R. Natarajan v. The State of Tamil Nadu

2. The petitioner joined in service as Judicial Magistrate inNovember, 1988 and worked in different capacities in different places. InMarch, 1998, he was promoted as Subordinate Judge and initially worked asPrincipal Subordinate Judge, Tenkasi in Tirunelveli District uptoSeptember, 2000 and thereafter as the Chairman of Taxation AppellateTribunal, Tirunelveli Corporation. Subsequently he was promoted asDistrict Judge and posted as Fast Track Court Judge with effect from21.2.2002. The Administrative Committee of the High Court in its meetingdated 22.3.2004, while recommending continuance of several other JudicialOfficers, recommended that the present petitioner should be retiredcompulsorily under Fundamental Rule 56(2). The recommendation is to thefollowing effect:-“... Taking into consideration the remarks recorded in theConfidential Reports, Work Done Statements and all other relevantrecords including the latest Vigilance Reports relating to ThiruR. Natarajan, Additional District Judge, Fast Track Court – I,Villupuram at Tindivanam. ... As per the guideline prescribedunder G.O.Ms.No.623 dated 14.7.1983 it is resolved that it isjust and necessary to retire compulsorily Thiru R. Natarajan onattaining the age of 50 years as his continuance in service isagainst the public interest.”Such recommendation was placed before all the Honourable Judges by way ofcirculation. Thereafter, the matter was forwarded to the Government whichaccepted the proposal and the order of compulsory retirement was passed.Review Application filed by the petitioner has not been disposed of.Thereafter the present writ petition has been filed.3. The petitioner has sought to challenge such order mainly onthe following grounds :-(1) The decision of the Administrative Committee was not placed beforethe Full Court.(2) The overall performance of the petitioner, as demonstrated fromthe work done statement, do not indicate that the petitioner was uselessand had become a dead wood warranting compulsory retirement.The order of compulsory retirement had been given much publicity in T.V.Channels and newspapers, which clearly casts stigma on the petitioner.(3) The report of enquiry conducted by the District Judge had beenexamined by the High Court and the explanation given by the petitioner atthat stage had been accepted and, therefore, on the basis of such reportno order should have been passed.(4) There is no factual basis to justify the few adverse remarks andthe official memos served on the petitioner containing adverse remarks donot spell out the details so as to enable the petitioner to meet thoseallegations and, therefore, such adverse remarks should not have beenconsidered for the purpose of passing the order of compulsory retirement. https://hcservices.ecourts.gov.in/hcservices/ (5) Adverse remarks had been passed prior to the promotion of thepetitioner as a District Judge. Promotion to Fast Track Court was on thebasis of merit after taking into account the overall performance and sincehe was considered meritorious enough to be promoted, on the basis of self-same record, he should not have been compulsorily retired.4. A counter affidavit has been filed on behalf of the secondrespondent, namely, the Registrar General of the High Court of Madras. Inthe said counter affidavit it has been indicated that the Review-cum-Screening Committee considered the records of the petitioner by takinginto account the relevant provisions and after following the guidelinesenumerated in G.O.Ms.No.623 dated 14.7.1983 and there is no arbitrarinessin the recommendation. It has been further indicated that the order ofcompulsory retirement cannot be considered as one of the punishment andthe petitioner had been retired in the public interest in accordance withFundamental Rule 56 and has not been passed as a punitive measure. It hasbeen further stated that the decision of the Administrative Committee wascirculated and placed before all the Honourable Judges.5. Fundamental Rule 56(2) is as follows :-“56(2) Compulsory Retirement. - Notwithstanding anythingcontained in this rule, the appropriate authority shall, if it isof the opinion that it is in the public interest so to do, havethe absolute right to retire any Government servant by giving himnotice of not less than three months in writing or three months’pay and allowances in lieu of such notice at any time after hehas attained the age of fifty years or fifty-five years in thecase of Basic Servants, as the case may be, or after he hascompleted thirty years of qualifying service.Explanation I. - “Appropriate authority” means “theauthority which has the power to make substantive appointments tothe post of service from which the Government servant is requiredto retire.”Explanation II.- Omitted.Explanation III.- In computing the notice period of threemonths, the date of service of the notice shall be included.Explanation IV.- Omitted.Explanation V. - The powers conferred on the “appropriateauthority” under the sub-rule may also be exercised by any higherauthority. Explanation VI.- The term “qualifying service” means“permanent or officiating service (including temporary serviceunder emergency provisions)rendered in a post included in apensionable establishment without interruption”.” https://hcservices.ecourts.gov.in/hcservices/

