Judicial Service; Gavendra Singh Chauhan Vs. State [Rajasthan High Court, 22-08-2016]

Service Law – Judicial Service – Compulsory Retirement – Judicial service is not a service in the sense of employment and as is commonly understood Judges are discharging their functions exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.

Service Law – Compulsory Retirement – Compulsory retirement is neither dismissal nor removal and differs from both of them and it is not a form of punishment prescribed by the rules and involves no penal consequences, inasmuch as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.

Service Law – Compulsory Retirement – Service Record – the order of compulsory retirement does not have adverse consequence and, therefore, the principles of natural justice has no role to play and even uncommunicated ACR(s) on record can be taken into consideration and an order of compulsory retirement cannot be set aside for the reason that such uncommunicated entries were taken into consideration or the officer has not been afforded an opportunity to represent before such uncommunicated entries were taken into consideration for passing the order of compulsory retirement, cannot vitiate the order of compulsory retirement. At the same time, the authority has to take into consideration the entire service record of the officer concerned but more attention is to be paid to the last 5-10 years of service record which would include uncommunicated adverse remarks also.

Civil Service Pension Rules, 1996 (Rajasthan) – R. 53(1) – Compulsory Retirement – Judicial Service – the formation of opinion for compulsory retirement is based on subjective satisfaction of the authority concerned but at the same time when the matter comes for judicial review, courts can certainly look into as to whether valid material exists or not, or whether the order of compulsory retirement is based on some material or not but sufficiency of material cannot be a ground for setting aside the order of compulsory retirement.

Judicial Service


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

HON’BLE MR.AJAY RASTOGI,J. HON’BLE MR.JAINENDRA KUMAR RANKA,J.

Date of Judgment : 22nd August, 2016.

(1) D.B.CIVIL WRIT PETITION (CW) No. 12015 of 2010 Petitioner: Gavendra Singh Chauhan son of Late Shri Mahaveer Singh Chauhan caste Rajput, aged about 45 years, resident of 84/41, Pratap Nagar (Sanganer) Jaipur. VERSUS Respondent: 1. State of Rajasthan through the Secretary, Department of Law, Secretariat, Jaipur. 2. The High Court of Judicature for Rajasthan Jodhpur through its Registrar General. AND

(2) D.B.CIVIL WRIT PETITION (CW) No. 6916 of 2012 Petitioner: Gavendra Singh Chauhan S/o Late Shri Mahaveer Singh Chauhan, aged about 47 years, Caste Rajput, R/o 84/41, Kumbha Marg, Pratap Nagar, Sanganer, Jaipur. VERSUS Respondent: The High Court of Judicature for Rajasthan, Jodhpur, through its Registrar General.

Mr.SURESH PAREEK, Senior Counsel assisted by Mr.N.C.SHARMA, Counsel for the Petitioner. Mr.GAVENDRA SINGH CHAUHAN, Petitioner in person. Mr.A.K.SHARMA, Senior Counsel assisted by Mr.V.K.SHARMA, Counsel for the Respondent-High Court. Mr.VIRENDRA LODHA, Senior Counsel assisted by Mr.JAY LODHA, Counsel for the Respondent-High Court. Mr.RISHIPAL AGARWAL, Additional Govt.Counsel for State.

JUDGEMENT

The Officer has filed two separate writ petitions. Initially, Officer has challenged the order of his compulsory retirement u/R.53(1) of the Rajasthan Civil Service Pension Rules, 1996 (in short ‘the Rules of 1996’) dt.31.03.2010 and later on filed D.B.Civil Writ Petition No.6916/2012 questioning the adverse remarks recorded in his ACR for the year 2002 and both the writ petitions have been heard together with the consent of parties.

The facts of the case are that the petitioner Shri Gavendra Singh Chauhan inducted in the Rajasthan Judicial Service in January, 1992 after being selected by the Rajasthan Public Service Commission. He was granted senior scale in the RJS Cadre w.e.f. 04.04.1998 vide order dt.06.08.2001 and was promoted as Additional Chief Judicial Magistrate vide order dt.11.07.2000 and was granted selection grade in RJS Cadre w.e.f. 30.04.2002 vide order dt.03.01.2003 and was promoted as Additional District & Sessions Judge (Fast Track) on officiating basis vide order dt.10.08.2007 w.e.f. 06.01.2005 and while working as ADJ (Fast Track), Tijara, District Alwar was compulsorily retired vide order dt.31.03.2010.

