Supreme Court of India
PYARE MOHAN LALversusSTATE OF JHARKHAND & ORS.
- Citation
- 2010 INSC 597
- Decided
- 10 September 2010
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
An order of compulsory retirement may validly rely on adverse entries in a judicial officer’s service record, even if uncommunicated or preceded by promotion, as the authority must consider the entire service record and the washed‑off theory does not apply to retirement decisions.
Summary
The petitioner, a judicial officer, challenged his compulsory retirement order issued under Rule 74(b)(ii) of the Jharkhand Civil Services Code, arguing that adverse entries in his Annual Confidential Reports (ACRs) were uncommunicated, had been "washed off" by subsequent promotion, and that the order lacked public‑interest justification. The Supreme Court examined the relevance of adverse entries, the applicability of the washed‑off theory, and the hierarchy of precedents, holding that the entire service record—including adverse remarks—must be considered for retirement and that the washed‑off doctrine does not apply to compulsory retirement. The Court noted that a single adverse entry concerning integrity can suffice for retirement and that the High Court’s committee process for judicial officers is robust. It further emphasized that relief not specifically pleaded cannot be granted. Consequently, the petition was dismissed.
Issues considered
- Can uncommunicated adverse entries in a judicial officer's ACRs be considered for compulsory retirement?
- Does the washed‑off theory, which may disregard past adverse entries after promotion, apply to compulsory retirement of a judicial officer?
- Which precedent governs when there is a conflict between larger and smaller bench judgments on the washed‑off theory?
- Is the order of compulsory retirement under Rule 74(b)(ii) of the Jharkhand Civil Services Code valid when based on adverse service records?
- Can a court grant relief that was not specifically sought in the petition?
Legislation cited
- Jharkhand Civil Services Codes. Rule 74(b)(ii)
Subjects
Compulsory retirementJudicial officerAdverse entriesAnnual Confidential ReportPublic interestWashing off theoryJudicial reviewService law
Judgment
[2010] 11 S.C.R. 216
A PYARE MOHAN LAL
v.
STATE OF JHARKHAND & ORS.
(Writ Petition (C) No. 382 of 2003)
SEPTEMBER 10, 2010
B
[J.M. PANCHAL, DEEPAK VERMA AND DR. S.S.
CHAUHAN, JJ.]
Service law:
c
Compulsory retirement - Judicial review - Scope of
Compulsory retirement - Adverse entries in the ACRs -
Significance of, while retiring a person compulsorily - Held:
The adverse entries remain part of the record for overall
D consideration to retire a government servant compulsorily -
The object always is public interest - Such entries do not lose
significance, even if the employee has subsequently been
promoted - The law requires the Authority to consider .the
"entire service record" of the employee before assessing him
E for compulsory retirement irrespective of the fact that the
adverse entries were not communicated to him or that he was
promoted earlier in spite of those adverse entries - A single
adverse entry regq!_ding the integrity of arr employee, even,
in remote past is sufficient to award compulsory retirement -
·F Doctrine - Washed off theory.
~
Compulsory retirement - Judicial Officer compulsorily
retired in public interest - Held: The case of a Judicial Officer
is required to be examined! treating him different from other
G wings of the society, as he is serving the State in a different
capacity - His case is considered by a Committee of Judges
of the High Court dulyf. constituted by the Chief Justice and
then the report of the Committee is placed before the Full
Court - A decision is taken by the Full Court after due
H 216
PYARE MOHAN LAL v. STATE OF JHARKHAND & 217
ORS.
deliberation on the matter - Therefore, fault cannot be found A
in the decision making process or the decision - The perusal
of some of the entries in the ACRs of the Judicial Officer of
the last years showed that he remained an average officer
throughout his service career and could never improve - His
· out turn was poor -'- He was given adverse entries regarding B
his integrity and reputation - No reason to interfere with the
order of compulsory retirement - Jharkhand Civil Service
Code - r. 74(b)(ii).
Precedent: Conflict between judgments - Held: C
Judgment of larger bench to be followed.
Relief - Held: Relief not specifically sought cannot be
granted by the court
The petitioner was a judicial officer. In his ACRs for o
the year 1996-97 to 2001-2002, certain adverse remarks
were made against him. His name was recommended for
promotion in October, 2001 and he was appointed as
Additional District and Sessions Judge on ad hoc basis.
On 12.5.2003, an order of compulsory retirement of six E
judicial officers including the petitioner was issued in
public interest invoking the provision of Rule 74(b)(ii) of
the Jharkhand Civil Services Code. The instant writ
petition was filed challenging the said order of
compulsory retirement.