6. The State Government has issued several instructions in thematters relating to compulsory retirement of civil servants under theState. All those instructions were consolidated, updated and re-issued in G.O.Ms.No.623 dated 14.7.1983. The salient features of the saidG.O. can be noticed.The object of the scheme of compulsory retirement is to weed out thedead wood in order to maintain a high standard of efficiency and integrityin the State Services. The first review of the officers shall be doneapproximately six months before the age of 50 years or completion of 30years whichever is earlier and the second review shall be done afterapproximately attaining the age of 55 years. As per paragraph 4 of suchG.O., indicating about the types of cases, which may be put up before theReview Committees for review, it is indicated :-“4. The following types of cases may be put up before theReview Committees for review.- (i) In cases where the Governmenthave a reasonable cause to believe that an officer is lacking inintegrity, this would be an appropriate ground to consider himfor compulsory retirement irrespective of an assessment of hisability or efficiency in work.(ii) In cases where Government have reason to believe thatan officer habitually takes bribes but there is no definite proofof a specific act of corruption, or where the officer has a badreputation and where there is abundant suspicion against him eventhough the guilt may not have been established in a criminal case, such case can be brought upfor review.(iii) Cases where an Officer’s integrity is not in doubt,but his physical or mental condition is such as to make himinefficient for further service or render him unfit to dischargehis duties properly.(iv) cases of Officers against whom there are repeatedcomplaints of corruption;(v) Cases of Government servants who although have done wellin the lower grades, are not considered adequate for theresponsibilities of the posts they occupy or will not be able toperform efficiently in their posts for the next 3/5 years.”7. A perusal of the relevant Rules makes it clear that theappropriate authority has absolute right to retire any Government servantat any time after such Government servant had attained the age of 50 yearsor 55 years, as the case may be, provided that the appropriate authoritycomes to the conclusion that it is in the public interest. https://hcservices.ecourts.gov.in/hcservices/

8. Various instructions issued by the Government from time totime, which has been consolidated in G.O.Ms.No.623 dated 14.7.1983,indicate that the object of retiring a person pre-maturely is to weed outthe dead wood or maintain a high standard of efficiency and integrity inthe service. Paragraph 4 of such G.O., makes it clear that where there isreasonable cause to believe that the officer is lacking in integrity, sucha case would be an appropriate case for considering compulsory retirementirrespective of the assessment of ability or efficiency in work. What isstated in general terms in such G.O., would obviously apply with morevigour to the case of a Judicial Officer holding the post in Judiciary,where the fate of various litigants is required to be decided. 9. Before examining in detail the various contentions raised bythe petitioner, it would be appropriate to refer to some of the relevantdecisions holding the field. Most of the decisions relating to compulsoryretirement have been considered and analysed in the decision of theSupreme Court in (1992) 2 SCC 299 (BAIKUNTHA NATH DAS AND ANOTHER v. CHIEFDISTRICT MEDICAL OFFICER, BARIPADA AND ANOTHER) and the ratio laid down insuch decision is followed in several other decisions. It is convenient tostart with the decision reported in (1992) 2 SCC 299 (cited supra),wherein the Supreme Court summarised the ratio in the following words :-“32. We may not be understood as saying either that adverseremarks need not be communicated or that the representations, ifany, submitted by the government servant (against such remarks)need not be considered or disposed of. The adverse remarks oughtto be communicated in the normal course, as required by therules/orders in that behalf. Any representations made againstthem would and should also be dealt with in the normal course,with reasonable promptitude. All that we are saying is that theaction under F.R.56(j) (or