ARUN KUMAR GUPTA versus STATE OF JHARKHAND & ANR.

[2020] 3 S.C.R. 1015

ARUN KUMAR GUPTA

STATE OF JHARKHAND & ANR.

(Writ Petition (Civil) No. 190 of 2018)

FEBRUARY 27, 2020

[L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.]

Service Law:

Compulsory Retirement – Of Judicial Officers – Challengedin Writ Petition before Supreme Court – As per direction of SupremeCourt, Screening Committee of High Court approved earlier actionto compulsorily retire the officers – Resolution of ScreeningCommittee approved by Standing Committee of High Court – Held:In respect of one officer against whom there had been complaintsthat during training of Civil Service probationers, in his lectures hehad used highly sexist language and that he had hurt washermanwith hot iron – The two instances are sufficient to decide the caseagainst him – In respect of second officer, his reputation and integrityhave been doubted on more than one occasion, his knowledge oflaw and procedure had been found to be average, relations withbar members were not very good – Adverse entries with regard tointegrity do not lose their sting at any stage – Judicial officer’sintegrity should be of higher order, even single aberration is notpermitted – Senior Judges of the High Court who were members ofthe Screening and Standing Committees have taken considered andwell-reasoned decisions on two occasions – Supreme Court cannotexercise its power of judicial review unless there is allegation ofmala fides or there are facts so glaring that the decision of compulsoryretirement is unsupportable.

Compulsory Retirement of Judicial Officer – Effect and criteriafor its consideration – Discussed.

Dismissing the writ petitions, the Court

HELD : 1. The law on the subject of compulsoryretirement, especially in the case of judicial officers may besummarised as: (i) An order directing compulsory retirement ofa judicial officer is not punitive in nature; (ii) An order directing

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Acompulsory retirement of judicial officer has no civilconsequences;(iii) While considering the case of judicial officerfor compulsory retirement the entire record of the judicial officershould be taken into consideration, though the latter and morecontemporaneous record must be given more weightage; (iv)Subsequent promotions do not mean that earlier adverse recordBcannot be looked into while deciding whether judicial officershould be compulsorily retired; (v) The ‘washed off’ theory doesnot apply in case of judicial officers specially in respect of adverseentries relating to integrity; (vi) The courts should exercise theirpower of judicial review with great circumspection and restraintCkeeping in view the fact that compulsory retirement of judicialofficer is normally directed on the recommendation of high-powered committee(s) of the High Court. [Para 16][1031-B-E]

Union of India v. Col. J.N. Sinha (1970) 2 SCC 458 :[1971] 1 SCR 791 ; State of Gujarat v. SuryakantDChunilal Shah (1999) 1 SCC 529 : [1998] 3 Suppl.SCR 293 ; Baikunta Nath Das v. Chief Distt. MedicalOfficer (1992) 2 SCC 299 : [1992] 1 SCR 836;Chandra Singh v. State of Rajasthan (2003) 6 SCC545 : [2003] 1 Suppl. SCR 674 ; Syed T.A. Naqshbandiv. State of J&K (2003) 9 SCC 592 : [2003] 1 Suppl.ESCR 114, Pyare Mohan Lal v. State of Jharkhand (2010)10 SCC 693 : [2010] 11 SCR 216 ; Rajendra SinghVerma v. Lt. Governor (NCT of Delhi) (2011) 10 SCC 1: [2011] 12 SCR 496 ; R.C. Chandel v. High Court ofM.P. (2012) 8 SCC 58 : [2012] 7 SCR 205; RajasthanFSRTC v. Babu Lal Jangir (2013) 10 SCC 551 : [2013]11 SCR 159; High Court of Judicature of Patna v.Shyam Deo Singh (2014) 4 SCC 773 : [2014] 4 SCR541 ; D. Ramaswami v. State of T.N. (1982) 1 SCC 510: [1982] 3 SCR 75 – relied on.