While the Officer was working as ADJ (Fast Track), Tijara, District Alwar, Hon’ble the Chief Justice vide order dt.30.11.2009 constituted a Committee of five Hon’ble Judges of this Court to scrutinize the cases of such of the Judicial Officers of the State of Rajasthan who have become deadwood or lost utility to continue in service for compulsory retirement obviously who qualified pre-conditions envisage u/R.53(1) of the Rules, 1996. After constitution, one of the Hon’ble Judge stood retired, Hon’ble the Chief Justice reconstituted the Committee of four Hon’ble Judges and the Committee in its meeting held on 02.03.2010 considered the cases of Judicial Officers including the petitioner and after examining the overall record of service including personal and other files of Officers, arrived at the conclusion that the petitioner became liability to the Judicial Service and public interest warrants compulsory retirement of the Officer and accordingly recommended for his compulsory retirement which was placed before the Full Court and after due deliberation and discussions and perusing the overall service record & ACRs, it was unanimously resolved by the Full Court in its meeting dt.20.03.2010 to accept the report of the Committee & recommended petitioner’s compulsory retirement and in consequence thereof vide order dt.31.03.2010, the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.

Apart from assailing the order of compulsory retirement on merits, the petitioner has also questioned the validity of R.53(1) of the Rules, 1996.

The submission of counsel for petitioner is that R.53(1) of the Rules, 1996 envisages and casts an obligation upon the authority while taking decision to retire an officer who has completed 15 years of qualifying service or has attained the age of 50 years in public interest on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties or has lost his utility, the main considerations for the authority and obviously such conditions/factors, as envisage u/R.53(1) of the Rules, 1996, in the case of the present petitioner must have been taken into consideration and the order finally passed by the authority taking decision of his compulsory retirement may not cast any aspersion or stigma but the consideration while prevailed in the mind of the respondents in taking decision to compulsory retire the officer u/R.53(1) of the Rules, 1996, if looked into the record will reflect that the facts considered, obviously as referred to u/R.53(1) of the Rules, 1996 certainly cast a stigma and that would not have been permissible without holding a disciplinary enquiry and affording an opportunity of hearing to the petitionerOfficer and such action of the respondents is invalid and violative of Art.311(2) of the Constitution and such provision which constitutes a stigma is arbitrary & unconstitutional, if tested on the anvil of Constitution. Counsel further submitted that there is complete disparity in the qualifying service & age for compulsory retirement prescribed under the Service Rules of the State of Rajasthan & Service Rules of the other respective States, as in the State of Rajasthan u/R.53(1) of the Rules, 1996 the qualifying service for compulsory retirement is 15 years or age is 50 years and almost in all other State Service Rules, the age is either 50 or 55 years but the qualifying service for compulsory retirement vary from State to State and by & large it is 20 years or more. Thus, compulsory retirement on completing 15 years of service & in such of the cases where the officer has not attained the age for compulsory retirement, invoking R.53(1) of the Rules, 1996, is discriminatory and violative of Art.14 of the Constitution.

Counsel for petitioner further submits that granting permission for cessation of his service on the basis of the terms which are synonyms of misconduct and rendering the Officer jobless and depriving him of his status which he enjoyed as a Judicial Officer without hearing him and curtailing the opportunity to continue in service in accordance with the Rules, which is the right of the Officer, till he attained the age of superannuation and depriving him of the opportunities in the matters relating to employment and reducing the period of service u/R.53(1) of the Rules, 1996 is indeed violative of Art.14, 16 & 19 of the Constitution.

Counsel further submits that there was no material available on record on the basis of which even a man of ordinary prudence would arrive to a conclusion that the petitioner has become a deadwood & liability to the Judicial Service or lost his utility to continue in service and in public interest should be compulsorily retired.

According to the counsel, the respondents have arbitrarily exercised the power u/R.53(1) of the Rules, 1996 to retire him compulsorily, as alleged, in public interest and since the order impugned dt.31.03.2010 is completely innocuous and when the matter has come for judicial review, it is the bounden duty of the respondents to place the material on record to justify their action and from the record of service which has been referred to by the respondents in their reply and considered by the Committee constituted by Hon’ble the Chief Justice, if examined in totality, the recommendation of the Committee, approved by the Full Court, in taking a decision of his compulsory retirement in public interest is not legally sustainable on the first principles laid down by the Apex Court in the series of judgments and it requires interference of this court.

