Mahesh Chandulal Vora Vs State of Gujarat

A.S. Supehia, J.—By way of this petition under Article 226 of the Constitution of India, the petitioner (since deceased through his heirs and legal representatives) seeks to challenge notification dated 14.10.2009, Communications dated 14.10.2009 and 15.10.2009, whereby the petitioner is compulsory/prematurely retired from judicial service with immediate effect under Rule 10(4)(a)(i) and (ii) of the Gujarat Civil Services (Pension) Rules, 2002 (''the Rules of 2002'' in brief).

2. The facts leading to the petition are adumbrated as under:

3. The petitioner was appointed by the Department of Labour and Employment of the State of Gujarat vide Notification dated 22.08.1990 as Judicial Officer (J.D.) (Class I) in Labour Court, in the pay-scale of Rs. 2200-4000 on probation for a period of two years. Thereafter he was confirmed on the post of Judge, Labour Court.

4. A charge-sheet dated 25.11.2008 was issued to him in respect of the Departmental Inquiry No. 11/08. It is the case of the petitioner that the said charge-sheet has the genesis in the (common) order dated 03.05.2007 passed in First Appeal No. 2079 of 2007 to First Appeal No. 2082 of 2007 by this Court wherein certain observations are made against the petitioner, and Registry of the High Court was directed to take up the matter on administrative side, and if necessary the order of the Court was to be placed before the Hon''ble the Chief Justice for his kind consideration. Against the said order, the petitioner preferred Special Leave Petition before the Apex Court, and the same was dismissed on the ground of delay vide order dated 06.09.2010. Petitioner submitted his reply dated 20.04.2009 to the charge-sheet. Said departmental inquiry against the petitioner was dropped. By communication dated 08.12.2009 the petitioner was intimated about the same. In the interregnum, the petitioner was prematurely retired vide Notification dated 14.10.2009.

5. Petitioner has challenged the said notification by way of this petition on various grounds. It is the say of the petitioner that the impugned notification is nothing but punitive in nature, and no opportunity of hearing was afforded before compulsory retiring him. It is further stated that the day on which Notification was issued the departmental inquiry was pending, and the same could not have been passed during the pendency of the same. He has relied upon Rule 10(4)(a)(i) and (ii) of the Rules of 2002. As per his contention the aforesaid rule gives "absolute right to the appointing authority to retire an employee after attaining the age of 35 years. However, such absolute right can only be exercised if the appointing authority is of the opinion that it is in public interest to do so, whereas in the impugned notification such public interest is not disclosed. Hence, the impugned notification is stigmatic and the same could not have been passed without affording opportunity of hearing.

No further contention is raised by the learned advocate Mr. Prabahker Upadhyay appearing for the petitioner.

6. Mr. G.M. Joshi, learned advocate appearing for respondent No. 2, has contended that the compulsory retirement of the petitioner does not cast any stigma and is passed on valid considerations of facts and law. In the affidavit-in-reply it is specifically stated that the adverse confidential remarks for the period from 1998 to 2006 of the petitioner, was found to be consistently unsatisfactory in several respects. It was recorded in the confidential reports that the petitioner had no studious habits, he was not keeping himself abreast of latest law, that he was not active and not industrious and had no knowledge of administrative Rules and showed no interest in the office work. It was also recorded that during the said period General Knowledge of the petitioner was poor, he lacked politeness, and he was not taking initiative. It was further recorded that language and presentation were not up to the mark and legal terminology was found missing in the discussion of the judgments.

7. It is further submitted that such kinds of adverse remarks recorded for the petitioner went to suggest that the same were of such nature as cannot be expected in a Judicial Officer on a judicial post. Further defending the action of the High Court, he has stated that the Committee of Hon''ble High Court on its administrative side undertook the assessment of the petitioner whether he should be further continued in service. Rule 21 of the Gujarat State Judicial Services Rules, 2005 (''the Rules of 2005'' for short) read with Rule 10 of the Rules of 2002 permit that a member of judicial service may be retired in public interest of his attainment of age of 50 years on recommendation of High Court.

8. Mr. G.M. Joshi emphasised that the Committee comprising of three Hon''ble Judges of the Hon''ble High Court has been constituted for effective implementation of provisions of Rule 21 of the Rules of 2005. The Committee had considered the service record of the petitioner with special focus on service for last 10 years and was of the view it would be in the public interest to retire the petitioner from service in exercise of powers under the aforementioned Rule 21, as recorded in the report dated 10.09.2009 by the said committee. He has further stated that the committee in the aforementioned report dated 10.09.2009, inter alia, observed that although the grading and remarks from the year 1998 to 2004 and 2006 in the confidential reports of the petitioner were good or average, in the year 2005 it could be noticed that becoming of Judicial Officer was wanting in the conduct and habits of the petitioner as reflected in the adverse remarks. The Committee further noticed that there were various administrative complaints against the petitioner.

