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

- **Citation:** [2011] 12 S.C.R. 496
- **Court:** Supreme Court of India
- **Decided:** 2011-09-12
- **Case number:** Civil Appeal No. 7781 of 2011
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajendra-singh-verma-dead-through-lrs-v-lt-governor-of-nct-of-delhi-anr-27456
- **Pages:** 122

## Headnote

SERVICE LAW :
c
Compulsory retirement - Challenge to - Held: Normally, ·
an aggrieved civil servant can challenge the order of
compulsory retirement on any of the grounds: (a) that the
requisite opinion has not been formed, or (b) that the decision
is based on collateral grounds, or (c) that it is an arbitrary
0 decision -
If the civil servant is able to establ!sh that the
order of compulsory retirement suffers from any of these
infirmities, the court has jurisdiction to quash the same -
Administrative Law - Judicial review.
Compulsory retirement - Held: Is not considered to be
E a punishment - Un-communicated adverse remarks can be
taken into consideration while deciding the question whether
an official should be made to retire compulsorily or not -
Therefore the principles of natural justice are not attracted -
Thus, the fact that the adverse A.C.R. was communicated but
F none of the officers had an opportunity to represent before the
same was taken into consideration for passing order of
compulsory retirement, cannot at all vitiate the order of
compulsory retirement.
G
Compulsory retirement - Officers of Delhi Higher Judicial
Service and Delhi Judicial Service - Rules applicable - Held:
Rule 16(3) of All India Services (Death-cum-Retirement
Benefits) Rules, 1958 would be applicable to the officers of
the Delhi Higher Judicial Service -
Therefore, the matter
H
496
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v.
497
LT. GOVERNOR OF NCT OF DELHI
regarding pre-mature retirement of officers of the Delhi Higher A
Judicial Service who have completed 30 years of qualifying
service or attained 50 years of age, has to be reviewed in the
light of r. 16(3) of the Rules of 1958 - As regards the Officers
of Delhi Judicial Service, Fundamental Rule 56(j) shall
regulate the matter of compulsory retirement of such Officers
8
- All India Services (Death-cum-Retirement Benefits) Rules,
1958 - r.16(3) - Delhi Higher Judicial Service Rules, 1970 -
Delhi Judicial Service Rules, 1970 - Fundamental Rule 56(}).
Compulsory retirement- Stage of consideration - Officers
of Delhi Higher Judicial Service and Delhi Judicial Service C
- Held: There is no rule prohibiting consideration of the case
of an officer for compulsory retirement before he attains the
age of 55 years, even if his case has earlier been considered
at the age of 50 years -
The report of the Screening
Committee dated 17. 7. 2000 not recommending premature D
retirement ''for the time being" was tentative and not final, which
will not preclude the authority concerned from passing orders
of compulsory retirement later""on - Article 235 of the
Constitution of India enables the High Court to assess the
performance of any judicial officer and exercise the power of E
compulsory retirement at any time with a view to maintain
discipline in the service - Constitution of India, 1950 - Article
235.
Compulsory retirement - Range of consideration of F
service record - Held: While considering the case of an officer
as to whether he should be continued in service or
compulsorily retired, his entire service record up to that date
on which consideration is made has to be taken into account
- The fact that an officer, after an earlier adverse entry, was
G
promoted does not wipe out earlier adverse entry at all.
Annual Confidential Reports - Judicial Review of - Held:
Writing the confidential report is primarily and essentially an
administrative function - The object of writing confidential
reports and making entrie.s therein is to give an opportunity
H
498
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A to the public servant to improve excellence - Opportunity of
hearing is not necessary before adverse remarks because
adverse remarks by themselves do not constitute a penalty
· - Natural justice - Opportunity of hearing.
Annual Confidential Reports - Purpose of - Explained
8 - constitution of India, 1950 - Article 51 (j).
CONSTITUTION OF IND/A, 1950:
Article 136 - New plea - Held: Supreme Court would not
c entertain

## Text

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A
B
[2011] 12 S.C.R. 496
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS
v.
LT. GOVERNOR OF NCT OF DELHI & ANR.
(Civil Appeal No. 7781 of 2011)
SEPTEMBER 12, 2011
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
SERVICE LAW :
c
Compulsory retirement - Challenge to - Held: Normally, ·
an aggrieved civil servant can challenge the order of
compulsory retirement on any of the grounds: (a) that the
requisite opinion has not been formed, or (b) that the decision
is based on collateral grounds, or (c) that it is an arbitrary
0 decision -
If the civil servant is able to establ!sh that the
order of compulsory retirement suffers from any of these
infirmities, the court has jurisdiction to quash the same -
Administrative Law - Judicial review.
Compulsory retirement - Held: Is not considered to be
E a punishment - Un-communicated adverse remarks can be
taken into consideration while deciding the question whether
an official should be made to retire compulsorily or not -
Therefore the principles of natural justice are not attracted -
Thus, the fact that the adverse A.C.R. was communicated but
F none of the officers had an opportunity to represent before the
same was taken into consideration for passing order of
compulsory retirement, cannot at all vitiate the order of
compulsory retirement.