the rule corresponding to it) need notawait the disposal or final disposal of such representation orrepresentations, as the case may be. In some cases, it mayhappen that some adverse remarks of the recent years are notcommunicated or if communicated, the representation received inthat behalf are pending consideration. On this account alone,the action under F.R.56(j) need not be held back. There is noreason to presume that the Review Committee or the government, ifit chooses to take into consideration such uncommunicatedremarks, would not be conscious or cognizant of the fact thatthey are not communicated to the government servant and that hewas not given an opportunity to explain or rebut the same.Similarly, if any representation made by the government servantis there, it shall also be taken into consideration. We mayreiterate that not only the Review Committee is generallycomposed of high and responsible officers, the power is vested ingovernment alone and not in a minor official. It is unlikelythat adverse remarks over a number of years remain uncommunicatedand yet they are made the primary basis of action. Such an https://hcservices.ecourts.gov.in/hcservices/ unlikely situation, if indeed present, may be indicative ofmalice in law. We may mention in this connection that the remedyprovided by Article 226 of the Constitution is no less animportant safeguard. Even with its well known constraints, theremedy is an effective check against mala fide, perverse orarbitrary action.”10. The aforesaid decision has been subsequently followed inseveral other decisions such as (1997) 6 SCC 228 (I.K. MISHRA v. UNION OFINDIA AND OTHERS), (2001)3 SCC 389 (STATEOF U,.P. AND ANOTHER v. LALSARAM), (2001) 3 SCC 314 (STATE OF GUJARAT v. UMEDBHAI M. PATEL), 2003 (7)Supreme 179 (NAWAL SINGH v. STATE OF U.P. AND ANOTHER). Out of theselater decisions, it would be apt to refer particularly the decisionreported in (2001) 3 SCC 314 (cited above), wherein it was observed asfollows :- “11. The law relating to compulsory retirement has nowcrystallised into a definite principles, which could be broadlysummarised thus:(i) Whenever the services of a public servant are no longeruseful to the general administration, the officer can becompulsorily retired for the sake of public interest.(ii)Ordinarily, the order of compulsory retirement is not tobe treated as a punishment coming under Article 311 of theConstitution.(iii)For better administration, it is necessary to chop offdead wood, but the order of compulsory retirement can be passedafter having due regard to the entire service record of theofficer.(iv)Any adverse entries made in the confidential recordshall be taken note of and be given due weightage in passingsuch order.(v)Even uncommunicated entries in the confidential recordcan also be taken into consideration.(vi)The order of compulsory retirement shall not be passedas a short cut to avoid departmental enquiry when such course ismore desirable.(vii)If the officer was given a promotion despite adverseentries made in the confidential record, that is a fact infavour of the officer.(viii)Compulsory retirement shall not be imposed as apunitive measure." https://hcservices.ecourts.gov.in/hcservices/

11. The decision reported in 2003(7) Supreme 179 (cited supra)is also to be particularly noticed, wherein the principles laid down inBaikuntha Nath Das case and other cases are reiterated. The introductorycomments made in such decision will however required to be kept in view asit has got seminal importance while considering the case of a judicialofficer. The Supreme Court had observed :-“2. At the outset, it is to be reiterated that the judicialservice is not a service in the sense of an employment. Judgesare discharging their functions while exercising the sovereignjudicial power of the State. Their honesty and integrity isexpected to be beyond doubt. It should be reflected in theiroverall reputation. Further nature of judicial service is suchthat it cannot afford to suffer continuance in service of personsof doubtful integrity or who have lost their utility. If suchevaluation is done by the Committee of the High Court Judges andis affirmed in the writ petition, except in very exceptionalcircumstances, this Court would not interfere with the same,particularly because order of compulsory retirement is based onthe subjective satisfaction of the Authority."12. Keeping in view the well settled principle as enunciated inthe above decisions, the contentions raised by the petitioner are requiredto be considered.13. Learned counsel appearing for the petitioner has contendedthat the recommendation relating to compulsory retirement of thepetitioner made by the Review-cum-Screening Committee or theAdministrative Committee of the High Court had not been placed before theFull Court. In the counter affidavit, such assertion has beendenied and it has been indicated that the recommendation of theAdministrative Committee was placed before all the Hon’ble Judges by wayof circulation. 