G2.1 So far as the petitioner in Writ Petition (C) No. 190 of2018 is concerned, there are two very serious allegations againsthim. The first is that when he was working as Deputy Director,Administrative Training Institute at Ranchi, as many as 10 ladies,who were Civil Service Probationers, made allegations that he

was using unwarranted and objectionable language during hislectures, citing indecent examples and using words having doublemeaning, thereby causing embarrassment to the lady officers.The complaints show that the language used by the petitionerduring his lectures, was highly sexist. [Para 18][1031-H; 1032-A-B]

2.2. There is also another allegation that he had physicallyhurt washerman by placing hot iron on the head of thewasherman who had allegedly not ironed his clothes properly.The Principal District Judge had reported to the High Court thatthe victim had personally approached him immediately after theoccurrence and he (the Principal District Judge) found that thevictim had sustained burn injuries and he got the victim treated.It is true that the petitioner was exonerated by the successorjudicial officer before whom the complainant denied havingsuffered any injury, but the successor Principal District Judgedid not even care to examine his predecessor Principal DistrictJudge, who had not only been approached personally by thewasherman, but who had himself noted the burn injuries and hadgot the victim treated. Therefore, the Screening Committee wasright that the victim may have been put under some pressure towithdraw his complaint. [Para 19][1032-C-E]

2.3 The aforementioned two instances are sufficient todecide the case against the petitioner. As regards the plea thatthe Screening Committee had only taken the entries from 1992-1993 to 2004-2005 and had ignored the entries from 2005-2006to 2016-2017, it has been explained by counsel for the High Courtthat all the ACRs were before the Screening Committee but inthe order it is only the adverse entries which have been noted.Even if these adverse entries are ignored, the petitioner cannotbe granted relief for the reasons aforesaid. [Para 20][1032-F-G]

3. So far as the petitioner in Writ Petition (C) NO. 391 of2018 is concerned, his record on many counts is not at all good.His reputation and integrity have been doubted more than oncein the years 1996-1997, 1997-1998 and 2004-2005. Some adverseremarks have been conveyed to him. In the year 2015-2016, even

Ahis knowledge of law and procedure is found to be average andhis relation with the members of the Bar was found not very good.There are also allegations against him of having granted bail forillegal gratification and substance has been found in this allegationin the report of the Judicial Commissioner, Ranchi (who isequivalent to the Principal District Judge). The petitioner hadBgranted bail by noting in the order that Section 327 of the PenalCode, 1860 was bailable whereas the offence is non-bailable andan unrecorded warning regarding the integrity of the judicialofficer was issued to him in 2012. [Para 21][1032-H; 1033-A-C]

4. Adverse entries with regard to integrity do not lose theirCsting at any stage. judicial officer’s integrity must be of higherorder and even single aberration is not permitted. [Para22][1033-C-D]

5. In the present cases, the matter has been considered bythe Screening Committee on two occasions and theDrecommendations of the Screening Committee have beenaccepted by the Standing Committee on both occasions. Theaction taken is not by one officer or Judge, it is collectivedecision, first by the Screening Committee and then approvedby the Standing Committee. Senior judges of the High Court whoEwere the members of the Screening Committee and StandingCommittee have taken considered and well-reasoned decision.Unless there are allegations of mala fides or the facts are soglaring that the decision of compulsory retirement isunsupportable this court would not exercise its power of judicialreview. In such matters the court on the judicial side mustFexercise restraint before setting aside the decision of suchcollective bodies comprising of senior High Court Judges. [Paras22 & 23][1033-D-F]

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.190 of 2018.

[Under Article 32 of The Constitution of India]

With

Writ Petition (C) No. 391 of 2018.

Alakh Alok Srivastava, Ranjan Kumar Rai, S. S. Jauhar, SankalpTiwari, Nilesh Tiwari, Amit Kumar, Advs. for the Petitioner.

Sunil Kumar, Ajit Kumar Sinha, Sr. Advs., Himanshu Shekhar,Jamnesh Kumar, Parth Shekhar, Chandra Bhushan Prasad, Ms. SukritiBhardwaj, Advs. for the Respondents.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J.

1. These writ petitions have been filed by two erstwhile judicialofficers who were members of the judicial service in the State ofJharkhand and are directed against the orders whereby they have beencompulsorily retired. In respect of the two writ petitions which are thesubject matter of this judgment, this Court passed the following order on06.09.2018:

“Writ Petition Nos. 190/2018 and 391/2018 shall remain pending.The High Court of Jharkhand may like to reconsider the matter inthe light of the entirety of the materials that have been placedbefore us at the hearing by the Registrar General of the JharkhandHigh Court and also by the learned counsel for the High Court.