G
Compulsory retirement - Officers of Delhi Higher Judicial
Service and Delhi Judicial Service - Rules applicable - Held:
Rule 16(3) of All India Services (Death-cum-Retirement
Benefits) Rules, 1958 would be applicable to the officers of
the Delhi Higher Judicial Service -
Therefore, the matter
H
496
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v.
497
LT. GOVERNOR OF NCT OF DELHI
regarding pre-mature retirement of officers of the Delhi Higher A
Judicial Service who have completed 30 years of qualifying
service or attained 50 years of age, has to be reviewed in the
light of r. 16(3) of the Rules of 1958 - As regards the Officers
of Delhi Judicial Service, Fundamental Rule 56(j) shall
regulate the matter of compulsory retirement of such Officers
8
- All India Services (Death-cum-Retirement Benefits) Rules,
1958 - r.16(3) - Delhi Higher Judicial Service Rules, 1970 -
Delhi Judicial Service Rules, 1970 - Fundamental Rule 56(}).
Compulsory retirement- Stage of consideration - Officers
of Delhi Higher Judicial Service and Delhi Judicial Service C
- Held: There is no rule prohibiting consideration of the case
of an officer for compulsory retirement before he attains the
age of 55 years, even if his case has earlier been considered
at the age of 50 years -
The report of the Screening
Committee dated 17. 7. 2000 not recommending premature D
retirement ''for the time being" was tentative and not final, which
will not preclude the authority concerned from passing orders
of compulsory retirement later""on - Article 235 of the
Constitution of India enables the High Court to assess the
performance of any judicial officer and exercise the power of E
compulsory retirement at any time with a view to maintain
discipline in the service - Constitution of India, 1950 - Article
235.
Compulsory retirement - Range of consideration of F
service record - Held: While considering the case of an officer
as to whether he should be continued in service or
compulsorily retired, his entire service record up to that date
on which consideration is made has to be taken into account
- The fact that an officer, after an earlier adverse entry, was
G
promoted does not wipe out earlier adverse entry at all.
Annual Confidential Reports - Judicial Review of - Held:
Writing the confidential report is primarily and essentially an
administrative function - The object of writing confidential
reports and making entrie.s therein is to give an opportunity
H
498
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A to the public servant to improve excellence - Opportunity of
hearing is not necessary before adverse remarks because
adverse remarks by themselves do not constitute a penalty
· - Natural justice - Opportunity of hearing.
Annual Confidential Reports - Purpose of - Explained
8 - constitution of India, 1950 - Article 51 (j).
CONSTITUTION OF IND/A, 1950:
Article 136 - New plea - Held: Supreme Court would not
c entertain a new plea at the hearing of the appeal under Article
136 when it is not raised in the High Court or in the petition
s.eeking leave to appeal - However, there are exceptional
cases in which the Court may permit a party to raise a new
plea - The question sought to be raised in the instant matter
0 is a pure question of law for which factual foundation is already
laid - The counsel for the parties have been permitted and
heard at great length on the new point - Therefore, having
regard to the facts of the case, the Court has permitted the
point to be raised.
E
Articles 233, 234, 235 - Subordinate Judiciary - Control
over - Held: Article 235 provides that control over the
subordinate courts is vested in High Court of a State is
exclusive in nature, comprehensive in extent and effective in
operation.and is a mechanism to ensure and subserve a basic
F feature of the Constitution, i.e. independence of judiciary -
The scheme envisaged by the Constitution does not permit
the State to encroach upon the area reserved by Articles 233,
234 and first part of Article 235 either by legislation or rules
or executive instructions - The High Court alone is the sole
G authority competent to initiate disciplinary proceedings
against subordinate Judicial Officers or to impose various
punishments including the order of compulsory retirement on
verification of the service record - Basic structure theory.
H
Article 235 rlw Articles
163 and 239AA
-
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v.
499
..
LT. GOVERNOR OF NCT OF DELHI
Recommendation of High Court to Governor - Nature of -
A
Held: The Governor, under the scheme of Articles 233,234
and 235 of the Constitution cannot refuse to act in terms of
the recommendations made by the High Court on the ground
that he is not aided and advised by the Council of Ministers
- Governor has to act on the recommendation of the High
B
Court and that is the broad basis of Article 235 - In the matter
of compulsory retirement of a Judicial Officer, the Governor
cannot act on the aid and advice of Council of Ministers but
has to act only on the recommendation of the High Court -
Thus, the order of the Lt. Governor compulsorily retiring the c
Judicial Officers without seeking aid and advice of his Council
of Ministers is neither ultra vires nor illegal and is rightly
sustained by the High Court.
ADMINISTRATION OF JUSTICE:
Judicial service - Held: Is not a service in the sense of
D
an employment as is commonly understood - Judges are
discharging, their functions while exercising the sqyereign
judicial power of the State - Their honesty and integrity is
expected to be beyond doubt - The nature of judicial service
E
is such that it cannot afford to suffer continuance in service
of persons of doubtful integrity or who have lost their utility -
Judiciary.
WORDS AND PHRASES :
Expressions 'control', 'vests', and 'material' - Connotation
of.
