Supreme Court of India
RAJENDRA SINGH VERMA (DEAD) THROUGH LRSversusLT. GOVERNOR OF NCT OF DELHI & ANR.
- Citation
- 2011 INSC 674
- Decided
- 12 September 2011
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
The High Court’s recommendation for compulsory retirement is binding on the Lt. Governor, compulsory retirement is not a punishment and is not subject to natural‑justice requirements, and a judicial officer’s integrity may be reassessed at any time after age 50 when fresh material arises.
Summary
The Supreme Court considered three appeals challenging the compulsory retirement of two Delhi Higher Judicial Service officers and one Delhi Judicial Service officer. The appellants argued that their cases could not be reconsidered before reaching the age of 55 after an earlier screening at age 50, that the Lt. Governor should have acted on the aid and advice of the Council of Ministers under Article 239AA(4), and that they were denied a hearing on adverse Annual Confidential Report (ACR) entries. The Court held that the High Court’s recommendation for compulsory retirement is binding on the Lt. Governor, that compulsory retirement is not a punishment and therefore not subject to the principles of natural justice, and that an officer’s integrity can be re‑examined at any time after age 50 when fresh material emerges. It further ruled that the relevant service rules (Rule 56(j), Rule 33, Rule 16(3)) permit such retirement and that a new plea under Article 136 may be entertained when it raises a pure question of law. Consequently, the appeals were dismissed.
Issues considered
- Whether a judicial officer’s case can be reconsidered for compulsory retirement before attaining the age of 55 after an earlier consideration at age 50.
- Whether the Lt. Governor may order compulsory retirement without seeking the aid and advice of the Council of Ministers under Article 239AA(4).
- Whether principles of natural justice, including the right to be heard, apply to compulsory retirement orders based on ACR entries.
- Whether compulsory retirement constitutes a punishment for the purposes of Article 311.
- Whether the applicable service rules (Rule 56(j), Rule 33, Rule 16(3) of the 1958 Rules) authorize the retirement.
- Whether a new point of law can be raised before the Supreme Court under Article 136 when not raised in the High Court.
Legislation cited
- All India Services (Death-cum-Retirement Benefits) Rules, 1958s. Rule 16(3)
- Constitution of Indias. Article 163, s. Article 233, s. Article 234, s. Article 235, s. Article 239AA(4), s. Article 51A(j)
- Delhi Higher Judicial Service Rules, 1970s. Rule 27
- Delhi Judicial Service Rules, 1970s. Rule 33
- Fundamental Ruless. Rule 56(j)
Subjects
compulsory retirementjudicial serviceannual confidential reportintegrity doubtfulArticle 235Article 239AAnatural justiceservice rulesjudicial reviewhigh court recommendation
Judgment
[2011] 12 S.C.R. 496
A RAJENDRA SINGH VERMA (DEAD) THROUGH LRS
v.
LT. GOVERNOR OF NCT OF DELHI & ANR.
(Civil Appeal No. 7781 of 2011)
SEPTEMBER 12, 2011
B
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
SERVICE LAW :
c Compulsory retirement - Challenge to - Held: Normally, ·
an aggrieved civil servant can challenge the order of
compulsory retirement on any of the grounds: (a) that the
requisite opinion has not been formed, or (b) that the decision
is based on collateral grounds, or (c) that it is an arbitrary
0 decision - If the civil servant is able to establ!sh that the
order of compulsory retirement suffers from any of these
infirmities, the court has jurisdiction to quash the same -
Administrative Law - Judicial review.
Compulsory retirement - Held: Is not considered to be
E a punishment - Un-communicated adverse remarks can be
taken into consideration while deciding the question whether
an official should be made to retire compulsorily or not -
Therefore the principles of natural justice are not attracted -
Thus, the fact that the adverse A.C.R. was communicated but
F none of the officers had an opportunity to represent before the
same was taken into consideration for passing order of
compulsory retirement, cannot at all vitiate the order of
compulsory retirement.
G Compulsory retirement - Officers of Delhi Higher Judicial
Service and Delhi Judicial Service - Rules applicable - Held:
Rule 16(3) of All India Services (Death-cum-Retirement
Benefits) Rules, 1958 would be applicable to the officers of
the Delhi Higher Judicial Service - Therefore, the matter
H 496
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 497
LT. GOVERNOR OF NCT OF DELHI
regarding pre-mature retirement of officers of the Delhi Higher A
Judicial Service who have completed 30 years of qualifying
service or attained 50 years of age, has to be reviewed in the
light of r. 16(3) of the Rules of 1958 - As regards the Officers
of Delhi Judicial Service, Fundamental Rule 56(j) shall
regulate the matter of compulsory retirement of such Officers 8
- All India Services (Death-cum-Retirement Benefits) Rules,
1958 - r.16(3) - Delhi Higher Judicial Service Rules, 1970 -
Delhi Judicial Service Rules, 1970 - Fundamental Rule 56(}).
Compulsory retirement- Stage of consideration - Officers
of Delhi Higher Judicial Service and Delhi Judicial Service C
- Held: There is no rule prohibiting consideration of the case
of an officer for compulsory retirement before he attains the
age of 55 years, even if his case has earlier been considered
at the age of 50 years - The report of the Screening
Committee dated 17. 7. 2000 not recommending premature D
retirement ''for the time being" was tentative and not final, which
will not preclude the authority concerned from passing orders
of compulsory retirement later""on - Article 235 of the
Constitution of India enables the High Court to assess the
performance of any judicial officer and exercise the power of E
compulsory retirement at any time with a view to maintain
discipline in the service - Constitution of India, 1950 - Article
235.
Compulsory retirement - Range of consideration of F
service record - Held: While considering the case of an officer
as to whether he should be continued in service or
compulsorily retired, his entire service record up to that date
on which consideration is made has to be taken into account
- The fact that an officer, after an earlier adverse entry, was G
promoted does not wipe out earlier adverse entry at all.
Annual Confidential Reports - Judicial Review of - Held:
Writing the confidential report is primarily and essentially an
administrative function - The object of writing confidential
reports and making entrie.s therein is to give an opportunity H
498 SUPREME COURT REPORTS [2011] 12 S.C.R.
A to the public servant to improve excellence - Opportunity of
hearing is not necessary before adverse remarks because
adverse remarks by themselves do not constitute a penalty
· - Natural justice - Opportunity of hearing.
Annual Confidential Reports - Purpose of - Explained
8 - constitution of India, 1950 - Article 51 (j).
CONSTITUTION OF IND/A, 1950:
Article 136 - New plea - Held: Supreme Court would not
c entertain a new plea at the hearing of the appeal under Article
136 when it is not raised in the High Court or in the petition
s.eeking leave to appeal - However, there are exceptional
cases in which the Court may permit a party to raise a new
plea - The question sought to be raised in the instant matter
is a pure question of law for which factual foundation is already
0
laid - The counsel for the parties have been permitted and
heard at great length on the new point - Therefore, having
regard to the facts of the case, the Court has permitted the
point to be raised.
E Articles 233, 234, 235 - Subordinate Judiciary - Control
over - Held: Article 235 provides that control over the
subordinate courts is vested in High Court of a State is
exclusive in nature, comprehensive in extent and effective in
operation.and is a mechanism to ensure and subserve a basic
F feature of the Constitution, i.e. independence of judiciary -
The scheme envisaged by the Constitution does not permit
the State to encroach upon the area reserved by Articles 233,
234 and first part of Article 235 either by legislation or rules
or executive instructions - The High Court alone is the sole
G authority competent to initiate disciplinary proceedings
against subordinate Judicial Officers or to impose various
punishments including the order of compulsory retirement on
verification of the service record - Basic structure theory.
Article 235 rlw Articles 163 and 239AA -
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 499
.. LT. GOVERNOR OF NCT OF DELHI
Recommendation of High Court to Governor - Nature of - A
Held: The Governor, under the scheme of Articles 233,234
and 235 of the Constitution cannot refuse to act in terms of
the recommendations made by the High Court on the ground
that he is not aided and advised by the Council of Ministers
- Governor has to act on the recommendation of the High B
Court and that is the broad basis of Article 235 - In the matter
of compulsory retirement of a Judicial Officer, the Governor
cannot act on the aid and advice of Council of Ministers but
has to act only on the recommendation of the High Court -
Thus, the order of the Lt. Governor compulsorily retiring the c
Judicial Officers without seeking aid and advice of his Council
of Ministers is neither ultra vires nor illegal and is rightly
sustained by the High Court.
ADMINISTRATION OF JUSTICE:
D
Judicial service - Held: Is not a service in the sense of
an employment as is commonly understood - Judges are
discharging, their functions while exercising the sqyereign
judicial power of the State - Their honesty and integrity is
expected to be beyond doubt - The nature of judicial service E
is such that it cannot afford to suffer continuance in service
of persons of doubtful integrity or who have lost their utility -
Judiciary.
WORDS AND PHRASES :
F
Expressions 'control', 'vests', and 'material' - Connotation
of.
The appellant (deceased) in C.A. Nos. 7781 of 2011,
who joined the Delhi Higher Judicial Service on 9.3.1995 G
when he was aged about 45 years, and the appellants in
C.A. Nos. 7782 of 2011 and 7783 of 2011, who joined the
Delhi Judicial Service on 5.5.1972 and 28.1.1978
respectively, were, on the basis of their poor service
H
500 SUPREME COURT REPORTS [2011) 12 S.C.R.
A record and the Annual Confidential Reports wherein they
were graded as " 'C' integrity doubtful", prematurely
retired from service by order dated 27.9.2001. Their writ
petitions having been dismissed by the High Court, they
filed the appeals.
B
The questions for consideration before the Court
were: (i) whether the cases of the appellants for
compulsory retirement, could have been considered
again before they reached the age of 55 years, when the
C Screening Committee had already considered their cases
for compulsory retirement on their attaining the age of 50
years on 17.7. 2000, and had not recommended their
compulsory retirement which recommendation was
accepted by the Full Court of the High Court; and (ii)
whether the order passed by the Lt. Governor
D compulsorily retiring the appellants from service without
seeking aid and advice of his Council of Ministers as
required under Article 239 (AA)(4) of the Constitution was
ultra vires and illegal.
E Dismissing the appeals, the Court
HELD: 1.1 Normally, an aggrieved civil servant can
challenge the order of compulsory retirement on any of
the grounds: (a) that the requisite opinion has not been
formed, or (b) that the decision is based on collateral
F grounds, or (c) that it is an arbitrary decision. If the civil
servant is able to establish that the order of compulsory
retirement suffers from any of these infirmities, the court
has jurisdiction to quash the same. [para 23] [536-G]
G 1.2 By virtue of r. 27 of the Delhi Higher Judicial
Service Rules, 1970, r. 16 (3) of the All India Services
(Death-cum-Retirement Benefits) Rules, 1958 ('the Rules
of 1958') would be applicable to the officers of the Delhi
Higher Judicial Service. Therefore, the matter regarding
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 501
LT. GOVERNOR OF NCT OF DELHI
pre-mature retirement of officers of the Delhi Higher A
Judicial Service who have completed 30 years of
qualifying service or attained 50 years of age, has to be
reviewed in the light of r. 16 (3) of the Rules of 1958.
Similarly, in view of r. 33 of Delhi Judicial Service Rules,
1970, Fundamental Rule 56 0), which is for the time being B
in force and applicable to Government servants holding
corresponding posts envisaged under the Delhi Judicial
Service Rules, 1970, shall regulate the matter of
compulsory retirement of officers of Delhi Judicial
Service. The screening Committee of the High Court also c
by its resolution dated 15.12.1992 decided, "Government
· Rules be applied." FR 56(j) gives absolute right to the
appropr\ate authority to retire any Government servant
who has. entered the service before attaining the age of
35 years, after he has attained the age of 50 years and in
0
other cases after he has attained the age of 55 years ..
[para 27-30] [539-H; 540-A-C, F-H; 541-A-B-F-H; 542-A]
2.1 There is no rule prohibiting consideration of the
case of an officer for compulsory retirement before he
attains the age of 55 years, even if his case has earlier E
been considered at the age of 50 years. There is nothing
in the Delhi Judicial Service Rules or Delhi Higher
Judicial Service Rules or the Indian Administrative
Service Rules laying down a prohibition that if the case
of an officer for compulsory retirement is considered at F
the age of 50 years, his case cannot be reconsidered till
he attains the age of 55 years. [para 34] [544-C-E]
Government of T. N. Vs. P.A. Manickam 1996 (2)
SCR 1137 = 1996 (8) sec 519 -·relied on
G
State of U.P. Vs. Chandra Mohan Nigam and Others
1978 ( 1 ) SCR 521 =(1977) 4 SCC 345; and Haryana State
Electricity Board vs. K. C. Gambhir (1997) 7 SCC 85 -
referred to.
H
502 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 2.2 The Screening Committee of the High Court
reviewed the cases of several judicial officers, including
the appellants, in its meeting held on 17.7.2000 and gave
its report: "We do not find, for the time being, any officer
who can be retired prematurely in public interest." This
B report was accepted in the meeting of the Full Court held
on 22.7.2000. The record indicates that the case of each
officer was not considered individually. No reasons could
be recorded by the Screening Committee as to how earlier
entries adversely reflecting on the integrity of the
c appellants, were dealt with or viewed. Under the
circumstances, the observation, "We do not find, for the
time being, any officer who can be retired prematurely in
public interest" will have to be regarded as tentative and
not final in nature. Thus, on the basis of the service
record, the three judicial officers could have been retired
0
compulsorily from service but a tentative decision was
taken not to retire them at that point of time. But, this
tentative decision would not preclude the authority
concerned from passing orders ot compulsory retirement
later on. When the Screenin_g_Commiftee stated that it did
E not find for t~-being any officer who could be retired
_prematurely in public interest, it meant that the cases of
all the officers were deferred to be considered in near
future. This is not a case wherein a review had taken
place and a positive final decision to continue the
F appellants in service, was taken by the Screening
Committee. [para 34-39,40] [543-E-H; 544-A; 548-C; 550-
B-C]
2.3 Thus, after the so-called review of the cases of
G the three appellants, in July, 2000, their cases wer~ rightly
reviewed again and orders retiring them compulsorily
from service were rightly passed against them. [para 41]
[350-E-F]
2.4 Apart from the poor judicial performance, the
H appellants were also retired compulsorily from service, on
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 503
LT. GOVERNOR OF NCT OF DELHI
the ground that their integrity was doubtful. The mandate A
of Article 235 of the Constitution is that the High Court
has to maintain constant vigil on its subordinate judiciary.
[para 43- 44] [553-H; 554-A-C]
High Court of Judicature at Bombay through its 8
Registrars Vs. Shirishkumar Rangrao Patil and Another 1997
( 3) SCR 1131 = (1997) 6 SCC 339; Union of India Vs. M.E..
=
Reddy 1~80 ( 1 ) SCR 736 (1980) 2 sec 15 - relied on
2.5 Judicial service is. not a service in the sense of
an employment as is commonly understood. Judges are C
discharging their functions while exercising the
sovereign judicial power of the State. Their honesty and
integrity is expected to be bE!yond 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 D
cannot afford to suffer continuance in service of persons
of doubtful integrity or who have lost their utility. Article
235 C>f the Constitution of India enables the. High Court
to assess the performance of any judicial officer and
exercise the power of compulsory retirement at any time E
with a view to maintain a discipline in the service, and this
constitutional power of High Court cannot_ be
circumscribed by any rule and order. [~ara-45t{ss-4-D-G]
High Court of Judicature at Bombay Through its
Registrar Vs. Shirishkumar Rangrao Patil and Another 1997 F
( 3) SCR 1131 = 1997 (6) SCC 339; Chandra Singh and
others Vs. State of Rajasthan & another 2003 (1) Suppl.
=
SCR 67 4 (2003) 6 SCC 545; Nawal Singh vs. State of U.P.
=
and another 2003 (3) Suppl. SCR 1046 (2003) 8 SCC 117 G
- relied on.
2.6 In the instant case, in respect of all the three
officers, after the previous consideration in July, 2000,
new material in the form of ACR for the year 2000 " 'C'
integrity doubtful" had come into existence and had H
504 SUPREME COURT REPORTS [2011) 12 S.C.R.
A become a part of their respective service records when
the Full Court in its meeting held on 13.9.2001 recorded
their ACRs for the year 2000. Thus, the consideration by
the Committee constituted for the purpose of evaluating
the cases of the officers to ascertain whether they should
B be compulsorily retired, was subsequent in point of time,
namely, on 21.09.2001 and, as such, it will be fully
covered by the exception spelt out in Chandra Mohan
Nigam's Case itself in regard to consideration of cases
again before the age of 55 years. [para 47) [555-E-H]
c 2.7 The consideration of the cases of the three
judicial officers on the basis of ACRs dated September
13, 2001 recorded by the Full Court of the Delhi High
Court is not a review of the earlier decision of July, 2000.
It is a fresh consideration. It is review of the record of
D service of the· officers and not review of the earlier
decision and such review is not only permissible but is
perfectly legal and valid. [para. 47) [555-G-H; 556-A]
;7
Daman Singh and Others Vs. State· of Punjab and
E Others, 1985 ( 3) SCR 580 = (1985) 2 SCC 670, State of
Punjab and Another Vs. H.B. Malhotra, 2006 (2) Suppl.
SCR 391 = (2006) 11 SCC 169; Mohd. Akram Ansari Vs.
Chief Election Officer and Others, · 2007 (12 ) SCR 901
=(2008) 2 SCC 95; and Ex-Constable Ramvir Singh Vs.
F Union of India and Others, 2008 (17 ) SCR 1112 = (2009) 3
SCC 97; Tej Pal Singh Vs. State of U.P. & Another, 1986 (3)
SCR 428 = (1986) 3 SCC 604; and T. Lakshmi Narasimha
Chari Vs. High Court of A.P. and Another, 1996 (2) Suppl.
SCR 595 = (1996) 5 sec 90 - cited.
G 3.1 As regards the plea that the Lt. Governor could
not have passed orders retiring the appellants
compulsorily from service on the recommendation of the
High Court arid without seeking aid and advice of his
Council of Ministers, ordinarily the Supreme Court would
H not entertain a new plea at the hearing of the appeal
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 505
LT. GOVERNOR OF NCT OF DELHI
under Article 136 when it is not raised in the High Gourt A
or in the petition seeking leave to appeal. However, there
are exceptional cases in which this Court may permit a
party to raise a new plea. The question sought to be
raised in the instant matter is a pure question of law for
which factual foundation is already laid. Therefore, B
having regard to the facts of the ~ase, this Court has
permitted the point to be raised. [para 52- 53] [558-D-E;
559-8-F]
· 3.2 Article 163 of the Constitution makes provision C
that Council of Ministers has to aid and advice the
Governor. Article 239AA enacts special provisions with
respect to Delhi. A meaningful and conjoint reading of
Article 163 makes it clear that the Governor has to act on
aid and advice of the Council of Ministers with the Chief
Minister as the head except in so far as he is by or under D
the Constitution required to exercise his functions or any
of them in his discretion. In view of the provisions of sub-
Article (4) of Article 239AA, the Lt. Governor has to take
aid and advice of the Council of Ministers in the exercise
of his functions in relation to matters with respect to E
which the Legislative Assembly has power to make laws.
[para 55- 57] [560-A-E; 561-B-C]
3.3 .Article 235 provides that the control over the
subordinate courts is vested in the High Court o·f a State. F
The "control" vested in the High Court is exclusive in
nature, comprehensive in extent and effective in
operation and is a mechanism to ensure and subserve a
basic feature of the Constitution, i.e., independence of
judiciary. Among others things, it includes premature or G
compulsory retirement of Judges of the District Courts
and of Subordinate Courts. [para 57] [561-C-F]
•
=
Shamsher vs. State of Punjab_ 1975 (1) SCR 814 (1974)
2 sec 831 - followed.
H
506 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 3.4 The scheme envisaged by the Constitution does
not permit the State to encroach upon the area reserved
by Articles 233, 234 and first part of Article 235 either by
legislation or rules or executive instructions. [Para 58)
[562-C]
B
3.5 While the High Court retains the power of
disciplinary control over the subordinate judiciary
including power to initiate disciplinary proceedings,
suspend them during enquiries and impose punishment
on them, but when it comes to the question of dismissal,
C removal or reduction in rank or termination of services
of judicial officers on any count whatsoever, the High
Court becomes the recommending authority and cannot
itself pass the orders. The formal order to give effect to
such a decision has to be passed by the State Governor
D on the recommendations of the High Court. In
disciplinary proceedings if an action is taken by the High
Court against the judicial officer the recommendations
made by the High C_ourt bind the Governor and he is left
with no discretion except to act according to the
E recommendations. The Governor, under the scheme of
Articles 233, 234 and 235 of the Constitution cannot
refuse to act in terms of the recommendations made by
the High Court on the ground that he is not aided and
advised by the Council of Ministers and this is the true
F import o·f total control of the High Court over the
Subordinate Judiciary. The recommendation of the High
Court is binding on the State Government/Governor and
in the matter of compulsory retirement of a Judicial Officer
the Governor cannot act on the aid and advice of Council
G of Ministers but has to act only on the recommendation
of the High Court.[para 59, 66 and 81) [562-E-H; 563-A-
B; 565-D; 579-B]
=
Shamshervs. State of Punjab 1975 (1) SCR 814 (1974)
H 2 SCC 831; Ba/dev Raj Gu/iani Vs. The Punjab and Haryana
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 507
LT. GOVERNOR OF NCT OF DELHI
=
High Court & Others 1977 ( 1 ) SCR 425 (1976) 4· SCC A
201; M. M. Gupta and Others Vs. State of Jammu & Kashmir
=
and Others 1983 ( 1) SCR 593 (1982) 3 sec 412- relied
on
State of Haryana Vs. lnder Prakash Anand H.C.S. & 8
Others, 1976 Suppl. SCR 603 =
(1976) 2 SCC 977;
Registrar, High Court of Madras Vs. R. Rajaiah, 1988 ( 1 )
=
Suppl. SCR 332 (1988) 3 SCC 211; Registrar (Admn.),
High Court of Orissa, Cuttack Vs. Sisir Kanta Satapathy
(Dead) by LRs. & Another, 1999 ( 2 ) Suppl. SCR 473 =
(1999) 7 SCC 725 State of U.P. Vs. Batuk Deo Pati Tripathi C
(1978) 2 SCC 102 ; And Tej Pal Singh Vs. State of U.P. and
=
Another, 1986 ( 3 ) SCR 428 (1986) 3 SCC 604 - referred
to.
3.7 Thus, the order of the Lt. Governor compulsorily D
retiring the appellants without seeking aid and advice of
his Council of Ministers is neither ultra vires nor illegal
.and is rightly sustained by the High Cgurt. [Para 81] [579-
C-~ . -
E
4.1 So far as the plea that the appellants were made
to retire compulsorily without affording them an
opportunity to make representation against the ACR for
the year 2000 is concerned, suffice it to say that an order
of compulsory retirement is not a punishment and does F
not have adverse consequence and, therefore, the
principles of natural justice are not attracted. However,
when the order of compulsory retirement is passed, the
authority concerned has to take into consideration the
whole service record of the officer concerned which
would include non-communicated adverse remarks also. G
What is relevant to notice is that this Court has held that
an un-communicated adverse A.C.R. on record can be
taken into consideration and an order of compulsory
retirement cannot be set aside only for the reason that
such un-communicated adverse entry was taken into H
508 SUPREME COURT REPORTS [2011] 12 S.C.R.
A consideration. Therefore, the fact that the last adverse
A.C.R. entry, " •e• grade doubtful" for the year 2000, was
communicated but none of the appellants had an
opportunity to represent before the same was taken into
consideration for passing order of compulsory
s retirement, cannot at all vitiate the order of compulsory
retirement. The authorities concerned were justified in
relying upon the adverse entry made against the
appellants in t-he year 2000, alongwith other materials,
indicating that their integrity was doubtful. [para 91-92]
c [584-F-H; 585-A-B]
State of U. P. vs. Shyam Lal Sharma AIR 1971 SC 2151;
State of U.P. and Another Vs. Bihari Lal 1994 (3) Suppl.
SCR 108 = (1994) Supp (3) SCC 593; Union of India vs.
V.P. Seth and another 1994 sec (L&S) 1052; Baikuntha
D Nath Das vs. Chief District Medical Officer, Baripada 1992 (1)
SCR 836 = (1992) 2 sec 299; Post!: and Telegraphs Board
vs. C.S.N. Murthy 1992 (2) seR 338 =(1992) 2 sec 317;
_. Union of India Vs. Col. J.N. Sinha ,and Another 1971 (1)
SCR 791 =1970 (2) SCC 458; Brij Mohan Singh Chopra Vs.
E State of Punjab, 1987 (2) SCR 583 = (1987) 2 SCC 188 ;
and Union of India Vs. M.E. Reddy, 1980 (1) SCR 736 =
(1980) 2 sec 15 - relied on.
Baidyanath Mahapatra Vs. State of Orissa and Another
F 1989 (3) SCR 803 =(1989) 4 SCC 664; S. Maheswar Rao
Vs. State of Orissa and Another_1989 Supp (2) SCC 248;
and V.K. Jain Vs. High Court of Delhi through Registrar
General and Others, 2009 (11) SCR 907 =(2008) 17 SCC
538 - distinguished.
G 4.2 "Opportunity of hearing is not necessary before
adverse remarks, because adverse remarks by
themselves do not constitute a penalty. Writing the
confidential report is primarily and essentially an
administrative function. Normally tribunals/courts are
H loath to interfere in cases of complaints against adverse
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 509
LT. GOVERNOR OF NCT OF DELHI
remarks and to substitute their own judgment for that of A
the reporting or reviewing officers. It is because these
· officers alone are best suited to judge the qualities of
officials working under them and about their competence
in the perforinance of official duties entrusted to them.
