Brajesh Narayan Sharan Vs State of Jharkhand and Others

Altamas Kabir, C.J.@mdashOn 14th September, 1976, the petitioner was appointed as a Judicial Magistrate and subsequently, he was promoted to the higher post of Subordinate Judge in the month of June, 1989. On 8th May, 2001, he joined as Chief Judicial Magistrate, Lohardaga, where he was served with a letter dated 17th July, 2001 written by the Deputy Secretary, Personnel and Administrative Reforms and Rajbhasa, Government of Jharkhand, Ranchi, informing him that he had been compulsorily retire from service in exercise of powers u/s 74(b)(ii) of the Jharkhand Service Code.

2. Aggrieved by the said order, the petitioner has filed the instant writ application, which has been referred to the Division Bench for hearing and disposal along with several other matters of like nature.

3. Appearing in support of the writ application, Mr. V. Shivnath, firstly contended that the impugned order has passed by the State Government mechanically and without application of mind, merely on the recommendation of the High Court of Jharkhand. Mr. Shivnath submitted that throughout his judicial career, the Annual Confidential Report of the petitioner would show that he was a good officer whose integrity was beyond doubt. Mr. Shivnath submitted that on 21st April, 1998 an adverse remark was entered in the petitioner''s Annual Confidential Report by the District Judge, but the same was expunged by the High Court on a representation made by the petitioner. Mr. Shivnath submitted that yet another adverse remark was made against the petitioner by the Inspecting Judge that the petitioner did not carry good judicial reputation. According to the petitioner, he also filed a representation in respect of such observation, but such representation was never disposed of. Subsequently, while the petitioner was posted at Motihari, an observation made by the District Judge to the effect that the petitioner should not grant provisional bail, was also entered into his service record. Mr. Shivnath contended that apart from the adverse entries, which had been made by the learned Inspecting Judge, Hon''ble Mr. Justice Radha Mohan Prasad, against which representation had been filed by the petitioner, there are no adverse entries made against the petitioner as far as he is aware.

4. Mr. Shivnath urged that for the purpose of compulsory retirement, the entire service record of an employee is required to be taken into consideration and a decision in that regard could not be taken on the basis of a single incident. Furthermore, even the remark which had been made was with regard to the grant of provisional bail and was a mere suggestion that such provisional bail should not be granted. Mr. Shivnath submitted that the writ petitioner''s integrity had never been doubted and there was absolutely nor material before the High Court to recommend to the State Government that the provision of Rule 74(b)(ii) of the Jharkhand Service Code be invoked in the petitioner''s case.

5. Mr. Shivnath next contended that in the absence of any material which could have prompted the State Government to invoke the provisions of Rule 74(b)(ii) of the Jharkhand Service Code, the action taken by the State Government on the mere recommendation of the High Court was not only mechanical, but displayed non-application of mind. Referring to the second proviso to Rule 74(b)(ii) of the Jharkhand Service Code, Mr. Shivnath contended that in the case of officers and servants of the High Court under the rule marking authority of the Chief Justice, they could not be suspended or retired from service, except with the specific approval of the Chief Justice. Mr. Shivnath urged that having regard to the provisions of Articles 233, 234 and 235 of the Constitution, the Governor could not take any disciplinary action, including action for compulsory retirement against the members of the Subordinate Judiciary, except in consultation with the High Court. According to Mr. V. Shivnath, such consultation meant meaningful consultation with the High Court as had been indicated by the Hon''ble Supreme Court in the case of the Registrar, High Court of Madras Vs. R. Rajiah, , wherein while considering the question of compulsory retirement under Fundamental Rule 56(d) read with the power vested in the High Court under Article 235, it was indicated that either in the matter of compulsory retirement or imposition of punishment, the High Court has to make a recommendation in that regard to the Governor and the Governor is to act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. It was also observed that the Governor cannot take any action against any member of the Subordinate Judiciary without, any contrary to, the recommendation of the High Court.