We make it clear that the High Court is free to decide thematter as may be considered appropriate and that we have

Aexpressed no opinion on merits at this stage. The High Court ofJharkhand would be free to support its conclusions in terms of thepresent order with adequate reasons.

The decision of the High Court in accordance with this orderbe laid before us at the end of two months from today.

BList the matters after two months.”

Pursuant to the aforesaid order, the matters were placed beforethe Screening Committee of the High Court of Jharkhand and theScreening Committee on 11.10.2018 again found sufficient reasons andapproved the earlier action taken to compulsorily retire these officers.CThe resolution of the Screening Committee was placed before theStanding Committee of the Jharkhand High Court, which approved theresolution of the screening committee on 25.10.2018.

2. Challenge is laid in both these writ petitions to the orders ofcompulsory retirement and especially to the reasons assigned or theDmaterial ignored by the Screening Committee. The orders of compulsoryretirement have been passed in terms of the Rule 74(b)(ii) of the JharkhandService Code, 2001 which reads as follows:

“(ii)The appointing authority concerned may after giving aGovernment servant atleast three month’s previous notice inEwriting, or an equal amount to three month’s pay and allowance inlieu of such notice, require him in public interest to retire from theservice on the date on which such Government servant completesthirty years of qualifying service or attains fifty years of age or onany date thereafter to be specified in the notice”

FThe aforesaid rule is parimateria to Rule 56(j) of the FundamentalRules.

3. The main contentions raised on behalf of the petitioners arethat their retirement is not in the pubic interest: their entire service recordespecially the contemporaneous record has not been taken intoGconsideration and also that the petitioners have been granted variouspromotions which would have the effect of washing off their previousadverse entries, if any.

4. While deciding the present case we are conscious of the factthat we are dealing with the cases of judicial officers. The standard ofHintegrity and probity expected from judicial officers is much higher than

that expected from other officers. Keeping these factors in mind weshall first discuss the law on the subject and then take up these twocases on merits.

Principles Governing Compulsory Retirement

5. This Court in Union of India v. Col. J.N. Sinha[1] held thatcompulsory retirement does not involve civil consequences. It also dealtwith the issue of what constitutes public interest. The followingobservations are apposite:

“9. Now coming to the express words of Fundamental Rule 56(j)it says that the appropriate authority has the absolute right to retirea Government servant if it is of the opinion that it is in the publicinterest to do so. The right conferred on the appropriate authorityis an absolute one. That power can be exercised subject to theconditions mentioned in the rule, one of which is that the concernedauthority must be of the opinion that it is in public interest to do so.If that authority bona fide forms that opinion, the correctness ofthat opinion cannot be challenged before courts. It is open to anaggrieved party to contend that the requisite opinion has not beenformed or the decision is based on collateral grounds or that it isan arbitrary decision. The 1st respondent challenged the opinionformed by the Government on the ground of mala fide. But thatground has failed. The High Court did not accept that plea. Thesame was not pressed before us. The impugned order was notattacked on the ground that the required opinion was not formedor that the opinion formed was an arbitrary one. One of theconditions of the 1st respondent’s service is that the Governmentcan choose to retire him any time after he completes fifty years ifit thinks that it is in public interest to do so. Because of hiscompulsory retirement he does not lose any of the rights acquiredby him before retirement. Compulsory retirement involvesno civil consequences. The aforementioned Rule 56(j) isnot intended for taking any penal action against theGovernment servants. That rule merely embodies one ofthe facets of the pleasure doctrine embodied in Article 310of the Constitution. Various considerations may weigh with theappropriate authority while exercising the power conferred underthe rule. In some cases, the Government may feel that particular

1 (1970) 2 SCC 458

DEFG

Apost may be more usefully held in public interest by an officermore competent than the one who is holding. It may be that theofficer who is holding the post is not inefficient but the appropriateauthority may prefer to have more efficient officer. It may furtherbe that in certain key posts public interest may require that aperson of undoubted ability and integrity should be there. There isBno denying the fact that in all organizations and more so inGovernment organizations, there is good deal of dead wood. It isin public interest to chop off the same. Fundamental Rule 56(j)holds the balance between the rights of the individual Governmentservant and the interests of the public. While minimum serviceCis guaranteed to the Government servant, the Government is givenpower to energise its machinery and make it more efficient bycompulsorily retiring those who in its opinion should not be therein public interest.