14. Relevant records have been produced. A perusal of therecords indicates that such recommendation of the Administrative Committeewas circulated among the Hon’ble Judges. It appears from the records thateleven Hon’ble Judges by their separate endorsement had accepted thesuggestion given by the Administrative Committee, whereas one HonourableJudge, while giving his comment, had raised the question as to why thematter was not placed before the Full Court for discussion. Two otherHonourable Judges without giving approval, raised the question that thematter should be placed before the Full Court for consideration and therest of the Honourable Judges had not given an opinion either ratifyingthe recommendation of the Administrative Committee or deferring from suchopinion. Thereafter, the then the Honourable Chief Justice noted that themajority of the Judges had accepted the recommendation and accordingly therecommendation was sent to the Government. Since majority of the https://hcservices.ecourts.gov.in/hcservices/ Honourable Judges, who had given an opinion, had ratified therecommendation of the Administrative Committee and other Honourable Judgeshave not opined, the then Honourable the Chief Justice correctly assumedthat the opinion of the Full Court was for recommending compulsoryretirement of the concerned officer. The submission made by thepetitioner that the matter was not placed before the Full Court,therefore, cannot be sustained.15. The second contention of the petitioner is to the effectthat the work done statement does not indicate that the petitioner wasuseless and had become dead wood warranting compulsory retirement.It would not be possible for the Court to come to any differentconclusion on this aspect as this Court cannot be expected to sit as anappellate authority in the matter. The scope of interference in suchmatter is being very limited, it has to be seen whether the recommendationfor compulsory retirement was without any basis whatsoever requiringinterference. 16. In the present case, various entries in the AnnualConfidential Reports of the petitioner, which were placed before theAdministrative Committee, have been placed before us. Some of the entriesindicate that there had been shortfall and there was scope forimprovement. Since we are not expected to sit as an appellate authority,we are unable to accept this submission.17. The third contention of the petitioner is to the effect thatthe order of compulsory retirement had been given much publicity and ithas the effect of casting stigma on the petitioner. It is no doubt truethat any order relating to compulsory retirement of an officer, moreparticularly a judicial officer, is given much publicity in the media andthat, however, cannot be a ground to hold that compulsory retirement castsa stigma. It is well known that the order of compulsory retirement interms of Fundamental Rule 56(2) is not considered as a stigma and onlywhere it is imposed as a punishment such order is considered as a stigma. 18. Learned counsel for the petitioner has also contended thatthere is no factual basis to justify few adverse remarks. Some of theentries relate to assessment of quality and quantity of work done by thepetitioner. Some of the entries relate to reputation of the petitioner.So far as the entries relate to quantity of work are concerned, theconcerned reporting officer has made such comments on the basis ofavailable records which have been subsequently re-assessed and re-confirmed by the Honourable Judge in charge of the District. It cannot besaid that such comments are without any basis. 19. Learned counsel for the petitioner has also raised acontention to the effect that some enquiry had been held by the DistrictJudge, which had been examined by the High Court, and the explanation https://hcservices.ecourts.gov.in/hcservices/ given by the petitioner at that stage having been accepted, on the self-same basis, the order of compulsory retirement should not have been passed.The petitioner is not correct in his assumption that the order ofcompulsory retirement is based on the basis of the report submitted by theDistrict Judge or the Vigilance Committee alone. As apparent from therecords and the proceedings of the Administrative Committee, relevantentries in the Annual Confidential Reports as well as the Vigilance Reportand other reports were considered.20. The last contention and, according to the petitioner, thestrongest contention is required to be noticed. It is submitted by thelearned counsel for the petitioner that adverse entries related to theperiod 2000-2001, whereas the petitioner was promoted as District Judge(in Fast Track Court) in