6. On the question of control of the High Court as provided in Article 235 of the Constitution, Mr. V. Shivnath also referred to the decision of the Supreme Court in the case of Hari Datt Kainthla and Another Vs. State of Himachal Pradesh and Others, , in which the concept of consultation between Government and the High Court for the purpose of promotion to the post District Judge from amongst those belonging to the Subordinate Judicial Service was considered. Reliance was also placed on the decision of the Hon''ble Supreme Court in the case of Justice K.P. Mohapatra Vs. Sri Ram Chandra Nayak and Others, , wherein while considering the appointment of Lokpal, the Supreme Court observed that for such appointment, the word "consultation" used in Section 3(1) of the Orissa Lokpal and Lokayuktas Act, 1995 would require that consultation with the Chief Justice of the High Court in a sine qua non for such appointment, as the Chief Justice of the High Court would be the best person for proposing and suggesting a person to be appointed as Lokpal.

7. Mr. Shivnath contended that although the Government was not bound to accept the recommendation of the High Court in respect of exercise of power under Article 233 of the Constitution, such a power could be exercised only after consultation with the High Court as had been held by the Hon''ble Supreme Court in the case of Mani Subrat Jain and Others Vs. State of Haryana and Others, .

8. Mr. Shivnath contended that in any case, there had been no consultation as such and the State Government had merely acted mechanically on the recommendation made by the High Court. Mr. Shivnath contended further that the State Government was not bound to accept the recommendation of the High Court and it was, in fact, the duty of the State Government to independently consider the case of an employee or an officer before invoking the provisions of Rule 74(b)(ii) of the Jharkhand Service Code. It was submitted that the decision to compulsory retire an employee is based on the subjective satisfaction of the State Government that the employee concerned had lost his utility and his continuance in service is no longer in the interest of the public. Mr. Shivnath submitted that it is only after proper evaluation of the total service career of an employee is made, can a decision be taken regarding his future performance and utility. In support of his aforesaid submission, Mr. Shivnath referred to and relied on the decision of the Hon''ble Supreme Court in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, arid submitted that the Hon''ble Supreme Court had laid down five principles to be kept in mind while making an order of compulsory retirement. Briefly stated, they are (i) an order of compulsory retirement is not a punishment and does not imply a stigma; (ii) the order is required to be passed by the Government on its subjective satisfaction that it is in the public interest to retire a Government servant compulsorily; (iii) the principles of natural justice are not contemplated in making an order of compulsory retirement, but that would not exclude judicial scrutiny altogether and the Court could always interfere if the order is found to be perverse; (iv) the Government or the Review Committee will have to consider the entire record of service before taking decision in the matter upon attaching more importance to the performance of the officer during the later years, and (v) the order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing of such an order, uncommunicated adverse remarks were also taken into consideration.

9. Mr. Shivnath, however, urged that the Hon''ble Supreme Court had held that adverse remarks against an employee should be communicated to the employee within a reasonable time. Mr. Shivnath urged that from the aforesaid principles, it would be evident that after promotion which the petitioner got on his own merit, all adverse entries prior to such promotion must be held to have been wiped out and could not be relied upon at the time of passing of the order of compulsory retirement.

10. Mr. Shivnath submitted that in the above mentioned decision, the Hon''ble Supreme Court had also observed that if a Government servant is promoted to a higher post notwithstanding any adverse remark, such remarks tend to lose their sting, more so, if the promotion is based upon merit (selection), and not upon seniority. Mr. Shivnath also referred to the decision of the Hon''ble Supreme Court in the case of Madan Mohan Choudhary Vs. The State of Bihar, , in which it was held that judicial review of an order of compulsory retirement was available when there was no materials on record to reasonably form an opinion that such compulsory retirement was in public interest. It was also observed that a decision to compulsorily retire an employee based upon uncommunicated adverse remarks vitiated the order. Mr. Shivnath pointed out that while considering the provisions of Articles 233, 234 and 235, the Hon''ble Supreme Court reiterated its earlier view that although members of the Subordinate Judiciary are Government servants, but the Governor cannot take any decision with regard to their appointment, disciplinary matters, etc. without consulting the High Court and to ''consult'' in such context meant to take advice or to take counsel, and if the advice was not supported by materials on record and was arbitrary, it may not even be binding on the Government. In this connection, reference was also made to the decision of the Hon''ble Supreme Court in the case of H.C. Gargi Vs. State of Haryana, , in which a decision of the State Government to compulsorily retire an employee was struck down as arbitrary, inasmuch as, although, the employee was compulsorily retired as of doubtful integrity on the basis of two adverse entries, the same were only in respect of his performance and not his integrity.