Counsel for petitioner has further tried to persuade this court that the material which has been placed on record does not sustain the adverse remarks and overall record of the officer was to be looked into while taking a decision and arriving to the conclusion that the Officer has either become deadwood or looses his utility to continue in service and it appears that the Committee constituted by Hon’ble the Chief Justice has failed to examine the complete record of service of the petitioner and the subjective satisfaction which has been arrived at based on the service record and decision of compulsory retirement of the officer under order impugned is not sustainable and deserves to be quashed.

The respondents filed their reply and while supporting the order impugned submitted that the total record of service including personal & other files of the petitioner were examined by the Committee constituted by Hon’ble the Chief Justice and on the recommendation of the Committee dt.02.03.2010 holding that the Officer has proved himself to be a liability to the Judicial service and in the public interest he may be compulsorily retired, was placed before the Full Court and the Full Court in its meeting dt.20.03.2010, after scrutinizing the entire service record and other files of the officer, was unanimous & of the view that recommendation of the Committee constituted by Hon’ble the Chief Justice deserves acceptance and it will be in public interest to compulsorily retire the petitioner and consequently vide Government order dt.31.03.2010, the petitioner was compulsorily retired u/R.53(1) of the Rules, 1996.

We have considered the submissions made by counsel for the parties and with their assistance examined the material on record.

At the very outset, we would like to quote R.53(1) of the Rules, 1996 under which the petitioner has been compulsorily retired and extract of the Rule, which is relevant for the present purpose, read ad infra:-

“At any time, after a government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties, has lost his utility, may require the concerned government servant to retire in public interest after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Development. In case of such retirement, the government servant shall be entitled to retiring pension.”

If we see R.53(1) of the Rules, 1996, it gives right to the competent authority to retire any government servant who has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, after recording subjective satisfaction of the authority forming opinion that it is in public interest to retire the government servant prematurely from service.

As regard the submission of petitioner’s counsel in assailing the validity of R.53(1) of the Rules, 1996 is concerned, it is extensively examined by this court in D.B.Civil Writ Petition (CW) No.782 of 2011 decided on 17.08.2016 and all the contentions advanced have been repelled after a detailed discussion upholding validity of R.53(1) of the Rules, 1996 and it needs no further consideration in the instant writ petitions.

Adverting to the question whether the compulsory retirement order suffers from any legal infirmity, we would consider it appropriate to refer to the report of the Committee constituted for four Judges who examined the overall service record of petitioner in its meeting held on 02.03.2010. The Committee in its report dt.02.03.2010 observed ad infra:-

“The name of petitioner appeared in the zone of consideration at S.No.49 of the list of ADJ (Fast Track) officers before the above Hon’ble Committee. Hon’ble Committee considered the case of the petitioner and recommended the name of the petitioner Shri Gavendra Singh Chouhan for compulsory retirement in the public interest observing as under:-

He was born on 05.03.1965 and presently posted as Additional District Judge (Fast Track), Tijara, District Alwar. The Officer entered in service in the cadre of Rajasthan Judicial Service in the year 1992.

In the year 1992, 1994, 1995, 1997 & 2000, he was rated as an average officer with remark of good Officer and very good Officer in 1996 and II part of 1997.

In the year 1993, the District Judge concerned recorded that he be advised to be more strict to follow the procedure. The adverse remark was communicated and it was not treated as adverse but advisory only. In the year 2000, the Officer was treated as an average Officer by the District Judge as well as by the Hon’ble Administrative Judge and the Hon’ble Administrative Judge recorded remark that he is an average Officer of quarrelsome nature and he creates problem where ever posted. His relation with fellow Officers and superiors as also with Bar also not good. Hon’ble the Chief Justice then recorded remark that he is an average Officer in all respects and endorse view of the Hon’ble Administrative Judge. Against the adverse remarks, a representation was received from the Officer and the remarks that “He is an average officer” has been maintained and rest of the remarks have been expunged.

In I part of 2002, his integrity was found doubtful and the complaints were also received with specific complaint of one case. He was rated as below average Officer. The learned District Judge reported that there are complaints came to his knowledge which casts reflection that integrity of the Officer Shri Gavendra Singh Chouhan (when he was ACJM, Bayana, District Bharatput). The District Judge refused to certify honesty and reputation of the Officer. Hon’ble the Inspecting Judge also recorded that there has been serious complaints against this Officer and he should never be posed at such place his Uncle is posted as SHO or any other post. He has been rated as below average. Against the adverse entries, his representation was considered and rejected, then he submitted review petition which also was rejected.

In the year 2004, his integrity was again found doubtful and in II part of 2004 also, his integrity was again found doubtful but after considering his representation, the same was rejected but in review petition the remarks were expunged.

