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Awani Kumar Upadhyay v The Hon’Ble High Court Of Judicature At Allahabad And Ors.

(2013) 12 SCC 392

Bench : P. Sathasivam, J. S. Khehar

The Judgment was delivered by : P. Sathasivam, J.

2. These appeals arise from the judgment and final orders dated 01.03.2012 and 23.04.2012 passed by the

High Court of Judicature at Allahabad whereby the High Court, while allowing the second appeal, passed

severe strictures against the appellant-herein and forwarded a copy of its judgment to Hon'ble Chief Justice of

the High Court to consider as to whether disciplinary proceedings are warranted against him?

The appellant is a Member of the U.P. Higher Judicial Service and has successfully completed 30 years of

service. The High Court, while allowing the Second Appeal No. 1444 of 2000 titled U.P. Avas Evam Vikas

Parishad, Lucknow and Another vs. Lajja Ram, passed severe strictures against the appellant herein in the

judgment which, according to him, are ultimately going to affect permanently not only his reputation but also

his entire service career. It is the claim of the appellant that in the Second Appeal No. 1444 of 2000, he has not rendered any judgment as trial Court Judge or as the first Appellate Court Judge. According to him, a suit

bearing No. 418 of 1997 was filed by Shri Lajja Ram against the U.P. Avas Evam Vikas Parishad, Lucknow

and another and the said suit was decided by one learned Civil Judge, Senior Division, Ghaziabad presided

over by Shri Chaturbhuj by a judgment and order dated 02.05.1997. Aggrieved by the said judgment, a first

appeal was filed being First Appeal No. 105 of 1997 in the Court of Shri A.K. Aggarwal, second Additional

Dist. & Sessions Judge, Ghaziabad. The first Appellate Court framed 12 additional issues and on those

additional issues, the matter was remanded to the Court of the appellant as he was working as Civil Judge, Senior Division, Ghaziabad. Thereafter, in compliance with the order of the first Appellate Court, after

recording the evidence of the parties, the appellant recorded the evidence of the parties and gave his findings

on 31.05.1999.

It is the case of the appellant that in the impugned judgment and order, the High Court has neither furnished

any independent finding on the issues which were determined by the appellant herein nor anything about his

ultimate decision. The present appeal is confined only to the portion wherein the High Court has made certain

strictures. The appellant has also asserted that the High Court has not considered that the appellant has not

rendered any decision as trial Judge or as the Judge of the first Appellate Court. On the direction by the first

Appellate Court, only 12 additional issues were adjudicated by the appellant. Inasmuch as "severe strictures",

if allowed to stand, would affect his entire future prospects of service, he approached this Court by filing this

appeal by way of special leave.

While answering the substantial questions of law, namely, 3, 4, 5 and 6, the High Court decided the same in

favour of the appellants therein and against the respondents. Ultimately, both the second appeals were allowed

with exemplary cost of Rs. 5 Lakhs in Second Appeal No. 1444 of 2000 and Rs. 1 Lakh in Second Appeal No.

1445 of 2000. The High Court ultimately set aside the decrees passed by the courts below and dismissed both

the suits. The High Court also directed that a FIR be lodged immediately against the plaintiffs for malicious

prosecution and manipulation in the official records. After issuing such directions the High Court passed the

following order, with which we are concerned in these appeals:

"Severe stricture is passed against the Judge of the trial Court as well as of lower appellate Court for passing

extremely illegal and unjust judgments and decrees. A copy of this judgment shall be placed in their service

records and be also sent to Hon'ble the Chief Justice to consider as to whether disciplinary proceedings are

warranted against them."

(f) On coming to know of the strictures and the ultimate direction of the High Court, the appellant filed a Civil Misc. Modification Application No. 122702 of 2012 in Second Appeal No. 1444 of 2000 for expunging the

remarks made in the judgment dated 01.03.2012. The High Court, after hearing the counsel for the judicial

officer without modifying the judgment, observed that "I did not intend to make any suggestion for initiating

disciplinary proceedings against the Judge who had decided the remitted issues only", and by saying so

disposed of the said application, however, permitted the appellant to make representation on the

administrative side of the High Court. Not satisfied with the same, the appellant has filed the above appeal for

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a limited purpose of expunging those adverse remarks.