F
Dismissing the writ petition, the Court
HELD: 1. An order of compulsory retirement is not a
punishment and it does not imply stigma unless such
order is passed to impose a punishment for a proved G
misconduct, as prescribed in the Statutory Rules. The
Authority must consider and examine the over-all effect
of the entries of the officer concerned and not an isolated
entry, as it may well be, in some cases that in spite of
H
218 SUPREME COURT REPORTS [2010] 11 S.C.R.
A satisfactory performance, the Authority may desire to
compulsorily retire an employee in public interest, if in
the opinion of the said Authority, the post has to be
manned by a more efficient and dynamic person and if
there is sufficient material on record to show that the
s employee "rendered himself a liability to the institution",
there is no occasion for the Court to interfere in exercise
of its limited power of judicial review. [Para 18) [231-E-G]
Baikuntha Nath Das & Anr. v. Chief District Medical
Officer, Baripada & Anr. AIR 1992 SC 1020; Posts and
C Telegraphs Board & Ors. v. C.S.N. Murthy AIR 1992 SC 1368;
Sukhdeo v. Commissioner Amravati Division, Amravati &
Anr. (1996) $ SCC 103; l.K. Mishra v. Union of India & Ors.
AIR 1997 SO 3740; M.S. Bindra v. Union oflndia & Ors. AIR
1998 SC 3058; Rajat Baran Roy & Ors. v. State of West
D Bengal & Ors. AIR 1999 SC 1661; State of Gujarat & Anr. v.
Suryakant Chunilal Shah (1999) 1 SCC 529; State of UP. &
Anr. v. Bihari Lal AIR 1995 SC 1161; State of UP. & Ors. v.
Vijay Kumar Jain AIR 2002 SC 1345; Jugal Chandra Saikia
v. State of Assam & Anr. AIR 2003 SC 1362; Nawal Singh v.
E State of UP. & Anr. AIR 2003 SC 4303; Chandra Singh &
Ors. v. State of Rajasthan & Anr. ·AIR 2003 SC 2889; Shiv
Dayal Gupta v. State of Rajasthan & Anr. (2005) 13 SCC 581;
M. P. State Cooperative Dairy Federation Ltd. & Anr. v.
RajneiSh Kumar Jamindar & Ors. (2009) 15 SCC 221;
F Surender Kumar v. Union of India & Ors. (2010) 1 SCC 158,
relied on.
2. In *State of Punjab, a two-Judge Bench of this Court
held that adverse entries regarding the dishonesty and
G inefficiency of the government employee in his ACRs
have to be ignored if, subsequent to recording of the
same, he had been allowed to cross the efficiency bar,
as it would mean that while permitting him to cross the
efficiency bar such entries had been considered and
were not found of serious nature for the purpose of
H
PYARE MOHAN LAL v. STATE OF JHARKHAND & 219
ORS.
crossing the efficiency bar. This view was based on A
washed off theory. However, a three-Judge Bench of this
Court in **State of Orissa taking a different view held that
such entries still remain part of the record for overall
consideration to retire a g()vernment servant
compulsorily. The object always is public interest. B
Therefore, such entries do not lose significance, even if
the employee has subsequently been promoted. In case
of conflict between two or more judgments of this Court,
the judgment of the larger Bench is to be followed. More
so, the washed off theory does not have universal c
application. It may have relevance while considering the
case of government servant for further promotion but not
in a case where the employee is being assessed by the
Reviewing Authority to determine whether he is fit to be
retained in service or is required to be given compulsory
0
retirement, as the Authority is to assess his suitability
taking into consideration his "entire service record".
[Paras 19, 21, 26] [232-A-B; G-H; 233-A; 235-B-C]
**State of Orissa & Ors. v. Ram Chandra Das AIR 1996
SC 2436; State of Gujarat v. Umedbhai M. Patel AIR 2001 E
SC 1109; State of UP. v. Ram Chandra Trivedi AIR 1976
SC 2547; Smt. Triveniben v. State of Gujarat AIR 1989 SC
1335, relied on.
*State of Punjab v. Dewan Chuni Lal AIR 1970 SC 2086; F
Baidyanath Mahapatra v. State of Orissa & Anr. AIR 1989 SC
2218, referred to.
3. A perusal of some of the entries in the ACRs' of
the petitioner of the previous years showed that the
petitioner remained an average officer throughout his G
service career and could never improve. His out turn was
poor; he was given adverse entries regarding his
integrity/reputation as not good in the years 1999-2000
and remarks to that effect by the Inspecting Judges in
1997 and 2001-2002. The petitioner made a bald assertion H
220 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A that the advers.g entries were not yet communicated to
him. Indisputably, uncommunicated adverse entries could
be taken into account for the purpose of assessing an
officer for compulsory retirement. The petitioner did not
disclose on what dates the representations against the
B adverse entries were made by him. He did not challenge'
the said adverse entries, rather he considere·d it
appropriate to challenge only the order of compulsory
retirement which was a consequential effect of such
adverse entries. The law requires the Authority to
c consider the "entire service record" of the employee
while assessing whether he can be given compulsory
retirement irrespective of the fact that the adverse entries
were not communicated to him and the officer was
promoted earlier in spite of those adverse entries. More
so, a single adverse entry regarding the integrity of an
0
officer even in remote past is sufficient to award
compulsory retirement. The case of a;Judicial Officer is
required to be examined, treating hilJI different from other
wings of the society, as he is serving the State in a
E different capacity. The case of a Judicial Officer is
considered by a Committee of Judges of the High Court
duly constituted by the Chief Justice and then the report
of the Committee is placed before the Full Court. A
decision is taken by the Full Court after due deliberation
on the matter. Therefore, there is hardly any chance to
F make the allegations of non- application of mind or ma/a
fide. [Paras 28, 29] [235-E; 236-G-H; 237-A-F]
4. The service record of the petitioner revealed that
he had not been promoted in the regular cadre of the
G District Judge as he was not found fit for the same
because of the adverse entries. The petitioner was
promoted as Additional District Judge on Ad hoc basis
and posted in the Fast Track Court. It was definitely not
a promotion on merit (selection). The High Court
H objectively decided to recommend his compulsory
PYARE MOHAN LAL v. STATE OF JHARKHAND & 221
ORS.