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11. In our opinion the High Court erred in thinking that thecompulsory retirement involves civil consequences. Sucha retirement does not take away any of the rights that have accruedto the Government servant because of his past service. It cannotbe said that if the retiring age of all or section of the GovernmentEservants is fixed at 50 years, the same would involve civilconsequences. Under the existing system there is no uniformretirement age for all Government servants. The retirement ageis fixed not merely on the basis of the interest of the Governmentservant but also depending on the requirements of the society.”

(emphasis supplied)

This judgment was followed in State of Gujarat v. SuryakantChunilal Shah[2], wherein this Court dealt with the concept of publicinterest in great detail.

6. three-Judge Bench inBaikuntha Nath Das v. Chief Distt.GMedical Officer[3] dealing with the concept of compulsory retirementlaid down the following principles:

2 (1999) 1 SCC 529H3 (1992) 2 SCC 299

“34. The following principles emerge from the above discussion:(i) An order of compulsory retirement is not punishment. Itimplies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on formingthe opinion that it is in the public interest to retire governmentservant compulsorily. The order is passed on the subjectivesatisfaction of the government.

(iii) Principles of natural justice have no place in the context ofan order of compulsory retirement. This does not mean thatjudicial scrutiny is excluded altogether. While the High Courtor this Court would not examine the matter as an appellatecourt, they may interfere if they are satisfied that the order ispassed (a) mala fide or (b) that it is based on no evidence or(c) that it is arbitrary — in the sense that no reasonable personwould form the requisite opinion on the given material; in short,if it is found to be perverse order.

(iv) The government (or the Review Committee, as the casemay be) shall have to consider the entire record of servicebefore taking decision in the matter — of course attachingmore importance to record of and performance during the lateryears. The record to be so considered would naturally includethe entries in the confidential records/character rolls, bothfavourable and adverse. If government servant is promotedto higher post notwithstanding the adverse remarks, suchremarks lose their sting, more so, if the promotion is basedupon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashedby Court merely on the showing that while passing ituncommunicated adverse remarks were also taken intoconsideration. That circumstance by itself cannot be basisfor interference.

Interference is permissible only on the grounds mentioned in (iii)above. This aspect has been discussed in paras 30 to 32 above.”

7. In Chandra Singh v. State of Rajasthan[4], though this Courtcame to the conclusion that the compulsory retirement awarded to the4 (2003) 6 SCC 545

Aapplicant was not in consonance with the law, it did not give relief to thepetitioner on the ground that even under Article 235 of the Constitutionof India, the High Court can assess the performance of any judicialofficer at any time with view to discipline the black sheep or weed outthe dead wood. This Court held that this constitutional power of theHigh Court is not circumscribed by any rule. Reference may be made toBparas 40 and 47 of the judgment:

“40. Article 235 of the Constitution of India enables the HighCourt to assess the performance of any judicial officer at anytime with view to discipline the black sheep or weed out thedeadwood. This constitutional power of the High Court cannot beCcircumscribed by any rule or order.

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47. In the instant case, we are dealing with the higher judicialofficers. We have already noticed the observations made by theDCommittee of three Judges. The nature of judicial service is suchthat it cannot afford to suffer continuance in service of persons ofdoubtful integrity or who have lost their utility.”