5. The questions which arise for consideration are:

(a) Whether in the facts and circumstances of the case, the High Court was justified in making severe strictures

and directions against the appellant in its judgment dated 01.03.2012?

(b) Whether the direction to send the impugned judgment to Hon'ble Chief Justice of the High Court with a

request to consider whether disciplinary proceedings are warranted against the appellant herein was justified?

(c) Whether the High Court is justified in disposing of the application for modification without expunging the

offending portion which was made without affording opportunity to the appellant?

6. It is settled legal position that no adverse remark can be made against any judicial officer without giving an

opportunity to explain the conduct. It is made clear that we are not undermining the ultimate decision of the

High Court on merits. However, we are constrained to observe that the higher courts every day come across

orders of the lower courts which are not justified either in law or in fact and modify them or set them aside.

Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch

as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological

pressure and they do not have the facilities which are available in the higher courts, we are of the view that the

remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his

reasoning's.

Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will

cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the

judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh

or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into

consideration before courts of law unless it is really for the decision of the case as an integral part thereof.

13. We hold that the adverse remarks made against the appellant were neither justified nor called for. The

perusal of the impugned judgment would show that the word "severe strictures" is mentioned whereas no logical reasoning has been given as to what is the fault of the appellant and the High Court has not adduced any

finding as to why it has disagreed with the reasoning given by the appellant particularly when the appellant

asserted that neither he has rendered any decision as trial Court Judge nor as the first Appellate Court Judge

except deciding 12 additional issues on the directions issued by his predecessor. The strictures passed against

the appellant are neither warranted nor is in conformity with the settled law as propounded by this Court.

14. Under these circumstances, the adverse remarks passed in the impugned judgment and the final orders

dated 01.03.2012 and 23.04.2012 insofar as the appellant is concerned are set aside. Since these appeals are confined only for expunging the strictures, the same are allowed as pointed above. No costs. Appeals allowed

………………………………

Amar Pal Singh v State Of U. P.

(2012) 6 SCC 491

Benc : Dipak Misra, Balbir Singh Chauhan

The Judgment was delivered by: Dipak Misra, J.

2. The appellant, a judicial officer, being aggrieved by the comments and observations passed by the learned

Single Judge of High Court of Judicature at Allahabad in Criminal Revision No. 1541 of 2007 has preferred

the present appeal. The brief resume of facts are that one Sunil Solanki had filed an application under Section

156 (3) of the Code of Criminal Procedure ('the Code') before the Chief Judicial Magistrate, Bulandshahar

with the allegation that on 11.02.2007 at 09.30 p.m. when he was standing outside the door of his house along

with some others, a marriage procession passed through the front door of his house and at that juncture, one

Mauzzim Ali accosted him and eventually fired at him from his country made pistol which caused injuries on

the abdomen area of Shafeeque, one of his friends. However said Shafeeque escaped unhurt. Because of the

said occurrence, Sunil Solanki endeavoured hard to get the FIR registered at the concerned police station but

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the entire effort became an exercise in futility as a consequence of which he was compelled to knock at the

doors of the learned Chief Judicial Magistrate by filing an application under Section 156 (3) of the Code for

issue of a direction to the police to register an FIR and investigate the matter. While dealing with the

application, the learned Chief Judicial Magistrate, the appellant herein, ascribed certain reasons and dismissed

the same.

3. Being dissatisfied, said Sunil Solanki preferred a revision before the High Court and the learned Single

Judge, taking note of the allegations made in the application, found that it was a fit case where the learned

Magistrate should have directed the registration of FIR and investigation into the alleged offences. While

recording such a conclusion, the learned Judge has made certain observations which are reproduced below:-

"This conduct of chief Judicial Magistrate is deplorable and wholly malafide and illegal"

4. Thereafter the learned Judge treated the order to be wholly hypothetical and commented it was :-

"vexatiously illegal"

5. After so stating the learned Single Judge further stated that Chief Judicial Magistrate has committed a

blatant error of law. Thereafter the passage runs thus:-

".......and has done unpardonable injustice to the injured and the informant. His lack of sensitivity and utter

callous attitude has left the accused of murderous assault to go scot- free to this day."