F
The appellant (deceased) in C.A. Nos. 7781 of 2011,
who joined the Delhi Higher Judicial Service on 9.3.1995
G
when he was aged about 45 years, and the appellants in
C.A. Nos. 7782 of 2011 and 7783 of 2011, who joined the
Delhi Judicial Service on 5.5.1972 and 28.1.1978
respectively, were, on the basis of their poor service
H
500
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A record and the Annual Confidential Reports wherein they
were graded as " 'C' integrity doubtful", prematurely
retired from service by order dated 27.9.2001. Their writ
petitions having been dismissed by the High Court, they
filed the appeals.
B
The questions for consideration before the Court
were: (i) whether the cases of the appellants for
compulsory retirement, could have been considered
again before they reached the age of 55 years, when the
C Screening Committee had already considered their cases
for compulsory retirement on their attaining the age of 50
years on 17.7. 2000, and had not recommended their
compulsory retirement which recommendation was
accepted by the Full Court of the High Court; and (ii)
whether the order passed by the Lt. Governor
D compulsorily retiring the appellants from service without
seeking aid and advice of his Council of Ministers as
required under Article 239 (AA)(4) of the Constitution was
ultra vires and illegal.
E
Dismissing the appeals, the Court
HELD: 1.1 Normally, an aggrieved civil servant can
challenge the order of compulsory retirement on any of
the grounds: (a) that the requisite opinion has not been
formed, or (b) that the decision is based on collateral
F grounds, or (c) that it is an arbitrary decision. If the civil
servant is able to establish that the order of compulsory
retirement suffers from any of these infirmities, the court
has jurisdiction to quash the same. [para 23] [536-G]
G
1.2 By virtue of r. 27 of the Delhi Higher Judicial
H
Service Rules, 1970, r. 16 (3) of the All India Services
(Death-cum-Retirement Benefits) Rules, 1958 ('the Rules
of 1958') would be applicable to the officers of the Delhi
Higher Judicial Service. Therefore, the matter regarding
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v.
501
LT. GOVERNOR OF NCT OF DELHI
pre-mature retirement of officers of the Delhi Higher A
Judicial Service who have completed 30 years of
qualifying service or attained 50 years of age, has to be
reviewed in the light of r. 16 (3) of the Rules of 1958.
Similarly, in view of r. 33 of Delhi Judicial Service Rules,
1970, Fundamental Rule 56 0), which is for the time being
B
in force and applicable to Government servants holding
corresponding posts envisaged under the Delhi Judicial
Service Rules, 1970, shall regulate the matter of
compulsory retirement of officers of Delhi Judicial
Service. The screening Committee of the High Court also c
by its resolution dated 15.12.1992 decided, "Government
· Rules be applied." FR 56(j) gives absolute right to the
appropr\ate authority to retire any Government servant
who has. entered the service before attaining the age of
35 years, after he has attained the age of 50 years and in
0
other cases after he has attained the age of 55 years ..
[para 27-30] [539-H; 540-A-C, F-H; 541-A-B-F-H; 542-A]
2.1 There is no rule prohibiting consideration of the
case of an officer for compulsory retirement before he
attains the age of 55 years, even if his case has earlier
E
been considered at the age of 50 years. There is nothing
in the Delhi Judicial Service Rules or Delhi Higher
Judicial Service Rules or the Indian Administrative
Service Rules laying down a prohibition that if the case
of an officer for compulsory retirement is considered at
F
the age of 50 years, his case cannot be reconsidered till
he attains the age of 55 years. [para 34] [544-C-E]
Government of T. N. Vs. P.A. Manickam 1996 (2)
SCR 1137 = 1996 (8) sec 519 -·relied on
State of U.P. Vs. Chandra Mohan Nigam and Others
1978 ( 1 ) SCR 521 =(1977) 4 SCC 345; and Haryana State
Electricity Board vs. K. C. Gambhir (1997) 7 SCC 85 -
referred to.
G
H
502
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A
2.2 The Screening Committee of the High Court
reviewed the cases of several judicial officers, including
the appellants, in its meeting held on 17.7.2000 and gave
its report: "We do not find, for the time being, any officer
who can be retired prematurely in public interest." This
B report was accepted in the meeting of the Full Court held
on 22.7.2000. The record indicates that the case of each
officer was not considered individually. No reasons could
be recorded by the Screening Committee as to how earlier
entries adversely reflecting on the integrity of the
c appellants, were dealt with or viewed. Under the
circumstances, the observation, "We do not find, for the
time being, any officer who can be retired prematurely in
public interest" will have to be regarded as tentative and
not final in nature. Thus, on the basis of the service
0 record, the three judicial officers could have been retired
compulsorily from service but a tentative decision was
taken not to retire them at that point of time. But, this
tentative decision would not preclude the authority
concerned from passing orders ot compulsory retirement
later on. When the Screenin_g_Commiftee stated that it did
E not find for t~-being any officer who could be retired
_prematurely in public interest, it meant that the cases of
all the officers were deferred to be considered in near
future. This is not a case wherein a review had taken
place and a positive final decision to continue the
F appellants in service, was taken by the Screening
Committee. [para 34-39,40] [543-E-H; 544-A; 548-C; 550B-C]
2.3 Thus, after the so-called review of the cases of
G the three appellants, in July, 2000, their cases wer~ rightly
reviewed again and orders retiring them compulsorily
from service were rightly passed against them. [para 41]
[350-E-F]
2.4 Apart from the poor judicial performance, the
H appellants were also retired compulsorily from service, on
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 503
LT. GOVERNOR OF NCT OF DELHI
the ground that their integrity was doubtful. The mandate
A
of Article 235 of the Constitution is that the High Court
has to maintain constant vigil on its subordinate judiciary.