8. In Syed T.A. Naqshbandi v. State of J & K,[5], this Court heldthat while exercising powers of judicial review the Courts should notEsubstitute themselves for the Committee/Full Court of the High Court.The following observations are pertinent:

“10…Neither the High Court nor this Court, in exercise of itspowers of judicial review, could or would at any rate substitutethemselves in the place of the Committee/Full Court of the HighFCourt concerned, to make an independent reassessment of thesame, as if sitting on an appeal. On careful consideration of theentire materials brought to our notice by learned counsel on eitherside, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinion is neither so arbitraryor capricious nor can be said to be so irrational as to shock theGconscience of the Court to warrant or justify any interference. Incases of such assessment, evaluation and formulation of opinions,a vast range of multiple factors play vital and important role andno one factor should be allowed to be overblown out of proportioneither to decry or deify an issue to be resolved or claims sought to

H5 (2003) 9 SCC 592

be considered or asserted. In the very nature of things it would bedifficult, nearing almost an impossibility to subject such exerciseundertaken by the Full Court, to judicial review except in anextraordinary case when the Court is convinced that somemonstrous thing which ought not to have taken place has reallyhappened and not merely because there could be another possibleview or someone has some grievance about the exerciseundertaken by the Committee/Full Court…”

9. In Pyare Mohan Lal v. State of Jharkhand[6], dealing with acase of judicial officers,this Court in relation to the powers under thesame rule, after referring to number of judgments, summarised thelaw on the point as follows:

“18. Thus, the law on the point can be summarised to the effectthat an order of compulsory retirement is not punishment and itdoes not imply stigma unless such order is passed to impose apunishment for proved misconduct, as prescribed in the statutoryrules. [See Surender Kumar v. Union of India] [(2010) 1 SCC158]. The Authority must consider and examine the overall effectof the entries of the officer concerned and not an isolated entry,as it may well be in some cases that in spite of satisfactoryperformance, the authority may desire to compulsorily retire anemployee in public interest, as in the opinion of the said Authority,the post has to be manned by more efficient and dynamic personand if there is sufficient material on record to show that theemployee “rendered himself liability to the institution”, there isno occasion for the court to interfere in the exercise of its limitedpower of judicial review.”

10. In Rajendra Singh Verma v. Lt. Governor (NCT of Delhi)[7],this Court was dealing with the compulsory retirement of judicial officerfrom the Delhi Higher Judicial Service. It was held that if the authoritybona fide forms an opinion that the integrity of particular officer isdoubtful and it is in public interest to compulsorily retire such judicialofficer, judicial review of such order should be made with great care andcircumspection. It was specifically observed that when an order ofcompulsory retirement is passed, the authority concerned has to takeinto consideration the whole service record of the concerned officer

6 (2010) 10 SCC 693

7 (2011) 10 SCC 1

Awhich could include non-communicated adverse remarks also. It wouldbe apposite to refer to the following observations of this Court:

“218. On careful consideration of the entire material, it must beheld that the evaluation made by the Committee/Full Court, formingtheir unanimous opinion, is neither so arbitrary nor capricious norBcan be said to be so irrational, so as to shock the conscience ofthis Court to warrant or justify any interference. In cases of suchassessment, evaluation and formulation of opinions, vast rangeof multiple factors play vital and important role and no one factorshould be allowed to be blown out of proportion either to decry ordeify an issue to be resolved or claims sought to be considered orCasserted. In the very nature of things, it would be difficult, nearingalmost an impossibility to subject such exercise undertaken by theFull Court to judicial review except in an extraordinary case whenthe Court is convinced that some real injustice, which ought not tohave taken place, has really happened and not merely becauseDthere could be another possible view or someone has somegrievance about the exercise undertaken by the Committee/FullCourt.

219. Viewed thus, and considered in the background of the factualdetails and materials on record, there is absolutely no need orEjustification for this Court to interfere with the impugnedproceedings. Therefore, the three appeals fail and are dismissed.Having regard to the facts of the case, there shall be no order asto costs.”

11. In R.C. Chandel v. High Court of M. P.[8], this Court, afterFdealing with the entire law on the subject, framed the following 3 questionsof law:

“18. The questions that fall for consideration are:

(1) Whether the recommendation made by the High Court on thebasis of unanimous opinion to the Government for compulsoryGretirement of the appellant and the order of compulsory retirementissued by the Government suffer from any legal flaw?

(2) Is the order of compulsory retirement so arbitrary or irrationalthat justifies interference in judicial review?