6. After making the aforesaid observations, he set aside the order and remitted the matter to the Chief Judicial

Magistrate to decide the application afresh.

Thereafter, he directed as follows-

"Let a copy of this order be sent to the Administrative Judge, Bulandshahar to take appropriate action against

the concerned C.J.M. as he deem fit."

7. The prayer in the Special Leave Petition is to delete the aforesaid comments, observations and the ultimate

direction.

11. At the very outset, we make it clear that we are neither concerned with the justifiability of the order passed

by the Chief Judicial Magistrate nor are we required to dwell upon the legal pregnability of the order passed by

the learned Single Judge as far as it pertains to dislodging of the order of the learned Magistrate. We are only

obliged to address to the issue whether the aforesaid remarks and the directions have been made in consonance with the principles that have been laid down by the various pronouncements of this Court and is in accord with

judicial decorum and propriety.

23. For more than four decades this Court has been laying emphasis on the sacrosanct duty of a Judge of a

superior Court how to employ the language in judgment so that a message to the officer concerned is

conveyed. It has been clearly spelt out that there has to be a process of reasoning while unsettling the judgment

and such reasoning are to be reasonably stated with clarity and result orientation. A distinction has been

lucidly stated between a message and a rebuke. A Judge is required to maintain decorum and sanctity which

are inherent in judicial discipline and restraint. A judge functioning at any level has dignity in the eyes of

public and credibility of the entire system is dependent on use of dignified language and sustained restraint,

moderation and sobriety. It is not to be forgotten that independence of judiciary has an insegregable and

inseparable link with its credibility. Unwarranted comments on the judicial officer creates a dent in the said

credibility and consequently leads to some kind of erosion and affects the conception of rule of law. The

sanctity of decision making process should not be confused with sitting on a pulpit and delivering sermons

which defy decorum because it is obligatory on the part of the superior Courts to take recourse to correctional

measures. A reformative method can be taken recourse to on the administrative side. It is condign to state it

should be paramount in the mind of a Judge of superior Court that a Judicial officer projects the face of the

judicial system and the independence of judiciary at the ground reality level and derogatory remarks against a

judicial officer would cause immense harm to him individually (as the expunction of the remarks later on may

not completely resuscitate his reputation) but also affects the credibility of the institution and corrodes the

sacrosanctity of its zealously cherished philosophy. A judge of a superior Court however strongly he may feel

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about the unmerited and fallacious order passed by an officer, but is required to maintain sobriety, calmness,

dispassionate reasoning and poised restraint. The concept of loco parentis has to take a foremost place in the

mind to keep at bay any uncalled for any unwarranted remarks.

24. Every judge has to remind himself about the aforesaid principles and religiously adhere to them. In this

regard it would not be out of place to sit in the time machine and dwell upon the sagacious saying of an

eminent author who has said that there is a distinction between a man who has command over 'Shastras' and the other who knows it and puts into practice. He who practises them can alone be called a 'vidvan'. Though it

was told in a different context yet the said principle can be taken recourse to, for one may know or be aware of

that use of intemperate language should be avoided in judgments but while penning the same the control over

the language is forgotten and acquired knowledge is not applied to the arena of practice. Or to put it differently

the knowledge stands still and not verbalised into action. Therefore, a committed comprehensive endeavour

has to be made to put the concept to practice so that it is concretised and fructified and the litigations of the

present nature are avoided.

25. Coming to the case at hand in our considered opinion the observations, the comment and the eventual

direction were wholly unwarranted and uncalled for. The learned Chief Judicial Magistrate had felt that the

due to delay and other ancillary factors there was no justification to exercise the power under Section 156 (3)

of the Code. The learned Single Judge, as is manifest, had a different perception of the whole scenario.

Perceptions of fact and application of law may be erroneous but that never warrants such kind of observations

and directions. Regard being had to the aforesaid we unhesitatingly expunge the remarks and the direction

which have been reproduced in paragraph three of our judgment. If the said remarks have been entered into the annual confidential roll of the judicial officer the same shall stand expunged. That apart a copy of the order be

sent by the Registrar of this Court to the Registrar General of the High Court of Allahabad to be placed on the

personal file of the concerned judicial officer. The appeal is allowed accordingly.