[para 43- 44] [553-H; 554-A-C]
High Court of Judicature at Bombay through its 8
Registrars Vs. Shirishkumar Rangrao Patil and Another 1997
( 3) SCR 1131 = (1997) 6 SCC 339; Union of India Vs. M.E..
Reddy 1~80 ( 1 ) SCR 736 = (1980) 2 sec 15 - relied on
2.5 Judicial service is. not a service in the sense of
an employment as is commonly understood. Judges are
C
discharging their functions while exercising the
sovereign judicial power of the State. Their honesty and
integrity is expected to be bE!yond 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 D
cannot afford to suffer continuance in service of persons
of doubtful integrity or who have lost their utility. Article
235 C>f the Constitution of India enables the. High Court
to assess the performance of any judicial officer and
exercise the power of compulsory retirement at any time
E
with a view to maintain a discipline in the service, and this
constitutional power of High Court cannot_ be
circumscribed by any rule and order. [~ara-45t{ss-4-D-G]
High Court of Judicature at Bombay Through its
Registrar Vs. Shirishkumar Rangrao Patil and Another 1997
F
( 3) SCR 1131 = 1997 (6) SCC 339; Chandra Singh and
others Vs. State of Rajasthan & another 2003 (1) Suppl.
SCR 67 4 = (2003) 6 SCC 545; Nawal Singh vs. State of U.P.
and another 2003 (3) Suppl. SCR 1046 = (2003) 8 SCC 117
G
- relied on.
2.6 In the instant case, in respect of all the three
officers, after the previous consideration in July, 2000,
new material in the form of ACR for the year 2000 " 'C'
integrity doubtful" had come into existence and had
H
504
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A become a part of their respective service records when
the Full Court in its meeting held on 13.9.2001 recorded
their ACRs for the year 2000. Thus, the consideration by
the Committee constituted for the purpose of evaluating
the cases of the officers to ascertain whether they should
B be compulsorily retired, was subsequent in point of time,
namely, on 21.09.2001 and, as such, it will be fully
covered by the exception spelt out in Chandra Mohan
Nigam's Case itself in regard to consideration of cases
again before the age of 55 years. [para 47) [555-E-H]
c
2.7 The consideration of the cases of the three
judicial officers on the basis of ACRs dated September
13, 2001 recorded by the Full Court of the Delhi High
Court is not a review of the earlier decision of July, 2000.
It is a fresh consideration. It is review of the record of
D service of the· officers and not review of the earlier
decision and such review is not only permissible but is
perfectly legal and valid. [para. 47) [555-G-H; 556-A]
;7
Daman Singh and Others Vs. State· of Punjab and
E Others, 1985 ( 3) SCR 580 = (1985) 2 SCC 670, State of
Punjab and Another Vs. H.B. Malhotra, 2006 (2) Suppl.
SCR 391 = (2006) 11 SCC 169; Mohd. Akram Ansari Vs.
Chief Election Officer and Others, · 2007 (12 ) SCR 901
=(2008) 2 SCC 95; and Ex-Constable Ramvir Singh Vs.
F Union of India and Others, 2008 (17 ) SCR 1112 = (2009) 3
SCC 97; Tej Pal Singh Vs. State of U.P. & Another, 1986 (3)
SCR 428 = (1986) 3 SCC 604; and T. Lakshmi Narasimha
Chari Vs. High Court of A.P. and Another, 1996 (2) Suppl.
SCR 595 = (1996) 5 sec 90 - cited.
G
3.1 As regards the plea that the Lt. Governor could
not have passed orders retiring the appellants
compulsorily from service on the recommendation of the
High Court arid without seeking aid and advice of his
Council of Ministers, ordinarily the Supreme Court would
H not entertain a new plea at the hearing of the appeal
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 505
LT. GOVERNOR OF NCT OF DELHI
under Article 136 when it is not raised in the High Gourt A
or in the petition seeking leave to appeal. However, there
are exceptional cases in which this Court may permit a
party to raise a new plea. The question sought to be
raised in the instant matter is a pure question of law for
which factual foundation is already laid. Therefore,
B
having regard to the facts of the ~ase, this Court has
permitted the point to be raised. [para 52- 53] [558-D-E;
559-8-F]
· 3.2 Article 163 of the Constitution makes provision
C
that Council of Ministers has to aid and advice the
Governor. Article 239AA enacts special provisions with
respect to Delhi. A meaningful and conjoint reading of
Article 163 makes it clear that the Governor has to act on
aid and advice of the Council of Ministers with the Chief
Minister as the head except in so far as he is by or under D
the Constitution required to exercise his functions or any
of them in his discretion. In view of the provisions of subArticle (4) of Article 239AA, the Lt. Governor has to take
aid and advice of the Council of Ministers in the exercise
of his functions in relation to matters with respect to
E
which the Legislative Assembly has power to make laws.
[para 55- 57] [560-A-E; 561-B-C]
3.3 .Article 235 provides that the control over the
subordinate courts is vested in the High Court o·f a State.