retirement and the State Authorities acted accordingly. No A
fault can be found with the decision making process or
with the decision. The original service record of the
petitioner was placed before this Court alongwith the
report submitted by the Judicial Commissioner, who after
taking into consideration a large number of facts B
recorded that the general reputation of the petitioner was
not good, but no one had approached with any specific
case against his general reputation. [Paras 30, 31] [237-
G-H; 238-A-F]
5. There was no factual foundation in the contention C
of the petitioner that adverse entries were not made in
· bona fide manner and as per the requirement prescribed
by circulars etc., and, therefore, the consequential order
of compulsory retirement was illegal. The petitioner had
sought quashing of the order of compulsory retirement D
and not quashing of the adverse entries. Relief not
specifically sought cannot be granted by the court.
Therefore, there was no occasion to probe the issue
further. In view of the same, there was no cogent reason
to interfere with the impugned order. [Paras 32, 33] [238- E
G-H; 239-A-B]
Baldev Raj Chadha v. Union of India & Ors. AIR 1981
SC 70, relied on.
Case Law Reference: F
AIR 1992 SC 1020 relied on Paras 8, 20
AIR 1992 SC 1368 relied on Para 9
(1996) 5 sec 103 relied on Para 9 G
AIR 1997 SC 3740 relied on Para 9
AIR 1998 SC 3058 relied on Para 9
AIR 1999 SC 1661 relied on Para 9
H
222 SUPREME COURT REPORTS [2010] 11 S.C.R.
A (1999) 1 sec 529 relied on Para 10
AIR 1995 SC 1161 relied on Para 11
AIR 2002 SC 1345 relied on Paras 12,
16,23
B
AIR 2003 SC 1362 relied on Para 13
AIR 2003 SC 4303 relied on Para 14
AIR 2003 SC 2889 relied on Para 15
c (2005) 13 sec 581 relied on Para 16
(2009) 15 sec 221 relied on Para 17
(201 O) 1 sec 158 relied on Para 17
D AIR 1970 SC 2086 referred to Para 19
AIR 1989 SC 2218 referred to Para 20
AIR 1996 SC 2436 relied on Para 21
AIR 2001 SC 1109 relied on Para 22
E
AIR 1976 SC 2547 relied on Para 24
AIR 1989 SC 1335 relied on Para 25
AIR 1981 SC 70 relied on Para 32
F
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
382 of 2003.
Sunil Kumar, C.K. Sucharita for the Petitioner.
G Ashok Mathur Anil K. Jha, Santosh Kumar for the
Respondents.
The Judgment of the Court was delivered by
DR. 8.S. CHAUHAN, J. 1. This writ petition has been filed
H
PYARE MOHAN LAL v. STATE OF JHARKHAND & 223
ORS. [DR. B.S. CHAUHAN, J.]
against the order dated 20.5.2003, passed by the State of A
Jharkhand - Respondent No. 2, giving compulsory retirement
to the petitioner, a Judicial Officer of the State of Jharkhand,
on the recommendation of the High Court of Jharkhand - the
respondent No. 3 on administrative side.
8
2. Facts and circumstances giving rise to this case are that
the petitioner was selected in the Bihar Civil Services (Judicial
Branch) in 1982 and was appointed to the post of Munsif by
the State and was confirmed in the grade of Munsif vide order
dated 11th March, 1987. He was further promoted to the junior
selection grade post in the cadre of Munsif of the Bihar Judicial C
Service vide order dated 23rd September, 1994. The Patna
High Court issued Notification dated 10th March, 2001
promoting the petitioner to the post of Subordinate Judge.
3. Consequent to the bifurcation of the State of Bihar and D
formation of the State of Jharkhand, the services of the
petitioner were allocated to the Jharkhand State by the order
of the Ministry of Personnel, Public Grievances and Pension
(Department of Personnel and Training), New Delhi dated 28th
March, 2001. The petitioner was appointed as a Sub-Judge, E
Ranchi, vide Notification dated 21st April, 2001, issued by the
High Court of Jharkhand and, subsequently, the petitioner was
placed at the disposal of the State of Jharkhand as Under
Secretary-cum-Deputy Legal Remembrancer and Law Officer
in the Law Department vide order dated 1st August, 2001. F
4. The High Court of Jharkhand recommended the name
of the petitioner along with others for promotion to the post of
Additional District Judge on Ad hoc basis vide letter dated 21st
October, 2001. The petitioner was appointed as Additional
District and Sessions Judge, (Fast Track), on ad-hoc basis and G
was posted at Ranchi vide order dated 14th December, 2001.
