb. C.S.R. Vol. I, Part I with or without permission shall be increased by the period not exceeding 5 years subject to the condition that the total qualifying service rendered by the Government employee does not in any case exceed 33 years and it does not take him beyond the date of superannuation. The weightage of five year shall not be admissible in case of those Government employee who are prematurely retired by the Government in public interest under the relevant rules.
(4) A Government employee, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority.
Provided that the request for withdrawal shall be made before the intended date of his retirement.
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The order of premature retirement is passed in terms of Rule 3.26(d) of the Punjab Civil Services Rules, Volume-I, Part-I, as applicable to the State of Haryana, whereas the voluntary retirement is dealt with under Rule 5.32-B of the Punjab Civil Services Rules, Volume-II, Chapter V. The notice for voluntary retirement was effective from the future date i.e. 10.11.2003. The request was not categorical that he wants his voluntary retirement to be effective immediately or after three months. In the absence of clear indication in the request to seek voluntary retirement by waiving notice period or to retire on a particular date, it was not open to the High Court to choose either of them. Since the request was vague, the decision of the High Court not to accept the request, which was not specific, cannot be said to be illegal.
Still further, the notice of voluntary retirement required acceptance by the appointing authority. It is only in the event, the appointing authority does not refuse to grant permission, the retirement was become effective from the date of expiry of the notice period. In these circumstances, the decision of the High Court to recommend premature retirement of the petitioner while rejecting the request of voluntary retirement cannot be said to be unreasonable and unfair. The petitioner has sought the waiver of notice period vide communication dated 29.08.2003 i.e. after the recommendations of the High Court to the State Government. The said amount remitted by the petitioner was returned to the petitioner. On the other hand, the amount in lieu of notice period amounting to Rs. 71,000/- has been accepted by the petitioner without any demur. The acceptance of the amount of premature retirement by the petitioner and also not raising any objection of return of the amount of voluntary retirement sent by the petitioner raises estoppel against him from disputing the order of premature retirement as well. In view of the above discussion, we do not find any illegality in the order of premature retirement of the petitioner. Consequently, we find that the order passed by the learned Single Judge cannot be sustained in law. The same is, therefore, set aside while allowing the present appeal. The writ petition is dismissed with no order as to costs.