F
The "control" vested in the High Court is exclusive in
nature, comprehensive in extent and effective in
operation and is a mechanism to ensure and subserve a
basic feature of the Constitution, i.e., independence of
judiciary. Among others things, it includes premature or G
compulsory retirement of Judges of the District Courts
and of Subordinate Courts. [para 57] [561-C-F]
•
Shamsher vs. State of Punjab_ 1975 (1) SCR 814 = (1974)
2 sec 831 - followed.
H
506
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A
3.4 The scheme envisaged by the Constitution does
B
not permit the State to encroach upon the area reserved
by Articles 233, 234 and first part of Article 235 either by
legislation or rules or executive instructions. [Para 58)
[562-C]
3.5 While the High Court retains the power of
disciplinary control over the subordinate judiciary
including power to initiate disciplinary proceedings,
suspend them during enquiries and impose punishment
on them, but when it comes to the question of dismissal,
C removal or reduction in rank or termination of services
of judicial officers on any count whatsoever, the High
Court becomes the recommending authority and cannot
itself pass the orders. The formal order to give effect to
such a decision has to be passed by the State Governor
D on the recommendations of the High Court. In
disciplinary proceedings if an action is taken by the High
Court against the judicial officer the recommendations
made by the High C_ourt bind the Governor and he is left
with no discretion except to act according to the
E recommendations. The Governor, under the scheme of
Articles 233, 234 and 235 of the Constitution cannot
refuse to act in terms of the recommendations made by
the High Court on the ground that he is not aided and
advised by the Council of Ministers and this is the true
F import o·f total control of the High Court over the
Subordinate Judiciary. The recommendation of the High
Court is binding on the State Government/Governor and
in the matter of compulsory retirement of a Judicial Officer
the Governor cannot act on the aid and advice of Council
G of Ministers but has to act only on the recommendation
of the High Court.[para 59, 66 and 81) [562-E-H; 563-AB; 565-D; 579-B]
Shamshervs. State of Punjab 1975 (1) SCR 814 = (1974)
H 2 SCC 831; Ba/dev Raj Gu/iani Vs. The Punjab and Haryana
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 507
LT. GOVERNOR OF NCT OF DELHI
High Court & Others 1977 ( 1 ) SCR 425 = (1976) 4· SCC A
201; M. M. Gupta and Others Vs. State of Jammu & Kashmir
and Others 1983 ( 1) SCR 593 = (1982) 3 sec 412- relied
on
State of Haryana Vs. lnder Prakash Anand H.C.S. &
8
Others, 1976 Suppl. SCR 603 = (1976) 2 SCC 977;
Registrar, High Court of Madras Vs. R. Rajaiah, 1988 ( 1 )
Suppl. SCR 332 = (1988) 3 SCC 211; Registrar (Admn.),
High Court of Orissa, Cuttack Vs. Sisir Kanta Satapathy
(Dead) by LRs. & Another, 1999 ( 2 ) Suppl. SCR 473 =
(1999) 7 SCC 725 State of U.P. Vs. Batuk Deo Pati Tripathi C
(1978) 2 SCC 102 ; And Tej Pal Singh Vs. State of U.P. and
Another, 1986 ( 3 ) SCR 428 = (1986) 3 SCC 604 - referred
to.
3.7 Thus, the order of the Lt. Governor compulsorily
D
retiring the appellants without seeking aid and advice of
his Council of Ministers is neither ultra vires nor illegal
.and is rightly sustained by the High Cgurt. [Para 81] [579C-~
.
-
4.1 So far as the plea that the appellants were made
to retire compulsorily without affording them an
opportunity to make representation against the ACR for
the year 2000 is concerned, suffice it to say that an order
E
of compulsory retirement is not a punishment and does
F
not have adverse consequence and, therefore, the
principles of natural justice are not attracted. However,
when the order of compulsory retirement is passed, the
authority concerned has to take into consideration the
whole service record of the officer concerned which
would include non-communicated adverse remarks also.
G
What is relevant to notice is that this Court has held that
an un-communicated adverse A.C.R. on record can be
taken into consideration and an order of compulsory
retirement cannot be set aside only for the reason that
such un-communicated adverse entry was taken into
H
508
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A consideration. Therefore, the fact that the last adverse
A.C.R. entry, " •e• grade doubtful" for the year 2000, was
communicated but none of the appellants had an
opportunity to represent before the same was taken into
consideration for passing order of compulsory
s retirement, cannot at all vitiate the order of compulsory
retirement. The authorities concerned were justified in
relying upon the adverse entry made against the
appellants in t-he year 2000, alongwith other materials,
indicating that their integrity was doubtful. [para 91-92]
c [584-F-H; 585-A-B]
State of U. P. vs. Sh yam Lal Sharma AIR 1971 SC 2151;
State of U.P. and Another Vs. Bihari Lal 1994 (3) Suppl.
SCR 108 = (1994) Supp (3) SCC 593; Union of India vs.
V.P. Seth and another 1994 sec (L&S) 1052; Baikuntha
D Nath Das vs. Chief District Medical Officer, Baripada 1992 (1)
SCR 836 = (1992) 2 sec 299; Post!: and Telegraphs Board
vs. C.S.N. Murthy 1992 (2) seR 338 =(1992) 2 sec 317;
_.