Presently, there are four complaints of corruption pending but before that it has been brought to our notice that several complaints have been received by the High Court. We have perused the complaints. From the totality of facts as well as from the record, we found that the Officer enjoys no good reputation about his integrity and honesty and has no good reputation at the place where he was posted time to time.

In view of overall assessment of the service record including personal and other files of Shri Gavendra Singh Chouhan, he has proved himself to be a liability upon the judicial service and, therefore, in the public interest such judicial officer may be compulsorily retired immediately. It is further recommended that enquiry, if any, pending against him under Rule 16 and 17 of the CCA Rules, may be dropped. It is further recommended that the Officer may be given a Bank Draft of the amount equivalent to three month’s pay and allowances in lieu of notice period along with order of retirement.”

While the Officer was posted as Additional Chief Judicial Magistrate, Bayana, District Bharatpur (from 25.07.2001 to 01.06.2002), District & Sessions Judge rated him as Below Average Officer in his ACR for the year 2002 Part-I (01.01.2002 to 31.05.2002) and integrity certificate of the petitioner was also not certified and the Inspecting Judge made following remarks in the ACR of the petitioner:-

“Below Average. There have been serious complaints against Officer. He should never be posted at the same place his uncle is posted as SHO or any other post.”

The aforesaid adverse remarks/observations made in the ACR of the petitioner for the year 2002 was communicated to the petitioner by the respondent vide letter dt.20.09.2004 and the representation of the petitioner came to be rejected vide order dt.11.01.2005.

That apart the respondents have also stated in their reply the kind of complaints received against the petitioner, of which a detailed reference has been made. We consider it appropriate to quote the relevant extract of the reply, which reads ad infra:-

“File No.:R/V/C/202/09 (R/V/JD/C/336/09)

It is submitted that while the petitioner was posted as Additional District & Sessions Judge (Fast Track), Tijara, District – Alwar, a complaint received in July 2009 and another complaint dated 10.01.2010 was also received against the petitioner regarding corruption, work, behaviour and deliberately judicial discrimination.

File No.:R/V/C/337/09 (R/V/JD/C/568/09)

It is submitted that while the petitioner was posted as Additional District & Sessions Judge (Fast Track), Tijara, District – Alwar, again a complaint dated 09.11.2009 was received against the petitioner regarding corruption relating to Civil Suit decided by the petitioner.

File No.:R/V/C/112/09 (R/V/JD/C/194/09)

It is submitted that during the hearing of S.B.Civil Writ Petition No.2996/2009 Hon’ble High Court observed that in case No.28/2005 pending in the Court of the petitioner i.e. Additional District Judge (Fast Track), Tijara, Alwar evidence of the plaintiff was closed on 28.08.2008 while on that date, case was fixed for the evidence of the plaintiff and the plaintiff had filed Talbana for summoning the witnesses, but no process was issued by the court and on the date of hearing, evidence was closed after examining one witness and the order-sheet was not written properly. An explanation was called from the petitioner regarding above facts. In this regard the petitioner submitted his explanation dated 11.06.2009 and as per direction an inquiry u/r.17 CCA was initiated against the petitioner. Memorandum and statement of allegations dated 22/25.01.2010 were served upon the petitioner.

File No.:R/V/C/53/2010 (R/V/JD/C/84/2010)

It is submitted that while the petitioner was posted as Additional District & Sessions Judge (Fact Track), Tijara, District – Alwar, again a complaint dated 17.01.2010 was received against the petitioner regarding corruption.”

It is indeed settled by this time that the order of compulsory retirement is not a punishment, it implies no stigma nor any suggestion of misbehavior and is based on subjective satisfaction of the authority and this principle has been consistently followed by the Apex Court that while considering the case of an Officer as to whether he should be continued in service or compulsorily retired, his entire record of service upto that date on which consideration is made has to be taken into account while taking decision of compulsory retirement, of course, attaching more importance of service record of last 5-10 years but the evaluation has to be made on the basis of entire service record and even if one has been promoted that will not wipe out the earlier adverse entry, if any, and even one solitary adverse entry in the record of service regarding honesty & integrity would be considered to be sufficient in taking a decision of compulsory retirement.

More so, in Judicial service which cannot be considered to be a service in the sense of employment and the Judicial Officers discharge their functions while exercising the sovereign judicial power of the State. There is no manner of doubt that the nature of Judicial service is such which cannot afford to suffer continuance in service of persons of doubtful integrity or those who have lost their utility & integrity. The honesty and integrity of an Officer is always expected to be beyond doubt, should also be reflected in his overall reputation. In the case of