Despite fear of abuse of power by prejudiced superior B
officers in certain cases, the service record contained in
the confidential reports, by and large, reflects the real
personality of the officer. The object of writing
confidential reports and making entries therein is to give
an opportunity to the public servant to improve c
excellence. [para 90] [583-E-H; 584-A-B]
4.3 Article 51 A(j) of the Constitution enjoins upon
every citizen the primary duty to constantly endeavour
to prove excellence, individually and collectively, as a
member of the group. Therefore, the officer entrusted with D
the duty to write C.R. has a public responsibility and trust
to write the C.R. objectively; fairly and dispassionately
while giving, as;;.accurately as possible the statement;;of
facts on an overall assessment of performance of the
subordinate officer. [para 90] [584-C-D] E
5.1 As regards applicability of FR 56 (j) read with r.33
of DJS Rules after the introduction of r. 31A of the DJS
rules, the newly added rule does not deal with the aspect
of compulsory retirement at all. In terms of r. 33 the
subject of compulsory retirement did remain residuary F
even after the introduction of r. 31A in DJS Rules and,
therefore, the question of premature retirement will have
to be considered only under FR 56(j) and not under the
newly added r. 31A. Thus, consideration of the case of
the appellant for premature retirement before he attained G
the age of 58 years cannot be regarded as illegal in any
manner at all. [para 109) [597-8-0]
All India Judge's Association Vs. Union of India & Ors.,
(1992) 1 SCC 119, All India Judges' Association and others H
510 SUPREME COURT REPORTS [2011] 12 S.C.R.
A vs. Union of India and others 1993 (1) Suppl. SCR 749 =
(1993) 4 SCC 288; Nawal Singh Vs. State of U.P. and another
2003 (3) Suppl. SCR 1046 = (2003) 8 SCC 117; and
Ramesh Chandra Acharya Vs. Registrary, High Court of
Orissa and Another 2000 ( 1 ) Suppl. SCR 456 = (2000) 6
s sec 332 - relied on
State of Maharashtra Vs. Ramdas Shrinivas Nayak &
Anr., 1983 (1) SCR 8 =(1982) 2 SCC 463, Shankar K.
Manda/ & Ors. Vs. State of Bihar & Ors., 2003 (3) SCR 796 =
(2003) 9 SCC 519, Mount Carmel School Society Vs. ODA,
C 2007 (13) SCR 876 =(2008) 2SCC 141, and Bhavnagar
University Vs. Pa/itana Sugar Mill (P) Ltd. & Ors., 2002 (4)
Suppl. SCR 517 = (2003) 2SCC 111 ·cited.
6.1 While considering the case of an officer as to
D whether he should be continued in service or
compulsorily retired, his entire service record upto that
date on which consideration is mr\de has to be taken into
account. What weight should be attached to earlier
entries as coinpared to recent entries is a matti:fr of
evaluation, but there is no manner of doubt that
E consideration has to be of the entire service record. The
fact that an officer, after an earlier adverse entry, was
promoted does not wipe out earlier adverse entry at all.
[Para 115] [600-F-G]
F State of Orissa and Others Vs. Ram Chandra Das, 1996
(2) Suppl. SCR 559 = (1996) 5 SCC 331 - relied on.
6.2 The appellant in CA No. 7782 of 2011 was
appointed as a Civil/Sub-Judge in the Subordinate
Judicial Services on May 5, 1972. He was promoted to the
G Higher Judicial Services as Additional District and
Sessions Judge on November 1, 1989, but, was reverted
to Subordinate Judicial Services by order dated February
15, 1995. For two years i.e~ 1994 and 1995, his ACRs "C,
integrity doubtful" was upheld. For the year 1996, he was
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 511
LT. GOVERNOR OF NCT OF DELHI
graded as "C", i.e., below average. Thus, the service A
record of the appellant indicates that he was ~n ..officer
"below average" or at the best an average-officer and his
integrity was doubtful. The High Court was justified in
taking into consideration the adverse ACRs reflecting on
his integrity for the years 1993, 1994 and 2000 while B
considering the question whether it was expedient to
continue him in service on his attaining the age of 50
years. Similarly, in so far as appellant in CA No. 7783 of
2011 is concerned, he joined Delhi Judicial Serv.ice on
28.1. 1978. Admittedly, l:tis work and conduct from 1978 c
to 1992 was graded as "B", which means his
performance was that of an. average officer. For the year
1994 -1995 the Full Court recorded his ACR as 'C'
(Integrity Doubtful). Again iri the year 2000, he was
categorized as an officer having doubtful integrity. The 0
appellant in C.A. 7781 of 2011, was appointed in the year
1995 and as on 21.9.2001 his ACRs for six years were
available. The report dated 21.9.2001 of the Screening
Committee further reveals that" it had considered the
entire record relevant to his work and conduct and found E
that throughout his career, he had been assessed and
graded either as an "average officer" or "officer below
average" and in the year 2000, his integrity was found to
be doubtful. The record further shows that the judicial
work was withdrawn from him with effect from 8-12-2000
upon the recommendation of the Committee of Judges F
in its report dated 6-12-2000. Later on, all work including
administrative work was withdrawn from him. The service
record of the officer is so glaring that on tile basis thereof
any prudent authority could have come to a reasonable
conclusion that it was not in the public interest to G
continue him in service and that he should be
compulsorily retired from service. [para 116-117 and 131-
132] [614-A-H; 601-F; 615-A-D]
6.3 Having regard to the service record of all the H
512 SUPREME COURT REPORTS [2011] 12 S.C.R.
A __three officers concerned, the High Court was justified in
compulsorily retiring them from service. [para 118] [603-
C]
S.D. Singh vs. Jharkhand High Court through R.G. and
B others 2005 (5 ) Suppl. SCR 562 =
(2005) 13 SCC 737 -
relied on
7.1 As regards the argument of non-supply of
material on the basis of which "'C' Doubtful Integrity" was
awarded to the appellants, while considering the case of
c 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.
Contextually the 'material' relates to substance, matter,
D data, information etc. 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 the judicial officer concerned does not carry
E good reputation, such discreet inquiry alid/or verbal
repeated complaints would constitute material on the
basis of which ACR indicating that the integrity of the
officer is doubtful can be recorded. [para 119 and 123]
[S03-D-F; 605-E-G]
f. R.L. Butai/ Vs. Union of India and Others, (1970) 2 SCC
876;High Court of Punjab & Haryana through R.G. Vs. lshwar
Chand Jain and Another, 1999 (2) SCR 834 = (1999) 4 SCC
579 -relied on
7.2 The duty conferred on the appropriate authority
G 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. However,
H·
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 513
LT. GOVERNOR OF NCT OF DELHI
while undertaking judicial review, the Court in an A
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 B
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 c
adopted in recording such ACR. [para 122-123) [604-H;
605-A-E-H; 606-A-B]
7.3 From the admitted facts in the instant matter, it is
evident that there was first a report of the Inspecting
Judge to the effect that he had received complaints D
against the appellants reflecting on their integrity. It has
to be legitimately presumed that the Inspecting Judge,
before ma_king such remarks of serious natur~, acted
responsibly. Thereafter, the Full Court considered the
entire issue and endorsed the view of the Inspecting E
Judge while recording the ACR of the appellants. When
the suspicion arises regarding integrity of a judicial
officer, whether on the basis of complaints or information
received from other ,sources and a committee is formed
to loo:< into the sartje, as was done in the instant case, F
and the committee undertakes the task by gathering
information from various sources as are available to it, on
the basis of which a perception about the judicial officer
concerned is formed, it would be difficult for the High
Court either under Article 226 or for this Court under G
Article 32 to interfere with such an exercise. Such an
opinion and impression formed consciously and
rationally after the enquiries would definitely constitute
material for recording adverse report in respect of an
officer. Such an impression is not readily formed but after H
514 SUPREME COURT REPORTS [2011) 12 S.C.R.
A Court's circumspection, deliberation, etc. and, thus, it is
a case of preponderance of probability for entertaining a
doubt about integrity of an official which is based on
substance, matter, information etc. Therefore, it cannot be
said that the adverse entries were recorded in the ACR
B of the appellants without material or basis. [para 124]
[606-C-H; 607 -A]
8.1 As regards the plea on behalf of the deceased
appellant that the recording of AC Rs for the years 1997,
1998 and 1999 in one go is arbitrary and constitutes
C malice in law, normally, entries in confidential records
should be made within a specified time soon following
the end of the period under review and general!~, within
three months from the end of the year. Delay in carrying
out inspections or making entries frustrates the very
D purpose sought to be achieved. However, at the same
time it is not possible to lay down as an absolute
proposition of law that irrespective of good, cogent,
pl~usible, and acceptable reasons, recording o_f. ACRs of
number of years at a time should always be regarded as
E illegal and bad for all purposes. [para 125-126] [607-B;
608-C-D; 609-A]
=
Dev Dutt Vs. Union of India, 2008 (8) SCR 174 2008
(8) SCC 725, and Abhijit Ghosh Dastidar Vs. Union of India,
F 2009 (16) sec 146 - cited
8.2 In the instant case, from the record it is evident
that all the columns of ACR forms for the years 1997, 1998
and 1999 we-re filled up by the Inspecting Judges
respectively well in time for all these years, but they had
G not recorded any remarks concerning the judicial
reputation for honesty and impartiality of the officer and
as a corollary the column regarding "Net Result" for these
years were left blank by them. Instead, the Inspecting
Judges had observed that these remarks be recorded by
H the Full Court. Because of the course adopted by the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 515
LT. GOVERNOR OF NCT OF DELHI
Inspecting Judges, the consideration of recording the A
ACR was deferred by the Full Court and. ultimately, in its
meeting held on 21.4.2001 in respect of the deceased
officer, the Full Court referred the case to the Committee
constituted to look into the allegations against the judicial
Officers. The Committee gave its report dated 6.12.2001 B
to the effect that tile information gathered by the
Committee from various sources confirmed the allegation
of doubtful integrity against the officer. The matter was
thereafter placed before the Full Court and the ACRs of
the officer were recorded for the years 1997, 1998 and c
1999 on 13.12.2000. Thus, there is sufficient explanation
for recording the ACRs of thr~e y~ars at one time. Writing
of ACRs for the years 1-997. 1998 and 1999 at one time
as also communication of the same at one time was
justified in the circumstances of the case. [para 126-128] 0
[608-C-D; 609-A-D-F-H; 610-A; 611-A-B]
8.3 Even otherwise, the ACRs for the year 1999 were
recorded with promptitude;,and withput any delay in the
year 2000, and the officer was assessed as "C Below
Average". The ACRs for the year 1999 could have been E
taken into consideration while assessing the service
record of the officer for determining the question whether
he was fit to be continued in service on his attaining the
age of 50 years. [Para 127] [610-E-G]
F
9. As regards, the plea of the appellant in C.A. No.
7782 of 2011 that he being a member of the Delhi Higher
Judicial Service FR 56 (j) was not applicable to his case,
it is significant to notice that under both the Rules there
is power to compulsorily retire a judicial officer after he
attains the age of 50 years in public interest. Therefore, G
whether the Lt. Governor had invoked FR 56 (j) or Rule
27 of the DHJS Rules is of little consequence. In fact, for
the years 1993 and 1994 the officer had suffered adverse
ACR 'C' "Integrity Doubtful." In any view of the matter, it
is settled law that when power can be traced to a valid H
516 SUPREME COURT REPORTS [2011) 12 S.C.R.
I
A source, the fact that the power is purported to have been
exercised under a wrong provision of law, would not
invalidate exercise of power. [para 130) [612-B-G]
. 10.1 Having regard to the entire service record of the
three officers, this Court is of the opinion that the
8 competent authority was justified in passing the order
retiring them compulsorily from service. Keeping in view '
the comprehensive assessment of service record, the;
Screening Committee rightly recommended that the three
officers should be prematurely retired in public interest
C forthwith. The Full Court after considering the report of
the Screening Committee and also after taking into
consideration the record of work and conduct, general
reputation and service record of the three officers
correctly resolved that it be recommended to the Lt.
D Governor of NCT of Delhi to retire the judicial officers
forthwith in public interest. [para 135) [616-E-H; 617-A]
10.2 On a careful consideration of the entire material,
it must be held that tne evaluation made by the
E Committee/Full Court, forming their unanimous opinion,
is neither so arbitrary nor capricious nor can it be said
to be so irrational, so as to shock the conscience of this
Court to warrant or justify any interference. There is
absolutely no need or justification for this Court to
F interfere with the impugned proceedings. [para 136) [617 -
D-E]
Madan Mohan Choudhary Vs. State of Bihar 1999 (1)
=
SCR 596 1999 (3) SCC 396; High Court of Punjab &
Haryana Vs. l.C. Jain 1999 (2) SCR 834 = 1999 (4) SCC
G 579; High Court of Judicature at Allahabad Vs. Samam Singh
& Another 1999 (5) Suppl. SCR 344 = 2000 (2) SCC 339;
Bishwanath Prasad Singh Vs. State of Bihar 2000 (5) Suppl.
=
SCR 718 2001 (2) SCC 305; State of U.P. Vs Yamuna
Shanker Mishra 1997 (2) SCR 371 = 1997 (4) SCC 7;
H Registrar, High Court of Madras Vs. R. Rajiah 1988 .(1)
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 517
LT. GOVERNOR OF NCT OF DELHI
=
Suppl. SCR 332 1988 ( 3 ) SCC 211; M.S. Bindra Vs. A
Union of India & Others 1998 (1) Suppl. SCR 232 = 1998
(7) SCC 310; Ram Ekbal Sharma Vs. State of Bihar &
=
Another 1990 (2) SCR 679 1990 (3) SCC 504 Anoop =
=
Jaiswal Vs. Govt. of India 1984 (2) SCR 453 1984 (2)
SCC 369; and Padam Singh Vs. Union of India & Others, B
2000 (Ill) AD (Delhi) 430 (D.8.)-cited.
Case Law Reference:
1992 (1) SCR 836 cited para 6
1999 (1) SCR 596 cited para 6 c
1999 (2) SCR 834 cited para 6
1999 (5) Suppl. SCR 344 cited para 6
2000 (5) Suppl. SCR 718 cited ·para 6
D
1997 (2) SCR 371 cited para 6
1988 (1) Suppl. SCR 332 cited para 6
-·
1998 (1) Suppl. SCR 232 cited para 6
1990 (2) SCR 679 cited para 6 E
1984 (2) SCR 453 cited para 6
2000 (Ill) AD (Delhi) 430 (D.B.) cited para 6
1978 (1) SCR 521 referred to para 24
F
and 40
1996 (2) SCR 1137 relied on para 25
and 44
2003 (3) Suppl. SCR 1046 relied on para 25
G
(1997) 1 sec 85 referred to para 25
and 40
1996 (2) SCR 1137 relied on para 41
H
518 SUPREME COURT REPORTS [2011) 12 S.C.R.
A "1980 (1) SCR 736 relied on para 42
2003 (1) Suppl. SCR 674 relied
..
on para 45
.2003 (3) Suppl. SCR 1046 relied on para 45
1983 (1) SCR 593 relied on para 49
B 1985 (3) SCR 580 cited para 50
2006 (2) Suppl. SCR 391 cited para 50
2007 (12) SCR 901 cited para 50
C 2008 (17) SCR 1112 cited para 50
1975 (1) SCR 814 followed para 51
and 57
1976 Suppl. SCR 603 relied on para 51
D 1977 (1) SCR 425 relied on para 51
1988 (1) Suppl. SCR 332 relied on para 51
and 75
1999 (2) Suppl. SCR 473 relied on para 51
E 1986 (3) SCR 428 cited para 51
and 80
1996 (2) Suppl. SCR 595 cited para 51
1994 (3) Suppl. SCR 108 relied on para 91
F 1994 sec (L&S) 1052 relied on para 92
1992 (1) SCR 836 relied on para 92
1992 (2) SCR 338 relied on para 92
1989 (3) SCR 803 distinguished para 93
G 1989 Supp (2) sec 248 distinguished para 94
2009 (11 ) SCR 907 disitinguished para 95
1971 (1) SCR 791 relied on para 96
H
RAJENDRA SINGH VERMA (DEAD} THROUGH LRS v. 519
LT. GOVERNOR OF NCT OF DELHI
1987 (2) SCR 583 relied on para 97 A
1980 (1) SCR 736 relied on para 97
1983 (1) SCR 8 cited para 101
2003 (3) SCR 796 cited para 101
B
2007 (13 ) SCR 876 cited para 101
2002 (4) Suppl. SCR 517 cited para 101
1991 (2) Suppl. SCR 206 relied on para 102
1993 (1) Suppl. SCR 749 relied on para 102 c
2000 (1) Suppl. SCR 456 relied on para 108
1997 (3) SCR 1131 relied on para 11,5 .
1996 (2) Suppl. SCR 559 relied on para 115
D
2005 (5) Suppl. SCR 562 relied on para 118
(1970) 2 sec 876 relied on para 120
1999 (2) SCR 834 relied on para 121
E
2008 (8) SCR 174 cited para 125
2009 (16) sec 146 cited para 125
.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7781 of2011.
F
From the Judgment & Order dated 02.05.2008 of the High
Court of Delhi at New Delhi in Civil Writ Petition No. 2157 of
2002.
WITH
G
C.A. Nos. 7782 of 7783 of 2011.
R.P. Gupta, Sanjay Parikh, Anish R. Shah, Mamta Saxena,
Anitha Shenoy, M.S. Rohilla (Petitioner-In-Person), Pradeep
Kuamr Dubey, A.K. Tiwari, Tara Chandra Sharma, P.O. Gupta
. for the Appellants. H
520 SUPREME COURT REPORTS [2011] 12 S.C.R.
A A. Mariarputham, Annam D.N. Rao, Megha Gaur, Yusuf
Khan for the Respondents.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. Leave granted in each of the special
B leave petition.
2. These appeals, by the grant of special leave, are
directed against common judgment dated May 2, 2008
rendered by the Division Bench of the High Court of Delhi in
C C.W.P. No. 2157 of 2002, C.W.P. No.1965 of 2002 and
C.W.P. No.2362 of 2002. The appellants were the Members
of Delhi Higher Judicial Service ('D.H.J.S.', for short). Mr.
M.S.Rohilla and Mr. P.D.Gupta were compulsorily retired from
service under Rule 56 0) of the Fundamental Rules, read with
Rule 33 of the Delhi Judicial Service Rules 1970, whereas
D deceased Mr. R.S.Verma was compulsorily retired from
service under Rule 16(3) of All India Service (Death-cum-
Retirement Benefit) Rules 1958 read with Rule 27 of the Delhi
Higher Judicial Service Rules 1970, on different dates. They
had challenged orders of their compulsory retirement from
E service by filing Writ Petitions under Article 226. Though the
result of each appeal would depend on its own facts, having
regard to the commonality of submissions on legal aspects, this
Court had tagged these cases together and heard them one
after the other. This Court proposes to dispose of the three
F appeals, by this common Judgment for the sake of avoiding
repetitiveness of legal principles. However, the Court proposes
to consider each case on its own merits.
With these observations, the Court proposes to deal with
G appeal arising out of Special Leave to Appeal (Civil) No.27028
of 2008, filed by Mr. Rajendra Singh Verma against decision
in C.W.P. No.2157 of 2002. Mr. Verma was born on April 13,
1950. After enrolling himself as an advocate, he had started
legal practice in the year 1980. In the year 1994 applications
were invited from practicing advocates for direct recruitment to
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 521
·LT. GOVERNOR. OF NCT OF DELHI [J.M. PANCHAL, J.]
the D.H.J.S. Mr. Verma had also applied pursuant to the said A
advertisement and after interview he was selected and was
offered appointment to D.H.J.S. He joined th~ service on
9.3.1995 and was aged about 45 years on the date of joining
service. He worked as Additional District Judge at
Karkardooma Courts, Shahdara, Delhi. For the year 1995-1996 B
he was given a 'B' remark in the A.C.R., which means his
performance was average. From April 1, 1999 to December
7, 2000, he functioned as Sessions Judge, Tis Hazari, Delhi.
3. By the year 2000 he had rendered service of five years.
It may be mentioned that a Screening Committee consisting C
of two Hon'ble Judges of Delhi High Court was constituted for
screening the cases of those officers of the D.H.J.S. and Delhi
Judicial Service, who had either completed thirty years of
service or had attained the age of 50/55 years and for
considering the question whether those Judicial Officers should D
be continued in service or should be prematurely retired in
public interest. The Screening Committee considered the
., cases of several officers including that of Mr. Verma under Rule
56 (j) of the Fundamental Rules. The learned members of
Screening Committee perused service record including the E
ACR dossiers of the Judicial Officers but did not find, for the
time being, any Officer who could be retired prematurely in
public interest as on July 17, 2000. A copy of the abstracts from
the Minutes of the Meeting of the Full Court of Delhi High Court
held on July 22, 2000 indicates that the Full Court had accepted F
the report of the Screening Committee.
However, by an order dated December 7, 2000 which was
served upon Mr. Verma on December 8, 2000, judicial work
entrusted to him was withdrawn with immediate effect. He was G
made in-charge of all the record rooms in Tis Hazari Courts,
Delhi. ACRs of four years i.e. from the year 1997 to the year
2000 were not communicated to him on due dates. From the
record it is evident that ACRs of Mr. Verma for the years 1997,
1998 and 1999 were written in on~ go and he was awarded H
522 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 'C' remark, which means below average. The ACRs for above
mentioned three years were communicated to him on January
8, 2001 whereupon he had made representation against the
same on February 16, 2001.
4. In the A.C.R. for the year 2000, hP. was given 'C-'
8
remark, which means his integrity was doubtful. While
communicating the ACR for the year 2000, he was given a time
of six weeks to make representation against the same. Such
communication was received by him on September 25, 2001.
On September 21, 2001 the Screening Committee of the High
C Court decided to retire Mr. Verma compulsorily from service.
The Full Court of the Delhi High Court accepted the
recommendation made by the Screening Committee in its
meeting held on September 22, 2001. After acceptance of
recommendation of the Screening Committee by the Full Court,
D entire work entrusted to him was withdrawn by a letter dated
September 24, 2001. He made representation dated
September 25, 2001 against the prdposed order retiring him
compulsorily from service. He was thereafter served with order
dated September 27, 2001 retiring him compulsorily from
E service with effect from September 28, 2001. The record shows
that the representation dated 16.2.2001 maqe by Mr. Verma
against ACRs for the years 1997, 1998 and 1999 was rejected
on October 5, 2001. Against the A.C.R. for the year 2000, Mr.
Verma had made a representation dated October 13, 2001,
F which was received by the High Court on September 25, 2001.
This was rejected by the High Court vide order dated
November 25, 2001.
5. Thereupon Mr. Verma had filed C.W.P. No. 2157 of
2002 before the Delhi High Court challenging the order of
G compulsory retirement dated September 27, 2001. The reliefs
claimed in the petition filed by him are enumerated in detail in
paragraph 7 of the impugned judgment and, therefore, it is not
necessary to reproduce the same in this judgment. The prayers
made by Mr. Verma in his Writ Petition were essentially based
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 523
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, .ll - -
on the following grounds, namely, (1) ACRs for the years 1997, A
1998 and 1999 were not recorded as and when they fell due
and, therefore, he had reason to believe that nothing adverse
was found against his judicial work and/or conduct whereas
recording of ACRs for the three years at the same time on
January 3, 2001, was illegal. (2) There was no inspection by B
the Hon'ble Inspecting Judge for the years 1997, 1_998, 1999
and 2000 as a result of which the decision to retire him
prematurely from service on the basis that his performan'ce was
below average and his integrity was doubtful, was bad in law.
(3) In July, 2000 when the Screening Committee nad reviewed c
the cases of various Officers of D.H.J.S: for premat_ure.
retirement in public interest, no recommendation·was-inl:ide fo
retire anyone including him, compulsorily from ser\ticearid thus
review of his ease on September 21, 2001 by the Screening
Committee, on the same material, was impermissible. (4) D
Adverse entry for the year 2000 was served upon him on
September 25, 2001 vide a letter dated September. 21, 2001
from the Registrar (Vigilance), High Court whereas the
recommendation~ made by the Screening Co_mmittee :on
September 21, 2001 to retire him compulsorily from service was E
accepted by the Full Court in its meeting held on September
22, 2001, on the basis of which the Lt. Governor of Delhi
passed the order of compulsory retirement on September 27,
2001 which was communicated to him on September 28, 2001
and as he was deprived of right to make meaningful
representation against ACR of the year 2000, the order retiring F
him compulsorily from service was liable to be set aside. (5)
His representation against the entries for the years 1997, 1998
and 1999 was rejected vide letter dated October 5, 2001, which
was received by him on October 8, 2001 whereas his
representation dated October 13, 2001 against the entry for the G
year 2000 was dismissed by order dated April 5, 2002, before
which order of compulsory retirement from service was passed
against him on September 28, 2001 ·and thus non-
consideration of representation before passing order of
J;omoulsory retirement had vitiated order of his compulsory H
524 SUPREME COURT REPORTS [2011] 12 S.C.R.
A retirement. (6) Before taking decision to retire him prematurely
from service opportunity of being heard was not given to him.
(7) The circumstances of the case indicated that the Order of
compulsorily retirement passe!'.:I against him was punitive,
arbitrary, mala fide and in violation of the principles of natural
B justice.
6. In support of these submissions, Mr. Verma had relied
upon decisions in (a) Baikunth Nath Das Vs. Chief District
Medical Officer, Baripada (1992) 2 SCC 299; (b) Madan
Mohan Choudhary Vs. State of Bihar (1999) 3 SCC 396; (c)
C High Court of Punjab & Haryana Vs. l.C. Jain (1999) 4 SCC
579; (d) High Court of Judicature at Allahabad Vs. Sarnam
Singh & Another (2000) 2 SCC 339; (e) Bishwanath Prasad
Singh Vs. State of Bihar (2001) 2 SCC 305; (f) 9tate of U.P.
Vs Yamuna Shanker Mishra (1997) 4 SCC 7; (g) Registrar,
D High Court of Madras Vs. R. Rajiah (1988) 3 SCC 21'1; (h)
M.S. Bindra Vs. Union of India & Others (1998) 7 SCC 310;
(i) Ram Ekbal Sharma Vs. State of Bihar & Another (1990) 3
SCC 504; 0) Anoop Jaiswal Vs. Govt. of India (1984) 2,-SCC
369; and (k) Padam Singh Vs. Union of India & Others, 2000
E (Ill) AD (Delhi) 430 (D.B.).