………………………………

Registrar General, Patna High Court v Pandey Gajendra Prasad & Ors.

(2012) 6 SCC 357

Bench : D.K. Jain, A.R. Dave

The Judgment was delivered by : D. K. Jain, J.

1. This appeal, by special leave, is preferred by the Patna High Court, through its Registrar General, against

the judgment by a Division Bench of the High Court in the writ petition filed by respondent no.1. In the said

writ petition the first respondent had challenged the decision of the Full Court recommending his removal

from service as a Railway Judicial Magistrate.

2. The first respondent in this appeal was appointed in Bihar Judicial Service on 29th March 1986, in the cadre

of Munsif. In October, 1999, he was functioning as a Railway Judicial Magistrate, Barauni Dist., Begusarai.

On receipt of some reports, alleging misconduct on the part of the said respondent, the District and Sessions

Judge conducted a preliminary inquiry. Upon consideration of his report, the Standing Committee, consisting

of five Judges of the High Court, issued a show cause notice to respondent no. 1. Dissatisfied with his reply,

the Standing Committee recommended initiation of departmental proceedings against him and to place him

under suspension. The said recommendation was subsequently approved by the Full Court.

4. The Standing Committee accepted the enquiry report and recommended imposition of punishment of

dismissal from service on the first respondent. As aforesaid, the recommendation was approved by the Full

Court and accepted by the Governor. Consequently the first respondent was dismissed from service.

Aggrieved thereby, he filed a writ petition in the High Court where the Division Bench quashed the order of

dismissal. Hence the present appeal by the High Court. The State of Bihar and its two functionaries have been

impleaded as respondent nos.2 to 4 respectively.

9. Article 235 of the Constitution of India not only vests total and absolute control over the subordinate courts

in the High Courts but also enjoins a constitutional duty upon them to keep a constant vigil on the day to day

functioning of these courts. There is no gainsaying that while it is imperative for the High Court to protect

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honest and upright judicial officers against motivated and concocted allegations, it is equally necessary for the

High Court not to ignore or condone any dishonest deed on the part of any judicial officer. It needs little

emphasis that the subordinate judiciary is the kingpin in the hierarchical system of administration of justice. It

is the trial judge, who comes in contact with the litigant during the day to day proceedings in the court and,

therefore, a heavy responsibility lies on him to build a solemn unpolluted atmosphere in the dispensation of justice which is an essential and inevitable feature in a civilized democratic society.

10. In short, it is the Constitutional mandate that every High Court must ensure that the subordinate judiciary

functions within its domain and administers justice according to law, uninfluenced by any extraneous

considerations. The members of the subordinate judiciary are not only under the control but also under the care

and custody of the High Court. Undoubtedly, all the Judges of the High Court, collectively and individually,

share that responsibility.

13. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment

passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference

with the decision of the departmental authorities is permitted, if such authority has held the proceedings in

violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of

such enquiry or if the decision of the authority is vitiated by consideration extraneous to the evidence on the

merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or

capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the

above.

17. In the present case, the recommendation of the Standing Committee to dismiss the first respondent from

service was based on the findings in the enquiry report submitted by the enquiry officer pursuant to the

departmental enquiry; his reply to the show cause notice; his ACR and other materials placed before it. The

recommendation of the Standing Committee was approved and ratified by the Full Court. There is nothing on

record to even remotely suggest that the evaluation made, firstly by the Standing Committee and then by the

Full Court, was so arbitrary, capricious or so irrational so as to shock the conscience of the Division Bench to

justify its interference with the unanimous opinion of the Full Court. As regards the observation of the

Division Bench on the reputation of the first respondent based on his ACRs, it would suffice to note that apart

from the fact that an ACR does not necessarily project the overall profile of a judicial officer, the entire personal file of the respondent was before the Full Court when a conscious unanimous decision was taken to

award the punishment of his dismissal from service. It is also well settled that in cases of such assessment,

evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and no

single factor should be allowed to be blown out of proportion either to decry or deify issues to be resolved or

claims sought to be considered or asserted. In the very nature of such things, it would be difficult, rather

almost impossible to subject such an exercise undertaken by the Full Court, to judicial review, save and except

in an extra-ordinary case when the court is convinced that some exceptional thing which ought not to have

taken place has really happened and not merely because there could be another possible view or there is some

grievance with the exercise undertaken by the Committee/Full Court. [(See: Syed T.A. Naqshbandi 2003

Indlaw SC 445 (supra)].