H8 (2012) 8 SCC 58

(3) Is the view of the Division Bench upholding the order of theappellant’s compulsory retirement so erroneous warrantinginterference by this Court in an appeal under Article 136 of theConstitution of India?”

The Court took note of the fact that the appellant before ithadbeen promoted and confirmed as District Judge and was also givenselection grade and super time scale etc., but it held that these promotionswould not wash off the earlier adverse entries which shall remain onrecord. It would be pertinent to refer to paragraphs 26 and 29 of thejudgment which read as follows:

“26. It is true that the appellant was confirmed as District Judgein 1985; he got lower selection grade with effect from 24-3-1989;he was awarded super timescale in May 1999 and he was alsogiven above super timescale in 2002 but the confirmation as DistrictJudge and grant of selection grade and super timescale do notwipe out the earlier adverse entries which have remained on recordand continued to hold the field. The criterion for promotion orgrant of increment or higher scale is different from an exercisewhich is undertaken by the High Court to assess judicial officer’scontinued utility to the judicial system. In assessing potential forcontinued useful service of judicial officer in the system, theHigh Court is required to take into account the entire servicerecord. Overall profile of judicial officer is the guiding factor.Those of doubtful integrity, questionable reputation and wantingin utility are not entitled to benefit of service after attaining therequisite length of service or age.29. Judicial service is not an ordinary government service and theJudges are not employees as such. Judges hold the public office;their function is one of the essential functions of the State. Indischarge of their functions and duties, the Judges represent theState. The office that Judge holds is an office of public trust. AJudge must be person of impeccable integrity and unimpeachableindependence. He must be honest to the core with high moralvalues. When litigant enters the courtroom, he must feel securedthat the Judge before whom his matter has come, would deliverjustice impartially and uninfluenced by any consideration. The

Astandard of conduct expected of Judge is much higher than anordinary man. This is no excuse that since the standards in thesociety have fallen, the Judges who are drawn from the societycannot be expected to have high standards and ethical firmnessrequired of Judge. Judge, like Caesar’s wife, must be abovesuspicion. The credibility of the judicial system is dependent uponBthe Judges who man it. For democracy to thrive and the rule oflaw to survive, justice system and the judicial process have to bestrong and every Judge must discharge his judicial functions withintegrity, impartiality and intellectual honesty.”

12. In Rajasthan SRTC v. Babu Lal Jangir[9], this Court held asCfollows:

“23. The principle of law which is clarified and stands crystallisedafter the judgment in Pyare Mohan Lal v. State of Jharkhand isthat after the promotion of an employee the adverse entries priorthereto would have no relevance and can be treated as wiped offDwhen the case of the government employee is to be consideredfor further promotion. However, this “washed-off theory” willhave no application when the case of an employee is being assessedto determine whether he is fit to be retained in service or requiresto be given compulsory retirement. The rationale given is thatEsince such an assessment is based on “entire service record”,there is no question of not taking into consideration the earlier oldadverse entries or record of the old period. We may hasten to addthat while such record can be taken into consideration, at thesame time, the service record of the immediate past period willhave to be given due credence and weightage. For example, asFagainst some very old adverse entries where the immediate pastrecord shows exemplary performance, ignoring such record ofrecent past and acting only on the basis of old adverse entries, toretire person will be clear example of arbitrary exercise ofpower. However, if old record pertains to integrity of aGperson then that may be sufficient to justify the order ofpremature retirement of the government servant.”

(emphasis supplied)

H9 (2013) 10 SCC 551

The view in Pyare Mohan Lal(supra) was reiterated. The onlycaveat being that the entire record should be taken into considerationand the earlier record even after promotions could not be ignored.

13. In High Court of Judicature of Patnav.Shyam Deo Singh[10],this Court was dealing with case where judicial officer was retired atthe age of 58 years and was denied the benefit of service of 2 years.This Court has held as follows:

“8. The importance of the issue can hardly be gainsaid. Theevaluation of the service record of judicial officer for the purposeof formation of an opinion as to his/her potential for continueduseful service is required to be made by the High Court whichobviously means the Full Court on the administrative side. In allHigh Courts such evaluation, in the first instance, is made by acommittee of senior Judges. The decision of the Committee isplaced before the Full Court to decide whether the recommendationof the Committee should be accepted or not. The ultimate decisionis always preceded by an elaborate consideration of the matterby the Hon’ble Judges of the High Court who are familiar withthe qualities and attributes of the judicial officer under consideration.This is also what had happened in the present case. The veryprocess by which the decision is eventually arrived at, in our view,should permit limited judicial review and it is only in rare casewhere the decision taken is unsupported by any material or thesame reflects conclusion which, on the face of it, cannot besustained that judicial review would be permissible.”