7. On Service of notice, the respondent No.1, namely, the
Lt. Governor, Administrator (Government of N.C.T. of Delhi) and
the respondent No.2, i.e., the High Court of Delhi had filed their
F separate counter affidavits opposing the Writ Petition. The High
Court, in its reply, amongst other things had explained that the
date of birth of Mr. Verma was April 13, 1950 and, therefore,
review of his case on September 21, 2001 when he had
completed fifty one years of age was perfectly legal. According
G to the High Court, his case was reviewed by the Screening
Committee on September 21, 2001 and the Committee had
recommended that he should be compulsorily retired from
service keeping in view his overall service record, ACRs and
performance. The High Court mentioned in its reply that the
H recommendation made by the Screening Committee was
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 525
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
accepted by the Full Court on September 22, 2001. What was A
asserted by the High Court was that the decision of the Full
Court was just and reasonable having regard to the ACRs of
Mr. Verma.
8. The Division Bench hearing the petition filed by Mr.
8
Verma had summoned the entire service record relating to his
case. After hearing the learned counsel for the parties and
considering the materials on the record, the High Court
observed that a mere glance at the ACRs of Mr. Verma and
other records was enough to conclude that the decision to retire C
him compulsorily from service was well founded. The High Court
discussed principles laid down by this Court in the case of
Baikunth Nath Das (supra) with regard to compulsory retirement
under Rule 560) of the Fundamental Rules, and also took into
consideration the principles of law as to when interference by
a writ Court with the decision of compulsory retirement would D
be justified. Having noticed the law, the High Court held that
principles of natural justice were not attracted iri case of
compulsory retirement. The High Court observed that in this
case the ACRs for three years were recorded at the same time
which according to High Court was not proper, but held that E
there is no absolute proposition of law that recording of ACRs
at once would be perse illegal. The High Court expressed the
view that if good reasons were noted for which the ACRs could
not be recorded by stipulated dates and the matter of recording
of ACRs had to be deferred, the recording of ACRs of few F
years at one point of time would not render the same illegal.
The High Court noticed the reasons as to why ACRs for the
years 1997, 1998 and 1999 were recorded in one go, and
thereafter held that there was sufficient explanation for recording
the ACRs of three years at one time. The argument that there G
was no material justifying recording such ACRs was considered
to be misconceived in view of settled legal position. According
to the High Court the entire service record of Mr. Verma from
1995 to 2000 revealed that even for one year he had not
earned "Above Average" remark and his performance and H
526 SUPREME COURT REPORTS [2011] 12 S.C.R.
A conduct as a judicial officer in fact had kept on deter1orating
and shown a downward trend. After taking into consideration
the law on the point, the High Court concluded that action under
Fundamental Rule 56(j) need not await the disposal of the
representation made against the ACRs and, therefore, the
B order of compulsory retirement passed against him after taking
into consideration the ACR for the year 2000 was not bad in
law.
9. In view of the above conclusions the High Court
dismissed the petition which has given rise to the above
C numbered appeal.
10. It may be mentioned that during the pendency of the
SLP the original petitioner that is Mr. Rajendra Singh Verma
expired in October, 2Q09. Therefore, the appeal is being
D prosecuted by his legal representatives.
11. The facts giving rise to the appeal arising out of SLP
(C) No. 314 of 2009, are as under:
The appellant Mr. Purshottam Das Gupta was born on
E 24.12.1949. He joined Delhi Judicial Service on 28.01.1978.
He was granted selection grade on 03.06.1993 retrospectively
with effect from 31.05.1991. He joined as Additional Senior
Civil Judge Delhi on 06.01.1996. According to him his work
and conduct from 1978 to 1992 was graded as "B", which
F means his performance was average. In the year 1995 the
Inspecting Judge reported that "I have not inspected his Court,
but I have heard complaints about integrity", and left column nos.
6 and 7 to be filled up by Full Court. On 18.05.1996 the Full
Court recorded ACR for the years 1994-95 as "C-lntegrity
G Doubtful" and on the basis of the same denied promotion to
him to Delhi Higher Judicial Service. Mr. Gupta filed a
representation against adverse ACR for the year 1994-95 on
10.07 .1996. The High Court rejected the same by an order
dated 05.09.1997. On 26.09.1997 the Full Court recorded his
H ACR for the year 1996 as "B". He filed W.P.(C) No. 4334 of
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 527
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
1997 against his non-promotion to Delhi Higher Judicial A
Services and also prayed to expunge adverse remark for the
year 1994-95. Pending the said petition, the Full Court on
22.05.1998 recorded his ACR for the year 1997 as "B".
W.P.(C) No. 4334 of 1997 filed by Mr. Gupta was allowed by
a Single Judge of the High Court vide Judgment dated B
28.05.1999 and the adverse remark for the year 1994-95 was
quashed. Thereupon, he was granted deemed promotion with
seniority. The High Court on its administrative side filed LPA
No. 329 of 1999 against Judgment dated 28.05.1999. On
24.12.1999 he attained the age of 50 years. In July 2000 the c
Screening Committee had reviewed the cases of various
officers of DHJS including that of Mr. Gupta for premature
retirement in public interest. The Screening Committee gave
report dated July 17, 2000. In the report it was mentioned that
the Members of the Screening Committee had gone through D
the service record including the ACR dossiers of the officers
of Delhi Higher Judicial Service and Delhi Judicial Service who
were within the zone of consideration for being considered for
premature retirement in public interest at the age of 50/55
years, but they did not find, for the time being, any Officer who E
could be retired prematurely in public interest. The Full Court
considered the report of Screening Committee in its meeting
held on 22.07.2000 and accepted the report. However, on
29.07.2000 the Full Court recorded ACR of the appellant for
the year 1999 as "C". On ACR being communicated, to him,
he filed representation dated 08.09.2000. F
12. The LPA No. 329 of 1997 filed by the High Court
against Judgment dated 28.05.1999 rendered by a Single
Judge in W.P.(C) No. 4334 of 1997 which was filed by the
appellant, was accepted by the Division Bench vide Judgment G
dated 09.02.2001. The record does not indicate that the
Judgment rendered by the Division Bench in LPA No. 329 of
1997 was subjected to challenge by Mr. Gupta before higher
forum. It may be mentioned that Mr. Justice M.S.A. Siddiqui was
nominated as Inspecting Judge of the court of Mr. Gupta for the H
528 SUPREME COURT REPORTS [2011] 12 S.C.R.
A year 2000. The case of Mr. Gupta is that he had sent one copy
each of his five Judgments delivered by him during the year
2001, on 18.05.2001 as was requisitioned by the learned
Inspecting Judge. The learned Inspecting Judge retired on
29.05.2001 without giving his report in respect of Mr. Gupta for
B the year 2000. The representation made against adverse ACR
for the year 1999 was rejected by the High Court vide order
dated 01.06.2001. The record does not show that the said
decision was challenged by Mr. Gupta before higher authority
or in court of law. Thus the ACR for the year 1999 had attained
c finality. According to Mr. Gupta, Mr. Justice K.S.Gupta who was
not his inspecting Judge for any year visited his Court on
07.09.2001 and directed him to send copies of three
Judgments delivered by him during 2000, which requisition was
complied with by him. The record would indicate that Mr. Justice
D K.S.Gupta submitted his inspection report for the year 2000 on
11.09.2001 for consideration of the Full Court. On 21.09.2001,
the Full Court recorded ACR of Mr. Gupta for the year 2000
as "C (Integrity Doubtful)". On 21.09.2001 the Screening
Committee- of the High Court submitted its -report
E recommending his premature retirement from service. The Full
Court in its Meeting dated 22.09.2001 recommended
premature retirement of Mr. Gupta to the Lt. Governor of Delhi
(The Administrator). On 21.09.2001 he was communicated
ACR for the year 2000 and he was granted six weeks time to
file representation against the same. Meanwhile the
F Administrator (Lt. Governor of Delhi) passed an order dated
27.09.2001, prematurely retiring him from service, under
Fundamental Rule 56 0) of the Fundamental Rules read with
Rule 33 of Delhi Judicial Service Rules, 1970. The appellant
made a representation against adverse entry in the ACR for
G the year 2000, on 29.10.2001 i.e. after the appellant was retired
compulsorily from service. The appellant also addressed a
representation dated 16.11.2001 to the Administrator against
the order retiring him compulsorily from the service. It was
forwarded by the Administrator, to the High Court for necessary
H action. The High Court by order dated 12.02.2002 rejected the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 529
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
representation made by the appellant on 16.11.2001 which was A
addressed to Lt .. Governor. The representation of the appellant
against adverse ACR for the year 2000 was also rejected by
the High Court vide order dated 16.03.2010. Feeling aggrieved
by the order retiring him compulsorily from service the appellant
filed W.P.(C) No. 2362 of 2002 in the High Court and also B
prayed to expunge adverse remarks in his ACR for the years
1999 and 2000.
13. On service of notice the High Court filed reply affidavit
controverting the averments made in the petition. It was
explained in the reply that the Screening Committee of the two C
learned Judges had considered the overall service record of
the appellant and found that his performance and conduct were
recorded as average for the years 1979-80, 1980-81, 1999,
1997 and 1998. The High Court mentioned in the reply that in
the report for the year 1995, the Inspecting Judge had recorded D
that he had heard complaints about the integrity of the appellant.
According to the High Court, again in the inspection report for
the year 1999-2000 the Inspecting.Judge, in respect of judicial
reputation of the appellant and in respect of his impartiality and
integrity, had recorded that the appellant did not enjoy good E
reputation. As per the reply, the case of the appellant was
considered for promotion on18.05.1996 but he was not found
fit at that time and even in the subsequent selections as a result
of which he was not promoted. What was highlighted in the reply
· was that for the year 1994-95 the appellant was granted "C- F
Integrity Doubtful" whereas for the year 1999 he was granted
"C (Below Average)" and for the year 2000 he was granted "C-
lntegrity Doubtful", and keeping in view the over all assessment
of service record, the Screening Committee had
recommended that the appellant be prematurely retired from G
service in public interest forthwith. It was explained in the reply
that the report of the Screening Committee with respect to
number of Judicial Officers was placed before the Full Court
of the High Court and the Full Court after considering the report
of the Screening Committee and the work and conduct as H
530 SUPREME COURT REPORTS [2011] 12 S.C.R.
A reflected in service record and general reputation of the
appellant as well as of other officers, had resolved that it be
recommended to the Administrator, Government of NCT of
Delhi to retire the appellant and others forthwith in public interest.
The High Court mentioned in the reply that the Lt. Governor had
~B accepted the recommendations of the High Court and vide
order dated 27.09.2001, the appellant was compulsorily retired
in public interest. It was further stated in the reply that the
appellant had preferred. a representation before the Lt.
Governor who after going through his service record including
c assessments made by the Inspecting Judge along with the
recommendations of the Screening Committee and the
resolution of the Full Court of the High Court had concluded that
the appellant was not fit to be continued in service and his
representation was rejected by order dated 13.09.2001 which
D was communicated to him vide order dated 27.09.2002.
14. The High Court after hearing the learned Counsel for
the parties concluded that so far as ACR for the year 1999- ·
2000 was concerned, there was hardly any reason to interfere
with the same. The High Court noted that the ACR for the year
E 1994-95 recording "C-lntegrity Doubtful" was upheld by the High
Court, on judicial side, on the ground that there was sufficient
material to record the said ACR. According to the High Court
the Judgment of the Division Bench of the Delhi High Court in
LP.A. was upheld by the Supreme Court which operated as
F res-judicata so far as the appellant was concerned. The High
Court, on the basis of said fact, came to the conclusion that
the action of the High Court on its administrative side, to
compulsorily retire the appellant from service would be
sustainable as easing out a person with integrity doubtful. The
G High Court noticed that so far as the ACR for the year 1999
was concerned the appellant was given "C" grading i.e. below
average and representation made by him was rejected by the
Full Court in its Meeting held on 19.05.2001. High Court after
looking into the over all career profile of the appellant held that
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 531
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.)
it was totally untenable to allege that there was any bias or mala A
fide against him.
15. In view of the above mentioned conclusions the High
Court rejected the petition.
16. Thereupon, the petitioner filed Review Petition before B
the High Court. However, the same was withdrawn with a view
to filing SLP against Judgment delivered by High Court in
W.P.(C) No. 2362 of 2002. After withdrawing the review
application, the appellant filed Special Leave Petition no. 314
of 2009 which on leave being granted is treated as an appeal. C
17. The facts of the appeal arising out of Special" Leave
to Appeal No.27200 of 2008 are as under :-
The appellant, i.e., Mr. M.S. RohiHa was appointed as Civil/ D
Sub. Judge, in the Subordinate Judicial Services under the
Government of Delhi on May 05, 1972. On June 17, 1975 he
was confirmed as an officer in the Delhi Judicial Services. He
was granted benefit of Selection Grade on June :3, 1980 and
was promoted to the Higher Judicial Services as Additional
District & Sessions Judge on November 1, 1989. One E
anonymous complaint was received against him and, after
looking into the same, he was reverted to Subordinate Judicial
Services, as Civil/Sub. Judge by order dated February 15,
1995. Feeling aggrieved, he had preferred W.P. No. 4589 of
1995, challenging his reversion. Meanwhile, he was served with F
a communication from the High Court of Delhi dated October
23, 1997 wherein his A.C.R. for the year 1996 was graded as
'C'. Thereupon he made a representation dated December 3,
1997 against the said grading. The representation made by
him was rejected on December 2, 1998. The record does not G
show that any steps were taken by him to challenge order dated
December 2, 1998 by which his representation against ACR
for the year 1996 was rejected.
18. Thereafter he received a communication from the High H
532 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Court in the year 1999 whereby he was informed that in his
A.C.R. for the year 1997, he was awarded 'B' remark. Again
by a communication dated February 9, 2000 forwarded by the
High Court he was informed that in his ACR for the year 1998
he was graded 'B'. He made a representation against his ACR
s for the year 1998 in the year 2000. In July, 2000 the Screening
Committee consisting of Hon'ble Judges of the High Court of
Delhi reviewed the case of the appellant with that of several
other judicial officers. As observed earlier, the deliberations
made by the Screening Committee indicate that it did not find,
c for the time being, any officer who could be retired prematurely
in public interest as on July 17, 2000. A copy of the abstracts
from the Minutes of the meeting of the Full Court of High Court
of Delhi held on July 22, 2000 produced on the record of the
case, indicates that Full Court had accepted the report of the
0 Screening Committee. In July, 2000 he received a
communication from the High Court mentioning that his ACR
for the year 1999 was graded as 'B'. On 21.9.2001 he received
a communication from the High Court with reference to the ACR
for the year 2000 whereby he was informed that he was given
E Grade 'C'. It was further mentioned therein that his integrity was
found doubtful. By the said communication, he was given six
weeks time to make a representation against the said grading.
According to Mr. Rohilla, when he was awaiting the response
to his previous representations made with reference to the
ACRs for the years 1998 and 1999 and when he was yet to
F respond to the ACR for the year 2000, he received
communication dated September 27, 2001 from the High Court
prematurely retiring him from service under rule 560) of the
fundamental Rules read with Rule 33 of the Delhi Subordinate
Judicial Services. According to him he made a representation
G requesting the respondents to supply the material upon which
decision was taken to prematurely retire him from service. As
he was called upon to make a representation against the ACR
for the year 2000 within six weeks from the date of
communication dated 21.9.2001, he filed representation dated
H November 3, 2001 against the same but of no avail. Ultimately,
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 533
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
in the month of March 2002 he filed W.P. No. 1965 of 2002 A
challenging order of his compulsory retirement from service.
Pending the said Writ Petition, the Full Bench of the High Court
hearing W.P. No. 4589of1995 which was directed against the
order of his reversion dated February 15, 1995, allowed the·
same by judgment dated May 29, 2006. The result was that he B
stood reinstated to his post of Additional District Judge under
Higher Judicial Services.
19. As is evident from the memorandum of the writ petition,
the order retiring him compulsorily from service was challenged C
on several grounds. On notice being served the respondents
namely the Lieutenant Governor as well Delhi High Court had
filed their separate counter affidavits controverting the claims
advanced by Mr. Rohilla in his writ petition. It was emphasized
in the counter affidavit filed on behalf of the High Court that the
petition filed by Mr. Rohilla proceeded on a mistaken D
assumption and incorrect presumption that he was retired
compulsorily from service only upon consideration of adverse
remark 'C-' recorded indicating that his integrity was doubtful
for the year 2000. It was mentioned in the reply that the Full
Court as also the Screening Committee consisting of the two E
learned Judges of the Delhi High Court, had considered his
entire service record which revealed that his performance as
a judicial officer was either average or below average and his
integrity was found doubtful and despite the passage of time, ·
nothing was done by him to improve his performance/image. F
The reply affidavit proceeded to mention that in so far as the
case of Mr. Rohilla was concerned, in its report dated
September 21, 2001 the Screening Committee had inter alia
recorded as under :
G
"The officer has earned throughout his career 'B' (Average)
or C (Below Average) or 'C' (Below Average-Integrity
doubtful) reports except for three years i.e. 1979-80, 1981-
82 and 1988 when he could earn only B+ (Good) and for
the years 1997, 1998 and 1999 when he could earn 'B' H
534 SUPREME COURT REPORTS [2011) 12 S.C.R.
A reports. In the inspection note dated 29th March 1973, the
concerned Hon'ble Inspecting Judge observed that he
needed to be watched so far as his efficiency as a Judicial
Officer was concerned. The District & Sessions Judge,
Delhi, in his report dated 31.5.1973 for the year 1972-73,
B mentioned that "a complaint was pending against him in
the High Court about the return of ornaments in a theft case
to a party which was not entitled". Further, as directed by
a Single Bench of th is Court by its order dated 24. 7.1973
passed in Criminal Revision No. 428/72 in re: Ramavtar
c Vs. State, the findings of the District & Sessions Judge,
Delhi, regarding the conduct of Mr. M.S. Rohilla, then
working as Judicial Magistrate, First Class, were placed
on his personal file. It had been noted in the aforesaid
findings of the District &. Sessions Judge, that Mr. M.S.
Rohilla should not have shown so much indecent haste in
D
passing the order for handing over the ornaments to
Jawahar Lal Gupta. Though, the District & Sessions
Judge, Delhi, did not find any malafide on the part of Mr.
M.S. Rohilla, still· according to him, he acted in a m·ost
injudicious manner due to his inexperience and
E suppression of the material facts by the S.H.O. while
sending the report in the above noted case. The Full Court
recorded 'C' (Below Average) remarks for the year 1972-
73).
F In the Inspection Report dated 29.4.1978 for the year
1977-78, the District & Sessions Judge, Delhi, observed
regarding the reputation for honesty and impartiality of the
officer that there were complaints of which the High Court
was seized then. In the Inspection Report dated 7.12.1985,
G for the year 1983-84, his efficiency as Judicial Officer was
termed as a mediocre. As regards his reputation for
honesty and impartiality, the District & Sessions Judge
observed that he must improve his reputation which
suffered a set back when he was Additional Rent
H Controller. In Inspection Report for the same year, the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 535
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
District & Sessions Judge, Delhi, reported that he did not A
i
enjoy good reputation for honesty among lawyers and
general public and that he was in the habit of drinking and
gambling almost daily. In the Inspection Report dated
7.12.1985 for the year 1984-85, the concerned Hon'ble
Inspecting Judge had observed that his reputation was B
under cloud although no specific instance of corruption had
come to his notice, but watch was called for.
Following adverse remarks were recorded on the work
and conduct of Sh. M.S. Rohilla for the years mentioned C
against each :-
Years Adverse Remarks
1972-73 . 'C' (Below Average)
1993 'C' (Below Average)
(Integrity doubtful) D
1994 'C' {Below Average)
(Integrity doubtful)
1994 'C' (Below Average)
(Integrity doubtful)
1995 'C' (Below Average)
E
1996 'C' (Below Average)
2000 (Integrity doubtful)
Keeping in view the over all record of the officer, we
recommend that Mr. M.S. Rohilla be prematurely retired
in public interest forthwith." F
20. According to the High Court it was on this basis that
the case of Mr. Rohilla was recommended for premature
retirement in public interest which recommendation was
accepted by the Full Court.
G
21. It may be stated that the entire service record of Mr.
Rohilla was called for by the Division Bench. After taking holistic
view of the matter and the facts projected in the counter
affidavit of the High Court, the Division Bench of the High Court
expressed irresistible opinion that Mr. Rohilla was rightly retired H
536 SUPREME COURT REPORTS [2011] 12 S.C.R.
A compulsorily from service under FR 56 U) of Fundamental
Rules. According to the High Court, it was totally misconceived
and untenable on the part of Mr. Rohilla to argue that the so-
called material relied upon was only one sided view or it was
not known what was the material placed before the High Court
B before decision to retire him compulsorily from service was
taken. The High Court found that there was no force in the
contention that his case could have been considered for the
purpose of compulsory retirement only in the year 2001 when
he was about to attain the age of 55 years in the year 2002.
c The High Court further concluded that it was also a wrong
premise adopted by Mr. Rohilla that the High Court had based
its decision solely on the basis of his ACR for the year 2000
wherein it was recorded that his integrity was doubtful. What
was concluded by the High Court was that the exercise
undertaken clearly revealed that his entire service record was
0
taken into consideration. In view of the above-mentioned
conclusions as well as other findings, the High Court has
rejected the writ petition fifed by Mr. Rohifla giving rise to the
appeal by him.
E 22. It is relevant to notice that though each appeal will have
to be decided on its own facts, certain common points were
raised in tl:lree appeals by the learned counsel for the appellants
for consideration of this Court. Therefore this Court proposes
to deaf with those common points raised by the learned
F counsel for the appellants for consideration.
23. Normally, an aggrieved civil servant can challenge an
order of compulsory retirement on any of the following grounds,
namely, (a) that the requisite opinion has not been formed, or
G (b) that the decision is based on collateral grounds, or (c) that
it is an arbitrary decision. ff the civil servant is able to establish
that the order of compulsory retirement suffers from any of the
above infirmities, the court has jurisdiction to quash the same.
In the fight of the above stated position of law, the present
appeals will have to be considered.
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 537
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
24. The first point which was argued was that once a A
review was conducted by the Screening Committee of the High
Court on 17.7.2000 on the appellants' reaching the age of 50
years, which was accepted by the Full Court, no second review
on the same 'material was permissible and the service record
of the appellants for compulsory retirement, could have been B
reviewed only upon their reaching the age of 55 years and not
before reaching the said age. What was maintained was that
the Screening Committee as well as the Full Court had
considered the entire service record of the appellants and found
that there was no material to recommend compulsory c
retirement of any of them as a result of which the previous
record of each appellant before July, 2000 could not have been
again considered for compulsory retirement. According to the
learned counsel for the appellants, the effect of decision of the
Full Court of the High Court dated July, 22, 2000 reflected in
0
its resolution, passed on the recommendation of the report of
the Screening Committee dated July 17, 2000, which was
submitted after considering the entire service records and ACR
Dossiers of each -of the appellant, not to retire any of them
. prematurely, was that there was a bar to consider again the
case of the appellants for premature retirement and, therefore, E
the order of compulsory retirement was liable to be set aside.
In support of this plea, reliance was placed on the decision of
this Court in State :or UP. Vs. Chandra Mohan Nigam &
Others (1977) 4 SCC 345.
F
, 25. In reply to the above mentioned argument, it was
pointed out by the learned Counsel for the High Court that the
decision of the Committee dated July 17, 2000 was purely
tentative in nature and was not a final decision. According to
the learned counsel for the High Court, the use of the expression G
"for the time being" in the Minutes of the Committee would show
that it was not a final decision meaning thereby the matters
were to be considered in detail on a later date and final
decision was to be taken later on. What was maintained was
that the decision of the Committee dated July 17, 2000 was H
538 SUPREME COURT REPORTS [2011] 12 S.C.R.
A not a decision dealing each officer separately but general in
nature and, therefore the phrase "for the time being" should be
construed to mean that it was not a final decision and the cases
of the appellants were deferred for being considered in future.
Elaborating this contention, it was submitted that the Division
s Bench of the High Court has considered the question as to
whether it was consideration on merits or a case of deferment
and rightly held that the. exercise done in July 2000 was not final
and the cases of the appellants were deferred. According to
the learned counsel, the High Court, in the impugned judgment,
c was perfectly justified in holding that there was no consideration
on merits of the cases of the appellants before 21.9.2001, and,
therefore, the orders passed in cases of the appellants retiring
them compulsorily from service were not bad in law. Without
prejudice to above mentioned contention, it was argued that
0 even if it was assumed for the sake of argument that there was
consideration of the cases of the appellants in July, 2000, even
then there was no legal bar in again considering their cases in
next year particularly when it had come to the notice of the High
Court that their integrity was doubtful. The learned counsel for
1 the High Court emphasized that in State of UP. Vs. Chandra
E Mohan Nigam and others (Supra) there was consideration of
cases of the respondents therein for compulsory retirement at
the age of 50 years and next consideration could have been
only at the age of 55 years but in the said case an exception
to this rule is carved out, namely, if material in regard to
F doubtful integrity of the officer comes to light, the authority need
not wait till the officer attains the age of 55 years and action
can be taken immediately. Placing reliance on the decision of
this Court in Government of T.N. Vs. P.A. Manickam (1996)
8 sec 519, it was argued that the consideration of an
G employee for compulsory retirement at the age of 50 years is
only the starting point and not the end point, and, therefore, after
50 years at any time case of an officer can be considered for
compulsory retirement. The learned counsel brought to the
notice of this Court, the observations made in Nawal Singh Vs ..
