IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1751 OF 2011
Mahendrakumar Harmansingh Siriya. .. Petitioner.
Versus
The Hon’ble Chief Justice,
High Court of Judicature at
Bombay & Ors. .. Respondents.
.....
Mr. Ashutosh Kumbhkoni with Mr. Pramod G. Kuthane and
Yogesh S. Sankpal for the Petitioner.
Mr. P.S. Dani with Mr. Prasad Kulkarni for R. Nos. 1 & 3.
......
CORAM : DR.D.Y.CHANDRACHUD &
A. A. SAYED, JJ.
14 November 2011.
ORAL JUDGEMENT : (PER DR.D.Y.CHANDRACHUD, J.)
The Petitioner has been retired prematurely from judicial service in public interest under Rule 19 of the Maharashtra Judicial Service Rules 2008 read with subrule (4) of Rule 10 of the Maharashtra Civil Service (Pension) Rules, 1982. The Petitioner joined judicial service as a Civil Judge, Junior Division and Judicial Magistrate, First Class on 29 March 1996. The Petitioner attained the age of 55 years on 11 October 2010. The Review Committee consisting of the Chief
Justice and the four senior most Judges held a meeting on 19 October 2010 for considering the cases of judicial officers for review and continuation in judicial service beyond the age of 50, 55 and 58 as the case may be. As regards the Petitioner, the following decision was arrived at :
“ The Annual Confidential Reports of the above Judicial Officer for the latest period i.e. 2004-2005 and 2005-2006 show that his integrity can be doubted. In the Annual Confidential Report for the years 2007-2008, the Honble ’ Guardian Judge made observations that the Judicial Officer needs to improve his disposal. Thus the record shows that the integrity of this officer is doubtful, whereas, even after putting in 14 years of service it was found that he needs improvement in his disposal. In view of this, the Committee is of the opinion that Shri M.H. Siriya does not deserve to be continued in the Judicial Service beyond the age of 55 years.”
2. Learned Counsel appearing on behalf of the Petitioner submitted that two reasons have been adduced by the Review Committee : (i) The ACRs for 2004-5 and 2005-6 show that the integrity of the officer “can be doubted”; and (ii) For the year 2007-8 the Guardian Judge had made observations in the ACR that the Officer needed to improve his disposal. On the issue of integrity the Review Committee noted that the record showed that the integrity of the officer “is doubtful”. The first submission is that the ACRs for the two years which reflected adversely on the integrity of the Petitioner stated that the integrity can be doubted which, it is urged, must be distinguished from a situation where integrity is doubted. The second limb of the submission is that the doubt about the integrity of the Petitioner was based on a single instance where the Petitioner had ordered the release of certain vehicles. This order of the Petitioner, it was contended, was confirmed by the Revisional Court. Thirdly it has been urged that the remarks of the Guardian Judge to the effect that the disposal of the Petitioner needed improvement for the year ending 31 March 2008 are erroneous having regard to the disposal chart which forms part of the ACRs.
3. On the other hand it has been urged on behalf of the Respondents that (i) When a Judicial Officer is sought to be retired in public interest prematurely in accordance with the power conferred by Rule 19 of the Maharashtra Judicial Service Rules, 2008 read with Rule 10 (4) of the Maharashtra Civil Services (Pension) Rules, 1982 the totality of circumstances has to be borne in mind; (ii) The totality of the service record was before the Review Committee and was duly considered; (iii) The service record of the Petitioner would indicate that (a) for the years 2000-1, 2001-2 and 2002-3 he was consistently graded as being an average officer; (b) Two preliminary inquiries were held against the Petitioner at the conclusion of which it was found by reports dated 4 October 2004 and 6 May 2006 that the integrity of the Petitioner was doubtful; (c) The Petitioner was accordingly administered warnings on 14 March 2005 and 24 January 2007; (d) The remarks made in the ACRs for 2004-5 and 2007-8 contain a reference to specific instances but the remark that the integrity of the Petitioner was in doubt is not based only on a solitary instance; (e) Even after 14 years of service it was found that the Petitioner has to improve his disposals. On this state of the service record, it was urged that the Review Committee was justified in retiring the Petitioner prematurely on attaining the age of 55 years when his case for continuation in service came up for consideration. On the basis of the law laid down by the Supreme Court it was urged that no case for interference under Article 226 of the Constitution is made out.