18. Having regard to the material on record, it cannot be said that the evaluation of the conduct of the first

respondent by the Standing Committee and the Full Court was so arbitrary, capricious or irrational that it

warranted interference by the Division Bench. Thus, the inevitable conclusion is that the Division Bench

clearly exceeded its jurisdiction by interfering with the decision of the Full Court.

19. However, before parting with the judgment, we deem it necessary to make a mention about the recording

of the ACRs of judicial officers. We feel that the present system of recording the ACRs leaves much to be

desired and needs to be revamped. Experience has shown that it is deficient in several ways, being not

comprehensive enough to truly reflect the level of work, conduct and performance of each individual on one

hand and unable to check subjectivity on the other. This undoubtedly breeds discontent in a section of the

judicial service besides eroding proper and effective superintendence and control of the High Court over

subordinate judiciary. The process of evaluation of a judicial officer is intended to contain a balanced information about his performance during the entire evaluation period, but it has been noticed that many a

times, the ACRs are recorded casually in a hurry after a long lapse of time (in some cases even after the expiry

of one year from the period to which it relates), indicating only the grading in the final column. It needs no

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elaboration that such hurried assessment cannot but, be either on the basis of the assessment/grading of the

preceding year(s) or on personal subjective views of the Inspecting Judge(s), which is unfair to the judicial

officer. Undoubtedly, ACRs play a vital and significant role in the assessment, evaluation and formulation of

opinion on the profile of a judicial officer, particularly, in matters relating to disciplinary action against a

judicial officer. The ACRs of such officer hold supreme importance in ascertaining his conduct, and therefore, the same have to be reported carefully with due diligence and caution. We feel that there is an urgent need for

reforms on this subject, not only to bring about uniformity but also to infuse objectivity and standardisation.

This Court also stressed on the need for the assessment to be made as an ongoing process continued round the

year and the record to be made in an objective manner. We are constrained to note that these observations have

not yet engaged the attention of most of the High Courts in the country.

21. In the final analysis, for the aforesaid reasons, we allow the appeal, set aside the impugned judgment of the

Division Bench and uphold the validity of Notification dated 19th June 2006, dismissing the first respondent

from judicial service. Appeal allowed

……………………………

Khazia Mohammed Muzammil v The State Of Karnataka & Anr.

(2010) 8 SCC 155

Bench : Swatanter Kumar, Balbir Singh Chauhan

The Judgment was delivered by: Swatanter Kumar, J.

1. The appellant, who was a practicing advocate, was appointed as District Judge under the Karnataka Judicial

Services (Recruitment) Rules 1983 whereafter the appellant joined the service on 15th May, 1996. However,

vide order dated 20th of May, 1996, the appellant was transferred and posted as 1st Additional City Civil &

Sessions Judge, Bangalore City. A Sub-Committee of the Hon'ble Judges constituted by the High Court had

recommended to the Full Court in its meetings held in 1999 for discharge of the appellant from service. It

appear that in October 1999, the Registrar General of the High Court addressed a communication to the Chief

Secretary of the State seeking the discharge of the appellant in terms of Rule 6 (1) Kerala Civil Service

(Probation) Rules, 1977 on the ground that appellant was not 'suitable for the post'. Pursuant to this

recommendation, the Government issued a notification on 24th March, 2000 discharging the appellant from service.

3. Aggrieved from the said notification dated 24th March, 2000, the appellant filed the Writ Petition in the

High Court of Karnataka. The High Court dismissed the Writ Petition. The appellant has preferred the present

appeal to this Court u/art. 136 of the Constitution of India.