H State of UP. and another (2003) 8 SCC 117 to the effect that
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 539
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
"the nature of judicial service is such that it cannot afford to A
suffer continuance in service of persons o.f doubtful integrity or
who have lost their utility" and argued that it was always open
to the High Court to consider the case of the appellants at any
point of time though earlier a decision was taken not to retire
any of the appellants compulsorily from service in the public B
interest. According to the learned counsel for the High Court
the consideration of the cases of the appellants in September,
2001 was in fact not a review of the earlier decision taken by
the Screening Committee in July 2000 but it was a fresh
consideration and on review of record of service of the c
appellants the High Court was justified in retiring the appellants
compulsorily from service. Placing reliance on the decision in
Haryana State Electricity Board Vs. K.C. Gambhir (1997) 7
sec 85, it was pointed out that therein the case of the officer
was considered at the age of 50 years and he was permitted D
to continue in service and again his case was considered at
the age of 55 years and he was permitted to continue in service
but he was compulsorily retired at the age of 57 years and such
a decision was upheld by this Court by rejecting the plea that
his case could have been considered only again at the age of E
60 years.
26. This Court has considered the rival contentions raised
by the learned counsel for the parties on the question whether
the cases of the appellants for compulsory retirement, could
have been considered again before they had reached the age F
of 55 years, when the Screening Committee had already
considered their cases for compulsory retirement on their
attaining the age of 50 years on July 17, 2000, and had not
recommended their compulsory retirement which
recommendation was accepted by the Full Court of the High G
Court.
27. In this connection it is relevant to notice certain facts
emerging from the record of the case. Rule 27 of the Delhi
Higher Judicial Service Rules, 1970 provides that in r~spect H
540 SUPREME COURT REPORTS [2011] 12 S.C.R.
A of matters regarding the conditions of service for which no
provision or insufficient .provision has been made in those rules,
the rules, directions or orders for the time being in force, and
applicable to the officers of comparable status in the Indian
Administrative Service and serving in connection with the affairs
s of the Union of India, shall regulate the conditions of such
service. Thus Rule 16(3) of the All India Services (Death-cum-
Retirement Benefits) Rules, 1958 ('the Rules of 1958' for short)
would be applicable to the offic~rs of the Delhi Higher Judicial
Service. Clause (3) of Rule 16 of the Rules of 1958 was
c substituted in 1972 specifying the age of premature retirement
to be 50. Rule 16(3), after its substitution, reads as under: -
"16 (3) The Central Government may, in consultation with
the State Government concerned and after giving a
member of the Service at least three months, previous
D notice in writing, or three months pay and allowance in lieu
of such notice, require that member to retire in public
interest from service on the date on which such member
completes thirty years of qualifying service or attains fifty
years of age or on any date thereafter to be specified in
E the notice."
Therefore, the matter re·garding pre-mature retirement of
officers of the Delhi Higher Judicial Service who have
completed 30 years of qualifying service or attained 50 years
F of age, has to be reviewed in the light of Rule 16(3) of the Rules
of 1958 quoted above.
28. Similarly, in case of officer of Delhi Judicial Service,
Rule 33 of Delhi Judicial Service Rules, 1970 provides that in
respect of all such matters regarding the conditions of service
G for which no provision or insufficient provision has been made
in the Rules, the Rules or orders for the time being in force, and
applicable to Government servants holding corresponding posts
in connection with the affairs of the Union of India, shall regulate
the conditions of such service.
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 541
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]"
29. In Delhi Judicial Service Rules, 1970, no provision for A
compulsory retirement has been made. Therefore,
Fundamental Rule 56(j), which is, for the time being in force and
applicable to Government servants holding corresponding posts
envisaged under the Delhi Judicial Service Rules, 1970, shall
regulate the matter of compulsory retirement of officers of Delhi B
Judicial Service. Fundamental Rule 56(j), which is applicable
to officers of Delhi Judicial Service, reads as under:-
"(j) Notwithstanding anything contained in this rule, the
appropriate authority shall, if it is of the opinion that it is in C
the public interest so to do, have the absolute right to retire
any Government servant by giving him notice of not less
than three months in writing or three months pay and
allowances in lieu of such notice:
(i) if he is in Group 'A' or Group 'B' service or post in D
a substantive, quasi permanent or temporary
capacity and had entered Government service
_before attaining the age of 35 years, after he has
attained the age of 50 years; -
E
(ii) in any other case after he has attained the age of
fifty-five years.
Provided that nothing in this clause shall apply to a
Government servant referred to in clause (e), who entered
Government service on or before the 23rd July, 1966." F
It would be seen that FR 56(j) gives absolute rights to the
appropriate authority to retire any government servant who
entered the service before attaining the age of 35 years, after
he has attained the age of 50 years. G
30. The cases of the officers of Delhi Higher Judicial
Service and Delhi Judicial Service were laid before the
Screening Committee constituted by the Administrative
Committee vide its resolution dated December 15, 1992 and
H
542 SUPREME COURT REPORTS [2011] 12 S.C.R.
A also for laying down the guidelines before reviewing the cases
of direct recruits. The Screening Committee decided as under
"Government Rules be applied."
B 31. It may be stated that after reviewing the cases of the
officers of Delhi Higher Judicial Service and Delhi Judicial
Service upto 31.12.1994, the Full Court in its meeting held on
February 7, 1996 had taken the following decision :-
c "It was decided that for screening of the cases of the
officers of the Delhi Higher Judicial Service and Delhi
Judicial Services, now falling within the zone of
consideration for retirement in public interest, a Screening
Committee consisting of Hon'ble Mr. Justice Jaspal Singh
D and Hon'ble Mr. Justice J.K. Mehra be constituted and the
report of the Committee be laid before the Full Court for
consideration."
Consequent upon the retirement of Hon'ble Mr. Justice J.K.
Mehra, it was decided to reconstitute the composition of the
E Screening Committee by Full Court in its meeting held on
January 17, 1998. The aforesaid reconstituted Screening
Committee reviewed the cases of several judicial officers in its
meeting held on July 17, 2000 and gave its report which reads
as under: -
F
"VIJe have gone through the service record including the
ACR dossiers of the officers of Delhi Higher Judicial
Service and Delhi Judicial Service who are within the zone
of consideration for being considered for premature
G retirement in public interest at the age of 50/55 years.
We do not find, for the time being, any officer who can be
retired prematurely in public interest."
32. As ordered by the then Hon'ble the Chief Justice of
H the Delhi High Court, the report of the Screening Committee
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. .543
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
was to be laid before the Full Court for consideration and A
orders.
33. In the meeting of the Full Court held on July 22, 2000
the report of the Screening Committee was considered. The
true copy of extracts from the Minutes of the Meeting of the Full
8
Court held on Saturday, the July 22, 2000 at 11.00 A.M. in the
Judge Court reads as under :-
"Agenda : 6. To review the case of the officers of DHJS
and DJS who are within the zone of consideration for being
considered for premature retirement in public interest - C
Report dated 17.7.2000 of the Screening Committee
consisting of Hon'ble Mr. Justice Arun Kumar and Hon'ble
Mr. Justice S.K. Mahajan constituted pursuant to Full Court
decision dated 17.01.1998.
D
Minutes : "The report of the Committee was accepted."
34. On .a fair reading of the report of the Screening
Committee quoted above read with the resolution adopted by
the Full Court in its meeting dated July 22, 2000, it becomes
evident that the cases of the appellants alone for premature E
retirement were not considered but cases of all the officers of
Delhi Higher Judicial Service as well as that of officers
belonging to Delhi Judicial Service who were within the zone
of consideration for being considered for premature retirement
in public interest at the age of 50/55 years were also F
considered. The record of the case would indicate that cases
of number of officers belonging to Delhi Higher Judicial Service
and Delhi Judicial Service were considered on one day, and
that too, in the Meeting of the Screening Committee held on
July 17, 2000. The record indicates that case of each officer G
was not considered individually. No reasons could be recorded
by the Screening Committee as to how earlier entries
adversely reflecting on the integrity of the appellants, were dealt
with or viewed. Under the circumstances, the observation that
"We do not find, for the time being, any officer who can be H
544 SUPREME COURT REPORTS [2011] 12 S.C.R.
A retired prematurely in public interest" will have to be regarded
as tentative and not final in nature. When the Screening
Committee stated that it did not find for the time being any
officer who could be retired prematurely in public interest, it
meant that the cases of all the officers were deferred to Ile
B considered in near future. It would be seen that FR 560) gives
absolute right to the appropriate authority to retire any
Government servant who has entered the service before
attaining the age of 35 years, after he has attained the age of
50 years and in other cases after he has attained the age of
c 55 years. There is no rule prohibiting consideration of case of
an officer for compulsory retirement before he attains the age
of 55 years, even if his case is earlier considered at the age
of 50 years. There is nothing in the Delhi Judicial Service Rules
or Delhi Higher Judicial Service Rules or the Indian
Administrative Service Rules laying down a prohibition that if
0
the case of an officer for compulsory retirement is considered
at the age of 50 years, his case cannot be reconsidered till he
attains the age of 55 years. As held by this Court in Government
of T.N. (Supra), 50 years is only the starting point and not the
end point which means that after 50 years at any time case of
E an officer can be considered for compulsory retirement.
35. In State of UP. Vs. Chandra Mohan Nigam and
Others (1977) 4 sec 345, the facts were that the respondent,
i.e., Mr. Chandra Mohan Nigam was recruited in the Indian
F Administrative Service in Uttar Pradesh Cadre. He joined
service on March 23, 1947. He was appointed as Judicial
Member of the Board of Revenue in 1969 and had attained the
age of 50 years on December 29, 1967. By an order dated
August 22, 1970 the President of India, in consultation with the
G Government of Uttar Pradesh, in pursuance of the power
conferred by sub-rule (3) of Rule 16 of the All India Services
(Death-cum-Retirement Benefits) Rules 1958 had passed the
order of compulsory retirement of the respondent in the public
interest on the expiry of three months from the date of service
H of the order. That was challenged by Mr. Chandra Mohan Nigam
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 545
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
by a writ petition before the Allahabad High Court. The learned A
Single Judge had allowed the same on the grounds of
contravention of the justiciable and binding rules and because
the order was based on consideration of irrelevant matters and
was also vitiated by bias.
B
Feeling aggrieved both the Union of India and the State
of U.P. had appealed to the Division Bench of the High Court.
The Division Bench of the High Court by an order dated April
13, 1973, dismissed both the appeals by a common judgment.
The Division Bench had not agreed with all the reasons given
by the learned Single Judge and had quashed the order of C
compulsory retirement holding that the decision of the Central
Government to retire Mr. Nigam was passed on collateral facts
and was, therefore, invalid.
36. In appeals by certificates, this Court had noticed the D
service career of the respondent. It was noticed that the
respondent during his service career, had the following adverse
entr,ies in his character role - (1) A warning was administered
to him on December 6, 1953, for taking undue interest in the
ejectment of tenants from a house owned by him at Lucknow, E
(2) another warning was issued to him on August 31, 1962, for
having acquired a car from Varanasi Corporation while working
as the Administrator of the said Corporation, (3) he was once
warned for not observing proper rules and procedure for
utilizing the fund earmarked for lower-income group housing F
scheme towards the construction of a market (1956-1957) and
(4) he was placed under suspension in 1964 in connection with
some strictures passed on him by the Election Tribunal in a
case relating to the Gorakhpur Parliamentary Constituency
elections.
G
37. With regard to the last entry, he had filed appeal before
High Court and the strictures were expunged upon which the
order of suspension was set aside and he was reinstated in
service. However, the aforesaid entry continued to be part of
his character roll at least till December 20, 1969. In pursuance H
546 SUPREME COURT REPORTS [2011] 12 S.C.R.
A of sub-Rule (3) of Rule 16 and in consonance with the certain
instructions, the State Government of U.P. in October 1969 had
constituted a Review Committee to review the records of the
members of the Service who were to attain or had attained the
age of 50 years. The list of officers considered by this
B Committee had included the respondent Mr. Nigam. The
Committee had not recommended any of the Officers including
Mr. Nigam for premature retirement and, on the other hand, had
recommended that they should be continued in service. The
State Government had accepted the report of the Review
c Committee and communicated its decision to the Central
Government. Qn December 20, 1969, the Secretary, Ministry
of Home affairs of the Central Government had addressed a
letter wherein a reference was made to the adverse remarks
in the character roll of Mr. Nigam including suspension of Mr.
D Nigam which was set aside on strictures being expunged by
the High Court, and a view was expressed that his was a fit
case in which proposal for his premature retirement under Rule
16(3) of the All India Services (Death-cum-Retirement Benefits)
Rules, 1958 should have been considered: After noticing the
fact that the State Government had not recommended the
E compulsory retirement the letter proceeded to mention that the
Central Government was not knowing if there were any
particular reasons for taking a different view or whether it was
a case of over-sight. By the said letter the Central Government
had expressed opinion to have the considered views of the
F State Government before any decision was taken by the Central
Government. On January 29, 1970, the Chief Secretary to the
State Government had replied that the Review Committee had
considered the character roll and the merits of the case of Mr.
Nigam and found that he was suitable for continuing in service,
G and that the decision of the Committee was accepted by the
State Government. In the reply, it was mentioned that the State
Government's decision in the matter was taken after thorough
consideration and that the State Government did not consider
it necessary to go into this question again. No adverse decision
H contrary to the recommendation of the State Government was
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 54 7
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
taken and communica,ted by the Central Government to the A
State Government ln pursuance of the recommendation of the
first Review Committee in October, 1969. However, the State
Government, on its own motion, constituted a second Review
Committee in May 197,0. Again before this Committee also the
case of all the officers who had attained the age of 50 years 8_
including those whose cases had been reviewed earlier in
October 1969 was C!lso placed for consideration. Thus Mr.
Nigam's case was considered
I
again by the Second Review
Committee. This time the Committee recommended that the
two officers one of whom was Mr. Nigam should be prematurely C
retired. The State Government having accepted this
recommendation forwarded the same to the Central
Government. The Central Government asked the State
Government to send the proceeding of the Review Committee
and on receipt of the proceedings, the.Central Government
agreed with the views of the State Government and passed the D
order of compulsory retirement of Mr. Nigam.
38. It is in the light of these facts that this Court made _
following observations in paragraph 29 of the reported decision
which read as under : E
"29. The correct position that emerges from Rule 16(3) read
with the procedural instructions is that the Central
Government, after consultation with the State ~overnment,
may prematurely retire a civil servant with three months'
F
previous notice prior to his attaining 50 years or 55 years,
as the case may be. The only exception is of those cases
which had to be examined for the first time after
amendment of the rule substituting 50 years for 55 years
where even officers, who had crossed the age of 50 years,
even before reaching 55, could be for the first time G
reviewed. Once a review has taken place and no decision
to retire on that review has been ordered by the Central
Government, the officer gets a lease in the case of 50 years
upto the next barrier at 55 and, if he is again cleared at
H
548 SUPREME COURT REPORTS [2011) 12 S.C.R.
A that point, he is free and untrammelled upto 58 which is
his usual span of the service career. This is the normal rule
subject always to exceptional circumstances such as
disclosure of fresh objectionable grounds with regard to
integrity or some other reasonably weighty reason."
B 39. So far as present case is concerned, no final decision
was taken by the Screening Committee in case of any officer
of Delhi Higher Judicial Service and Delhi Judicial Service, but
a tentative decision was taken that at that stage no officer was
found fit who could have been retired compulsorily from service.
C This is not a case wherein a review had taken place and a
positive final decision to continue the appellants in service, was
taken by the Screening Committee. In the case of Chandra
Mohan Nigam (Supra), the case of Mr. Nigam was considered
positively for retirement but a specific recommendation was
D made to continue hirn in service, by the Review Committee
which was accepted by the State Government and except
expressing an opinion that having regard to certain adverse
remarks in his character roll, this was a fit case in whic.h
proposal for his premature retirement should have been
E considered, the Central Government, after receipt of reply from
the State Government, had not taken any adverse decision
contrary to the recommendation of the State Government, which
was in turn based on the recommendation of the First Review
Committee. Further, in Chandra Mohan Nigam's case itself
F this Court has in para 27 of the reported decision hastened to
add that when integrity of an officer is in question, that will be
an exceptional circumstance for which order may be passed
in respect of such an officer under Rule 16(3), at any time, if
other conditions of that rule are fulfilled apart from the choice
G of disciplinary action which will also be open to the Government.
Thus an exception to the rule, that if there is consideration at
the age of 50, next consideration can be only at the age of 55
is made in Chandra Mohan Nigam's case itself by holding that
if material in regard to doubtful integrity of the officer comes to
H light, the authority need not wait till the officer attains the age
~JENDRA SINGH VERMA (DEAD) THROUGH LRS v. 549
T. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
55 years and action can be taken immediately. The integrity A
all the three Judicial Officers was found to be doubtful and,
'3refore, their compulsory retirement from service cannot be
ild to be illegal.
40. At this stage, a reference may be made to the decision
B
this Court in Haryana State Electricity Board vs. K. C.
iambhir (1997) 7 SCC 85. Though the decision may n_ot be
fotly applicable to the facts of the present cases, but certain
11servations made therein are relevant to understand the issue
o>sed for consideration of this Court in the present appeals.
c
The respondent therein was an employee of Haryana State
•ectricity Board. He was promoted as Executive Engineer on
"3bruary 19, 1977. When he attained the age of 50 years, his
11se for compulsory retirement was reviewed on November 30,
~86. His integrity was reported doubtful in the year 1985-86, D
et it was decided not to retire him compulsorily because his
presentation against adverse remarks was pending. On
·taining 55 years of age, his case fo[,compulsory retirement
as again reviewed on November 30, 1991. AT th~t time also,
epartmental proceedings were pending against him for a E
~rious act of misconduct and, therefore, it was decided not
retire him. The enquiry was over on August 4, 1993 and
0 ereafter, he was compulsorily retired on February 3, 1994 by
ving him three months' notice. The retirement came nine
,onths before his date of superannuation. Thus, on two earlier F .
::casions, it was decided not to retire him compulsorily, but
1 third occasion, order of compulsory retirement was passed.
he order of compulsory retirement was set aside by the High
ourt of Punjab and Haryana in the writ petition filed by the
espondent. This Court, while allowing the appeal filed by the G
aryana Slate Electricity Board, observed that though the
Jpellant could have taken the action of compulsorily retiring
•e respondent from service earlier, it acted very fairly and
lllowed him to remain in service till his representation against
1\e adverse remarks was considered on the first occasion and
H
550 SUPREME COURT REPORTS [2011112 s.c.F·
A subsequently, till the departmental enquiry was completed. Tl"
clear meaning of the above-mentioned observation is that eve=
during the pendency of his representation against adver~
remarks and during the pendency of departmental enquir
Haryana State Electricity Board could have taken action
~ compulsorily retiring the respondent from service earlier. Thl
on the basis of service record, the three Judicial Officers cou1
have been retired compulsorily from service but a tentati'
decision was taken not to retire them from service at that poi•
of time. But this tentative decision would not preclude tt
c authority concerned from passing orders of compulso
retirement later on.
41. In Government of T.N. vs. P.A. Manickam AIR 19S.
SC 2250, what is ruled by this Court is that the rule permits tt
appropriate authority to retire any Government servant after t
D has attained the age of 50 years or after he has completed ~
years of qualifying service and the rule prescribes a startir
point, which is the attaining of the age of 50 years or tt
completion of 25 years of service, but it does not prescribe
terminus ad quam and it is, therefore, open to the appropria.
E authority under the rule to consider the case of a Governme•
servant for premature retirement at any time after th
aforementioned starting points. Thus, after the so-called revie
of the cases of the two appellants and the deceased officer ·
July, 2000, their cases were rightly reviewed again and orde1
F retiring them compulsorily from service were rightly passe
against them.
42. In Union of India Vs. M.E. Reddy (1980) 2 SCC H
the respondent Mr. Reddy started his career in the Polic
G Service as Deputy Superintendent of Police in the year 194~
In the year 1958 he was appointed to the Indian Police Servic.
On July 31, 1958, he was promoted as Superintendent ,,
Police in State of Andhra Pradesh and held charge of a numb$
of Districts from time to time. He was awarded the Preside1
H Police Medal on August 14, 1967 but the award of the sai
~IENDRA SINGH VERMA (DEAD) THROUGH LRS v. 551
. GOVERNOR OF NCT OF DELHI [J.M, PANCHAL, J.)
:dal was withheld as he was placed under suspension by the A
-vernment on August 11, 1967 pending departmental enquiry
J a number of allegations made against him.
In 1969, he filed a writ petition in the Andhra Pradesh High
urt praying that the order of suspension passed against him
quashed as it was passed on false allegations and at the 8
-tance of Mr. K. Brahmanand Reddy who was then Chief
iister of the State. The writ petition was admitted by the High
-urt and an interim order staying all further proceedings in
ipartmental enquiry was passed. When the writ came up for
-aring, the State Government represented to the High Court C
lit, it had decided to withdraw order of suspension and
instate Mr. Reddy. The State Government withdrew the order
suspension and directed that the period of suspension be
-ated as on duty. Thereafter, on application being filed by Mr.
:ddy, the writ petition was dismissed as withdrawn. Because D
these developments the departmental proceedings against
lf1 were dropped and he was given Selection Grade, which
1s withheld because of the suspension order. By an order
•ted April 28, 1971, he was promoted to the rank of Deputy
-3pector General of Police. During the course of the E
partmental enquiry an entry to the effect that "he had
ncocted a case of attempt to rape against one Mr.
mugopal Reddy to please the then Inspector General of
~lice Mr. Nambiar and there was a strong suspicion about his
•egrity" was made in his A.C.R. He made a representation F
expunge the entry. The Government decided that as
atements were factual, it would be sufficient if entry was made
the effect that the suspension was subsequently lifted and
e period was treated as on duty and that further action was
•t necessary as there were no good grounds to hold him guity G
any of the charges leveled against him.
However, on August 7, 1975, a Review Committee
nsisting of the Chief Secretary, Home Secretary and ·
spector General of Police considered various cases of police
H
552 SUPREME COURT REPORTS [2011] 12 S.C.
A officers including that of Mr. Reddy and mac.
recommendations. On September 11, 1975, the Governme-
of India, after considering report of the Review Committe'
ordered compulsory retirement of Mr. Reddy in public interes;
Thereupon Mr. Reddy filed writ petition in the Andhr-
8 Pradesh High Court. The Single Judge allowed the petition ar
quashed order of compulsory retirement. That decision wo.
upheld by the Division Bench of the High Court, in appeal file
by State of Andhra Pradesh and Union of India. Therefore, th•
two appeals by certificate were filed before this Court.
c
It was argued before this Court on behalf of Mr. Reddy th"
the order impugned was passed on materials which were nc
existent inasmuch as there were no adverse remarks again~
Mr. Reddy who had a spotless career throughout and if sue
o remarks had been made in his confidential reports, they woul-
have been communicated to him under the rules. Thi
contention was negatived in following terms: -
"Here we might mention that the appellants were fair am
candid enough to place the entire confidential personal m~
E of Reddy before us starting from the date he joined th~
Police Service and after perusing the same we are unablEi
to agree with Mr. Krishnamurty Iyer that the officer had c.
spotless career. The assessment made by his superio·
officers from the very beginning of his service until the
F impugned order was passed show that at the best Redd~
was merely an average officer and that the reports sholl"
that he was found to be sometimes tactless, impolite
impersonated, suffered from other infirmities, though no•
all of them were of a very serious nature so as to amoun·
G to an adverse entry which may be communicated to him
We might also mention that before passing an order unde1
Rule 16(3) it is not an entry here or an entry there whicl"
has to be taken into consideration by the Government bu~
the overall picture of the officer during the long years of his
H service that he puts in has to be considered from the point
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 553
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
of view of achieving higher standard of efficiency and A
dedication so as to be retained even after the officer has
put in the requisite number of years of service. Even in the
· last entry which was sought to be expunged through a
representation made by Reddy and other entries made
before that it appears that the integrity of Reddy was not B
above board."
While allowing the appeals of the Union of India and State of
Andhra Pradesh, this Court has emphasized the importance of
adverse entry. After referring to observations made by this
Court in para 27 of the decision in the case of Sate of U. P. vs. C
Chandra Mohan Nigam (1977) 4 SCC 345, wherein the Court
had hastened to add that when integrity of an officer is in
question that will be an exceptional circumstance for which order
may be passed in respect of such a person under Rule 16(3)
at any time, if other conditions of the rule are fulfilled, apart from D
the choice of disciplinary action which will also be open to
Government, this Court M.E. Reddy's case, has held as under:
"Thus, even according to the decision rendered by this E
Court in the aforesaid case the fact that an officer is of
doubtful integrity stands on a separate footing and if he is
compulsorily retired that neither involves any stigma nor
any error in the order."
F
Further, in the process of interpreting the decision in Chandra
Mohan Nigam's case, this Court in para 25 of the reported
decision inter-alia observed that "we have already indicated
above that this Court made it absolutely clear that when a
person was retired under Rule 16(3) on the ground that his
integrity was in question, the observations made by this Court G
would have no application."
43. Apart from the poor judicial performance, the appellants
were also retired compulsorily from service, on the ground that
their integrity was doubtful. I-
554 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 44. The mandate of Article 235 of the Constitution is that
the High Court has to maintain constant vigil on its subordinate
judiciary as laid down by this Court in High Court of Judicature
at Bombay through its Registrars Vs. Shirishkumar Rangrao
Patil and Another (1997) 6 sec 339. In the said case, this
s Court has explained that the lymph nodes (cancerous cells) of
corruption constantly keep creeping into the vital veins of the
judiciary and need to stem it out by judicial surgery lies on the
judiciary itself by its self- imposed or corrective measures or
disciplinary action under the doctrine of control enshrined in
c Articles 235, 124(6) of the Constitution, and therefore, it would
be necessary that there should be constant vigil by the High
Court concerned on its subordinate judiciary and self
introspection.