The High Court of Jharkhand on administrative side vide order
dated 12th May, 2003 recommended compulsory retirement of
six judicial officers including the petitioner, and in pursuance
H
224 SUPREME COURT REPORTS [201 OJ 11 S:C.R.
A thereof, the Respondent No. 2 issued a consequential order of
compulsory retirement of the petitioner dated 20th May, 2003,
in public interest, invoking the provisions of Rule 74(b)(ii) of the
Jharkhand Civil Services Code (hereinafter called the Code)
along with five other judicial officers. Hence, this writ petition.
B
5. Shri Sunil Kumar, learned Senior Advocate appearing
for the petitioner, has submitted that the petitioner had
unblemished service record and there was no adverse entry
against him and he had even been promoted to the post of
C Additional District and Sessions Judge, (Fast Track), thus
adverse entries, if any, stood washed off as the same had been
prior to the date of his promotion. The order of compulsory
retirement passed by Respondent No. 2 is arbitrary,
unreasonable and unwarranted. The adverse entries on the
basis of which the petitioner had been given compulsory
D retirement had not been communicated to the petitioner. The
representation made by the petitioner against the said adverse
entries has not been disposed of till date. The order of
compulsory retirement as far as the petitioner is concerned
cannot be held to be in public interest; there was no material
E whatsoever to support the conclusion reached by the High Court
of Jharkhand. The recommendation made by the High Court
is unreasonable and arbitrary. Order impugned casts stigma.
Rule 74(b)(ii) of the Code empowers competent authorities only
to get rid of and to do away with the services of employees,
F who have lost their utility, became useless and whose further
continuance in service is not in public interest. There was no
occasion for the respondents to pass an order of compulsory
retirement of the petitioner in absence of any material to justify
such an order. Thus, the order impugned is liable to be held to
G be illegal and invalid. Petition deserves to be allowed.
6. On the other hand, Shri Ashok Mathur and Shri Anil
Kumar Jha, learned counsel appearing for the respondents,
have vehemently opposed the petition contending that there ·
had been large number of adverse entries against the petitioner
H and the said entries were not expunged; his disposal was very
PYARE MOHAN LAL v. STATE OF JHARKHAND & 225
ORS. [DR. B.S. CHAUHAN, J.]
low; he did not enjoy a good reputation as several entries A
relating to his integrity being doubtful had been recorded. Thus,
he could not claim himself to be fit to be retained in judicial
service. The petition lacks merit and is liable to be dismissed.
7. We have considered the rival submissions made by
B
learned counsel for the parties and perused the record.
COMPULSORY RETIREMENT
8. In Baikuntha Nath Das & Anr. Vs. Chief District
Medical Officer, Baripada & Anr., AIR 1992 SC 1020, this c
Court has laid down certain criteria for the Courts, on which it
can interfere with an order of compulsory retirement and they
include mala tides, if the order is based on no evidence, or if
the order is arbitrary in the sense that no reasonable person
would form the requisite opinion on the given material, i.e. if it o
is found to be a perverse order. The Court held as under:-
"(i) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehaviour.
E
(ii) The order has to be passed by the Government
on forming the opinion that it is in the public interest to
retire a Government servant (;Ompulsorily. The order is
passed on the subjective satisfaction of the Government.
F
(iii) Principles of natural justice have no place in the
context of an order of compulsory retirement. This does not
mean that judicial scrutiny is excluded altogether. While the
High Court or the Court would not examine the matter as
an appellate Court, they may interfere if they are satisfied G
that the order is passed (a) mala fide or (b) that it is based
on no evidence or (c) that it is arbitrary- in the sense that
no reasonable person would form the requisite opinion on
the given material : in short, if it is found to be a perverse
order.
H
226 SUPREME COURT REPORTS [2010] 11 S.C.R.
A (iv) The Government (or the Review Committee, as
the case may be) shall have to consider the entire record
of service before taking a decision in the matter- of course
attaching more importance to record of and performance
during the later years. The record to be so considered
B would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
Government servant is promoted to a higher post
notwithstanding the adverse remarks, such remarks lose
their sting, more so, if the promotion is based upon merit
c (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to
be quashed by a Court merely on the showing that whUe
passing it uncommunicated adverse remarks were also
taken into consideration. That circumstance by itself
D cannot be a basis for interference." (Emphasis added).
9. Similar view has been reiterated by this Court in Posts
and Telegraphs Board & Ors. Vs. C.S.N. Murthy, AIR 1992
SC 1368; Sukhdeo Vs. Commissioner Amravati Division,
E Amravati & Anr., (1996) 5 SCC 103; l.K. Mishra Vs. Union of
India & Ors., AIR 1997 SC 3740; MS. Bindra Vs. Union of
India & Ors., AIR 1998 SC 3058; and Rajat Baran Roy & Ors.