the year 2002 and in view of such promotion, theeffect of adverse entries earlier should be taken to be wiped out and inthe absence of any other material, merely on the basis of some remarks,which had been made before the promotion of the petitioner, such order ofcompulsory retirement should not have been passed. Learned counsel hasfurther submitted that the scheme relating to appointment of persons onpromotion to Fast Track Court as District Judge contemplates that suchpromotion should be on the basis of merit and, therefore, it must be takenthat the petitioner was considered meritorious enough to be promoted inthe year 2002 and therefore there is absolutely no reason for hiscompulsory retirement soon thereafter.21. Focusing on this aspect, the petitioner has referred toseveral decisions. In AIR 1980 SC 269 (SWAMI SARAN SAKSENA v. STATE OFUTTAR PRADESH), the concerned officer had been allowed to cross the secondefficiency bar before the order of compulsory retirement. It wasobserved :-“3. ... It is not possible reasonably to come to theconclusion that the compulsory retirement of the appellant wascalled for. This conclusion follows inevitably from theparticular circumstances, among others, that the appellant wasfound worthy of being permitted to cross the second EfficiencyBar only a few months before. Ordinarily, the court does notinterfere with the judgment of the relevant authority on thepoint whether it is in the public interest to compulsorilyretire a Government servant. And we would have been even morereluctant to reach the conclusion we have, when the impugnedorder of compulsory retirement was made on the recommendation ofthe High Court itself. But on the material before us we areunable to reconcile the apparent contradiction that although forthe purpose of crossing the second Efficiency Bar the appellantwas considered to have worked with distinct ability and withintegrity beyond question, yet within a few months thereafter hewas found so unfit as to deserve compulsory retirement. The https://hcservices.ecourts.gov.in/hcservices/ entries in between in the records pertaining to the appellantneed to be examined and appraised in that context. There is noevidence to show that suddenly there was such deterioration inthe quality of the appellant's work or integrity that hedeserved to be compulsorily retired. For all these reasons, weare of opinion that the order of compulsory retirement should bequashed. The appellant will be deemed to have continued inservice on the date of the impugned order."22. In AIR 1982 SC 793 (D. RAMASWAMI v. STATE OF TAMIL NADU),the person had been promoted soon before the order of retirement and suchpromotion was on the basis of merit and ability. It was observed :- “3. ... There was an adverse entry in the confidential fileof the appellant in 1969. The basis of the entry was knocked outby the Order dated November 29, 1974 of the Government, andeffect of the entry was blotted out by the promotion of theappellant as Deputy Commissioner. After his promotion as DeputyCommissioner there was no entry in the service book to hisdiscredit or hinting even remotely that he had outlived hisutility as a Govt. servant. If there was some entry, not whollyfavourable to the appellant after his promotion, one might harkback to similar or like entries in the past, read them all inconjunction and conclude that the time had arrived for theGovernment servant to quit Government service. But, with nothingof the sort, it is indeed odd to retire a Government servant afew months after promoting him to a selection post.4. In the face of the promotion of the appellant just a fewmonths earlier and nothing even mildly suggestive of ineptitudeor inefficiency thereafter, it is impossible to sustain the orderof the Government retiring the appellant from service. Thelearned Counsel for the State of Tamil Nadu argued that theGovernment was entitled to take into consideration the entirehistory of the appellant including that part of it which wasprior to his promotion. We do not say that the previous historyof a Government servant should be completely ignored once he ispromoted. Sometimes, past events may help to assess present-conduct. But when there is nothing in the present conduct castingany doubt on the wisdom of the promotion, we see no justificationfor needless digging into the past."23. Similar views have been expressed in 1994 Supp.(3) SCC 424(S. RAMACHANDRA RAJU v. STATE OF ORISSA). As a matter of fact in (1992) 2SCC 299 (cited above) in para 34(iv) it is indicated that if a governmentservant is promoted to a higher post notwithstanding the adverse remarks,such remarks lose their sting, more so, if the promotion is based uponmerit (selection) and not upon seniority. https://hcservices.ecourts.gov.in/hcservices/