Union of India Vs. Col. J.N. Sinha ,and Another 1971 (1)
SCR 791 =1970 (2) SCC 458; Brij Mohan Singh Chopra Vs.
E State of Punjab, 1987 (2) SCR 583 = (1987) 2 SCC 188 ;
and Union of India Vs. M.E. Reddy, 1980 (1) SCR 736 =
(1980) 2 sec 15 - relied on.
Baidyanath Mahapatra Vs. State of Orissa and Another
F 1989 (3) SCR 803 =(1989) 4 SCC 664; S. Maheswar Rao
Vs. State of Orissa and Another_1989 Supp (2) SCC 248;
and V.K. Jain Vs. High Court of Delhi through Registrar
General and Others, 2009 (11) SCR 907 =(2008) 17 SCC
538 - distinguished.
G
4.2 "Opportunity of hearing is not necessary before
adverse remarks, because adverse remarks by
themselves do not constitute a penalty. Writing the
confidential report is primarily and essentially an
administrative function. Normally tribunals/courts are
H loath to interfere in cases of complaints against adverse
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v.
509
LT. GOVERNOR OF NCT OF DELHI
remarks and to substitute their own judgment for that of A
the reporting or reviewing officers. It is because these
· officers alone are best suited to judge the qualities of
officials working under them and about their competence
in the perforinance of official duties entrusted to them.
Despite fear of abuse of power by prejudiced superior
B
officers in certain cases, the service record contained in
the confidential reports, by and large, reflects the real
personality of the officer. The object of writing
confidential reports and making entries therein is to give
an opportunity to the public servant to improve c
excellence. [para 90] [583-E-H; 584-A-B]
4.3 Article 51 A(j) of the Constitution enjoins upon
every citizen the primary duty to constantly endeavour
to prove excellence, individually and collectively, as a
member of the group. Therefore, the officer entrusted with
D
the duty to write C.R. has a public responsibility and trust
to write the C.R. objectively; fairly and dispassionately
while giving, as;;.accurately as possible the statement;;of
facts on an overall assessment of performance of the
subordinate officer. [para 90] [584-C-D]
E
5.1 As regards applicability of FR 56 (j) read with r.33
of DJS Rules after the introduction of r. 31A of the DJS
rules, the newly added rule does not deal with the aspect
of compulsory retirement at all. In terms of r. 33 the
subject of compulsory retirement did remain residuary
F
even after the introduction of r. 31A in DJS Rules and,
therefore, the question of premature retirement will have
to be considered only under FR 56(j) and not under the
newly added r. 31A. Thus, consideration of the case of
the appellant for premature retirement before he attained
G
the age of 58 years cannot be regarded as illegal in any
manner at all. [para 109) [597-8-0]
All India Judge's Association Vs. Union of India & Ors.,
(1992) 1 SCC 119, All India Judges' Association and others
H
510
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A vs. Union of India and others 1993 (1) Suppl. SCR 749 =
(1993) 4 SCC 288; Nawal Singh Vs. State of U.P. and another
2003 (3) Suppl. SCR 1046 = (2003) 8 SCC 117; and
Ramesh Chandra Acharya Vs. Registrary, High Court of
Orissa and Another 2000 ( 1 ) Suppl. SCR 456 = (2000) 6
s sec 332 - relied on
State of Maharashtra Vs. Ramdas Shrinivas Nayak &
Anr., 1983 (1) SCR 8 =(1982) 2 SCC 463, Shankar K.
Manda/ & Ors. Vs. State of Bihar & Ors., 2003 (3) SCR 796 =
(2003) 9 SCC 519, Mount Carmel School Society Vs. ODA,
C 2007 (13) SCR 876 =(2008) 2SCC 141, and Bhavnagar
University Vs. Pa/itana Sugar Mill (P) Ltd. & Ors., 2002 (4)
Suppl. SCR 517 = (2003) 2SCC 111 ·cited.
6.1 While considering the case of an officer as to
D whether he should be continued in service or
compulsorily retired, his entire service record upto that
date on which consideration is mr\de has to be taken into
account. What weight should be attached to earlier
entries as coinpared to recent entries is a matti:fr of
evaluation, but there is no manner of doubt that
E consideration has to be of the entire service record. The
fact that an officer, after an earlier adverse entry, was
promoted does not wipe out earlier adverse entry at all.
[Para 115] [600-F-G]
F
State of Orissa and Others Vs. Ram Chandra Das, 1996
G
H
(2) Suppl. SCR 559 = (1996) 5 SCC 331 - relied on.