6. We may also notice that conduct of the appellant, who is a Judicial Officer, belonging to the Higher Judicial

Services of the State is matter of some concern. Contradictory statements have been made in the Writ Petition

before the High Court, memorandum of appeal before this Court and even in the rejoinder and further affidavit

filed before this Court. Strangely, the High Court has neither contested this case nor pursued it in its correct perspective. As it appears, even appearance on behalf of the High Court was not entered upon. Despite specific

orders of this Court the High Court had failed to produce the records and even no responsible officer was

present. This attitude of the respondents in this court compelled the Bench to pass an order dated 20th May,

2010 which reads as under:

"This case was heard at some length yesterday and was part-heard for today. At the very outset, we must

notice that from the record before us, ex-facie, it appears that the appellant before this Court has sworn the

false and/or incorrect affidavits. In order to demonstrate our above observation, we must refer to the

following details which have been given by the appellant in various affidavits and/or pleadings of the present

case, which are as follows:

S.No. Date Age Page(s)

1. 29.3.2000 46 28/37

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2. 23.2.2001 46 51

3. 20.9.2004 50 18

4. 14.10.2006 54 52

5. 22.10.200 57 4/5 (Appln. For Early

Hearing

6. 30.6.2010 60 --

7. 9.5.1996 Joined Service E

8. 20.3.2000 34 --

7. As would be evident that if one of the dates given by the appellant is taken to be correct, he would

superannuate on 30th June, 2010, and if another date is taken, he would be only 57 years of age as on 22nd

October, 2009. Besides this, he had joined service as per the letter of appointment of 9th may, 1996, but at

page 34 of the paper book, he claimed to have joined service on 15th May, 1995, which on the face of it, is not

a correct statement of facts. We further note that the case of the appellant is that during the period of his

service, no adverse entries had been made in his service record, which has been seriously disputed by the

respondents who state that even complaints were received against the appellant. With some amount of

anguish, we must also notice that the High Court appears to be callous about the whole matter. The reply filed

on behalf of the High Court does not specifically dispute any of the averments made by the appellant. The

reply besides being vague, is intended to benefit the appellant, which is entirely uncalled for. It has become

necessary for us to know the correct position of facts before we dwell upon legal submissions raised on behalf

of the appellant.

8. This Court vide its order dated 28th April, 2006, had expressed certain doubts and directed that the records

should be produced before the Court and records should be made available before this Court at the time of

hearing. Despite the fact that this case has been on Board for this entire week and was heard for considerable

time yesterday and was part-heard for today, still records are not available. We are unable to appreciate this

attitude of the High Court towards this case, pending in the highest Court of the land. We may also notice that

yesterday some papers had been shown to us showing that the name of the appellant was placed in the "rowdy"

list of the police maintained by the concerned police station and his local activities were being watched. The appellant has filed the writ petition praying for quashing and deletion of his name from the said list. This fact

does not find mention either in the reply filed by the appellant before the High Court.

9. Learned counsel for the appellant submitted that this event was subsequent to the filing of the writ petition.

Whatever be the merit or otherwise of that Writ Petition, we fail to understand why this fact was not taken note

of and brought to the notice of the High Court when the police gave a verification report about the appellant

which was monitored prior to the appointment of the Higher Judicial Services of the State. We find that we are

unable to appreciate the conduct of the appellant as well as that of the High Court in the present proceedings

and in our view certain directions need to be issued in this regard. Before we issue any such orders or consider

the conduct of either of them in accordance with law, we consider it appropriate to require the appellant to file

an affidavit explaining the above-mentioned events.

10. The High Court is also at liberty to file affidavit, if any, but the Registrar General of the High Court shall

be present in Court with complete records. List for further hearing on 28th may, 2010.

12. The appellant was General Secretary of an organization called Majlis-Isa-o-Tanzim and was in the habit of

harbouring criminals, who were involved in serious crimes like murder and communal riots etc. There was a

specific charge against the appellant for his delivering provocative communal speeches, which contributed to

aggravate communal disturbance in Bhatkal in the year 1993. He was president of the Bar Association,

Bhatkal and still used to provoke young people in that institution. Nineteen people were killed and many

injured in a group clash. With this background under Rules 65 and 66 of State Interchange Manual the name of

the appellant was inducted on the sheet of Register of Rowdies maintained by the Karnataka Police in Form

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No. 100 in terms of Rule 1059 of the Karnataka Police Manual which is normally treated as confidential.