45. Judicial service is not a service in the sense of an
D 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
E 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. As explained by this Court in Chandra
Singh and others Vs. State of Rajasthan & another (2003) 6
sec 545, the power of compulsory retirement can be exercised
F at any time and that the power under Article 235 in this regard
is not in any manner circumscribed by any rule or order. What
is explained in the said decision by this Court is that Article 235
of the Constitution o( India enables the High Court to assess
the performance of any judicial officer at any time with a view
G to discipline the black sheep or weed out the deadwood, and
this constitutional power of the High Court cannot be
circumscribed by any rule or order. Moreover while upholding
the orders of compulsory retirement of judicial officers who were
working in the State of U.P., following weighty observations
H have been made by this Court in para 13 of decision in case
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 555
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
of Nawal Singh vs. State of U.P. and another (2003) 8 sec A
117: -
"13. It is to be reite(ated that for keeping the stream of
justice unpolluted, repeated scrutiny of service records of
judicial officers after a specified age/completion of
8
specified years of service provided under the Rules is a
must by each and every High Court as 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 C
justice delivery system."
46. Under the circumstances this Court is of the firm
opinion that the principle laid down in Chandra Mohan Nigam's
case will not be applicable to the facts of the appellants who
were Members of the Delhi Higher Judicial Service. D
47. Even if it is assumed for the sake of argument that the
principle laid down in Chandra Mohan Nigam's case would
applywith all the vigour to the facts of the appelfants also, this
Court finds that in respect of all the three officers, after the E
previous consideration in July, 2000, new material in the form
of ACR for the year 2000 '"C' integrity doubtful" had come into
existence and had become a part of their respective service
records when the Full Court in its meeting held on 13.9.2001
recorded their ACRs for the year 2000. Thus the consideration
by the Committee constituted for the purpose of evaluating the
F
cases of the officers to ascertain whether they should be
compulsorily retired, was subsequent in point of time, namely,
on 21.09.2001 and as such it will be fully covered by the
exception spelt out in Chandra Mohan Nigam's Case itself in
regard to consideration of cases again before the age of 55 G
years. The consideration of the cases of the three judicial
officers on the basis of ACRs dated September 13, 2001
recorded by the Full Court of the Delhi High Court is not a review
of the earlier decision of July, 2000. It is a fresh consideration.
It is review of the record of service of the officers and not review H
556 SUPREME COURT REPORTS [2011) 12 S.C.R.
A of the earlier decision and such review is not only permissible
but is perfectly legal and valid.
48. The net result of the above discussion is that this Court
does not find any substance in the first contention raised on
behalf of the appellants and the same is hereby rejected.
8
49. The next contention which was raised by the learned
counsel for the appellants was that the order passed by the Lt.
Governor compulsorily retiring the appellants from service,
without seeking aid and advice of his Council of Ministers, as
C required by Article 239(AA)(4) of the Constitution is ultra vires
as well as illegal and therefore, the same should not be
sustained. Elaborating the said point, it was argued that the
order retiring the appellants compulsorily from service was
passed by the Lt. Governor on receiving the recommendation
D of the High Court of Delhi, pursuant to the resolution of the Full
Court passed on September 22, 2001 acting under and in
exercise of control over subordinate judiciary under Article 235
of the Constitution, but the powers of the Lt. Governor of N.C.T.
of Delhi under Article 239(AA)(4) which are analogous to
E powers of a Governor under Article 163(1) of the Constitution
can be exercised only on aid and advice of his Council of
Ministers, and therefore, the order passed by the Lt. Governor
retiring the appellants compulsorily from service are bad in law.
In support of these submissions the learned counsel for the
F appellants placed reliance on: (a) Samsher Singh Vs. State
of Punjab and Another, (1974) 2 SCC 831 =AIR 1974 SC
2192 and (b) M.M.Gupta and Others Vs. State of Jammu &
Kashmir and Others, (1982) 3 SCC 412.
50. The learned counsel for the respondent High Court
G pleaded that the contention that Lt. Governor while passing the
Order of compulsory retirement ought to have been advised by
his Council of Ministers was not advanced before the High
Court and therefore was not considered by the High Court and
this plea should not be permitted to be raised for the first time
H in the appeals arising by grant of special leave. It was pointed
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 557
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
out that in the appeal arising out of StP No. 314 of 2009 in A
the list of dates filed by Mr. P.O. Gupta it was pleaded that this I
plea was urged before the High Court but the same was not
considered before the High Court and if that be so the remedy
of the appellant is to go back to the High Court and file the
review petition. What was emphasized was that Mr. Gupta had B
in fact filed a review petition but later on withdrawn the same
without seeking any liberty to agitate this point in the Special
Leave Petition or in any other proceedings and therefore, he
is not entitled to urge this plea. It was emphatically pointed out
by the learned counsel for the High Court that in other appeals, c
it is not stated by the appellants that such a plea was urged
before the High Court and they having not urged such a plea
in the memorandum of Special Leave Petitions, the plea raised
at the delayed and belated stage should not be considered by
this Court. In support of this argument, the learned counsel for 0
the respondent relied upon decisions in (a) Daman Singh and
Others Vs. State of Punjab and Others, (1985) 2 SCC 670,
(b) State of Punjab and Another Vs. H.B. Malhotra, (2006) 11
SCC 169, (c) Mohd. Akram Ansari Vs. Chief Election Officer -·
and Others, (2008) 2 SCC 95 and (d) Ex-Constable Ramvir E
Singh Vs. Union of India and Others, (2009) 3 SCC 97.
51. Without prejudice to the above stated contention, it was
argued by the learned counsel for the respondent that under
Article 235, it is High Court which has to exercise supervision
and control over the subordinate judiciary and not the State F
Government and therefore, recommendations of the High Court
in regard to compulsory retirement were/are binding on the
State Government/the Governor. The learned counsel pleaded
that the Lt. Governor has to act on the recommendation of the
High Court and there is no illegality, if the Governor on the G
recommendations of the High Court had passed order retiring
the appellants compulsorily from service. To buttress this
submission, the learned counsel for the respondent placed
reliance on (a) Samsher Singh Vs. State of Punjab and
Another, (1974) 2 SCC;831 =AIR 1974 SC 2192, (b) State H,
558 SUPREME COURT REPORTS [2011] 12 S.C.R.
A of Haryana Vs. lnder Prakash Anand H.C.S. & Others, (1976)
2 SCC 977, (c) Baldev Raj Gu/iani Vs. The Punjab and
Haryana High Court & Others, (1976) 4 SCC 201, (d)
Registrar, High Court of Madras Vs. R. Rajaiah, (1988) 3 SCC
211, (e) Registrar (Admn.), High Court of Orissa, Cuttack Vs.
s Sisir Kanta Satapathy (Dead) by LRs. & Another, (1999) 7
SCC 725, (f) Tej Pal Singh Vs. State of U.P. & Another, (1986)
3 SCC 604 and (g) T. Lakshmi Narasimha Chari Vs. High
Court of A.P. and Another, (1996) 5 SCC 90.
This Court has heard the learned counsel for the parties
C at great length on the question whether the order passed by
the Lt. Governor compulsorily retiring the appellants from service
without seeking aid and advice of his Council of Ministers as
required under Article 239 (AA)(4) of the Constitution is
ultravires and illegal.
D
52. It is true that the appellant Mr. Gupta has stated in the
Memorandum of Special Leave Petition that the point that Lt.
Governor could not have passed order retiring him compulsorily _
from service on the recommendation of the High Court and-
E without seeking aid and advice of his Council of Ministers, was
urged before the High Court, but the said point was not
considered by the High Court. It is rightly argued by the learned
counsel for the respondent that even in such an eventuality, the
only course/remedy available to the said appellant was to
F approach the High Court seeking review of the Judgment. The
record shows that the appellant Mr. Gupta had filed review
application before the High Court, but the same was
unconditionally withdrawn. At the time of withdrawal of review
application, the appellant had not sought any liberty to agitate
G this point in Special Leave Petition before this Court. So far
as two other appellants are concerned they have not stated that
such a point was argued on their behalf before the High Court
and was not dealt with by the High Court. Under the
circumstances a question arises whether the learned counsel
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 559
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
for the appellants should be permitted to raise such a plea A
before this Court at the stage of final disposal of the matters.
53. Ordinarily the Supreme Court would not entertain a new
prayer at the hearing of the appeal under Article 136 when it is
not raised in the High Court or in the petition seeking leave to
8
appeal. Point not raised before the High Court but taken in
Special Leave Petition will not ordinarily be allowed to be
agitated before this Court. The consistent practice of this Court
is that the Court does not permit a party to raise a new point
which has not been argued before the High Court. However,
there are exceptional cases iri which this Court may permit a C
party to raise a new plea before this Court for the first time, for
example, where the plea raised does not require investigation
of new facts or where the question raised is a pure question of
law or where the point is likely to be raised in future affecting
such cases or where the respondent has dealt with the point D
raised for the first time, in the reply filed before this Court and
the learned counsel for the parties are heard at length and in
great detail. This Court having gone thro_ugh the decisions relied
upon by the learned counsel for the respondent, finds that no
absolute proposition of law is laid down in any of the decisions E
that in no circumstances a new plea can ever be permitted to
be raised before this Court if the same was not raised before
the High Court. The question sought to be raised is a pure
question of law for which factual foundation is already laid. The
learned counsel for the parties have been heard at great length F
on the new point sought to be raised first time before this Court.
The authorities cited at the Bar have been read and re-read to
emphasize respective view points. Therefore, having regard to
the facts of the case, this Court has permitted the learned
counsel for the appellants to raise the point and heard the G
learned counsel for the parties in detail.
54. In order to answer the question posed for the
consideration of the Court, it will be useful to notice the contents
of Articles 163(1) and 239(AA) (4) of the Constitution.
560 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 55. Article 163 makes provision that Council of Ministers
has to aid and advice Governor. It inter alia provides that there
shall be a Council of Ministers with the Chief Minister as the
head to aid and advise the Governor in the exercise of his
functions, except in so far as he is by or under the Constitution
8 required to exercise his functions or any of them in his
discretion. The said Article further provides that if any question
arises whether any matter is or is not a matter in respect of
which the Governor is by or under this Constitution required to
act in his discretion, the decision of the Governor in his
C discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he
ought or ought not to have acted in his discretion. Sub Article
(3) of Article 163 stipulates that the question whether any, and
if so what, advice was tendered by Ministers to the Governor
shall not be inquired into in any Court.
D
56. Article 239AA inserted by the Constitution (Sixty-ninth
Amendment) Act, 1991 enacts special provisions with respect
to Delhi. Clause (1) of said Article states that as from the date
of commencement of the Constitution (Sixty-ninth Amendment)
E Act, 1991 which is February 1, 1992 the Union Territory of Delhi
shall be called the National Capital Territory of the Delhi and
the administrator thereof appointed under Article 239 shall be
designated as the Lieutenant Governor. Sub-clause (2) deals
with the constitution of Legislative Assembly for the National
F Capital Territory and total number of seats of the assembly etc.
Sub-clause (3) of the Article confers power on the Legislative
Assembly to make laws for the whole or any part of the National
Capital Territory. Sub-clause (4) with which the court is
concerned, inter alia provides that there shall be a Council of
G Ministers consisting of not more than ten per cent of the total
number of members in the Legislative Assembly, with the Chief
Minister at the head to aid and advise the Lieutenant Governor
in the exercise of his functions in relation to matters with respect
to which the Legislative Assembly has power to make laws,
H except in so far as he is, by or under any law, required to act
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. S61
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
in his discretion. A
57. A meaningful and conjoint reading of Article 163 of the
Constitution makes it clear that the Governor has to act on aid
and advice of the Council of Ministers with the Chief Ministers
as the head except in so far as he is by or under this 8
Constitution required to exercise his functions or any of them
in his discretion. In view of the provisions of sub Article (4) of
Article 239AA of the Constitution, the Lt. Governor has to take
aid and advice of the Council of Ministers in the exercise of
his functions in relation to matters with respect to which the C
Legislative Assembly has power to make laws. Article 235
provides that the control over the subordinate courts is vested
in High Court of a State. The expression "control" has been
elucidated in several reported decisions of this Court, the
leading case being Shamsher vs. State of Punjab (1974) 2 D
SCC 831. The "control" vested in the High Court is a
mechanism to ensure independence of the subordinate
judiciary. Under Article 235 of the Constitution, the control over
the subordin"ate.judiciary, vested in the High Court, is exclusive
in nature, comprehensive in extent and effective in operation
and it is to subserve a basic feature of the Constitution, i.e., E
independence of judiciary. Among others things, it includes -
(a) (i) disciplinary jurisdiction and a complete control subject
only to the power of Governor in the matter of appointment,
dismissal, removal and reduction in rank of District Judges and
initial posting and promotion to the cadre of District Judges, F
(ii) in Article 235 the word 'Control' is accompanied by the word
'vest' which shows that the High Court alone is made the sole
custodian of the control over the judiciary, and (iii) Suspension
from service of a member of judiciary with a view to hold
disciplinary enquiry; (b) transfers, promotion and confirmation G
of such promotions, of persons holding posts in judicial service,
inferior to that of District Judge; (c) transfer of District Judges;
(d) recall of District Judges posted on ex-cadre posts or on
deputation on administrative posts; (e) award of selection grade
to the members of the judicial service, including District Judges H
562 SUPREME COURT REPORTS [2011] 12 S.C.R.
A and grant of further promotion after their initial appointment to
the cadre; (f) confirmation of the District Judges who have been
on probation or are officiating after their initial appointment or
promotion by the Governor to the cadre of District Judges under
Article 233; and (g) premature or compulsory retirement of
B Judges of the District Courts and of Subordinate Courts.
58. The scheme envisaged by the Constitution does not
permit the State to encroach upon the area reserved by Articles
233, 234 and first part of Article 235 either by legislation or rules
or executive instructions.
c
59. Article 235 has no concern with the conferring of
jurisdiction and powers on the Court but it only relates to
administrative and disciplinary jurisdiction over the subordinate
Courts. Therefore, the conferment of power of the prescribed
D authority by the State Legislature on the Judicial Officers cannot
be construed to mean that the power of the High Court under
Article 235 is inoperative or inchoate as High Court alone is
the sole auth9Jity competent to initiate disciplinary proc~~dings
against Subordinate Judicial Officers or to impose various
E punishments including passing of order of compulsory
retirement on verification of the service record. The State is
least competent to aid and advise Governor on such subjects.
While the High Court retains the power of disciplinary control
over the subordinate judiciary including power to initiate
F disciplinary proceedings, suspend them during enquiries and
impose punishment on them, but when it comes to the question
of dismissal, removal or reduction in rank or termination of
services of judicial officers on any count whatsoever, the High
Court becomes the recommending authority and cannot itself
G pass the orders. The formal order to give effect to such a
decision has to be passed by the State Governor on the
recommendations of the High Court. In disciplinary
proceedings if an action is taken by the High Court against the
judicial officer the recommendations made by the High Court
H bind the Governor and he is left with no discretion except to
RAJENDRA SINGH VERMA (DEAD) THROUG!-1 LRS v. 563
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL; J.]
act according to the recommendations. The Governor, under A
the scheme of Articles 233, 234 and 235 of the Constitution
cannot refuse to act in terms of the recommendations made
by the High Court on the ground that he is not aided and
advised by the Council of Ministers and this is the true import
of total control of the High Court over the Subordinate Judiciary. B
60. In the light of the above mentioned principles the
decisions sited at the bar will have to be considered.
61. In Shamsher Singh (Supra), there were two appellants,
namely, Shamsher Singh and lshwar Chand Agarwal. The two C ·
appellants were members of the Punjab Civil Services (Judicial
Branch) and were appointed on probation. The services of
appellant Shamsher Singh were terminated by an order dated
April 27, 1967, by the Governor of Punjab under Rule 9 of the
Punjab Civil Services (Punishment and Appeal) Rules, 1952, D
with immediate effect. By an order dated December 15, 1969,
the services of the appellant lshwar Chand Agarwal were
terminated under Rule 7(3) in_Part 'D' of the Punjab Civil
Services (Judicial Branch) Rufes, 1951, by the Governor of
Punjab, on the recommendation of the High Court of Punjab E
and Haryana. Both of them had filed writ petitions in the Punjab
and Haryana High Court against the termination of their
services. The writ petitions were dismissed and, thereafter, they
had filed appeals to the Supreme Court.
62. The first contention raised by appellant lshwar Chand F
Agarwal that he completed his initial period of probation of two
years on November 11, 1968 and by reason of the fact that he
continued in service after the maximum period of probation, he
became confirmed by necessary implication, was negatived by
this Court on the ground that notice dated October 4, 1968 was G
given· at the end of the probation and the period of probation
got extended till the inquiry proceedings commenced by the
notice under Rule 9 came to an end.
63. The second contention on behalf of lshwar Chand H
•.
..
564 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Agarwal that termination of his service was by way of
punishment on the basis of charges of gross misconduct by ex-
parte enquiry conducted by the Vigilance Department found
favour with this Court.
64. This Court accepted the plea that the termination of
8
his services was based on the findings of misco-nduct
contained in about eight complaints, which were never
communicated to him and High Court had abdicated the c~ntrol
vested in it under Article 235 by not having an enquiry through
judicial offi~rs subordinate to the control of the Hinh Court, but
c ii'
asking the Government to enquire through the Vigilance
Department.
65. The abdication of the control over the subordinate
judiciary by the High Court under Article 235 in favour of the
D Government and the stand of the State that the High Court
wanted the Government to be satisfied about the suitability of
Mr. Agarwal was found to be something obnoxious and had
annoyed and shocked this Court. Thf'refore, this Court, without
mincing the words, authoritatively, clearly and for future
E guidance of one and all, expressed itself in the following strong
words in para 78 of the reported decision. a
"78. The High Court for reasons which are not stated
requested the Government to depute the Director of
Vigilance to hold an enquiry. It is indeed strange that the
F High Court which had control over the subordinate judiciary
asked the Government to hold an enquiry through the
Vigilance Department. The members of the subordinate
judiciary are not only under the control of the High Court
but are also under the care and custody of the High Court.
G The High Court failed to discharge the duty of preserving
its control. The request by the High Court to have the
enquiry through the Director of Vigilance was an act of self
abnegation. The contention of the State that the High Court
wanted the Government to be satisfied makes matters
H worse. The Governor will act on the recommendation of the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 565
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
High Court. That is the broad basis of Article 235. The High A
Court should have conducted the enquiry preferably
through District Judges. The members of the subordinate
judiciary look up to the High Court not only for discipline
but also for dignity. The High Court acted in total disregard
of Article 235 by asking the Government to enquire through B
the Director of Vigilance."
Having laid down, abovementioned proposition of law, this
Court deprecated the abdication of control by the High Court
by observing that the High Court denied itself the dignified
control over the Subordinate Judiciary and after holding that the C
order of termination of the services of lshwar Chand Agarwal
was clearly by way of punishment, set aside the same.
66. In view of what. is categorically, clearly and
authoritatively held in paragraph 78 of the reported decision D
there is no manner of doubt that it is ruled by Seven Judge
Bench of this Court in case of Shamsher Singh (supra), that
the Goyernor has to act on the recommendation of the High
Court and that is the broad basis of Article 235. -
E
The appellant Shamsher Singh was appointed on May 1,
1964 as Subordinate Judge. He was on probation. On March
22, 1967, the Chief Secretary issued a notice to him
substantially repeating the same charges which had been
communicated to him by the Registrar on December 15, 1966,
and asked the appellant to show cause as to why his services
F
should not be terminated as he was found unsuitable for the
job. The appellant gave an answer. On April 29, 1967, the
services of the appellant were terminated.
Shamsher Singh, in the context of the Rules of Business, G
contended that the removal of a Subordinate Judge from
service was a personal power of the Governor and was
incapable of being delegated or dealt with under the Rules of
Business.
H
566 SUPREME COURT REPORTS [2011) 12 S.C.R.
A This Court held that the Governor can allocate the business
of the Government to the Ministers and such allocation is no
delegation and it is an exercise of executive power by the
Governor through the Council or officers under the Rules of
Business. Therefore, the contention of the appellant that the
B order was passed by the Chief Minister without the formal
approval of the Governor was found to be untenable and it was
held that the order was of the Governor.
Thereafter, this Court noted the contents of the show-cause
C notice, reply given to the said notice by the appellant, protection
granted by Rule 9, etc. and held that it was clear that the order
of termination of services of Shamsher Singh was one of
punishment and set it aside.
In the light of the contention raised on behalf of Shamsher
D Singh in the context of the Rules of Business, this Court, in para
88 of the said decision, held that the President and the
Governor act on the aid and advice of Council of Ministers in
executive action and the appointm£ nt as well asJemoval of the
members of the Subordinate Judicial Service ls an executive
E action of the Governor to be exercised on the aid and advice
of the Council of Ministers in accordance with the provisions
of the Constitution.
67. Thus what is observed by the Supreme Court, in para
F 88 of the reported decision, will have to be read in the light of
the submission made on behalf of the appellant Shamsher
Singh and subject to clear, unambiguous and manifest
proposition of law laid down in para 78 of the reported decision.
Therefore, it is wrong to contend that in Shamsher Singh's case
(supra), it is ruled by this Court that the Governor is bound to
G act as per the aid and advice tendered by the Council of
Ministers and not on the recommendations of the High Court
in the matter of termination of services of the judicial officers
on any count whatsoever.
H 68. In another decision relied upon by the learned counsel
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 567
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.)
for the appellants, i.e., in M.M. Gupta and Others (Supra), this A
Court held that in the appointment of Judicial Officers or
removal of Judicial Officer by the Government, there has to be
effective consultation between the ·Government and the High
Court. This decision basically interprets Section 109 of the
Constitution of Jammu and Kashmir. In the State of Jammu and B
Kashmir certain vacancies for the post of District and Sessions
Judge occurred for being filled up out of the eligible Judicial
Officers. The High Court at a meeting of all the Judges
considered the merits and suitability of all the eligible
candidates and by a resolution recommended to the c
Government the name of some officers in supersession of
others. The Government then called for a copy of the High
Court's resolution and Annual Confidential Reports of the
candidates. In response, the high Court sent its detailed
comments justifying its recommendation as also reasons for the
0
supersession of seniors along with the resolution and
confidential reports as desired by the Government. Thereafter,
a Cabinet sub-committee considered the matter. But the
government neither communicated the recommendation of the
Committee to the High Court, nor sought the High Court's views E
thereon and thereafter without any further intimation or
discussions made the appointments in accordance with
seniority. Those officers whose names were recommended by
the High Court filed a writ petition under Article 226 challenging
validity of the appointments. The Court granted a stay of
operation of the appointment order pending disposal of the F
matter regarding admissibility of the petition. But ultimately in .
view of the agreement between the parties, the High Court
declined to hea[Jhe petition on the ground of judicial propriety
ancfvacatedthe order of stay and granted a certificate of fitness
to the petitioners to file an appeal in the Supreme Court, holding · G
that the point involved in the writ petition relating to the
interpretation of Section 109 of the Constitution of Jammu and
Kashmir, raised a substantial question of law of general public
importance and the case was a fit one in which a certificate of
fitness should be granted. Against this order the State filed a H
568 SUPREME COURT REPORTS [2011] 12 S.C.R.
A special leave to appeal in this Court. The petitioners also filed
a writ petition under Article 32 substantially for the same reliefs
claimed in their earlier writ petition under Article 226. Allowing
the aggrieved officers appeal with costs against the State
Government, this Court held that the power to make
B appointment of District Judges vested in the Governor is
conditioned by the mandatory duty on the part of the Governor
to consult the High Court, and the High Court has to decide
whether a person is fit for promotion and make
recommendations accordingly. This Court further held that the
c consultation has to be made with the High Court alone and not
with any other authority, because the High Court by virtue of its
control over the officers must be considered to be the best
judge of the ability and suitability of any officer as it has in its
possession all the relevant materials regarding the
performance of the officers. Therefore, this Court in the said
0
case ruled that it should generally be left to the High Court to
decide as to which of the officers will best serve the
requirements in furtherance of the cause of justice. In this
decision in no uncertain terms this Court after considering
previous judgments on the point held that the High Court should
E judge the suitability for promotion in a detached manner taking
into consideration all material facts and relevant factors and
normally, as a matter of rule, the recommendations made by
the High Court should be accepted by the State Government
and the Governor should act on the same. If the decision is
F construed in a pragmatic manner there is no manner of doubt
that this decision also takes a view that Governor has to act
on the recommendations made by the High Court. Ultimately,
this Court found that the appointments of respondent Nos. 3,
4, 5, 6 therein made by the State Government were in violation
G of the Constitutional provisions and were therefore, set aside.
69. In State of Haryana Vs. lnder Prakash Anand H.C.S.
and Others (Supra}, the respondent joined the Punjab Civil
Service, (Executive Branch) in November, 1954. He was
H selected for the Judicial Branch of the Punjab Civil Service on
RAJEN'f5RA SINGH VERMA (DEAD) THROUGH LRS v. 569
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
May 1, 1965. On November 15, 1968 he was promoted as A
officiating Additional District and Sessions Judge. He was due
to attain the age of 55 years on February 24, 1971. The State
refe.rred his case to the High Court for its recommendation
whether he should be retired at the age of 55 years or he
should be retained in service till the age of 58 years, i.e., the B
age of superannuation. The High Court recommended that the
respondent should be reverted to his substantive post of Senior
Subordinate Judge/Chief Judicial Magistrate and that he might
be allowed to continue in service till the age of 58 years. The
State a._galn- sought recommendation about his retirement. The c
High Court recommended against compulsory retirement. The
State Government did not agree and retired the respondent
compulsorily. The High Court in a Writ Petition filed by the
respondent quashed the order. In appeal this Court examined
the ·scope of Article 235 of the Constitution and held that control
0
which is vested in the High Court is complete control subject.
only to the power of the Governor in the matter of appointment
including dismissal, removal, reduction in rank and the initial .
posting and of the initial promotion tb District Judges.
According to this Court when a case is not of removal or
dismissal or reduction in rank, any order in respect of exercise E
of control over the judicial officers is by the High Court and
cannot be by any other authority. What is explained by this Court
is that ther-e cannot be dual control and if the State Government
is to .have the power of deciding whether a judicial officer
should be.retained in service after attaining the age of 55 years F
up to the~·age of 58 years, that will seriously affect the
independenqe of the Judiciary and take away the control vested
in the High Court. What is ruled by this Court in the said decision
-is thafit is unsound to contend that the Governor and not the
Higl'i Court.has the power to retire a judicial officer compulsorily G
under Sectibn 14 of the Punjab General Clauses Act.