6.2 The appellant in CA No. 7782 of 2011 was
appointed as a Civil/Sub-Judge in the Subordinate
Judicial Services on May 5, 1972. He was promoted to the
Higher Judicial Services as Additional District and
Sessions Judge on November 1, 1989, but, was reverted
to Subordinate Judicial Services by order dated February
15, 1995. For two years i.e~ 1994 and 1995, his ACRs "C,
integrity doubtful" was upheld. For the year 1996, he was
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 511
LT. GOVERNOR OF NCT OF DELHI
graded as "C", i.e., below average. Thus, the service
A
record of the appellant indicates that he was ~n ..officer
"below average" or at the best an average-officer and his
integrity was doubtful. The High Court was justified in
taking into consideration the adverse ACRs reflecting on
his integrity for the years 1993, 1994 and 2000 while
B
considering the question whether it was expedient to
continue him in service on his attaining the age of 50
years. Similarly, in so far as appellant in CA No. 7783 of
2011 is concerned, he joined Delhi Judicial Serv.ice on
28.1. 1978. Admittedly, l:tis work and conduct from 1978 c
to 1992 was graded as "B", which means his
performance was that of an. average officer. For the year
1994 -1995 the Full Court recorded his ACR as 'C'
(Integrity Doubtful). Again iri the year 2000, he was
categorized as an officer having doubtful integrity. The 0
appellant in C.A. 7781 of 2011, was appointed in the year
1995 and as on 21.9.2001 his ACRs for six years were
available. The report dated 21.9.2001 of the Screening
Committee further reveals that" it had considered the
entire record relevant to his work and conduct and found
E
that throughout his career, he had been assessed and
graded either as an "average officer" or "officer below
average" and in the year 2000, his integrity was found to
be doubtful. The record further shows that the judicial
work was withdrawn from him with effect from 8-12-2000
upon the recommendation of the Committee of Judges
F
in its report dated 6-12-2000. Later on, all work including
administrative work was withdrawn from him. The service
record of the officer is so glaring that on tile basis thereof
any prudent authority could have come to a reasonable
conclusion that it was not in the public interest to G
continue him in service and that he should be
compulsorily retired from service. [para 116-117 and 131132] [614-A-H; 601-F; 615-A-D]
6.3 Having regard to the service record of all the
H
512
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A __three officers concerned, the High Court was justified in
compulsorily retiring them from service. [para 118] [603C]
S.D. Singh vs. Jharkhand High Court through R.G. and
B others 2005 (5 ) Suppl. SCR 562 = (2005) 13 SCC 737 -
relied on
7.1 As regards the argument of non-supply of
material on the basis of which "'C' Doubtful Integrity" was
awarded to the appellants, while considering the case of
c a judicial officer it is not necessary to limit the 'material'
only to written complaints or 'tangible' evidence pointing
finger at the integrity of the judicial officer. Such an
evidence may not be forthcoming in such cases.
Contextually the 'material' relates to substance, matter,
D data, information etc. When even verbal repeated
complaints are received against a judicial officer or on
enquiries, discreet or otherwise, the general impression
created in the minds of those making inquiries or the Full
Court is that the judicial officer concerned does not carry
E good reputation, such discreet inquiry alid/or verbal
repeated complaints would constitute material on the
basis of which ACR indicating that the integrity of the
officer is doubtful can be recorded. [para 119 and 123]
[S03-D-F; 605-E-G]
f.
R.L. Butai/ Vs. Union of India and Others, (1970) 2 SCC
876;High Court of Punjab & Haryana through R.G. Vs. lshwar
Chand Jain and Another, 1999 (2) SCR 834 = (1999) 4 SCC
579 -relied on
7.2 The duty conferred on the appropriate authority
G to consider the question of continuance of a judicial
officer beyond a particular age is an absolute one. If that
authority bona fide forms an opinion that the integrity of
a particular officer is doubtful, the correctness of that
opinion cannot be challenged before courts. However,
H·
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 513
LT. GOVERNOR OF NCT OF DELHI
while undertaking judicial review, the Court in an
A
appropriate case may still quash .the decision of the Full
Court on administrative side if it is found that there is no
basis or material on which the ACR of the judicial officer
was recorded, but while undertaking this exercise of
judicial review and trying to find out whether there is any
B
material on record or not, it is the duty of the Court to
keep in mind the nature of function being discharged by
the judicial officer, the delicate nature of the exercise to
be performed by the High Court on administrative side
while recording the ACR and the mechanism/system c
adopted in recording such ACR. [para 122-123) [604-H;
605-A-E-H; 606-A-B]
7.3 From the admitted facts in the instant matter, it is
evident that there was first a report of the Inspecting
Judge to the effect that he had received complaints D
against the appellants reflecting on their integrity. It has
to be legitimately presumed that the Inspecting Judge,
before ma_king such remarks of serious natur~, acted
responsibly. Thereafter, the Full Court considered the
entire issue and endorsed the view of the Inspecting
E
Judge while recording the ACR of the appellants. When
the suspicion arises regarding integrity of a judicial
officer, whether on the basis of complaints or information
received from other ,sources and a committee is formed
to loo:< into the sartje, as was done in the instant case,
F
and the committee undertakes the task by gathering
information from various sources as are available to it, on
the basis of which a perception about the judicial officer
concerned is formed, it would be difficult for the High
Court either under Article 226 or for this Court under G
Article 32 to interfere with such an exercise. Such an
opinion and impression formed consciously and
rationally after the enquiries would definitely constitute
material for recording adverse report in respect of an
officer. Such an impression is not readily formed but after H
514
SUPREME COURT REPORTS
[2011) 12 S.C.R.