13. The ancillary but an important issue that flows from these facts is as to how and what the Police

Verification Report was submitted to the Government/High Court before the appellant was permitted to join

his duties as an Additional District Judge? Normally, the person, with such antecedents, will hardly be

permitted to join service of the Government and, particularly, the post of a Judge.

14. The High Court on the administrative side also appears to have dealt with the matter in a very casual

manner. The averments made in the Writ Petition 16244 of 2000, if it were true, it was a matter of serious concern for the High Court as he was being appointed as an Additional District and Sessions Judge and would

have remained as such for a number of years. It was expected of the Government as well as the High Court to

have the character verification report before the appointment letter was issued. These reasons have to be given

definite significance, particularly when the High Court has declined to quash the entries against the appellant

and inclusion of his name in the 'Rowdies list'. Another aspect of this case, to which our attention has been

invited, is that for the first time, the High Court has filed the detailed affidavit in this Court after passing of the

order dated 20th May, 2010.

15. We failed to understand why appropriate and detailed affidavit was not even filed before the Court. During

the course of hearing, we have also called for the original Confidential Reports of the appellant, copies

whereof have been filed. The Confidential Reports, which could have been recorded in the case of the

appellant as per the rules and regulations, or resolutions of the Full Court of High Court of Karnataka, will be

for the years 1996-97, 1997-98 and 1998- 99. There is only one Confidential Report on record for the year

1997 wherein the appellant has been graded as 'Satisfactory'. This falsifies his claim that he had outstanding

service record in regard to disposal of cases and other service related matters.

16. With some regret and anxiety, we must notice that for all the remaining years no Confidential Report of

this officer, and in fact, many others, as the record now reflects, have been recorded by the High Court. We are

unable to overlook this aspect, as it is just not a simplicitor question of writing the Confidential Report of a

given officer but adversely affects the administration of justice on the one hand and dilutes the constitutional

power & functions of Superintendence of the High court, on the other. A note was put up by the Registrar

General before the then Hon'ble Acting Chief Justice that Confidential Report was put up before Hon'ble

Chief Justice for recording remarks but that were not recorded and orders were being obtained now in that behalf.

However, even thereafter no confidential remarks were recorded. We may also notice that reference was made

to the resolution of the Full Court passed in its meeting dated 15th March, 1988 which has been referred to in

the office note, reads as under:

"Resolved that Judicial Officers Annual Confidential Reports shall be recorded in the Proforma at Annexure -

'A' for the period from 1.1.1988 onwards."

17. Even thereafter, the records were submitted to the concerned Judge of the High court and no Confidential

Reports were recorded. All this demonstrates not a very healthy state of affairs in relation to the recording of

Confidential Reports of the officers in the Judicial Services of the State of Karnataka. The Confidential Report

of an officer is a proper document, which is expected to be prepared in accordance with the Rules and practice

of the Court, to form the basis while considering the officer for promotion to higher post and all other service

related matters, in future. Non-writing of the Confidential Reports is bound to have unfair results. It affect the

morale of the members of the service. The timely written Confidential Reports would help in putting an officer

at notice, if he is expected to improve in discharging of his duties and in the present days where 25% (now

10%) of the vacancies in Higher Judicial Service cadre are expected to be filled, from out of turn promotions

after holding of written examination and interview.

18. Highly competitive standard of service discipline and values are expected to be maintained by the Judicial

Officers as that alone can help them for better advancement of their service career. In such circumstances, the

significance of proper Superintendence of the High Court over the Judicial Officers has a much greater

significance than what it was in the past years. In fact, in our view, it is mandatory that such Confidential

Reports should be elaborate and written timely to avoid any prejudice to the Administration as well as to the

officer concerned.

9

19. We do express a pious hope that Hon'ble Chief Justice of the Karnataka High Court would examine this

aspect and take corrective steps. We also do hope that appropriate decisions of the High Court are in place to

ensure writing of Annual Confidential Reports in a comprehensive manner at regular intervals and timely. It is

a matter which should invite the attention of all concerned without any further delay. We direct the Registry to

send a copy of this Judgment to Hon'ble Chief Justice of the Karnataka High Court to invite his kind attention to these aspects.