9. The report of the Standing Committee was placed before the Full Court meeting for consideration and approval. The Chamber Meeting held on 24.09.2009 approved the recommendation made by the Standing Committee. Vide communication 07.10.2009, Secretary to the Government of Gujarat, Legal Department, was requested to move the Government for necessary orders for retiring the Judicial Officer concerned mentioned in the said communication in public interest. As emphasised that the said impugned order in effect paves way for unstigmatic exit of the petitioner as Judicial Officer from judicial service in public interest for the reason that it was not found fit in public interest to be continued him on the said post. He has emphasised that the decision of the Committee was an independent exercise and was not concerned with the initiation of the Departmental Inquiry. Factum of pendency of the Departmental Inquiry was not the foundation for the recommendation to compulsory retire the petitioner, and only on the basis of adverse remarks and other records were taken into consideration while compulsory retiring the petitioner in service. He has contended that dropping of the inquiry on 09.11.2009 will not nullify the order of compulsory retirement.

10. We have considered the rival submissions advanced by the learned counsels appearing for the respective parties.

11. At this stage it would be appropriate to incorporate the details of adverse remarks communicated to the petitioner from the years 1998-2006:

12. Communication of the said adverse remarks remain undisputed. Rule 10(4)(a)(i) and (ii) of the Rules of 2002 reads as under:

"(4) Notwithstanding anything contained in sub rule (1) of this rule, the appointing authority, if it is of the opinion that it is in the public interest so to do, by giving him three months'' pay and allowances have the absolute right to retire -

(a) any Gazetted Government employee working under the State Government :

(i) if he had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years, and

(ii) in any other case, after he has attained the age of fifty five years,"

Said rule confers power of compulsory retiring a Government employee after attaining age of 50 years and in any other case, after he has attained the age of 55 years.

13. Rule 21 of the Rules of 2005, prescribes 60 years as the age of superannuation for Judicial Officers. Said Rule 21 reads as under:

"21. Addition of certain service for purpose of pension An Advocate appointed as a Civil Judge or a District Judge shall be entitled to reckon, as service qualifying for superannuation pension, the actual period of practise put in by him at the Bar not exceeding three years or seven years respectively.

Provided that the benefits of the Gujarat Civil Service (Pension) Rules, 2002 shall continue to apply to the Judicial Officers appointed prior to the date of commencement of these Rules unless they opt otherwise.

(1) Notwithstanding anything contained in these Rules the Governor shall, on the recommendation of the High Court, if he is of the opinion that, it is in the public interest so to do, have the absolute right to retire any member of the service who has attained the age of 50 years, by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.

(2) Whether a member of the service should be retired in public interest under sub rule (1) shall be considered at least three times, that is, when he is about to attain the age of 50 years, 55 years and 58 years. Provided that nothing in sub rule (2) shall be construed as preventing consideration of a member of the service at any time other than those mentioned therein."

Perusal of the said rule will clarify that sub rule (2) of Rule 21 prescribes that a member of the service to be retired in public interest under sub rule (1) of Rule 21 shall be considered at least three times, i.e. when he is about to attain the age of 50 years, 55 years and 58 years.

14. After perusing the entire record, we find that the Committee constituted by the respondent-High Court has considered all the aspects of Confidential Reports and complaints against the petitioner. After careful scrutiny of the adverse remarks communicated in the Confidential Reports of the petitioner the committee opined to retire the petitioner in public interest in exercise of powers conferred under Rule 21 of the Rules 2005 and Rule 10(4) (a)(i)(ii) of Pension Rules.

15. The law on the compulsory retiring a Government employee in public interest is time and again extensively dealt with by the Apex Court in various cases. In the case of Rajesh Gupta v. State of Jammu & Kashmir Ors. (2013) 3 SCC 514 the following principles were laid down:

"34. The following principles emerge from the above discussion:

(i) 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 the Government on 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.

(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 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 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 [pic]taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

16. Apex Court in the case of Pyare Mohan Lal v. State of Jharkhand, AIR 2010 SC 3553 has held that even a single adverse entry is enough for compulsory retirement. So far as the scope of judicial review of the order of compulsory retirement is concerned the Apex Court in the case of R.C. Chandel v. High Court of M.P. AIR 2012 SC 2962 has observed in Paragraph Nos. 33 and 37 as under:

"33. From the above, it is clear that the appellant did not have unblemished service record all along. He has been graded Average on quite a few occasions. He was assessed Poor in 1993 and 1994. His quality of judgments and orders was not found satisfactory on more than one occasion. His reputation was observed to be tainted on few occasions and his integrity was not always found to be above board. � � � � With this service record, can it be said that there existed no material for an order of compulsory retirement of the appellant from service? We think not. The above material amply shows that the material germane for taking decision by the Full Court whether the appellant could be continued in judicial service or deserved to be retired compulsorily did exist. It is not the scope of judicial review to go into adequacy or sufficiency of such materials.

34. xxx xxx xxx

35. xxx xxx xxx

36. xxx xxx xxx

37. Judicial service is not an ordinary Government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. � � �"

17. In the case of Chandra Singh & Ors. v. State of Rajasthan & Anr., (2003) 6 SCC 545 the Apex Court has held that power of compulsory retirement can be exercised at any time by High Court under Article 235 of the Constitution of India to weed out the dead wood.