A Court's circumspection, deliberation, etc. and, thus, it is
a case of preponderance of probability for entertaining a
doubt about integrity of an official which is based on
substance, matter, information etc. Therefore, it cannot be
said that the adverse entries were recorded in the ACR
B of the appellants without material or basis. [para 124]
[606-C-H; 607 -A]
8.1 As regards the plea on behalf of the deceased
appellant that the recording of AC Rs for the years 1997,
1998 and 1999 in one go is arbitrary and constitutes
C malice in law, normally, entries in confidential records
should be made within a specified time soon following
the end of the period under review and general!~, within
three months from the end of the year. Delay in carrying
out inspections or making entries frustrates the very
D purpose sought to be achieved. However, at the same
time it is not possible to lay down as an absolute
proposition of law that irrespective of good, cogent,
pl~usible, and acceptable reasons, recording o_f. ACRs of
number of years at a time should always be regarded as
E illegal and bad for all purposes. [para 125-126] [607-B;
608-C-D; 609-A]
Dev Dutt Vs. Union of India, 2008 (8) SCR 174 = 2008
(8) SCC 725, and Abhijit Ghosh Dastidar Vs. Union of India,
F 2009 (16) sec 146 - cited
8.2 In the instant case, from the record it is evident
that all the columns of ACR forms for the years 1997, 1998
and 1999 we-re filled up by the Inspecting Judges
respectively well in time for all these years, but they had
G not recorded any remarks concerning the judicial
reputation for honesty and impartiality of the officer and
as a corollary the column regarding "Net Result" for these
years were left blank by them. Instead, the Inspecting
Judges had observed that these remarks be recorded by
H the Full Court. Because of the course adopted by the
RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 515
LT. GOVERNOR OF NCT OF DELHI
Inspecting Judges, the consideration of recording the
A
ACR was deferred by the Full Court and. ultimately, in its
meeting held on 21.4.2001 in respect of the deceased
officer, the Full Court referred the case to the Committee
constituted to look into the allegations against the judicial
Officers. The Committee gave its report dated 6.12.2001
B
to the effect that tile information gathered by the
Committee from various sources confirmed the allegation
of doubtful integrity against the officer. The matter was
thereafter placed before the Full Court and the ACRs of
the officer were recorded for the years 1997, 1998 and c
1999 on 13.12.2000. Thus, there is sufficient explanation
for recording the ACRs of thr~e y~ars at one time. Writing
of ACRs for the years 1-997. 1998 and 1999 at one time
as also communication of the same at one time was
justified in the circumstances of the case. [para 126-128]
0
[608-C-D; 609-A-D-F-H; 610-A; 611-A-B]
8.3 Even otherwise, the ACRs for the year 1999 were
recorded with promptitude;,and withput any delay in the
year 2000, and the officer was assessed as "C Below
Average". The ACRs for the year 1999 could have been
E
taken into consideration while assessing the service
record of the officer for determining the question whether
he was fit to be continued in service on his attaining the
age of 50 years. [Para 127] [610-E-G]
9. As regards, the plea of the appellant in C.A. No.
7782 of 2011 that he being a member of the Delhi Higher
Judicial Service FR 56 (j) was not applicable to his case,
it is significant to notice that under both the Rules there
F
is power to compulsorily retire a judicial officer after he
attains the age of 50 years in public interest. Therefore,
G
whether the Lt. Governor had invoked FR 56 (j) or Rule
27 of the DHJS Rules is of little consequence. In fact, for
the years 1993 and 1994 the officer had suffered adverse
ACR 'C' "Integrity Doubtful." In any view of the matter, it
is settled law that when power can be traced to a valid
H
516
SUPREME COURT REPORTS
[2011) 12 S.C.R.
I
A source, the fact that the power is purported to have been
exercised under a wrong provision of law, would not
invalidate exercise of power. [para 130) [612-B-G]
. 10.1 Having regard to the entire service record of the
three officers, this Court is of the opinion that the
8 competent authority was justified in passing the order
retiring them compulsorily from service. Keeping in view '
the comprehensive assessment of service record, the;
Screening Committee rightly recommended that the three
officers should be prematurely retired in public interest
C forthwith. The Full Court after considering the report of
the Screening Committee and also after taking into
consideration the record of work and conduct, general
reputation and service record of the three officers
correctly resolved that it be recommended to the Lt.
D Governor of NCT of Delhi to retire the judicial officers
forthwith in public interest. [para 135) [616-E-H; 617-A]
10.2 On a careful consideration of the entire material,
it must be held that tne evaluation made by the
E Committee/Full Court, forming their unanimous opinion,
is neither so arbitrary nor capricious nor can it be said
to be so irrational, so as to shock the conscience of this
Court to warrant or justify any interference. There is
absolutely no need or justification for this Court to
F interfere with the impugned proceedings. [para 136) [617 -
D-E]
Madan Mohan Choudhary Vs. State of Bihar 1999 (1)
SCR 596 = 1999 (3) SCC 396; High Court of Punjab &
Haryana Vs. l.C. Jain 1999 (2) SCR 834 = 1999 (4) SCC
G 579; High Court of Judicature at Allahabad Vs. Samam Singh
& Another 1999 (5) Suppl. SCR 344 = 2000 (2) SCC 339;
Bishwanath Prasad Singh Vs. State of Bihar 2000 (5) Suppl.
SCR 718 = 2001 (2) SCC 305; State of U.P.