11. On the question of judicial review of an administrative action, Mr. Shivnath referred to the decision of the House of Lords in Council of Civil Service Unions and Ors. v. Minister for the Civil Service 1984 (3) All ELR 935, in which their Lordships observed that powers exercised directly under a prerogative are not by virtue of the prerogative sources automatically immune from judicial review. If the subject matter of a prerogative power is justiceable, then the exercise of power is open to judicial review in the same way as a statutory power.

12. Yet another decision referred to by Mr. Shivnath on the same issue is that of the Patna High Court in Hari Sah v. State of Bihar and Ors. 1990 PLJR 438 in which a similar view was expressed that for compulsory retirement on the ground of public interest, there must be materials of passing such an order and in the absence of such materials, the order of compulsory retirement in public interest is vitiated. A similar view was taken by the Hon''ble Supreme Court in (i) 2001 (2) AWC 1445 (SC) and (ii) M.S. Bindra Vs. Union of India and Others, . Mr. Shivnath urged that in the absence of any adverse entries in the writ petitioner''s Annual Confidential Report, other than the remarks that he should not grant provisional bail, it must be held that there were no materials before the High Court to recommend to the State Government that the petitioner be compulsorily retired. Mr. Shivnath also contended that such a decision had been consistently held to be subject to judicial review and the Court was always entitled to look into the matters in order to satisfy itself that sufficient grounds existed for making recommendation for passing an order of compulsory retirement.

13. Appearing for the Jharkhand High Court, Mr. RS. Majumdar submitted that it was not correct to say that there were no adverse remarks regarding the petitioner''s performance, other than the adverse entries made by the learned District Judge regarding his granting of provisional bail. Referring to paragraph 5 of the counter affidavit filed on behalf of the High Court , Mr. Majumdar submitted that the petitioner had been found to be an officer of average merit, who did not carry good judicial reputation. In his Annual Confidential Report, certain remarks had been made by the Inspecting Judge on 12th March, 2000 regarding granting of provisional bail by the petitioner and ultimately, the matter was placed before the Standing Committee to consider the explanation submitted by the petitioner--while he was posted as Chief Judicial Magistrate, in Motihari--with regard to an allegation levelled against him by an Advocate of Deoghar. Mr. Majumdar submitted that the explanation submitted by the petitioner was not found satisfactory by the Standing Committee, which directed that the writ petitioner be censured.

14. Mr. Majumdar submitted that a decision was taken to recommend that the petitioner be compulsorily retired from service upon a total evaluation of his performance, and right upto the meeting held by the Standing Committee of the High Court on 15th September, 2000, it was felt that since an order of compulsory retirement does not amount to an order of punishment, there were sufficient materials to make an assessment that it was no longer in the public interest to retain the petitioner in service. Mr. Majumdar submitted that it is not a case of their being no materials as contended on behalf of the petitioner, but that the High Court had arrived at a subjective satisfaction on the basis of the materials on record before it and even after expunction of some of the adverse remarks, there were other materials in support of the decision to recommend the petitioner''s compulsory retirement.

15. We have carefully considered the submissions made on behalf of the respective parties and we are not inclined to interfere with the decision of the State Government to retire the petitioner compulsorily on the basis of the recommendation made by the High Court . It was for the High Court to consider, on a complete evaluation of the petitioner''s performance during his service career, as to whether he would continue to be useful to the service based on his performance and the decision of the Standing Committee of the High Court to censure the petitioner. The decision of the State Government, in our view, does not merit interference. In our view, this is not a case where the decision of the Hon''ble Supreme Court rendered in Madan Mohan Choudhary''s case can be applied. On the other hand, decision of the Hon''ble Supreme Court in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, appears to be more appropriate in the facts and circumstances of the instant case.

16. There can be no controversy with regard to the proposition relating to judicial scrutiny of an administrative action and we respectfully agree with the various decisions cited by Mr. Shivnath on this point. The question which is relevant for our consideration is whether the same have any application to the fact of the case. We are convinced that this is not a fit case for judicial review and the writ petition deserves to be dismissed.

17. For the reasons aforesaid, this writ application is dismissed. There will, however, be no order to costs.

R.K. Merathia, J.

I agree.