Vs. State of West Bengal & Ors., AIR 1999 SC 1661. This
Court observed that there was a very limited scope of judicial
F review in a case of compulsory retirement and it was
permissible only on the grounds of non-application of mind;
mala tides; or want of material particulars. Power to retire
compulsorily a Government servant in terms of Service Rules
is absolute, provided the authority concerned forms a bona fide
G opinion that compulsory retirement is in public interest.
10. In State of Gujarat & Anr. Vs. Suryakant Chunilal
Shah, (1999) 1 SCC 529, this Court held that while considering
the case of an employee for compulsory retirement, public
interest is of paramount importance. The dishonest, corrupt and
H dead-wood deserve to be dispensed with. How efficient and
PYARE MOHAN LAL v. STATE OF JHARKHAND & 227
ORS. (DR. B.S. CHAUHAN,J,]
honest an employee is, is to be assessed on the basis of the A
material on record, which may also be ascertained from
confidential reports. However, there must be some tangible
material against the employee warranting his compulsory
retirement.
B
11. In State of UP. & Anr. Vs. Bihari Lal, AIR 1995 SC
1161, this Court held that 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 C
only on limited grounds. The Court further held that:
" ..... What is needed to be looked into, is the bona fide
decision taken in public interest to augment efficiency in
the public service."
D
12. In State of UP. & Ors. Vs. Vijay Kumar Jain, AIR 2002
SC 1345, U:iis Court while dealing with the issue observed as
under:
"Withholding of integrity of a government employee is a
serious matter. In the present case, what we find is that E
the integrity of the respondent was withheld by an order
dated 13-6-1997 and the said entry in the character roll of
the respondent was well within ten years of passing of the
order of compulsory retirement. During pendency of the writ
petition in the High Court, the U.P. Services Tribunal on a F
claim petition filed by the respondent, shifted the entry from
1997-98 to 1983-84. Shifting of the said entry to a
different period or entry going beyond ten years of
passing of the order of compulsory retirement does not
mean that vigour and sting of the adverse entry is lost. G
Vigour or sting of an adverse entry is not wiped out, merely
it is relatable to 11th or 12th year of passing of the order
of compulsory retirement. The aforesaid adverse entry
which could have been taken into account while
considering the case of the respondent for his compulsory H
228· SUPREME COURT REPORTS [2010] 11 S.C.R.
A retirement from service, was duly considered by the State
Government and the said single adverse entry in itself was
sufficient to compulsorily retire the respondent from service.
We are, therefore, of the view that entire service record
or confidential report with emphasis on the later entries in
B the character roll can be taken into account by the
Government while considering a case for compulsory
retirement of a government servant. (Emphasis added)
13. In Juga/ Chandra Saikia Vs. State of Assam & Anr.,
AIR 2003 SC 1362, this Court held that where the screening
C committee is consisting of responsible officers of the State and
they have examined/assessed the entire service record and
formed the opinion objectively as to whether any employee is
fit to be retained in service or not, in the absence of any
allegation of mala tides, there is no scope of a judicial review
D against such an order.
14. In Nawal Singh Vs. State of UP. & Anr., AIR 2003 SC
4303, a similar view has been reiterated. The Court observed
as under:
E
"At the outset, it is to be reiterated that the judicial service
is not a service in the sense of an employment. 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
F reflected in their overall reputation. Further, 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. If such evaluation is done by the
Committee of the High Court Judges and is affirmed in the
G writ petition, except in very exceptional circumstances, this
Court would not interfere with the same, particularly
because the order of compulsory retirement is based on
the subjective satisfaction of the authority .
H . . . . . . Further, it is impossible to prove by positive evidence
PYARE MOHAN LAL v. STATE OF JHARKHAND & 229
ORS. [DR. B.S. CHAUHAN, J.]
the basis for doubting the integrity of the judicial officer. In A
the present-day system, reliance is required to be placed
on the opinion of the higher officer who had the opportunity
to watch the performance of the officer concerned from
close quarters and formation of his opinion with regard to
the overall reputation enjoyed by the officer concerned B
would be the basis .
. .. .. the lower judiciary is the foundation of the judicial
system. We hope that the High Courts would take
appropriate steps regularly for weeding out the dead wood
or the persons polluting the justice delivery system".
c
15. In Chandra Singh & Ors. Vs. State of Rajasthan &
Anr., AIR 2003 SC 2889, this Court after examining the entire
evidence on record came to the conclusion that the compulsory·
retirement awarded to the appellant therein, Chandra Singh, a D
Judicial Officer, was not in consonance with law. However,
considering the report of the Committee and taking note of the
adverse remarks made against him, the Court refused to grant
him any relief. The relevant part of the judgment reads as under:
E
"It will bear repetition to state that in terms of Rule 53 of
the Pension Rules, an order for compulsory retirement can
be passed only in the event the same is in public interest
and/or three months' notice or three months' pay in lieu
thereof had been given. Neither of the aforementioned
conditions had been complied with ....