70. In paragraph 18 of the reported judgment this Court
has-held that the control vested in the high Court is that if the
HitJh Court is of the opinion that a piarticular judicial officer is H
570 SUPREME COURT REPORTS [2011] 12 S.C.R.
A not fit to be retained in service, the High Court will communicate
that to the Governor because the Governor is the authority to
dismiss, remove, reduce in rank or terminate the appointment,
but in such cases it is the contemplation in the Constitution that
the Governor as the head of the State will act in harmony with
B the recommendation of the High Court. According to this Court,
if the recommendation of the High Court is not held to be
binding on the State, the consequences will be unfortunate.
What is highlighted by this Court in the said decision is that it
is in public interest that the State will accept the
c recommendation of the High Court. As a principle, it is stated
in the said decision that the vesting of complete control over
the subordinate Judiciary in the High Court leads to this that
the decision of the High Court in matters within its jurisdiction
will bind the State.
D 71. In Baldev Raj Guliani (1976) 4 SCC 201, this Court
had occasion to consider and interpret the provisions of Articles
235, 311 and 234 read with Article 309 of the Constitution. In
the said case adverse reports having been received against
the appellant while he was acting as Subordinate Judge,
E disciplinary proceedings were initiated against him by the High
Court. After preliminary enquiry, he was suspended and on the
findings of the departmental enquiry and on consideration of
his explanation in reply to show-cause notice under Article
311 (2), the High Court recommended to the Government that
F ·the officer should be removed from service. The State
Government although on its own showing was inclined to agree
with the views of the High Court and with the recommendations
made by it, however referred the case to the Haryana Public
Service Commission for advice purporting to act under Article
G 320(3) of the Constitution. The Commission advised that no
case had been made out against the appellant and that he
should be exonerated. The Governor accepted the advice of
the Commission and passed the order for reinstatement. The
High Court, however, did not issue any posting order as It
H regarded the order of reinstatement by the Governor illegal. It
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 571
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
even requested the Government to review its order. A
72. Thereupon the appellant filed a writ petition praying for
a writ of mandamus directing the high Court to issue an
appropriate order of posting and also for a mandamus
directing the Government to disburse full salary to him and other
8
consequential reliefs. While the writ petition was pending the
Governor compulsorily retired him. Subsequently a Full Bench
of the High Court delivered its judgment holding the order of
reinstatement violative of Article 235, for the Governor was
bound to accept the recommendation of the High Court as
regards the subordinate judiciary. Therefore, the appellant C
preferred an appeal before this Court. Three questions were
considered by this Court in the said case - (1) whether the
Government is bound under the Constitution to a~cept the
recommendation of the High Court and to pass an order of
removal of the judicial officer, (2) whether consultation with the . · D
Public Service Commission in the matter of a disciplinary
proceeding relating to the judicial officer under the control of
the High Court· is unconstitutional. Was the order,-of
reinstatement passed by the Government constitutionally valid,
and (3) if not what will be position of the officer on the date of E
the officer's compulsory retirement? Was an order of removal
possible after that date?
73. After considering the scheme envisaged by different
provisions of the Constitution this Court held that the appointing F
authority of a Subordinate Judge under Article 235 as well as
under the Appointment Rules, is the Governor because under
Article 235 itself the Subordinate Judge will be governed by the
Appointment Rules made under Article 234 read with Article
309. This Court then considered the submission of the appellant G
that the Governor being the appointing authority, both under
Article 235 and the Appointment Rules read with the
Punishment Rules, is the final authority to pass the order of
removal of the officer and is not under any constitutional
obligation to be bound by the recommendation of the High
H
572 SUPREME COURT REPORTS (2011] 12 S.C.R.
A Court and also the assertion made on behalf of the High Court
that Article 235 leaves no option to the Governor to refuse to
accept its recommendation in a disciplinary matter in respect
of a judicial officer. This Court found that the High Court in
making its recommendation to the Governor for passing the
B order of removal, had rightly conceded the authority of the
Governor to pass the same. Thereafter the Court considered
the question : Is the recommendation of the High Court binding
on the Governor, and answered that since the Governor is the
ultimate authority to pass the order for removal it will not be
c correct always to insist that he has no authority even under
certain extraordinary circumstances to decline to accept,
forthwith, the particular recommendation, but ordinarily and as
a matter of graceful routine, recommendations of the High Court
are and should be always accepted by the Governor, because
that is ordinarily so and should be in practice the rule as a
0
matter of healthy convention.
74. In paragraph 28, of the reported decision this Court
has held that the quality of exclusive control of the High Court
does not appear to be whittled down by the constitutional device
E of all orders issued in the name of the Governor as the head
of the State administration and, therefore, when the High Court
exercising disciplinary control over the subordinate judiciary
finds, after a proper enquiry, that a certain officer is guilty of
gross misconduct and is unworthy to be retained in judicial
F service and, therefore, recommends to the Governor his
removal or dismissal, it is difficult to conceive how and under
what circumstances such a recommendation should be rejected
by the Governor acting with the aid and advice of the Council
of Ministers or, as is usually the case, of one of the ministers.
G It is explained by this Court in the said decision that in this
context more than once the Supreme Court has observed that
the recommendation of the High Court in respect of judicial
officers should always be accepted by the Governor, and this
is the inner significance of the constitutional provisions relating
H to the subordinate judiciary. This Court further noted that
RAJENDRA SINGH VERMA {DEAD) THROUGH LRS v. 573
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] .
whenever in an,extraordinary case, rare in itself, the Governor A
feels, for certain reasons that he is unable to accept the High
Court'.s recommendations, these reasons will be communicated
to the High Court to enable it to reconsider the matter, but it is,
however, inconceivable that without reference to the High Court,
the Governor would pass an order which had not been earlier B
recommended by the High Court. This Court further explained
that such a course will be contrary to the contemplation in the
Constitution and should not take place. In para 36 of the ·
reported decision , this Court has explained the power and/or
role of Governor in such matters and laid down the law c
authoritatively as under : -
"36. The Governor could not have passed any order on the
advice of the Public Service Commission in this case. The
advice should be of no other authority than the High Court
in the matter of judicial officers. This is the plain implication D
of Article 235. Article 320(3)(c) is clearly out of place so
far as the High Court is concerned dealin.~ with judicial
officers. To give any other interpretation to article 320{3)(c)
will be to defeat the supreme object underlying Article 235
of the Constitution specially intended for the protection of E
the judicial officers and neces~arily the independence of
the subordinate judiciary. It is absolutely clear that the
Governor cannot consult the Public Service Commission
in the case of judicial officers and accept its advice and
act according to it. There is no room for any outside body F
between the Governor and the High Court."
It may be noted that in the case of Baldev Raj Guliani (supra),
this Court had considered the case of Shamsher Singh and
thereafter has laid down above mentioned proposition of law. G
In the deci~ion delivered in case of Baldev Raj Guliani, this
Court has not ruled that the Governor has to act in aid and on
advice ~f the Council of Ministers. What is ruled is that the
recommendation made by the High Court is binding on the
Governor.
H
574 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 75. Again in the case of Registrar, High Court of Madras
Vs. R. Rajaiah, (1988) 3 SCC 211, the High Court had decided
to compulsorily retire the respondents but had not
communicated the recommendations to the Governor for
passing formal orders of compulsory retirement. Instead the
B High Court had passed the orders of compulsory retirement
under FR 56 (d). As there was no formal order by the
Government under FR 56 (d), this Court held that the impugned
orders of the High Court were ineffective. Ultimately, this Court
did not interfere with the view expressed by the Division Bench
c of the High Court on merits of the matter and held that the High
Court was perfectly justified in quashing orders of compulsory
retirement. However, this Court considered the scope of Article
235 of the Constitution and held that the test of control is not
the passing of an order against a member of the subordinate
judicial service, but the power to take such decision and action.
0
The Court explained that so far as the members of the
subordinate judicial service are concF>rned, it is the Governor,
who being the appointing authority, has to pass an order of
compulsory retirement or any ordet of punishment against such
a member, but passing or signing of such orders by the
E Governor will not necessarily take away the control of the High
Court vested in it under Article 235 of the Constitution. This
Court further explained that an action against any Government
servant consists of two parts. Under the first part, a decision
will have to be made whether an action will be taken against
F the Government servant and in the second part, the decision
would be carried out by a formal order. Having explained this,
this Court proceeded to hold that the power of control envisaged
under Article 235 of the Constitution relates to the power of
making a decision by the High Court against a member of the
G subordinate judicial service and such a decision is arrived at
by holding an enquiry by the High Court against the member
concerned, and after the High Court comes to the conclusion
that some action either in the nature of compulsory retirement
or by the imposition of a punishment, as the case may be, has
H to be taken against the member concerned, the High Court will
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 575
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
make a recommendation in that regard to the Governor and the A
Governor will act in accordance with such recommendation of
the High Court by passing an order in accordance with the
decision of the High Court. What is ruled by this Court is that
the Governor cannot take any action against any member of a
subordinate judicial service without and contrary to the B
recommendation of the High Court. After review of the law on
the subject matter till then, this Court has made following
pertinent observations, in para 18 of the reported decision: -
"18. The control of the High Court, as understood, will also
be applicable in the case of compulsory retirement in that C
the High Court will, upon an enquiry, come to a conclusion
whether a member of a subordinate judicial service should
be retired prematurely or not. If the High Court comes to
the conclusion that such a member should be prematurely
retired, it will make a recommendation in that regard to the D
Governor inasmuch as the Governor is the appointing
authority. The Governor will make formal order of
compulsory retirement in accordance with the
recommendation of the High Court."
E
Again, in para 20 of the reported decision, this Court, while
holding that so long as there is no formal order by the Governor,
the compulsory retirement, as directed by the High Court would
not take place, has, inter-alia observed that "It may be that the
power of the Governor under Rule 56(d) of the Fundamental F
Rules is very formal in nature, for the Governor merely acts on
the recommendation of the High Court by signing an order in
that regard". The proposition of law laid down in this case also
supports the contention of the respondents that in the matter
of disciplinary action against a member of the Subordinate G
Judicial Service, the Governor has no option, but to pass final
order on the basis of the recommendation of the High Court.
76. It may be mentioned that in this case, i.e., Registrar,
High Court of Madras (supra), this Court has referred to the
decision of Shamsher Singh (supra), and has thereafter ruled H
576 SUPREME COURT REPORTS [2011] 12 S.C.R.
A that Governor has to act in accordance with the
recommendation of the High Court by passing an order in
accordance with the decision of the High Court and the
Governor cannot take any action against any member of the
judicial service without and contrary to the recommendation of
B the High Court.
77. This Court further finds that in Registrar (Admn.) High
Court of Orissa, Cuttack (Supra), decision of Orissa High Court
on administrative side was required to be forwarded to the
C Governor for passing an order of the compulsory retirement but
this was not done, and an order of compulsory retirement was
passed by the High Court itself. This decision was challenged
before the high Court on judicial side. The writ petition was
decided in favour of judicial officers holding that the order dated
February 5, 1987 compulsorily retiring them was bad in law. In
D appeal, this Court considered the scope of Articles 233 to 235
of the Constitution as well as Articles 55 and 368 in the light of
basic feature of the Constitution namely independence of the
judiciary, After noticing several previous decisions:on the point,
this Court considered the powers of the High Court and held
E that the Governor is bound by the recommendation of the High
Court but the constitutional propriety requires that the
recommendation would be sent by the High Court to the
Governor and formal order would be passed by the Governor.
Explaining the scope of Articles 234, 235 and 311 of the
F Constitution, a five-Judge Constitution Bench of this Court has
held that while the High Court retains the power of disciplinary
control over the subordinate judiciary, including the power to
initiate disciplinary proceedings, suspend them pending
enquiries and impose punishment on them but when it comes
G to the question of dismissal, removal, reduction in rank or
termination of the services of the judicial officer, on any count
whatsoever, the High Court becomes only the recommending
authority and cannot itself pass such an order. What is ruled
H
-- .
by the Constitution Bench is that the formal order to give effect
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 577
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
to such a decision has to be passed only by the State Governor A
on the recommendation of the High Court.
78. In the said case, this Court found that by not making
an order of compulsory retirement on the recommendation of
the High Court, a peculiar situation was created in the sense
8
that the judicial officers were neither in service nor were they
technically out of service nor had they performed any work and,
therefore, in order to balance the equities between the parties
and in order to give litigation a quietous, this Court had
requested the Governor of the State to pass a formal order of C
compulsory retirement of judicial officers.
79. On review of law, what is ruled by the Constitution
Bench of this Court is that undoubtedly, the High Courts alone
are entitled to initiate, to hold enquiry and to take a decision in
respect of dismissal, removal, reduction in rank or termination D
from service, but the formal order to give effect to such a
decision has to be passed only by the State Governor on the
recommendation of the Higti Court, and it is well settled again
by a catena of decisions ofthis Court tliat the recommendation
of the High Court is binding on the State Government/Governor. E
80. In Tej Pal Singh Vs. State of UP. and Another, (1986)
3 SCC 604, the State Government moved the High Court in
the year 1967 with proposal of premature retirement of the
appellant, an Additional District and Sessions Judge. On July F
8, 1968 the Administrative Judge agreed with the proposal of
premature retirement after giving three months' notice. The
Governor passed the order of retirement on August 24, 1968.
Three days thereafter, on August 27, 1968 the Administrative
Committee of the High Court gave its approval to the
recommendation of the Administrative Judge earlier G
communicated to the State Government. Thereafter on August
30, 1968 the Additional Registrar transmitted the order of
retirement to the appellant. It was actually served on the
appellant on September 3, 1968. The question for
consideration in this case before this Court was whether the H
578 SUPREME COURT REPORTS [2011] 12 S.C.R.
A order of compulsory retirement passed against the appellant
satisfied the requirements of the Constitution. While allowing
the appeal, this Court held that the impugned order of
premature retirement passed by the Governor without having
before him the recommendation of the Administrative
B Committee or of the Full Court was void and ineffective. What
is ruled is that it is for the High Court, on the basis of
assessment of performance and all other aspects germane to
the matter to come to the conclusion whether any particular
judicial officer under its control is to be prematurely retired and
c once the High Court comes to the conclusion that there should
be such retirement, the Court recommends to the Governor to
do so, and the conclusion is to be of the High Court since the
control vests therein. After noticing the Rules obtaining in the
Allahabad High Court, this Court held that the Administrative
Committee could act for and on behalf of the Court but the
0
Administrative Judge could not have done so and therefore his
agreeing with the Government proposal was of no consequence
and did not amount to the satisfaction of the requirement of
Article 235. After noting ·that it was only after the Governor
passed the order on the basis of such recommendation, that
E the matter was placed before the Administrative Committee
before the order of retirement was actually served on the
appellant, this Court held that the deviation was not a mere
irregularity which could be cured under Rule 21 of the Rules of
Court, 1952 by the ex post facto approval given by the
F Administrative Committee to the action of the Governor after
the order of premature retirement had been passed and the
error committed was an incurable defect amounting to an
illegality. This Court took notice of the decision of the Court in
State of UP. Vs. Batuk Deo Pati Tripathi, (1978) 2 SCC 102,
G and ruled therein that the Governor can pass an order of
compulsory retirement only on the recommendation made by
the High Court or the Administrative Committee. Further, in
paragraph 18 of the reported decision, this Court observed that
in view of the control over the members of lower judiciary
H vested in the High Court by virtue of Article 235 of the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 579
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
Constitution, the Governor is bound, in each case, to act in A
accordance with the recommendation of the High Court. This
decision also takes the firm view that the recommendation
made by the High Court is binding on the Governor.
81. Thus, it is fairly well settled by catena of decisions of
8
this Court that in the matter of compulsory retirement of a
Judicial Officer the Governor cannot act on the aid and the
advice of Council of Ministers but has to act only on the
recommendation of the High Court. Though the Lt. Governor is
a party to these appeals, he has not raised any plea that the C
recommendation made by the Delhi High Court was not
binding on him and he could have acted in the matter only on
the aid and advice of his Council of Ministers. Thus the order
of the Lt. Governor compulsorily retiring the appellants without
seeking aid and advice of his Council of Ministers is neither
ultra vires nor illegal and is rightly sustained by the High Court. D
The Governor could not have passed any order on the aid and
advice of Council of Ministers in this case. The advice should
be::-0f no other authority except that of the tligh Court in the
matter of judicial officers. This is the plain-implication of Article
235. Reliance on Article 239AA(4) is entirely out of place so E
far as the High Court is concerned, dealing with the judicial
officers. To give any other interpretation to Article 239AA(4) will
be to defeat the supreme object underlying Article 235 of the
Constitution, specially intended for protection of the judicial
officers and necessarily independ~nce of the subordinate F
judiciary. It is absolutely clear that the Governor cannot take the
aid and advice of his Council of Ministers in the case of judicial
officers and accept its advice and act according to it. There is
no room for any outside body between the Governor and the
High Court. Therefore, this Court does not find any substance G
in this contention also and the same is rejected.
82. The next point which was argued on behalf of the
appellants was that the appellants were made to retire
compulsorily from service without affording them an opportunity H
580 SUPREME COURT REPORTS [2011] 12 S.C.R.
A to make representation against the ACR of the year 2000
wherein they were graded as '"C' doubtful integrity", which was
the basis for their compulsorily retirement, and, therefore, the
orders retiring them compulsorily from service are liable to the
set aside. It was vehemently contended that in such
s circumstances when ACR of 2000 wherein the appellants were
graded as "'C' doubtful integrity" which was the sole basis of
passing the order of compulsory retirement, the respondents
were under legal obligation to look into the representation of
the appellants against those adverse remarks but before the
c appellants could made the representation against the said
ACR, orders retiring them compulsorily from service were
passed, and, therefore, the orders impugned should be
regarded as arbitrary, unfair and unreasonable.
83. In the appeal arising from SLP No. 27028 of 2008
D deceased Mr. R.S. Verma had stated that adverse remark for
the year 2000 was communicated to him vide letter dated
September 21, 200~ by the Registrar, Vigilance, Delhi High
Court which was received by t im on September 25, 2001,
whereas on the same date i.e. on September 21, 2001 the
E Screening Committee had taken decision to retire him
prematurely from service which was accepted by the Full Court
in its meeting held on September 22, 2001 and though in the
letter communicating ACR it was mentioned that he was entitled
to made representation within six weeks, the order of
F compulsory retirement against him was passed on September
27, 2001 which was communicated to him on September 28,
2001 and as he was deprived of making any representation
against the ACR for the year 2000, the order retiring him from
service compulsorily was bad in law.
G
84. In the Appeal arising from Special Leave Petition
No.27200 of 2008 it was contended by M.S. Rohilla that in the
ACR for the year 2000, recorded by the Full Court on May 24,
2001, he was graded 'C-lntegrity doubtful' and he was
communicated the said ACR and was asked to submit hi&,
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 581
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
representation within six weeks, but within three days thereafter A
i.e. on September 27, 2001 decision was taken to retire him
compulsorily from service and, therefore, the order retiring him
compulsorily from service was illegal.
85. In Appeal arising out of Special Leave Petition No. 314
8
of 2009 it was contended on behalf of P.O. Gupta that the Full
Court had recorded remarks 'C-lntegrity Doubtful' for the year
2000, in his case, which was communicated to him vide letter
dated September 22, 2001 and he was asked to, file his
representation against the remarks within six weeks, but without C
waiting for the representation to be filed by him, the High court
upon the adverse remarks of 2000 had recommended his
premature retirement to the Lt. Governor under F.R. 560) read
with Rule 33 of the DJS Rules, and therefore the order retiring
him from service should have been set aside by the High Court.
D
86. As against this it was emphasized on behalf of the
respondents that this Court not only has taken the view that a
single adverse entry r,,eflecting on the integrity of the officer is -~
sufficient because there has to be constant vigil by the High -
Court over subordinate judiciary but this Court has further taken E
the view that it is not necessary that such an entry should have
been communicated or that the officer concerned should have
an opportunity to represent against the said adverse entry or
that before it could be taken into consideration and acted upon,
the representation should have been considered or rejected. F
87. The High Court in the impugned judgment, while
considering this plea raised on behalf of the appellants, has
inter alia held that action under FR 560) need not await the final
disposal of such representation. It may be mentioned that in
support of their respective contentions, the learned counsel G
1ave cited several decisions for the guidance of the Court but
his Court proposes to refer to only those judgments which are
elevant for deciding the issue.
88. Compulsory retirement from service is not considered H
582 SUPREME COURT REPORTS [2011] 12 S.C.R.
A to be a punishment. Under the relevant rules, an order of
dismissal is a punishment laid on a Government servant when
it is found that he has been guilty of misconduct or the like. It is
penal in character because it involves loss of pension which
under the Rules have accrued in respect of the service already
B put in. An order of removal also stands on the same footing as
an order of dismissal and involves the same consequences,
the only difference between them being that while a servant who
is dismissed is not eligible for re-appointment, one who is
removed is. A compulsory retirement is neither dismissal nor
c removal and differs from both of them, in that it is not a form of
punishment prescribed by the rules and involves no penal
consequences, in as much as the person retired is entitled to
pension and other retiral benefits, proportionate to the period
of service standing to his credit.
D 89. As explained by a Bench of three Hon'ble Judges of
this Court in State of UP. vs. Shyam Lal Sharma AIR 1971
SC 2151, in ascertaining, whether the order of compulsory
retirement is one _of punishmE nt, it has to be ascertained;
whether in the order of compulsory retirement there was any
E element of charge or stigma or imputation or any implication
of misbehaviour or incapacity against the officer concerned.
Secondly, the order of compulsory retirement will be indicative
of punishment or penalty if the order will involve loss of benefits
already earned. Thirdly, as order of compulsory retirement on
F the completion of 25 years of service or an order of compulsory
retirement made in the public interest to dispense with further
service will not amount to an order for dismissal or removal as
there is no element of punishment. Fourthly, an order of
compulsory retirement will not be held to be an order in the
G nature of punishment or penalty on the ground that there is
possibility of loss of future prospects, namely, that the officer
will not get his pay till he attains the age of superannuation, or
will not get an enhanced pension for not being allowed to
remain a few years in service and being compulsorily retired.
H So far as the present cases are concerned, this Court finds that
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 583
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
there are no words in the orders of compulsory retirement, A
which throw any stigma against the two appellants and the
deceased officer. Therefore, it is not necessary for this Court
to make inquiry into the Government files to discover whether
any remark amounting to stigma could be found in the files. The
reason is that it is the order of compulsory retirement, which B
alone is for examination. If the order itself does not contain any
imputation or charge against the two appellants and the
deceased officer, the fact that considerations of misconduct or
misbehaviour weighed with the High Court in coming to its
conclusion to retire them compulsorily does not amount to any c
imputation or charge against them. It is not established from
the order of compulsory retirement itself that the charge or
imputation against the appellants was made a condition for
exercise of the power. Therefore, the orders of retirement
cannot be considered to be one for dismissal or removal in the D
nature of penalty or punishment.
90. Now, the policy underlying Article 311 (2) of the
Constitution is that when it is proposed to take action against
the servant by way of punishment and that will entail forfeiture
of benefits already earned by him, he should be heard and E
given an opportunity to show cause against the order. The
confidential reports provide the basic and vital inputs for
assessing the performance of an officer and his advancement
in his career as also to serve the data for judging his
comparative merits when the questions arise for his F
confirmation, promotion, grant of selection grade, crossing E.B.,
retention in service beyond the age of 50 years etc.
Maintenance of such records is ordinarily regulated by
administrative rules or instructions. Writing the confidential
report is primarily and essentially an administrative function. G
Normally tribunals/Courts are loath to interfere in cases of
complaints against adverse remarks and to substitute their own.·
judgment for that of the reporting or reviewing officers. It is
because these officers alone are best suited to judge the
qualities of officials working under them and about their H
584 SUPREME COURT REPORTS [2011] 12 S.C.R.
A competence in the performance of official duties entrusted to
them. Despite fear of abuse of power by prejudiced superior
officers in certain cases, the service record contained in the
confidential reports, by and large, reflects the real personality
of the officer. The object of writing confidential reports and
B making entries therein is to give an opportunity to the public
servant to improve excellence. Article 51 AO) of the Constitution
enjoins upon every citizen the primary duty to constantly
endeavour to prove excellence, individually and collectively, as
a member of the group. Therefore, the officer entrusted with the
c duty to write C.R. has a public responsibility and trust to write
the C.R. objectively, fairly and dispassionately while giving, as
accurately as possible the statement of facts on an overall
assessment of performance of the subordinate officer.
Opportunity of hearing is not necessary before adverse
D remarks because adverse remarks by themselves do not
constitute a penalty. However, when the order of compulsory
retirement is passed, the authority concerned has to take into
consideration the whole service record of the officer concerned
which would include non-communicated adverse remarks also.
E Thus it is settled by several reported decisions of this Court that
un-communicated adverse remarks can be taken into
consideration while deciding the question whether an official
should be made to retire compulsorily or not.
91. In State of U.P. and Another Vs. Bihari Lal (1994)
F Supp (3) sec 593, this Court has taken the view that even an
adverse entry which has been set aside in appeal on technical
grounds could also be taken into consideration. The plea that
since the last entry, i.e., 'C-lntegrity Doubtful' for the year 2000
was communicated almost around the same time when the
G order of compulsory retirement was communicated and as the
appellants had no opportunity to represent against the same,
it ought not to have been taken into consideration and that the
consideration of the said last adverse entry vitiates the order
of compulsory retirement has no merits. This Court has
H consistently taken the view that an order of compulsory
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 585
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
retirement is not a punishment and does not have adverse A
consequence and, therefore, the principles of natural justice are
not attracted. What is relevant to notice is that this Court has
held that an un-communicated adverse A.C.R. on record can
be taken into consideration and an order of compulsory
retirement cannot be set aside only for the reason that such un- B
communicated adverse entry was taken into consideration. If
that be so, the fact that the adverse A.C.R. was communicated
but none of the appellants had an opportunity tO represent
against the same, before the same was taken into
consideration for passing order of compulsory retirement, c
cannot at all vitiate the order of compulsory retirement.