4. The Petitioner has been retired from service in public interest under Rule 19 of the Maharashtra Judicial Service Rules 2008 read with Rule 10 (4) of the Maharashtra Civil Service (Pension) Rules, 1982. In assessing whether an officer should be continued in service upon the completion of 55 years, the Review Committee, following well settled settled principles of law, is required to consider the totality of the service record. Two recent judgments of the Supreme Court may be referred to at this stage since they authoritatively lay down the governing principles of law. In Pyare Mohal Lal vs. State of Jharkhand & Ors. (Writ Petition (Civil) 382 of 2003) decided on 10 September 2010, the Supreme Court observed that the case of a judicial officer is required to be examined; treating him differently from the other wings of the society as
he serves the State in a different capacity. The same principle was reiterated by the Supreme Court in Rajendra Singh Verma vs. Lt. Governor of NCT of Delhi & Anr., 2011 (10) SCALE 315 in the following observation:
“Judicial service is not a service “ in the sense of an employment as is commonly understood. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall
reputation. There is no manner of doubt that the nature 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.”
Both these decisions emphasise that the entire service record upto the date on which consideration is made by the Review Committee has to be taken into account. For that matter the
fact that an officer was promoted or was granted increments after an earlier adverse entry does not wipe out the effect of an adverse entry which can still be taken into account in considering as to whether his service should be continued. In Pyare Mohal Lal these principles were applied to the facts in following observation :
“It is evident from the “ aforesaid service record of the Petitioner that he remained an average officer throughout his service career and could never improve. His out turn had been poor; he had been given adverse entries regarding his integrity/reputation as not good in the years 1999-2000 and remarks to that effect by the Inspecting Judges in 1997 and 2001-2002. The Petitioner had made a bald assertion that the adverse entries have not yet been communicated to him. It has been repeatedly submitted by him that representations made by him against the said adverse entries had not been disposed of. Indisputably, uncommunicated adverse entries could be taken into account for the purpose of assessing an officer for compulsory retirement.”
5. In the present case, the Petitioner was appointed on 29 March 1996. The ACRs of the Petitioner for the years 2000-1, 2001-2 and 2002-3 consistently ranked him only as an average officer. That is the first aspect of the service record which merits notice. The second aspect of the matter is that the ACRs of the Petitioner contained an adverse expression of doubt on the integrity and impartiality of the Petitioner. To make a distinction between a remark which states that integrity “can be doubted” and a remark which states that “integrity is in doubt” would be to engage in hairsplitting. There is no material difference. As a matter of fact in the present case there were two preliminary inquiries conducted against the Petitioner, the reports of which are available on record. In his report dated 4 October 2004 the District and Sessions Judge, Wardha had reason to doubt the integrity of the Petitioner on the basis of specific circumstances. On 4 March 2005, a warning was administered to the Petitioner that while performing his duties as a judicial officer he should not interfere in the business of the police authorities and that he should be impartial. The second preliminary inquiry was conducted by the Additional District Judge at Wardha and in his report dated 2 May 2006 it was found that the integrity of the Petitioner was doubtful and that there was substance in the allegations against him. Based on this and upon finding the explanation of the Petitioner to be unsatisfactory a recordable warning was issued to the Petitioner by the Disciplinary Authority. The Review Committee has in addition adverted to the noting made by the Guardian Judge in the ACRs for 20078 on the disposal of the Petitioner requiring improvement.
6. The totality of the service record was before the Review Committee. On the basis of the record as it stands, it is impossible to accept the contention that the decision of the Review Committee was vitiated. The service record of the Petitioner does not indicate that the Petitioner is an officer
who befits continuation in the judicial service of the State. We would hasten to add that the evaluation and assessment is that of the Review Committee. This Court under Article 226 only assesses the validity of the decision on the basis of well settled parameters for the exercise of its jurisdiction. Having applied those tests consistent with the law laid down by the Supreme Court, we do not find that the decision suffers from any error.
7. The Petition is accordingly dismissed. There shall be no order as to costs.
(Dr. D.Y. Chandrachud, J.)
(A. A. Sayed, J.)