F
We have, therefore, no option but to hold that the actions
on the part of the High Court or the State in compulsorily
retiring the appellants herein were illegal.
G
Article 235 of the Constitution of India enables the High
Court to assess the performance of any judicial officer at
any time with a view to discipline the black sheep or weed
out the deadwood. This constitutional power of the High
Court cannot be circumscribed by any rule or order. We
H
230 SUPREME COURT REPORTS [2010] 11 S.C.R.
A can usefully refer to some of the leading cases on Article
235:
1. State of Assam v. Rang a Mohd., Al R 1967 SC 903 (five
Judges)
8 2. Samsher Singh v. State of Punjab, AIR 1974 SC 2192
(seven Judges)
3. High Court of Judicature at Bombay v. Shirishkumar
Rangrao Patil, AIR 1997 SC 2631.
c )()()( xxx xxx
In the instant case, we are dealing with the higher judicial
officers. We have already noticed the observations made
by the Committee of three Judges. The nature of judicial
D service is such that it cannot afford to suffer continuance
in service of persons of doubtful integrity or who have lost
their utility."
16. In Shiv Dayal Gupta Vs. State of Rajasthan & Anr.,
E (2005) 13 sec 581, this Court examined the case of the
compulsory retirement of a Judicial Officer and came to the
conclusion that the Review Committee had made an overall
assessment considering the entire service record of the said
officer and came to the conclusion that continuance of the said
F officer in service would be a liability to the Department and
adverse to public interest as his ACRs. revealed that he was
poor in writing the judgments and was advised to improve the
same. His judicial work was found unsatisfactory and he had
been advised to improve the same. His integrity was found
doubtful in the year 1983. He had earlier been superseded while
G being considered for promotion in 1983 and he had been given
an adverse entry in 1993 that he failed to inspire confidence in
subordinate staff and lawyers and had a low rate of disposal.
On the basis of the aforesaid adverse entries, he was given
compulsory retirement vide order dated 9.11.2000. This Court
H refused to interfere with the said order in view of the fact that
PYARE MOHAN LAL v. STATE OF JHARKHAND & 231
ORS. [DR. B.S. CHAUHAN, J.]
he could not raise proper allegations of mala tides or establish A
that the order of compulsory retirement was passed without
application of mind. While deciding the said case, the court
placed reliance upon the judgment of this Court in Vijay Kumar
Jain (supra).
B
17. In M.P. State Q_ooperative Dairy Federation Ltd. &
Anr. Vs. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC
221, this Court held that judicial review of an order of
compulsory retirement is permissible if the order is perverse
or arbitrary, as also where there is non-compliance of statutory C
duty by statutory authority but the court should not go into the
factual findings. The factors not germane for passing an order
of compulsory retirement should not be taken into consideration.
The criteria and rules adopted by the employer must be
adhered to, to determine whether the employee had become
liable for compulsory retirement. An authority discharging a D
public function must act fairly.
18. Thus, the law on the point can be summarised to the
effect that an order of compulsory retirement is not a punishment
and it does not imply stigma unless such order is passed to E
impose a punishment for a proved misconduct, as prescribed
in the Statutory Rules. (See Surender Kumar Vs. Union of India
& Ors., (2010) 1 sec 158). The Authority must consider and
examine the over-all effect of the entries of the officer
concerned and not an isolated entry, as it may well be in some F
cases that in spite of satisfactory performance, the authority
may desire to compulsorily retire an employee in public interest,
as in the opinion of the said Authority, the post has to be
manned by a more efficient and dynamic person and if there
is sufficient material on record to show that the employee G
"rendered himself a liability to the institution", there is no
occasion for the Court to interfere in the exercise of its limited
power of judicial review.
H
232 SUPREME COURT REPORTS [2010] 11 S.C.R.
A WASHED OFF THEORY
19. In State of Punjab Vs. Dewan Chuni Lal, AIR 1970
SC 2086, a two-Judge Bench of this Court held that adverse
entries regarding the dishonesty and inefficiency of the
government employee in his ACRs have to be ignored if,
8
subsequent to recording of the same, he had been allowed to
cross the efficiency bar, as it would mean that while permitting
him to cross the efficiency bar such entries had been
considered and were not found of serious nature for the
purpose of crossing the efficiency bar.
c
20. Similarly, a two-Judge Bench of this Court in
Baidyanath Mahapatra Vs. State of Orissa & Anr., AIR 1989
SC 2218, had taken a similar view on the issue observing that
adverse entries awarded to the employee in the remote past
D lost significance in view of the fact that he had subsequently
been promoted to the higher post, for the reason that while
considering the case for promotion he had been found to
possess eligibility and suitability and if such entry did not reflect
deficiency in his work and conduct for the purpose of promotion,
E it would be difficult to comprehend how such an adverse entry
could be pressed into service for retiring him compulsorily.
When a government servant is promoted to higher post on the
basis of merit and selection, adverse entries if any contained
in his service record lose their significance and remain on
F record as part of past history.
This view has been adopted by this Court in Baikuntha
Nath Das (supra).
