RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. LT. GOVERNOR OF NCT OF DELHI & ANR.

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 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 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 .. "

99Copy pinpoint99. 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

100Copy pinpoint100. 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 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 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.

101Copy pinpoint101. 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.

102Copy pinpoint102. 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.

103Copy pinpoint103. 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 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 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 circumstances, the Court proposes to examine the said contention on merits.

104Copy pinpoint104. 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 and appropriate steps are to be taken by December 31, 1992."

105Copy pinpoint105. In Second All India Judge's Association & Others Vs. Union of India & Others, (1993) 4 SCC 288, this Court clarified 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 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 officer's past record of service, character rolls, quality of judgments and other relevant matters."

106Copy pinpoint106. In paragraph 31 of the reported decision this Court has inter alia observed that the standard of evaluation shall be 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 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."

107Copy pinpoint107. 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

108Copy pinpoint108. 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

109Copy pinpoint109. 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 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 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

110Copy pinpoint110. 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.

111Copy pinpoint111. 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.] 17.9.2001 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.

112Copy pinpoint112. 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.

113Copy pinpoint113. 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 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.

114Copy pinpoint114. 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.

115Copy pinpoint115. 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 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 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."

116Copy pinpoint116. 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 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 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."

117Copy pinpoint117. 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.

118Copy pinpoint118. 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 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 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 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.

119Copy pinpoint119. 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 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 which adverse remarks were recorded in the confidential reports of the appellants, this 'material' relates to substance, matter, data, information etc. While considering the case of a judicial officer it is not necessary to limit the 'material' only to written complaints or 'tangible' evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.

120Copy pinpoint120. As observed by this Court in R.L ButaH Vs. Union of India and Others, (1970) 2 sec876, it is not necessary that an opportunity of being heard before recording adverse entry should be afforded to the officer concerned. In the said case, the contention that an inquiry would be necessary before an adverse entry is made was rejected as suffering from a misapprehension that such an entry amounts to the penalty of 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.

121Copy pinpoint121. 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 of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is·permissible only on limited grounds. The .reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there 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 instances of shortfalls, supported by evidence.

122Copy pinpoint122. 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 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 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.

123Copy pinpoint123. 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 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 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 adopted in recording such ACR.

124Copy pinpoint124. 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 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 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 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 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 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

125Copy pinpoint125. 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 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 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 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, 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 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 three years could not have been taken into consideration before passing order of compulsory retirement against the deceased officer.

126Copy pinpoint126. On consideration of the argument advanced by the 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 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 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 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 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 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 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 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 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 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 into the allegations against the judicial Officers."

127Copy pinpoint127. 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 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 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 service record is proposed to be considered at a little later stage.

128Copy pinpoint128. 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, 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 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.

129Copy pinpoint129. Similarly, the plea raised by Mr. Rohilla that the impugned judgment is not sustainable in law because the act 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 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 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 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.

130Copy pinpoint130. 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 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 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 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.

131Copy pinpoint131. 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

132Copy pinpoint132. 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

133Copy pinpoint133. 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 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 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 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. -

134Copy pinpoint134. So also, the record of Mr. P.O. Gupta shows that he 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 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 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.

135Copy pinpoint135. Having regard to their entire service record of the three officers, this Court is of the opinion that the competent 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 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 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.

136Copy pinpoint136. 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 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 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.