92. In State of UP. and another vs. Bihari/a/ (supra), 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 D
the adverse remarks, 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 ma la. fide
exercise of power or arbitrary exercise of power, a possible
different conclusion would not be a ground for interference by E
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. Again, a three Judge
Bench of this Court in Union of India vs. V.P. Seth and another F
1994 SCC (L&S) 1052, has held that uncommunicated adverse
remarks can be taken into consideration while passing the
order of compulsory retirement. The bench in the said case
made reference to Baikuntha Nath Oas vs. Chief District
Medical Officer, Baripada (1992) 2 sec 299, as well as Posts G
and Telegraphs Board vs. C.S.N. Murthy (1992) 2 SCC 317,
and after reiterating, with approval, the principles stated therein,
has laid down firm proposition of law that an order of compulsory
retirement is not liable to be quashed by a Court merely on the
showing that while passing it, uncommunicated adverse H
586 SUPREME COURT REPORTS [2011] 12 S.C.R.
A remarks were also taken into consideration. Applying the ratio
laid down in the above-mentioned two cases to the facts of the
present cases, this Court finds that the authorities concerned
were justified in relying upon the adverse entry made against
the two appellants and the deceased officer in the year 2000
B indicating that their integrity was doubtful alongwith other
materials. Here in these cases, the ACRs for the year 2000
were communicated to the three officers but before they could
exercise the option given to them to make representation
against the same, the orders of compulsory retirement were
c passed. When an uncommunicated adverse entry can be taken
into consideration, while passing order of compulsory
retirement, there is no reason to hold that adverse entry
communicated, against which opportunity of making
representation is denied, cannot be taken into consideration
at the time of passing order of compulsory retirement. Merely
0
because the two appellants and the deceased officer had no
opportunity to make representation against the said entry or
that the representation made against the same was pending,
would not render consideration of the said entry illegal: in any
E manner, whatsoever.
93. In Baidyanath Mahapatra Vs. State of Orissa and
Another(1989) 4 SCC 664, the Review Committee constituted
by the Government of Orissa in October 1983 to determine the
appellant's suitability for retention in service after his completing
F the age of 50 years, recommended the appellant to be
compulsorily retired under Rule 71 (1 )(a) of the Orissa Service
Code. The Committee took into account for formulating its
opinion, the entries awarded to him for the years 1981-82 and
1982-83 which had been communicated to the appellant on
G July 5, 1983 and August 9, 1983 respectively. The appellant
made representations against entries on November 1, 1983 but
without disposing them of, the Government made an order on
November 10, 1983 compulsorily retiring the appellant from
service, which was upheld by the State Administrative Tribunal.
H Allowing the appeal this Court held that the appellant had right
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 587
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
to make representation against the adverse entries within six A
months, and, therefore, the adverse entries awarded to him in
the years 1981-82 and 1982-83 could not have been taken into
account either by the Review Committee or by the State
Government in forming the requisite opinion as contemplated
by Rule 71 (1 )(a) of the Orissa Service Code, before the expiry s
of the period of six months. According to the Court, the proper
course for the Review Committee should have been not to
consider those entries or in the alternative, the Review
Committee should have waited for the decision of the
Government on the appellant's representation. This Court in the c
said decision emphasized the purpose of communicating
adverse entries and held that delay in communication of
adverse entries should be avoided. This Court finds that the
said case did not deal with entry which had adverse reflection
on the integrity of the official concerned.
D
94. In S. Maheswar Rao Vs. State of Orissa and Another
1989 Supp (2) SCC 248 the appellant was a Superintending
Engineer. His case was considered under the first proviso to
Rule 71 (a) of the Orissa Service Code and on the basis of ·
adverse remarks awarded to him for the last three yei\trs, i.e., E
for the years 1980-81, 1981-82 and 1982-83, the Review
Committee had made recommendation for his premature
retirement. At that time his representation against the adverse
remarks relating to the first year was pending. Against the
remarks for the other years, he made representations F
subsequently and the State Government had without disposing
of these representations compulsorily retired him. The
Bhubaneswar Administrative Tribunal disapproved the taking
into consideration of the remarks for the first year but sustained
the impugned order of compulsory retirement on the basis of G
remarks for the subsequent years. While allowing the appeal
this Court observed that adverse entries for the years 1981-
82 and 1982-83 could not have been taken into consideration
for the premature retirement of the appellant, and the Review
Committee should have deferred the consideration of his case H
588 SUPREME COURT REPORTS [2011) 12 S.C.R.
A till his representation against the aforesaid adverse entries was
disposed of or in the alternative the State Government itself
should have considered and disposed of the representation
before issuing the order for premature retirement. However, in
this case also, this Court finds that this was not a case of
B consideration of adverse entry relating to the integrity of the
officer concerned.
95. Though the learned counsel for the appellants have
relied upon decision in V.K. Jain Vs. High Court of Delhi
through Registrar General and Others, (2008) 17 SCC 538,
C this Court finds that basically the said decision deals with
expunction of adverse remarks made by the High Court against
a judicial officer while setting aside his judicial order granting
bail to an accused. It emphasizes, the judicial restraints to be
exercised by the High Courts in judicial functions. It does not
D deal with compulsory retirement of a judicial officer or how to
write his ACR. Therefore, detailed ref~rence to the same is
avoided.
96. However, this Court finds that in Union of India Vs. Col.
E J.N. Sinha and Another, 1970 (2) SCC 458, the respondent
was compulsorily retired by the Government of India under
Fundamental Rule 560). The said order was challenged by the
respondent amongst other things on the ground that the lack
of opportunity to show cause amounted to denial of natural
F justice. The said plea was accepted by the High Court and
High Court had issued a writ of certiorari quashing the said
order. In appeal this Court held that a Government Servant
serving under the Union of India holds his office at the pleasure
of the President, but this 'pleasure' doctrine is subject to the
G rules or law made under Article 309 as well as to the conditions
prescribed under Article 311. This Court firmly held that rules
of natural justice are not embodied rules nor can they be
elevated to the position of fundamental rights, and the Court
cannot ignore the mandate of the Legislature or a statutory
authority. After holding that the compulsory retirement involves
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 589
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
no civil consequences and that a Government servant does not A
lose any of the rights acquired by him before retirement, it was
held that Fundamental Rule 56 0) holds the balance between
the rights of the individual Government servant and the interests
of the public. According to this Court, while a minimum service
is guaranteed to the Government servant, the government is B
given power to energize its machinery and make it more
efficient by compulsorily retiring those who in its opinion should
not be there in public interest. Thus the plea of breach of
principles of natural justice was not accepted by this Court in
the said case.
c
97. In Baikuntha Nath Das and Another Vs. Chief District
Medical Officer, Baripada and Another, (1992) 2 SCC 299,
the three Judge Bench of this Court had occasion to consider
the question of effect of uncommunicated adverse remarks
taken into consideration while passing order of compulsory D
retirement against the appellants of that case and. scope of
judicial review of the order retiring an employee compulsorily
from service. The appellants in the appeals were compulsorily
retired by the Government of Orissa in exercise of the power
conferred upon it by the first Proviso to sub-rule (a) of Rule 71 E
of the Orissa Service Code. The appellant Mr. Baikuntha Nath
Das was appointed as a Pharmacist by the Civil Surgeon,
Mayurbhanj on March 15, 1951. By an order dated February
13 1976 the Government of Orissa had retired him
compulsorily. The said Order was challenged by him in the High F
Court of Orissa by way of a Writ Petition. His case was that
the order was based on no material and that it was the result
of ill-will and malice, the Chief District Medical Officer bore
towards him. According to him he was transferred by the said
officer from place to place and was also placed under G
suspension at one stage, but his entire service had been
spotless and that at no time were any adverse entries in his
confidential character rolls communicated to him. In the counter
affidavit filed on behalf of the Government it was submitted that
the decision to retire him compulsorily was taken by the Review H
590 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Committee and not by the Chief Medical Officer and it was
stated that besides the remarks made in the confidential
character rolls, other material was also taken into consideration
by the Review Committee and that it had arrived at its decision
bona fide and in public interest which decision was accepted
B and approved by the Government. In the Counter the allegation
of mala fide was denied. The High Court had looked into the
proceedings of the Review Committee and the confidential
character rolls of the appellant and dismissed the writ petition
holding that an order of compulsory retirement after putting in
c the prescribed qualifying period of service does not amount to
punishment. The High Court had observed that the order in
question was passed by the State Government and not by the
Chief Medical Officer and did not suffer from vice of malice. It
was further held by the High Court that it was true that the
confidential character roll of the appellant contained several
0
remarks adverse to him which were, no doubt, not
- communicated to him. On behalf of the: appellants who were
compulsorily retired reliance was placed upon the decisions of
this Ceiurt in Brij Mohan Singh Chopra Vs. State of Punjab,
(1987) 2 SCC 188 and Baidyanath Mahapatra (Supra) in
E support of the contention that it was not permissible to the
respondent Government to order compulsory retirement on the
basis of material which included uncommunicated adverse
remarks, whereas on behalf of the respondent Government
reliance was placed upon the decision in Union of India Vs.
F M.E. Reddy, (1980) 2 SCC 15, to contend that it was
permissible to the Government to take into consideration
uncommunicated adverse remarks also while taking a decision
to retire a Government servant compulsorily. A study of the
decision rendered by the three Judge Bench of this Court
G makes it evident that not less than twenty reported decisions
of this Court were taken into consideration and thereafter the
Court has overruled the decision in Baidyanath Mahapatra Vs.
State of Orissa (1989) 4 SCC 664, which took the view that
uncommunicated adverse remarks cannot be taken into
H consideration while passing an order of compulsory retirement
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 591
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
against a Government servant. A
98. In Baikuntha Nath Das case, after referring to decision
of this Court in Brij Mohan Singh Chopra Vs. State of Punjab
(1987) 2 SCC 188, where a three Judge Bench of this Court
has specifically affirmed the decision rendered in Union of India
8
Vs. M.E. Reddy (1980) 2 SCC 15, this Court has laid down
following firm proposition of law stated in paragraph 34 of the
reported decision:
"34: The following principles emerge from the above
discussion: C
(1) An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion
of misbehaviour.
(ii) The order has to be passed by th.e government on D
forming the opinion that it is in the public interest
to retire a government servant compulsorily. The
order is passed on the subjective satisfaction of the
government.
E
(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 this Court would
not examine the matter as an appellate court, they F
may interfere if they are satisfied 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 G
to be a perverse order.
(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
H
592 SUPREME COURT REPORTS [2011) 12 S.C.R.
A matter - of course attaching more importance to
record of and performance during the later years.
The record to be so considered 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
B
notwithstanding the adverse remarks, such remarks
lose their sting, more so, if the promotion is based
upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to
C be quashed by a Court merely on the showing that
while passing it uncommunicated adverse remarks
were also taken into consideration. That
circumstance by itself cannot be a basis for
interference.
D
Interference is permissible only on the grounds mentioned
in (iii) above .. "
99. In view of the tWo three Judge Bench decisions of this
Court mentioned above the contention that adverse remarks
E relating to integrity regarding which no opportunity of making
representation was provided or pending representation was not
considered and, therefore, orders of compulsory retirement
were bad in law cannot be accepted. Therefore, the said
contention is hereby rejected.
F
100. Another point which was canvassed for consideration
of the Court was that Rule 31A of DJS Rules incorporated since
1.1.1996 covers entire field of age of retirement and premature
retirement of Delhi Judicial Officers and, therefore, premature
G retirement of the appellants could not have been made before
their attaining the age of 58 years. According to the learned
counsel for the appellants Rule 31A was added by notification
dated 1.1.1996 issued by Lt. Governor on the recommendation
of the Delhi High Court under Article 309 of the Constitution to
H DJS Rules on the subject of retirement, providing the normal
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 593
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
age of retirement as 60 years with proviso of compulsory A
retirement at the age of.58 years and for voluntary retirement
at the age of 58 years and after addition of this Rule, Rule 33
of DJS Rules could not have been invoked for application of
Fundamental Rules, on the subject of normal age of retirement,
age of premature retirement and assessment of performance B
as 'well as age of voluntary retirement. What was emphasized
was that after introduction of Rule 31A in DJS Rules the subject
of premature retirement cannot be considered to be a residuary
matter for which no Rule exists in DJS rules and, therefore,
premature retirement of the appellants could not have been c
ordered before they attained the age of 58 years.
101. The learned counsel for the High Court argued that
this point was given up before the High Court and, therefore,
the Court should not permit the appellants to agitate the same
in appeals arising from grant of special leave. In support of this D
submission reliance was placed by the learned counsel for the
High Court on: (1) State of Maharashtra Vs. Ramdas Shrinivas
,Nayak & Anr., (1982) 2 SCC 463, (2) Sbankar K. Manda/ &
Ors. Vs. State of Bihar & 'Ors., (2003) 9 SCC 519, (3) Mount
Carmel School Society Vs. ODA, (2008) 2SCC 141, and (4) E
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors.,
(2003) 2SCC 111.
102. Without prejudice to the above contention, it was
argued by the learned counsel for the High Court that in All India F
Judge's Association Vs. Union of India & Ors., (1992) 1 SCC
119, this Court directed that the age of retirement of the judicial
officers be increased to 60, and when a review was filed, this
Court in A// India Judges' Association and others vs. Union
of India and others (1993) 4 sec 288, while maintaining that G
the judicial officers be permitted to serve up to the age of 60
years, imposed a condition that all judicial officers would not
be entitled to the said benefit automatically, but only those who
were found fit after the evaluation of their fitness would be
permitted to go up to 60 years and this Court expressed the H
594 SUPREME COURT REPORTS [2011] 12 S.C.R.
A view that the standard of evaluation could be the same as for
compulsory retirement. The learned counsel emphasized that
while giving the said direction, this Court expressly and
specifically provided that the ordinary provisions relating to
compulsory retirement at earlier stages were not dispensed with
B and they will continue to operate, and, therefore, incorporation
of Rule 31A in the Delhi Judicial Service was made but it is
wrong to contend that Rule 31A overrides the other provisions
of the Rules and in particular, Rule 33 read with Fundamental
Rules which provide for compulsory retirement after a judicial
c officer attains the age of 50 years. According to the learned
counsel for the respondent, Rule 31A has no bearing and
impact in deciding whether the order of compulsory retirement
against the appellant in terms of Rule 33 read with F.R. 56(j) is
valid or not.
D 103. Though High Court in paragraph 45 of the impugned
judgment has observed that the plea taken in the writ petition
filed by Mr. Gupta that FR 56(j) read with Rule 33 of the DJS
_. Rules is not applicable after the introduction of Rule 31 of the
DJS rules, was dropped at the time of argument by the learned
E counsel for the appellant conceding that the order could have
been passed under the aforesaid provision, this Court finds that
this was a concession on point of law which would not bind the
appellants. Further in the interest of justice it is necessary to
settle the controversy once for all and, therefore, though in view
F of decisions cited by the learned counsel for the High Court, it
is accepted as correct by this Court that the point sought to be
argued was dropped before the High Court, it would not be in
the interest of justice to preclude the learned counsel for the
appellants from agitating this point before this Court. Under the
G circumstances, the Court proposes to examine the said
contention on merits.
104. It is well known fact that in A// India Judge's
Association (Supra), this Hon'ble Court in paragraph 63(iii)
directed that :
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 595
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
"Retirement age of judicial officers be raised to 60 years A
and appropriate steps are to be taken by December 31,
1992."
105. In Second All India Judge's Association & Others Vs.
Union of India & Others, (1993) 4 SCC 288, this Court clarified B
in paragraph 30 of the said judgment as under :
"The benefit of the increase of the retirement age to 60
years, shall not be available automatically to all judicial
officers irrespective of their past records of service and
evidence of their continued utility to the judicial C
system ...................The potential for continued utility shall be
assessed and evaluated by appropriate Committees of
Judges of the respective High Courts constituted and
headed by the Chief Justice of the High Courts and the
evaluation shall be made on the basis of the judicial D
officer's past record of service, character rolls, quality of
judgments and other relevant matters."
106. In paragraph 31 of the reported decision this Court
has inter alia observed that the standard of evaluation shall be E
as applicable to compulsory retirement. However what is
relevant to notice is paragraph 52 wherein this Court observed
and directed as under:-
"The assessment directed here is for evaluating the
eligibility to continue in service beyond 58 years of age and F
is in addition to and independent of the assessment for
compulsory retirement that may have to be undertaken
under the relevant Service Rules, at the earlier stage/s."
107. In Nawal Singh Vs. State of U.P. & Anoth.er, (2003) G
8 sec 117, this Court had again occasion to consider the
observations made in Alf India Judge's Association case
(second) and after making reference to the said decision this
Court observ~d as under :-
".......... there is no embargo on the competent authority H
596 SUPREME COURT REPORTS (2011) 12 S.C.R.
A to exercise its power of compulsory retirement under Rule
56 of the Fundamental Rules. As stated above, we have
arrived at the conclusion that because of the increase in
retirement age, rest of the Rules providing for compulsory
retirement would not be nugatory and are not repealed."
8
108. Again in Ramesh Chandra Acharya Vs. Registrary,
High Court of Orissa and Another, (2000) 6 SCC 332, this
Court observed in paragraph 8 of the reported decision that
"the Court thereafter clarified that the assessment at the age
C of 58 years is for the purpose of finding out suitability of the
officers concerned for the entitlement of the benefit of the
increased age of superannuation from 58 years to 60 years; it
is in addition to the assessment to be undertaken for
compulsory retirement and the compulsory retirement at the
earlier stage/s under the respective service rules."
D
109. In view of the direction contained in All India Judge's
Association case Rule 31 was inserted in DJS Rules with effect
from 1.1.1996 providing that the normal age of retireme11t of
the Delhi Judidal Officers governed by D.J.S. Rules would be
E 60 years. The potential for continued utility was to be assessed
and evaluated at the age of 58 years because the benefit of
the increase of the retirement age t.o 60 years was not available
automatically to all judicial officers irrespective of their past
records of service. Though this Court observed that the
F standard of evaluation for determining the potential for
continued utility should be the same as for compulsory
retirement but it was specifically made clear that the
assessment directed was for evaluating the eligibility to·
continue in service beyond 58 years of age and was in addition
G to and independent of the assessment for compulsory
retirement that might have to be undertaken under the relevant
Service Rules at the earlier stagels. The clarification made by
this Court in All India Judge's Association case No. 2 leaves
the matter in no doubt that the independent assessment for
compulsory retirement to be undertaken under· the relevant
H
"'\JENDRA SINGH VERMA (DEAD) THROUGH LRS v. 597
. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
•rvice Rules is not affected at all in any manner whatsoever. A
•is true that the performance of a judicial officer is to be
aluated for determining his utility to continue in service upto
ie age of 60 years but it is wrong to contend that Rule 31
-errides Rule 33, which deals with residuary matters which
;ludes compulsory retirement of a judicial officer after he B
ains the age of 50 years. It is rightly contended by the learned
-unsel for the High Court that Rule 31A has bearing and
.pact in deciding the question whether the order of compulsory
ltirement against the appellant in terms of Rule 33 read With
~. 560) is valid or not. The newly added rule does not deal c
Ith the aspect of compulsory retirement at all. In terms of Rule
6 the subject of compulsory retirement did remain residuary.
•en after the introduction of Rule 31A in DJS Rules and,
1erefore, the question of premature retirement will have to be
-insidered only under FR 56(j) and not under the newly added
0
Jle 31A. Thus consideration of the case of the appellant for
emature retirement before he attained the age of 58 years
11nnot be regarded as illegal in any manner at all. This Court
)es not find any substance in this contention raised on behalf
the appellant and, therefore, the same is rejected.
E
110. Another point which was pressed into service for
)nsideration of the Court was that the procedure of recording
iCR wherein the appellants were given adverse remarks was
violation of rules of principles of natural justice and as there
as no material which would justify adverse entries in ACR's F
t the appellants, the same could not have been taken into
Jnsideration while passing orders of compulsory retirement.
•n behalf of the deceased Mr. Verma it was argued that there
·as no material to retire him prematurely and it was admitted
y the High Court in his case that premature retirement was G
·ot ordered because of complaints, but on the bona fide
inpression and opinion formed by the High Court. It was also
1rgued on behalf of Mr. Verma that no inspection was made,
if the judicial work done by him for the years 1998, 1999 and
•000 and as this fact was not denied in the counter affidavit H
598 SUPREME COURT REPORTS [2011] 12 S.C.RI
A · filed by the High Court, the order retiring him compulsorily fror
service suffers from vice of malice in law, and should have bee·
set aside by the High Court on judicial side. Mr. Rohilla wh·
had argued his appeal in person had contended that the ordei
of compulsory retirement was expected to have been passe•
B on the basis of all the material available prior to the passing c
the order but the material in respect of which he had mad•
representation which was pending to be replied O·
representation against the material which was still required ta
be submitted, could not have been relied upon for passing ordei
c of compulsory retirement. According to him, the so callet>
material relied upon was only one-sided view and was not tha
wholesome exercise which was required to be undertakeP
before passing order of compulsory retirement. Mr. Rohilla ha"
further argued that there was no record of any complaints eithe-
D oral or in writing nor there was any record to show whether th11
complaints related to his judicial work on the basis of whic~
ACR of the year 2000 were recorded. The oral communicatiol"
by members of the Bar or by office bearers of the Ba
Association was thoroughly irrelevant in the absence o
particulars mentioned in the ACR and, could not have beer
E taken into consideration while passing order of compulso~
retirement.
111. On behalf of the appellant Mr. P.O. Gupta, it was
contended that for the year 2000 Hon'ble Mr. Justice M.S.A
F Siddique was appointed as Inspecting Judge by the High Cour
but Hon'ble Mr. Justice Siddique had retired on 29.5.20011
without giving any Inspection Report and he had not inspectec
his Court during the year at all, whereas during the year 2001
three Judges had been appointed as Inspecting Judges namel;
G Hon'ble Mr. Justice Dalveer Bhandari (as he then was), Hon'ble
Mr. Justice Mukul Mudgal (as he then was) and Hon'ble Mr.
Justice R.C. Chopra, but the-report for the year 2000 in hisi
respect was given by Hon'ble'MJ:. Jus~ice K.S. Gupta who was
not the Inspecting Judge either for1he year 2000 or for the yeaP
H 2001 and as Hon'ble Mr. Justice Gupta had visited his Court
~AJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 599
_T. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
1 7.9.2001 and stayed only for ten minutes and asked him to A
end three judgments delivered in the year 2000 which were
oant by the appellant on 10.9.2001, the report given by Hon'ble
~r. Justice Gupta grading him as an average officer could not
-ave been taken into consideration. by the High Court while
assing the order of compulsory retirement. It was further B
·ointed out on his behalf that Hon'ble Mr. Justice Gupta had
•bserved in his report dated 11.9.2001 that on inquiry from the
·ross section of Bar, he had come to know that Mr. Gupta did
qot enjoy good reputation and on the basis of this report, the
=un Court in its meeting held on 21.9.2001 had graded his ACR c
as 'C' (integrity doubtful) without supplying the material to him
~nd, therefore, order retiring him compulsorily from service was
lad in law.
112. In reply to abovementioned contentions it was argued
)y the learned counsel for the High Court that a single adverse D
:mtry indicating that the integrity of the officer is doubtful is
113ufficient to order his compulsory retirement, even if the ~aid
3dverse entry relates to a distant past and in respect of all the
three appellants the last ACR for the year 2000 is C "integrity
•doubtful", which by itself is sufficient to sustain orders of E
•compulsory retirement passed against them.
113. So far as Mr. M. S. Rohilla is concerned, it was
submitted by the learned counsel for the respondent High Court
that there were two adverse ACR's for the years 1993 and F
1994 indicating that his integrity was doubtful and the
representations made by him against the same were
considered and rejected, which decisions were not challenged
by him by way of a writ petition before the High Court nor there .
was any challenge to the ACRs either in th.e earlier writ petition G
filed by him challenging his reversion from the Delhi Higher
Judicial Service to the Delhi Judicial Service n·or in the writ
petition challenging the order of compulsory retirement and, .
therefore, order retiring him compulsorily cannot be regarded
as illegal or arbitrary. H·
600 SUPREME COURT REPORTS [2011) 12 S.C.
A 114. While dealing with the arguments advanced on behC:'!
of the appellant Mr. P.O. Gupta it was stressed that for 1"'
years i.e. 1994 and 1995 his ACRs were C "Integrity Doubtfl
which were challenged by him by filing a Writ Petition ar
though the learned Single Judge of the High Court had allowe-
B the Writ Petition, the Division Bench in appeal had set asic
the judgment of the learned Single Judge and upheld tt
adverse ACRs "C Doubtful Integrity" for the years 1994 ar
1995, against which Special Leave Petition filed by Mr. P.C
Gupta was also dismissed after which Review Petition was file
c by him against the judgment of the Division Bench in Lette'
Patent Appeal, which was also dismissed and thus thos
entries having become final, it would be wrong to contend thei
order of compulsory retirement passed in his case was liabll
to be set aside.
D 115. On consideration of rival submissions, this Court findl
that there is no manner of doubt that the nature of judicial servic
is such that the High Court cannot afford to suffer continuanc
in service.of persons of doubtful.integrity. Therefore,. in High c
Judicature at Bombay Through its Registrar Vs. Shirishkumc
E Rangrao Patil and Another, (1997) 6 SCC 339, this Com
emphasized that itds necessary that there should be constar
vigil by the High Court concerned on its subordinate judiciar
and self introspection. It is well settled by a catena of decision
of this Court that while considering the case of an officer as t'
F whether he should be continued in service or compulsoril
retired, his entire service record upto that date on whicl
consideration is made has to be taken into account. Wha
weight should be attached to earlier entries as compared ti.
recent entries is a matter of evaluation, but there is no manne·
G of doubt that consideration has to be of the entire servic~
record. The fact that an officer, after an earlier adverse entry
_ was promoted does not wipe out earlier adverse entry at all. II
would be wrong to contend that merely for the reason that afte
an earlier adverse entry an officer was promoted that by itsell
H would preclude the authority from considering the earlie
, .·.