21. However, a three-Judge Bench of this Court in State
G of Orissa & Ors. Vs. Ram Chandra Das, AIR 1996 SC 2436,
had taken a different view as it had been held therein that such
entries still remain part of the record for overall consideration
to retire a government servant compulsorily. The object always
is public interest. Therefore, such entries do not lose
H
PYARE MOHAN LAL v. STATE OF JHARKHAND & 233
ORS. [DR. B.S. CHAUHAN, J.]
significance, even if the employee has subsequently been A
promoted. The Court held as under:-
"Merely because a promotion has been given even after
adverse entries were made, cannot be a ground to note
that compulsory retirement of the government servant 8
could not be ordered. The evidence does not become
inadmissible or irrelevant as opined by the Tribunal. What
would be relevant is whether upon that state of record as
a reasonable prudent man would the Government or
competent officer reach that decision. We find that
selfsame material after promotion may not be taken into C
consideration only to deny him further promotion, if any. But
that material undoubtedly would be available to the
Government to consider the overall expediency or
necessity to continue the government servant in service
after he attained the required length of service or qualified D
period of service for pension." (Emphasis added)
22. This judgment has been approved and followed by this
court in State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC
1~09, emphasising that the "entire record" of the government E
servant is to be examined.
23. In Vijay Kumar Jain, (supra), this Court held that the
vigour or sting of an entry does not get wiped out, particularly,
while considering the case of employee for giving him
compulsory retirement, as it requires the examination of the
F
entire service records, including character rolls and confidential
reports. 'Vigour or sting of an adverse entry is not wiped out'
merely it relates to the remote past. There may be a single
adverse entry of integrity which may be sufficient to compulsorily
retire the government servant. G
Larger Benchs' Judgment:
24. In State of UP. Vs. Ram Chandra Trivedi, AIR 1976
SC 2547, this Court observed that it must be borne in mind that H
234 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A in cases where there is any conflict between the views
expressed by larger and smaller Bench of this Court, the court
cannot disregard or skirt the views expressed by the larger
Bench.
B 25. In Smt. Triveniben Vs. State of Gujarat, AIR 1989 SC
1335, this Court considered the issue and observed as under:
" ...... The practice over the years has been that a larger
bench straightway considers the correctness of and if
necessary overrules the view of a smaller bench. This
C practice has been held to be a crystallised rule of law in a
recent decision by a Special Bench of seven learned
Judges. In A. R. Antu/ay v. R. S. Nayak, AIR 1988 SC
1531, Sabyasachi Mukharji, J., speaking for the majority
said (at p. 1548 of AIR) :
D
'The principle that the size of the bench whether it is
comprised of two or three or more judges does not matter,
was enunciated in Young v. Bristol Aeroplane Ltd., (1944-
2 All ER 293) (supra) and followed by Justice Chinnappa
Reddy in Javed Ahmad Abdul Hamid Paw/a v. State of
E
Maharashtra, (AIR 1985 SC 231), where it has been held
that a Division Bench of two judges, has not been followed
by our Courts.
xxxx xXxx xxxx xxxx xxxx
F
The law laid down by this Court is somewhat different.
There is a hierarchy within the Court itself here where
larger benches overrule smaller benches. See M.attulal v.
Radhey Lal, AIR 1974 SC 1596, Union of India v. K. S.
G Subramanian, AIR 1976 SC 2433 at 2437; and State of
UP. v. Ram Chandra Trivedi, AIR 1976 SC 2547 at p.
2555. This is the practice followed by this Court and now
it is a crystallised rule of law.'
The answer to the question posed in Javed Ahmad case
H thus stands concluded and it is now not open to any one
PYARE MOHAN LAL v. STATE OF JHARKHAND & 235
ORS. [DR. B.S. CHAUHAN, J.]
to contend that a bench of two judges cannot be overruled A
by a bench of three judges. We must regard this as a final
seal to the controversy."
26. In view of the above, the law can be summarised to
state that in case there is a conflict between two or more
B
judgments of this court, the judgment of the larger Bench is to
be followed. More so, the washed off theory does not have
universal application. It may have relevance while considering
the case of government servant for further promotion but not in
a case where the employee is being assessed by the
Reviewing Authority to determine whether he is fit to be retained
c
in service or requires to be given compulsory retirement, as the
Committee is to assess his suitability taking into consideration
his "entire service record".
27. The instant case is to be examined in the light of the D
aforesaid settled legal propositions.
28. Some of the entries in the ACRs' of the petitioner of
the last years, which are relevant for this purpose are being
mentioned here as under:
E
Year Remarks
1996-97 (i) Knowledge - Average
(ii) Promptness in disposal - Out turn Poor
F
(iii) Net Result - Average
1997-98 (i) Promptness in Disposal - Average
(ii) Efficiency - Average
G
(iii) Net result - Average officer capable
of improvement
1998-99 (i) Promptness in disposal - Average
H
236 SUPREME COURT REPORTS [2010] 11 S.C.R.
A (ii) Efficiency - Average
(iii) Net result - out-turn capable of
improvement
1999-2000 (i) Promptness in disposal - Average
B
(ii) Efficiency - Average
(iii) Reputation - Not good
Is he fit for exercise of any enhanced
c power - No
Beside these, adverse remarks made by the inspecting
Judge against the petitioner are given as under:
Year Remarks
D
30.8.1997 (i) Knowledge - Average, extensive study
required.