Washed off theory

14. One of the main arguments raised by the petitioners is thatsince the petitioners have been promoted to various higher posts, theirrecord prior to the promotion will lose its sting and is not of much value.Reliance is placed on the observations of this Court in D. Ramaswamiv. State of T. N.[11] wherein this Court held as follows:

“4. In the face of the promotion of the appellant just few monthsearlier and nothing even mildly suggestive of ineptitude orinefficiency thereafter, it is impossible to sustain the order of theGovernment retiring the appellant from service. The learned

10 (2014) 4 SCC 773

11 (1982) 1 SCC 510

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Acounsel for the State of Tamil Nadu argued that the Governmentwas entitled to take into consideration the entire history of theappellant including that part of it which was prior to his promotion.We do not say that the previous history of government servantshould be completely ignored, once he is promoted. Sometimes,past events may help to assess present conduct. But when thereBis nothing in the present conduct casting any doubt on the wisdomof the promotion, we see no justification for needless digging intothe past.”

15. Reference may also be made to the judgment of this Court inPyare Mohan Lal (supra) in which while dealing with the concept ofCwashed off theory, this Court after dealing with the entire case law onthe subject held as follows:

“24. In view of the above, the law can be summarised to statethat in case there is conflict between two or more judgments ofthis Court, the judgment of the larger Bench is to be followed.DMore so, the washed-off theory does not have universal application.It may have relevance while considering the case of governmentservant for further promotion but not in case where the employeeis being assessed by the reviewing authority to determine whetherhe is fit to be retained in service or requires to be given compulsoryEretirement, as the Committee is to assess his suitability taking intoconsideration his “entire service record”.

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29. The law requires the authority to consider the “entire servicerecord” of the employee while assessing whether he can be givenFcompulsory retirement irrespective of the fact that the adverseentries had not been communicated to him and the officer hadbeen promoted earlier in spite of those adverse entries. More so,a single adverse entry regarding the integrity of an officer even inremote past is sufficient to award compulsory retirement. TheGcase of judicial officer is required to be examined, treating himto be different from other wings of the society, as he is servingthe State in different capacity. The case of judicial officer isconsidered by committee of Judges of the High Court dulyconstituted by the Hon’ble the Chief Justice and then the reportof the Committee is placed before the Full Court. decision isHtaken by the Full Court after due deliberation on the matter.

Therefore, there is hardly any chance to make the allegations ofnon-application of mind or mala fides.”

16. The law on the subject of compulsory retirement, especially inthe case of judicial officers may be summarised as follows:

(i) An order directing compulsory retirement of judicial officeris not punitive in nature;

(ii) An order directing compulsory retirement of judicial officerhas no civil consequences;

(iii) While considering the case of judicial officer for compulsoryretirement the entire record of the judicial officer should be taken intoconsideration, though the latter and more contemporaneous record mustbe given more weightage;

(iv) Subsequent promotions do not mean that earlier adverse recordcannot be looked into while deciding whether judicial officer should becompulsorily retired;

(v) The ‘washed off’ theory does not apply in case of judicialofficers specially in respect ofadverse entries relating to integrity;

(vi) The courts should exercise their power of judicial review withgreat circumspection and restraint keeping in view the fact thatcompulsory retirement of judicial officer is normally directed on therecommendation of high-powered committee(s) of the High Court.

It is in the light of the aforesaid law that we will now consider thefactual aspects of the present case.

17. In view of the fact that the Screening Committee has givendetailed reasoning only after the orders of this Court referred to aboveand in view of the limited scope of judicial review when there are noallegations of mala fide, we would have avoided giving reasons to upholdsuch an order since it does not amount to punishment and is not penal innature. However, since the petitioners have insisted that there is nomaterial against them, we have no option but to refer to some of thereasons given by the Screening Committee.