18. A combined and in depth analysis of the aforesaid principles laid down by the Apex Court will invariably lead to one conclusion that the scope of judicial review in cases of compulsory/premature retirement is very limited. The order prematuring retiring the Government employee is not a punishment since the same does not imply any stigma. It is not the case of the petitioner that there was any mala fide exercise of powers or the order of compulsory retirement is passed on no evidence.

19. So far as the contention of the appellant that notification retiring him compulsory could not have been passed in wake of pendency of the departmental proceedings is concerned, the same is ill-founded. Dropping of departmental proceedings subsequent to the order of notification is an independent action on behalf of the respondent-High Court since continuation of the departmental inquiry after compulsory retiring the petitioner would have been exercise in futility. Merely because the departmental proceedings are dropped, the same would not render the order of compulsory retirement as invalid or illegal. Learned Counsel appearing on behalf of the petitioner did not point out any provision or Rule which empowers the continuation of departmental inquiry after "Compulsory Retirement". Compulsory retirement in "public interest" and by way of "penalty" operate independently in the realm of administrative law. Compulsory retirement is also referred as premature retirement in public interest. In the present case High Court did not think it fit to retire the petitioner by way of penalty on the contrary he has been retired by way of public interest, which cannot be termed as "penal or stigmatic". The petitioner will be entitled to all the retirement benefits. Thus, the action of the High Court in passing the impugned Notification prior to dropping of the departmental proceedings is justified, and the same cannot be faulted with.

20. The contention of the petitioner, that he was retired without affording any opportunity of hearing cannot be accepted since the compulsory retirement in public interest is not a penalty and does not involve penal consequences. In Rajendra Singh Verma (dead), Through Lrs. v. Lt. Governor of Nct Delhi, 2011(10)SCC 1, the Supreme court after examining the entire case law on the subject has observed as under:

"18. Compulsory retirement from service is not considered 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 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 reappointment, one who is removed is. A compulsory retirement is neither dismissal nor 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."

21. The Supreme Court in the case of Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripada & Anr. (1992) 2 SCC 299, after referring to decision in the case of Brij Mohan Singh Chopra v. State of Punjab, (1987) 2 SCC 188 and in the case of Union of India v. M.E. Reddy, (1980) 2 SCC 15, has laid down the following firm proposition of law stated in paragraph 34 of the reported decision:

"34. The following principles emerge from the above discussion:

(i) 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 the Government on 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.

(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 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 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 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 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 be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above."

The legal exposition which emerges from the aforesaid observation is that prior opportunity of hearing is not required before passing the compulsory retiring an employee in public interest, and in absence of the same it cannot be said that principles of natural justice are violated.

22. In case of Shakti Kumar v. State of Jammu and Kashmir, AIR 2016 SC 832, the Supreme Court had an occasion to deal with the pari material rule 20 of Higher Judicial Service Rules, 2009 to Rule 21 of the Gujarat State Judicial Services Rules, 2005. While examining the facts of the case which pertained to complaints against the Judicial Officer and overall confidential reports including the adverse remarks, the Supreme Court has observed that "It may be noted that there cannot be concrete evidence in respect of allegations pertaining to integrity. If the competent authority arrives at a justifiable conclusion, on the basis of the record available in connection therewith, that itself would be sufficient to order the premature retirement of the concerned individual." Thus, the order of premature/compulsory retiring the petitioner from service is well founded looking to the overall assessment of his service record. It cannot be said that the petitioner is compulsory retired from service sans any material or record. Rule 10(4)(a)(i) of the Rules of 2002 and Rule 21 of the Rules of 2005 are invoked only to weed out the dead wood and nonperforming officers in the public interest so that administration does not suffer. Time and again, it is emphasised by the Courts, that judicial service is sacrosanct and not merely an employment. The judges are holders of public offices of great trust and responsibility. Honesty and integrity are epitomes of judicial probity. On the administrative side, it is the constitutional duty of the High Court to monitor the functioning of the subordinate judiciary. Any laxity on the part of the lower judiciary on the aforesaid virtues has to be viewed seriously. The remissness or recalcitrant attitude on the part of the Judicial Officer cannot be tolerated, and they have to meet with the fate of renouncing their judicial duty.

23. We may also refer to one more aspect that by way of notification dated 14.10.2009 four judicial officers, including the petitioner, were retired in public interest. One Judicial Officer Mr.Pradeep Girdharlal Soni had filed Special Civil Application No. 8626/10 challenging the same. By judgment dated 13.06.2013 the said petition was dismissed. There is no reason for us to deviate from the said judgment as it extensively deals with the similar contentions raised by the petitioner in the present petition.

24. After careful consideration of the law laid down by the Apex Court in the catena of decisions, the adverse remarks communicated to the petitioner, and the report of the Committee of the High Court, we find that no interference is required in the decision of prematurely retiring the petitioner from service. Accordingly, the petition is dismissed. There shall be no order as to costs. RULE is discharged.