(ii) Promptness in disposal - Not upto
E mark
(iii) Reputation - Some whispers are there
but nothing concrete could be found.
2001-02 (i) Judgment - Average i.e. B
F
(ii) Efficiency - Average (B)
(iii) Integrity - Seriously Doubtful
29. It is evident from the aforesaid service record of the
G petitioner that he remained an average officer throughout his
service career and could never improve. His out turn had been
poor; he had been given adverse entries regarding his integrity/
reputation as not good in the years 1999-2000 and remarks
to that effect by the Inspecting Judges in 1997 and 2001-2002.
H
PYARE MOHAN LAL v. STATE OF JHARKHAND & 237
ORS. [DR. B.S. CHAUHAN, J.]
The petitioner had made a bald assertion that the adverse A
entries have not yet been communicated to him. It has been
repeatedly submitted by him that representations made by him
against the said adverse entries had not been disposed of.
Indisputably, uncommunicated adverse entries could be taken
into account for the purpose of assessing an officer for B
compulsory retirement. The petitioner has not disclosed on what
dates the representations against the adverse entries had been
made. The petitioner had not challenged the said adverse
entries, rather he considered it appropriate to challenge only
the order of compulsory retirement which has been a c
consequential effect of such adverse entries. The law requires
the Authority to consider the "entire service record" of the
employee while assessing whether he can be given compulsory
retirement irrespective of the fact that the adverse entries had
not been communicated to him and the officer had been D
promoted earlier in spite of those adverse entries. More so, a
single adverse entry regarding the integrity of an officer even
in remote past is sufficient to award compulsory retirement. The
case of a Judicial Officer is required to be examined, treating
him to be differently from other wings of the society, as he is
serving the State in a different capacity. The case of a Judicial
E
Officer is considered by a Committee of Judges of the High
Court duly constituted by Hon'ble the Chief Justice and then the
report of the Committee is placed before the Full Court. A
decision is taken by the Full Court after due deliberation on the
matter. Therefore, there is hardly any chance to make the F
allegations of non- application of mind or mala fide.
30. Be that as it may, the service record of the petitioner
revealed that he had not been promoted in the regular cadre
of the District Judge as he was not found fit for the same G
because of the adverse entries. Petitioner was promoted as
Additional District Judge on Ad hoc basis and posted in the
Fast Track Court. It was definitely not a promotion on merit
(selection). The High Court had objectively decided to
H
238 SUPREME COURT REPORTS [201 OJ 11 S.C.R.
A recommend his r,ompulsory retirement and the State Authorities
acted accordingly. No fault can be found with the decision
making process or with the decision.
31. We do not find any force in the submissions made by
8 Shri Sunil Kumar, learned senior counsel appearing for the
petitioner that the counter affidavit filed by the High Court and
the State reveal that certain reports called for from the District
Judge had been considered, though such reports were not even
available, and therefore, the affidavit to that extent is mis-
c leading. In fact, it is evident from the record that at the time of
making of the note by the Registry for the Full court, it had been
mentioned that report was still awaited. However, by the time
the Full Court was held the report had been made available and
was duly considered. Shri Ashok Mathur and Shri Anil Kr. Jha,
learned counsel appearing for the respondents had placed
D before us the original record relating to the services of the
petitioner and the report submitted by the Judicial
Commissioner, Ranchi dated 5.4.2003, who after taking into
consideration a large number of facts recorded the following
conclusion:
E
"However, on confidential enquiry I have found that his
general reputation is not so good, but still no one came to
me with any specific case against his general reputation."
Thus, the aforesaid submission made on behalf of the
F petitioner is preposterous.
32. Placing reliance on the judgments of this Court in M.S.
Bindra (supra) and Baldev Raj Chadha Vs. Union of India &
Ors., AIR 1981 SC 70, it has been canvassed on behalf of the
G petitioner that adverse entries had not been made in bona fide
manner and as per the requirement prescribed by circulars etc.
Therefore, the consequential order of compulsory retirement is
illegal. There is no factual foundation on the basis of which such
an assertion can be examined, nor there is a challenge in the
H
PYARE MOHAN LAL v. STATE OF JHARKHAND & 239
ORS. [DR. B.S. CHAUHAN, J.]"
writ petition to the said adverse entries. Petitioner sought A
quashing of order of compulsory retirement dated 20.5.2003
and not quashing of the adverse entries. Relief not specifically
sought cannot be granted by the court. Therefore, there is no
occasion for us to probe the issue further.
B
33. In view of the above, we do not find any cogent reason
to interfere with the impugned order. The petition lacks merit
and is accordingly dismissed. No costs.
D.G. Writ Petition dismissed.
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