Case of Shri Arun Kumar Gupta

18. As far as Mr. Arun Kumar Gupta is concerned, there are twovery serious allegations against him. The first is that when he wasworking as Deputy Director, Administrative Training Institute at Ranchi,

Aas many as 10 ladies, who were Civil Service Probationers, madeallegations that he was using unwarranted and objectionable languageduring his lectures, citing indecent examples and using words havingdouble meaning, thereby causing embarrassment to the lady officers.We have perused the complaints which are filed with the reply and thecommon refrain is that the language used by Mr. Gupta during his lecturesBwas highly sexist.

19. There is also another allegation that he had physically hurt awasherman by placing hot iron on the head of the washerman whohad allegedly not ironed his clothes properly. It would be pertinent tomention that the Principal District Judge had reported to the High CourtCthat the victim had personally approached him immediately after theoccurrence and he (the Principal District Judge) found that the victimhad sustained burn injuries and he got the victim treated. It is true thatMr. Arun Kumar Gupta was exonerated by the successor judicial officerbefore whom the complainant denied having suffered any injury but weDmay note that this is preliminary inquiry and the successor PrincipalDistrict Judge did not even care to examine his predecessor PrincipalDistrict Judge, who had not only been approached personally by thewasherman, but who had himself noted the burn injuries and had got thevictim treated. Therefore, we are of the view that the ScreeningCommittee was right that the victim may have been put under someEpressure to withdraw his complaint. These occurrences are of the year2011-2012 and cannot be said to be very old.

20. In our view, the aforementioned two instances are sufficientto decide the case against the petitioner. We may also note that ShriRaju Ramchandran, learned senior counsel appearing for the petitionerFhas urged that the Screening Committee had only taken the entries from1992-1993 to 2004-2005 and had ignored the entries from 2005-2006 to2016-2017. As explained by Mr. Sunil Kumar, learned senior counselappearing for the High Court, all the ACRs were before the ScreeningCommittee but in the order it is only the adverse entries which haveGbeen noted. Be that as it may, we are of the view that even if theseadverse entries are ignored, the petitioner cannot be granted relief forthe reasons aforesaid.

Case of Shri Raj Nandan Rai

21. As far as this officer is concerned, we find that his record onHmany counts is not at all good. His reputation and integrity have been

doubted more than once in the years 1996-1997, 1997-1998 and 2004-2005. Some adverse remarks have been conveyed to him. In the year2015-2016, even his knowledge of law and procedure is found to beaverage and his relation with the members of the Bar was found notvery good. There are also allegations against him of having granted bailfor illegal gratification and substance has been found in this allegation inthe report of the Judicial Commissioner, Ranchi (who is equivalent to thePrincipal District Judge). The officer had granted bail by noting in theorder that Section 327 of the Indian Penal Code, 1860 was bailablewhereas the offence is non-bailable and an unrecorded warning regardingthe integrity of the judicial officer was issued to him in 2012.

Conclusion

22. As is obvious from the law quoted above, adverse entries withregard to integrity do not lose their sting at any stage. judicial officer’sintegrity must be of higher order and even single aberration is notpermitted. As far as the present cases are concerned, the matter hasbeen considered by the Screening Committee on two occasions and therecommendations of the Screening Committee have been accepted bythe Standing Committee on both occasions. The action taken is not byone officer or Judge, it is collective decision, first by the ScreeningCommittee and then approved by the Standing Committee.23. Senior judges of the High Court who were the members ofthe Screening Committee and Standing Committee have taken aconsidered and well-reasoned decision. Unless there are allegations ofmala fides or the facts are so glaring that the decision of compulsoryretirement is unsupportable this court would not exercise its power ofjudicial review. In such matters the court on the judicial side must exerciserestraint before setting aside the decision of such collective bodiescomprising of senior High Court Judges. In our opinion these are not fitcases to interfere with the said decisions.

24. In view of the above, both the writ petitions are dismissed.Any pending application(s) shall stand(s) disposed of.

Kalpana K. Tripathy

Writ petitions dismissed.