24. The effect of any adverse entry relating to integrity,whether before promotion or after promotion, however, stands on adifferent footing as it is apparent from several subsequent decisions ofthe Supreme Court. For example, in (2000) 8 SCC 395 (BADRINATH v.GOVERNMENT OF TAMIIL NADU AND OTHERS), after referring to the ratio of thedecision laid down in Baikuntha Nath Das case, it was observed :-“56. The above sentence in Gurdas Singh needs to beexplained in the context of the Bench accepting the three-JudgeBench ruling in Baikuntha Nath Das. Firstly, this lastobservation in Gurdas Singh case does not go against the generalprinciple laid down in Baikuntha Nath Das to the effect thatthough adverse remarks prior to an earlier promotion can be takeninto account, they would have lost their "sting". Secondly,there is a special fact in Gurdas Singh case namely, that theadverse remarks prior to the earlier promotion related to his"dishonesty". In a case relating to compulsory retirementtherefore, the sting in adverse remarks relating to dishonestyprior to an earlier promotion cannot be said to be absolutelywiped out. The fact also remains that in Gurdas Singh case therewere other adverse remarks also even after the earlier promotion,regarding dishonesty though they were not communicated. We donot think that Gurdas Singh is an authority to say that adverseremarks before a promotion, however remote, could be given fullweight in all situations irrespective of whether they related todishonesty or otherwise. As pointed in the three-Judge Benchcase in Baikuntha Nath Das which was followed in Gurdas Singhthey can be kept in mind but not given the normal weight whichcould have otherwise been given to them but their strength issubstantially weakened unless of course they relate todishonesty.”As a matter of fact, in para 58, the Supreme Court had observed :-“58. From the above judgments, the following principles canbe summarised:(1) Under Article 16 of the Constitution, right to be"considered" for promotion is a fundamental right. It is not themere "consideration" for promotion that is important but the"consideration" must be "fair" according to establishedprinciples governing service jurisprudence.(2) Courts will not interfere with assessment made byDepartmental Promotion Committees unless the aggrieved officerestablishes that the non-promotion was bad according toWednesbury principles or it was mala fides.(3) Adverse remarks of an officer for the entire period ofservice can be taken into consideration while promoting anofficer or while passing an order of compulsory retirement. But https://hcservices.ecourts.gov.in/hcservices/ the weight which must be attached to the adverse remarks dependsupon certain sound principles of fairness.(4) If the adverse remarks relate to a distant past andrelate to remarks such as his not putting his maximum effort orso on, then those remarks cannot be given weight after a longdistance of time, particularly if there are no such remarksduring the period before his promotion. This is the positioneven in cases of compulsory retirement.(5) If the adverse remarks relate to a period prior to anearlier promotion they must be treated as having lost their stingand as weak material, subject however to the rider that if theyrelated to dishonesty or lack of integrity they can be consideredto have not lost their strength fully so as to be ignoredaltogether.(6) Uncommunicated adverse remarks could be relied upon evenif no opportunity was given to represent against them before anorder of compulsory retirement is passed."25. In the present case, some of the adverse entries relate tointegrity of the officer. As apparent from G.O.Ms.No.623 dated 14.7.1983,one purpose for invoking the power of compulsory retirement is to weed outthe persons whose integrity is in question. In the present case, we haveperused the adverse entries made against the petitioner, some of whichrelate to his integrity. Therefore, even though the petitioner waspromoted as District Judge in Fast Track Court and possibly on the basisof merit, adverse entries relating to integrity cannot be said to havebeen totally wiped out. In this connection, the observations made by theSupreme Court in 2003(7) SCC 179 (cited supra) cannot be lost sight of.As had been said above, Judges, like Caesar’s wife, must be always abovesuspicion.26. For the aforesaid reasons, we are unable to accept thesubmissions made by the petitioner and the writ petition is thereforedismissed. No costs.dpkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Govt.,State of Tamil Nadu,Public (Special-A) Dept.,Fort St. George, Chennai-9.2. The Registrar General,High Court of Madras,Chennai-104.3. The Secretary,Tamil Nadu Legal Cell,High Court Buildings,Chennai-104.1 cc To Mr.T.R.Rajaraman, Advocate, SR.27872.1 cc To The Government Pleader, SR.28178. WP.31031/2004 JE(CO)RVL 13.07.2006