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 601
LT. GOVERNOR OF NCT OF DELHI '[J.M. PANCHAL, J.] -
adverse entry. When the law says that the entire service record A
has to be taken into consideration, the earlier adverse entry,
which forms a part of the service record, would also be relevant
irrespective of the fact whether officer concerned was
promoted to higher position or whether he was granted certain
benefits like increments etc. Therefore, this Court in State of B
Orissa and Others Vs. Ram Chandra Das, (1996) 5 SCC 331,
observed as under in paragraph 7 of the reported decision :-
"........ it is settled law that the Government is required to
consider the entire record of service .......... We find that
selfsame materiaJ·after promotion may not be taken into c
consideration oryly 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."
116. Thus the respondent High Court was justified in
taking into consideration adverse ACRs reflecting on integrity
of Mr. M.S. Rohilla for the years 1993, 1994 and 2000 while E _
considering the question whether it was expedient to continue
him in service on his attaining the age of 50 years. Similarly,
in so far as appellant Mr. P.O. Gupta is concerned for two
years that is 1994 and again in_ 1995 his ACRs were C
"Integrity Doubtful" and again in the year 2000, the position was F
the ~ame. Further, for two years, i,e., 1994 and 1995 his ACRs
"C Integrity Doubtful" were upheld by the Division Bench of the
High Court against which his Special Leave Petition was
dismissed. At this stage itwould be relevant to notice certain
observations made.by Division Bench_ of the High Court while G
allowing the Letters Patent Appeal filed by the High Court
against the judgment of the learned Single Judge by which the
AC Rs- for two years were set aside, which are as follows: -
• ·I.
"To summarize, it is held:
H
602 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (a) The adverse remarks recorded by the High Court
in the Confidential Reports of respondent No.1 for
the years 1994 and 1995 were not without any
'material'. They were recorded on the basis of
material on record and the judgment of the learned
B Single Judge quashing those remarks is hereby set
aside.
(b) The learned Single Judge should not and could not
have graded B+ to respondent No.1 as it is the
function of the High Court to assign appropriate
c grading. Therefore, the matter should have been
referred to the Full Court for giving appropriate
grading. This direction of the learned Single Judge
is accordingly set aside.
D (c) Direction of the learned Single Judge in treating the
petitioner as promoted w.e.f. 18th May, 1996 is not
correctin law and is therefore, set aside."
117. The above findings would indicate that the appellant
E Mr. Gupta is not justified in arguing that there was no material
on the basis of which adverse entries could have been made
against him for the years 1994 and 1995 nor is he justified in
urging that the order of compulsory retirement also based on
those two adverse entries is liable to be set aside.
F 118. In S.D. Singh vs. Jharkhand High Court through R. G.
and others (2005) 13 sec 737, benefit of enhanced retirement
age from 58 to 60 years was denied to the appellant. The
Evaluation Committee, after perusing his service record,
recommended that he should not be continued in service
G beyond the age of 58 years. The Full Court, on assessment and
evaluation of service record, resolved that the benefit of
extension in age up to 60 years should not be extended to him.
The appellant relied upon his promotional order superseding
several senior officers. However, he had not 'alleged mala fide
H against any one. The Evaluation Committee had, after
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 603
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
considering his ACR, noted that he was an average officer and A
the vigilance proceedings initiated against him were dropped.
While dismissing his appeal, this Court has held that there was
material, on the basis of which, an opinion was formed and
· - promotion would not indicate that he was fit to be continued
after the age of 58 years. The material, according to this Court, B
against the appellant in that case, was that he was an average
officer and the vigilance proceedings initiated were dropped.
If on these materials, benefit of enhanced retirement was
denied to Mr. S.D. Singh, this Court has no hesitation in
concluding that having regard to the service record of the two c
appellants and the deceased officer, the High Court was
justified in compulsorily retiring them from service.
119. The argument that material was not supplied on the
basis of which '"C' Doubtful Integrity" was awarded to the
appell.ants and, therefore, the order of compulsory retirement D
is liable to be set aside has no substance. Normally and
contextually word 'material' means substance, matter, stuff,
something, materiality, medium, data, facts, information,.
figures, notes etc. When this Court is examining as to whether
there wa$ any 'material' before the High Court on the basis of E
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 F
integrity of the judicial officer. Such an evidence may not be
forthcoming in such cases.
120. As observed by this Court in R.L ButaH Vs. Union
of India and Others, (1970) 2 sec876, it is not necessary that G
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 H
604 SUPREME COURT REPORTS [2011] 12 S.C.R.
A censure. It is explained by this Court in the said decision that
making of an adverse entry is not equivalent to imposition of a
penalty which would necessitate an enquiry or giving of a
reasonable opportunity of being heard to the concerned
Government servant. Further in case where the Full Court of the
B 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
c be forth coming about doubtful integrity of a Judicial Officer.
121. As observed by this Court in High Court of Punjab
& Haryana through R. G. Vs. /shwar Chand Jain and Another,
(1999) 4 SCC 579, at times, the Full Court has to act on the
collective wisdom of all the Judges and if the general reputation
D 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
E conduct of an officer and gain notoriety much faster than the
smoke. Sometimes there niay 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
F instances of shortfalls, supported by evidence.
122. Normally, the adverse entry reflecting on the integrity
would be based on formulations of impressions which would
be result of multiple factors simultaneously playing in the mind.
G 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
H compulsorily retired in public interest. The duty conferred on the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 605
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
appropriate authority to consider the question of continuance A
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 B
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 c
·public interest, the writ Court under Article 226 or this Court
under Article 32 would not interfere with the order.
123. Further this Court in M.S. Bindra's case (Supra) has
used the phrase 'preponderance of probability' to be applied
before recording adverse entry regarding integrity of a judicial D
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 7'
without any 'material' on record, but at the same time other
equally important interest is also to be safeguarded i.e. 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 F
impression created in the minds of those making inquiries or
the Full Court is that concerned judicial officer does not carry
good reputation, such discreet inquiry and or verbal repeated
complaints would constitute material on the basis of which ACR
indicating that the integrity of the officer is doubtful can be G
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 H
606 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B adopted in recording such ACR.
124. From the admitted facts noted earlier it is evident that
there was first a report of the Inspecting Judge to the effect that
he had received complaints against the appellants reflecting on
C their integrity. It would not be correct to presume that the
Inspecting Judge had written those remarks in a casual or
whimsical manner. It has to be legitimately presumed that the
Inspecting Judge, before making such remarks of serious
nature, acted responsibly. Thereafter, the Full Court considered
D the entire issue and endorsed the view of the Inspecting Judge
while recording the ACR of the appellants. It is a matter of
common knowledge that the complaints which are made
against a judicial officer, orally or in writing are dealt with by
the Inspecting Judge or the High Court with great caution.
Knowing that most of such complaints are frivolous and by
E disgruntled elements, there is generally a tendency to discard
them. However, when the suspicion arises regarding integrity
of a judicial officer, whether on the basis of complaints or
information received from other sources and a committee is
formed to look into the same, as was done in the instant case
F and the committee undertakes the task by gathering
information from various sources as are available to it, on the
basis o_f which a perception about the concerned judicial officer
is formed, it would be difficult for the Court either under Article
226 or for this Court under Article 32 to interfere with such an
G exercise. Such an opinion and impression formed consciously
and rationally after the enquiries of the nature mentioned above
would definitely constitute material for recording adverse report
in respect of an officer. Such an impression is not readily
formed but after Court's circumspection, deliberation, etc. and
y thus it is a case of preponderance of probability for entertaining
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 607
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
a doubt about integrity of an official which is based on A
substance, matter, information etc. Therefore, the contention
that without material or basis the adverse entries were
recorded in the ACR of the appellants cannot be upheld and
is hereby rejected.
8
125. On behalf of deceased R.S. Verma his learned
Counsel had argued that ACRs for the years 1997, 1998 and
1999 were written in one go which is arbitrary and constitute
malice in law. Pointing out to the Court that normal procedure
followed by the Delhi High Court for communicating the ACRs
is referred to in the circular dated 4.9.1998, according to which C
conducting of inspection and making of enquiries before
condemning a judicial officer as regards his integrity is
necessary, but this was not done in the case of the deceased
and, therefore, his ACRs for the years 1997, 1998 and 1999
should have been ignored while deciding the question whether D
he was fit to be retained in service on attaining the age of 50
years. It was emphasized that all the entries should be
communicated within a reasonable period so that the
employee concerned gets an opportunity to .make
representation and that the representation is also decided fairly E
within a reasonable period, but this was not done in the case
of the deceased officer. According to the learned counsel for
the appellant, the requirement to write ACR on due date and
communication thereof to the employee concerned within
reasonable time flows from constitutional obligation of fairness, F
non-arbitrariness and natural justice as laid down in Dev Dutt
Vs. Union of India, 2008 (8) · SCC 725, and Abhijit Ghosh
Dastidar Vs. Union of India, 2009 (16) SCC 146, and as this
requirement was committed breach of in case of the deceased,
ACRs for the years 1996 and 1997 had lost their significance G
and were irrelevant while considering case of the deceased
officer for compulsory retirement. On behalf of the respondent
High Court it was submitted that it was true that ACRs for the
years 1997, 1998 and 1999 were recorded at one point and
communicated thereafter, but a detailed note indicating the H
608 SUPREME COURT REPORTS [2011] 12 S.C.R.
A circumstances in which ACRs for the years 1997, 1998 and
1999 were placed before the Full Court on 13.12.2000 after
which ACRs were recorded and, therefore, in view of the
explanation offered in the note which was noted by the Full
Court on 13.12.2000, it is wrong to contend that ACRs for those
B three years could not have been taken into consideration
before passing order of compulsory retirement against the
deceased officer.
126. On consideration of the argument advanced by the
C learned counsel for the parties, this Court finds that it has been
ruled by this Court that ACRs for several years should not be
recorded at one go and communicated thereafter. Normally,
entries in confidential records should be made within a
specified time soon following the end of the period under review
and generally within three months from the end of the year. Delay
D in carrying out inspections or making entries frustrates the very
purpose sought to be achieved. The mental impressions may
fade away or get embellished. Events of succeeding years may
cast their shadow on assessment of previous years. In a given
case, proper inspection might not have been conducted nor
E notes/findings of inspection might have been properly
maintained. In such a case, there is every possibility of a judicial
officer being condemned arbitrarily for no fault on his part.
Therefore, recording of entries for more than one year, later on,
at the same time should be avoided. However, the learned
F counsel for the respondent is right in contending that no
decision has taken the view that merely for the reason that
ACRs for more than one years are recorded at one point of
time, the same are bad or that they would cease to be ACRs
for the relevant years or that they should not be taken into
G consideration for any purpose or for the purpose of compulsory
retirement. As stated earlier, in the normal course it would not
be appropriate to record the ACRs of number of years at one
point of time. However, at the same time it is not possible to
lay down as an absolute proposition of law that irrespective of
H good, cogent, plausible and acceptable reasons, recording of
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 609
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
ACRs of number of years at once should always be regarded A
as illegal and bad for all purposes. This Court, while deciding
the appeals, has gone through the record of the deceased
officer, and other relevant documents produced by the High
Court. From the record, this Court finds that all the columns of
ACR forms for the years 1997, 1998 and 1999 were filled up B
by the inspecting judges respectively well in time for all these
years, but the inspecting judges had not recorded any remarks
concerning the judicial reputation for honesty and impartiality
of the deceased officer as a corollary the column regarding "Net
Result" for these years were left blank by them. Instead the c
learned inspecting judges had observed that these remarks be
recorded by the Full Court. When such a course of action is
adopted, the reason is obvious. There was something amiss
in the estimation of the learned inspecting Judges which they
wanted entire Full Court to consider and, therefore, refrained
D
from making their observations. If everything had been all right,
nothing prevented the learned Inspecting Judges from
mentioning that the honesty of the deceased officer was not in
doubt at all. However, when an inspecting judge receives
certain complaints about the integrity of the officer concerned
E
but has no means to verify the same, he leaves the matter to
the Full Court, which appoints a Committee to go into the
aspects and records relevant entries after report of the
Committee is received. This is what precisely happened in the
present case as well. Because of the aforesaid course adopted
by the learned Inspecting Judges, the consideration of F
recording the ACR was deferred by the Full Court and
ultimately, in its meeting held on 21.4.2001 in respect of the
deceased officer the Full Court decided as under :-
"Deferred. Referred to the Committee constituted to look G
into the allegations against the judicial Officers."
127. The matter was, therefore, examined by the
Committee of two learned judges of the Delhi High Court
constituted for this purpose. This committee made certain
H
610 SUPREME COURT REPORTS [2011] 12 S.C.R.
A discreet inquiries. The concerned Inspecting Judge(s) were also
associated in deliberations by the Committee. The Committee
gave its report dated 6.12.2001 as per which the information
gathered by the Committee from various sources confirmed the
allegation of doubtful integrity against the deceased officer. The
B matter was thereafter placed before the Full Court and the
ACRs of the deceased officer were recorded for the years
1997, 1998 and 1999 on 13.12.2000. Thus there is sufficient
explanation for recording the AC Rs of three years at one time.
It is wrong to contend that the AC Rs for the years 1997, 1998
c and 1999 should have been ignored while passing the order
of compulsory retirement against the deceased officer.
Therefore, the argument that ACRs for those years could not
have been taken into consideration while deciding the question
of suitability or otherwise to continue the deceased officer in
0 service on attaining the age of 50 years, is hereby rejected.
Even if it is assumed for the sake of argument that ACRs
recorded for the three years, i.e., 1997, 1998 and 1999
recorded at one go, irrespective of reasons, good, bad or
indifferent, must be ignored for all time to come and f6f all the
E purposes, this Court finds that the ACRs for the year 1999 were
recorded with promptitude and without any delay in the year
2000. It is not argued on behalf of the deceased officer that
there was any delay in recording ACRs for the year 1999. For
the year 1999, the deceased officer was assessed as "C Below
Average". The AC Rs for the year 1999 could have been taken
F into consideration while assessing the service record of the
deceased officer for determining the question whether the
deceased officer was fit to be continued in service on his
attaining the age of 50 years. What is the effect of ACRs for
the year 1999 when taken into consideration along with other
G service record is proposed to be considered at a little later
stage.
128. On behalf of deceased officer Mr. R.S. Verma, it was
argued that Mr. Verma's ACRs for the years 1997, 1998 and
H 1999, which were written at one go and also were
•
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 611
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
communicated at one go, suffer from· arbitrariness, A
unreasonableness and constitute malice in law. This Court has
come to the conclusion that writing of ACRs for the years 1997,
1998 and 1999 at one time as also communication of the same
at one time was justified in the circumstances of the case.
Therefore, it is difficult to uphold the contention raised on behalf B
of Mr. Verma that writing of ACRs for three years at one go
and communication of the same at one go suffer from
arbitrariness, unreasonableness and constitute malice in law.
129. Similarly, the plea raised by Mr. Rohilla that the
impugned judgment is not sustainable in law because the act C
of the High Court in making recommendation to Lt. Governor
for retiring him compulsorily emanates from mala fide,
arbitrariness and perversity, has no substance. The reason
given by Mr. Rohilla to treat the order of his compulsory
retirement as mala fide, arbitrary and perverse is that while D
communicating adverse remarks for the year 2000 vide letter
dated 21.9.2001, High Court had granted six weeks' time to
make representation, but much before the representation could
be caused, the order of compulsory retirement dated 27.9.2001
was communicated, coupled with the fact that on that date, the E
writ petition filed by him against his reversion was pending. This
Court has already taken the view that merely because Mr.
Rohilla did not get any opportunity to make representation
against the adverse remarks for the year 2000, those remarks
could not have been ignored by the competent authority while F
passing the order of compulsory retirement against him
because the settled law is that even uncommunicated adverse
remarks can be taken into consideration while passing the
order of compulsory retirement So far as the writ petition, filed
by Mr. Rohilla against his reversion is concerned, this Court G
finds that the order of compulsory retirement was not passed
to render the said petition infructuous. The order of compulsory
retirement has been passed on assessment of whole service
record of Mr. Rohilla. Thus, Mr. Rohilla has failed to substantiate
H
612 SUPREME COURT REPORTS [2011) 12 S.C.R.
A the plea that the order of his compulsory retirement is either
mala fide or arbitrary or perverse.
130. Mr. R. S. Rohilla had argued that the order of the Lt.
Governor compulsorily retiring him from service was by invoking
B FR 560lwhich was not applicable to his case as he was a
member of a Delhi Higher Judicial Service and such an order
could have been passed only under Rule 27 of the Delhi Higher
Judicial Service read with Rule 16 of the Indian Administrative
Services and, therefor.e, the same should be set aside. It is
C rightly pointed out by the learned counsel for the High Court that
though the said plea was raised by Mr. Rohilla the same was
given up before the High Court, and it is so recorded by the
Division Bench in paragraph 31 of the impugned judgment.
Thus, in normal circumstances, Mr. Rohilla would not be justified
in arguing the same point before this Court. However, even if
D it is taken for granted that he is entitled to argue the point before
this Court because it is a pure question of law, this Court does
not find any substance what so ever in the same. What is
relevant to be noticed is that urrler both the Rules there is
power to compulsorily retire a judicial officer after he attains the
E age of 50 years in public interest. Therefore, whether the Lt.
Governor had invoked FR 56 0) or Rule 27 of the DJS is of
little consequence since both the Rules make provision for
retirement of a judicial officer compulsorily from service after
he attains the age of 50 years in public interest. In fact Mr.
F Rohilla should have pointed out to the High Court the relevant
and material fact that for two years that is for the year 1993 and
for the year 1994 he had suffered adverse ACR 'C' "Integrity
Doubtful" and that the representations made by him were
rejected which were not challenged by him before higher forum.
G In any view of the matter, it is settled law that when power can
be traced to a valid source, the fact that the power is purported
to have been exercised under a wrong provision of law, would
not invalidate exercise of power.
131. To sum up, this Court finds that so far as deceased
H
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 613
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
officer Mr. Rajinder Singh Verma is concerned, he was A
appointed in the year 1995 and as on 21.9.2001 his AC Rs for
six years were available. The grading given to him for these
years was as follows: -
Year Grading
B
1995 "B" (Average) No representation was
made against this
remark, nor was it
challenged before a.ny
authority. c
1996 "B" (Average) No representation was
made against this
remark, nor was it
challenged before any D
authority.
1997 "C" (Below Average)
1998 "C" (Below Average) E
1999 "C" (Below Average) ·
2000 "C" (Integrity doubtful)
F
132. The report dated September 21, 2001 of the
Screening Committee further reveals that the Screening
Committee had considered the entire record relevant to his
work and conduct and found that throughout his career, he had
been assessed and graded either as "average officer" or G
"officer below average" and in the year 2000, his integrity was
found to be doubtful. The Screening Committee had also found
that for the year 1998, the Inspecting Judge of Mr. Verma had
made a remark that the judgments and orders written by him
were just average; whereas the Inspecting Judges for the year H
614 SUPREME CCURT REPORTS (2011) 12 S.C.R.
A 1996 to 2000 had not recorded any remark concerning his
judicial reputation for honesty and impartiality and the column
"Net Result" was left to be recorded by the Full Court. The
record further shows that the judicial work was withdrawn from
him with effect from December 8, 2000 upon the
B recommendation of the Committee of Judges in its rept:>rt dated
December 6, 2000. This decision was never challenged by him
before any authority. It goes without saying that withdrawal of
judicial work from a judicial officer is a serious matter and such
a drastic order would not have been passed unless the judicial
c work performed by him was found to be shocking and perverse.
Later on, all work including administrative work was withdrawn
from him. Further, pursuant to the decision taken by the Full
Court in its meeting held on April 21, 2001 referring the matter
to a Committee of Judges to make inquiry into his work and
0 conduct, the Committee had submitted its report dated
September 8, 2001 in which it was observed and recorded that
he did not enjoy good reputation and integrity. There was
gradual down fall in his performance as a judicial officer. The
service record of the deceased oft1cer is so glaring that on the
E basis thereof any prudent authority could have come to a
reasonable conclusion that it was not in the public interest to
continue him in service and that he should be compulsorily
retired from service. Therefore, the order of compulsory
retirement passed against the deceased officer is not liable to
be set aside.
F
133. So far as Mr. Rohilla is concerned, he was appointed
as a Civil/Sub-Judge in the Subordinate Judicial Services on
May 5, 1972. On June 17, 1995, he was confirmed as an officer
in the Delhi Judicial Services. He was granted Selection Grade
G on June 3, 1980 and was promoted to the Higher Judicial
Services as Additional District and Sessions Judge on
November 1, 1989. One anonymous complaint was received
against him and after looking into the same, he was reverted
to Subordinate Judicial Services by order dated February 15,
-! 1995, which was challenged by him in Writ Petition No. 4589
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 615
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
of 1995. Meanwhile, he was served with a communication from A
the High Court of Delhi elated October 23, 1997, wherein his
ACR for the year 1996 was graded as "C", i.e., below ave(age.
Thereupon, he had made a representation, which was rejected
on December 2, 1998. No steps were taken by him to challenge
the said decision and thus, the grading awarded to him was B
accepted by him. Thereafter, he received a communication from
the High Court in the year 1999, wherein he was informed that
in his ACR for the year 1997, he was awarded "B" grade.
Again, by a communication dated February 9, 2000 forwarded
by the High Go!Jrt, he was informed that in his ACR for the year C
1998, he was· graded "B". He made a representation against
his ACR for the year 1998 in the year 2000. As noticed earlier,
in the year 2000, he was communicated ACR indicating that
his integrity was doubtful. Thus, the service record of Mr. Rohilla
indicates that he was an officer "below average" or at the best D
an average officer and his integrity was doubtful. Under the
circumstances, the decision taken by the competent authority
to retire him from service cannot be said to be illegal in any
manner whatsoever. -
134. So also, the record of Mr. P.O. Gupta shows that he E
joined Delhi Judicial Service on January 28, 1978. Admittedly,
his work and conduct from 1978 to 1992 was graded as "B",
which means his performance was that of an average officer.
In the year 1995, the Inspecting Judge had reported that though
he had not inspected the court of Mr. Gupta, he had heard F
complaints about his integrity C!nd,·therefore, column Nos. 6 and
7 were left blank to be filled up by the Full Court. On May 18,
1986, the Full Court had rec2rded·his ACR for the year 1994-
95 as "C" (integrity doubtful) ahd on the basis of the same,
denied promotion-to him. He-had filed a representation against G
the same, but it Was rejected by the High Court by an order
dated September 5, 1997.Again on September 26, 1997, the
Full Court of Delhi High Court had recorded his ACR for the
year 1996 as "B". Against rejection of his representation, which
was made with refe,rence to ACRs for the year 1994-95, he had H
616 SUPREME COURT REPORTS [2011] 12 S.C.R.
A filed Writ Petition (C) No. 4334 of 1997 and in the said writ
petition he had made a grievance for his non-promotion to
Delhi Higher Judicial Service. Pending the said petition, on
May 22, 1998, the Full Court had recorded his ACR for the year
1997 as "B". The writ petition filed by Mr. Gupta was allowed
s by a Single Judge of the High Court, which decision was set
aside in L.P.A. No. 329 of 1999, filed by the High Court
administration, and the order passed by the Division Bench was
ultimately upheld by this Court when the special leave petition
filed by Mr. Gupta against the decision rendered in the LP.A.
c was dismissed. In his ACR for the year 2000, he was
categorized as an officer having doubtful integrity. Thus, the
record shows that for the year 1994-95 his integrity was found
to be of doubtful character. For rest of the years, his
performance was that of an average officer and in the year
D 2000, his integrity was again found doubtful. Under the
circumstances, the compulsory retirement of Mr. Gupta can
never be said to be arbitrary or illegal.
135. Having regard to their entire service record of the
three officers, this Court is of the opinion that the competent
E authority was justified in passing the order retiring them
compulsorily from service. Mere glance at the ACRs of the
deceased officer and two other appellants makes it so glaring
that on the basis thereof the decision to compulsorily retire them
would clearly be without blemish and will have to be treated as
F well founded. This Court finds that before passing the orders
in question, whole service record of each of the officer was
taken into consideration. Keeping in view the comprehensive
assessment of service record, the Screening Committee rightly
recommended that the three officers should be prematurely
G retired in public interest forthwith. The Full Court after
considering the report of the Screening Committee and also
after taking into consideration the rec6rd of work and conduct,
general reputation and service record of the three officers
correctly resolved that it be recommended to the Lt. Governor
H of NCT of Delhi to retire the judicial officers forthwith in public
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 617
LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]
interest. The orders do not entail any punishment in the sense A
that all the officers have been paid retiral benefits till they were
compulsorily retired from service.
136. On a careful consideration of the entire material, it
must be held that the evaluation made by the Committee/Full
8
Court, forming their unanimous opinion, is neither so arbitrary
nor capricious nor can be said to be so irrational, so as to
shock the conscience of this Court to warrant or justify any
interference. In cases of such assessment, evaluation and
formulation of opinions, a vast range of multiple factors play a C
vital and important role and no one factor should be allowed to
be blown out of proportion either to decry or deify an issue to
be resolved or claims sought to be considered or asserted. In
the very nature of things, it would be difficult, nearing almost
an impossibility to subject such exercise undertaken by the Full
Court, to judicial review except in an extraordinary case when D
the Court is convinced that some real injustice, which ought not
to have taken place, has. really happened and not merely
because there could be another possible view or someone has
some grievance about the exercise undertaken by the
Committee/Full Court. Viewed thus, and considered in the E
background of the factual details and materials on record, there
is absolutely no need or justification for this Court to interfere
with the impugned proceedings. Therefore, the three appeals
fail and are dismissed: Having regard to the facts of the case,
there shall be no order as to costs. F
R.P. Appeals dismissed.
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