20. Having discussed in some elaboration the conduct of the appellant as well as his antecedents, now we

proceed to examine the merits of the legal controversy raised in the present case on behalf of the appellant in

relation to 'deemed confirmation'. Both the views have been taken by the Court. Firstly, there can be 'deemed

confirmation' after an employee has completed the maximum probation period provided under the Rules

where after, his entitlement and conditions of service are placed at parity with the confirmed employee.

Secondly, that there would be no 'deemed confirmation' and at best after completion of maximum probation

period provided under the Rules governing the employee, the employee becomes eligible for being confirmed

in his post. His period of probation remains in force till written document of successful completion of

probation is issued by the Competent Authority. Having examined the various judgments cited at the bar,

including that of all larger Benches, it is not possible for this Bench to state which of the view is correct

enunciation of law or otherwise. We are of the considered opinion, as to what view has to be taken, would

depend upon the facts of a given case and the relevant Rules in force. It will be cumulative effect of these two

basics that would determine application of the principle of law to the facts of that case.

28. The reference to the probation period has to be examined and interpreted with reference to and in conjunction with 1977 Rules which are the primary Rules dealing with probation. These Rules have

admittedly been adopted by the High Court. Under the 1983 Rules, the emphasis is on performance and

training during the period of probation. In other words, the primary purpose of these Rules is only to ensure

that the concerned officer undergoes training during the period of probation. While the significance under the

1983 Rules is on training, under 1977 Rules, all matters relating to probation are specifically dealt with. It

would not be permissible to read the relevant part of 1983 Rules to say that it mandates that probation period

shall be only for two years and not more. If that was to be accepted, all provisions under Rules 3 to 6 of 1977 Rules will become redundant and ineffective. In fact, it would frustrate the very purpose of framing the 1977

Rules. What will be the period of probation, the circumstances under which it can be extended or reduces and

discharge of the Probationer Officer in the event of unsuitability etc. are only dealt with under the 1977 Rules.

29. The 1983 Rules would have to be read harmoniously with 1977 Rules to achieve the real purpose of proper

and timely training of Judicial Officers on the one hand and appropriate control over the matters relating to

probation of the officers on the other. That, in fact, is the precise reason as to why 1983 Rules do not deal

specifically with any of the aspects of probation. In view of this discussion the contention of the appellants has

to be rejected.

30. We have already noticed that two views are prevalent. Primarily, the Court has taken the diametrical

opposite view. One which accepts the application of the deemed confirmation after the expiry of the

prescribed period of probation, while other taking the view that it will not be appropriate to apply the concept

of deemed confirmation to the officers on probation as that is not the intent of law. In our opinion, the rules and

regulations governing a particular service are bound to have greater impact on determining such question and

that is the precise reason that we have discussed Rules 3 to 6 of 1977 Rules in the earlier part of the judgment.

What view out of the two views indicated above should be followed in the facts of the present case can be

fairly stated only after we have discussed the earlier judgment of the larger as well as equi benches on this

aspect.

35. In the case of Dayaram Dayal v. State of M.P. [1997 (7) SCC 443]. The Court specifically noticed the two

line of rulings pronounced by this Court in its different judgments. At the cost of some repetition, we may

notice that one line of judgments held that mere continuation of service beyond the period of probation does

not amount to confirmation unless it was so specifically provided. The other line, though in very few cases,

but, has been taken by this Court is that where there is provision in the Rules for initial probation and extension thereof, a maximum period of such extension is also provided beyond which it is not permissible to extend

probation. However, the Bench dealing with the case of Dayaram Dayal's case 1997 Indlaw SC 1489 did

demonstrate that there was not any serious conflict between the two sets of decisions and it depends on the

10

conditions contained in the order of appointment and the relevant rules applicable.

46. Thus, under sub-rule (1) of Rule 24 a maximum period of 4 years' probation has been provided. The

aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed

subject to his fitness for confirmation and to his having passed the departmental examination, as may be

prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the

question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that the

question of confirmation can be considered at the end of the period of probation, and on such consideration if

the probationer is found suitable by the appointing authority and he is found to have passed the prescribed

departmental examination then the appointing authority may issue an order of confirmation.

47. It is too well settled that an order of confirmation is a positive act on the part of the employer which the

employer is required to pass in accordance with the Rules governing the question of confirmation subject to a

finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of Rule 24,

it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal and to hold that

since a maximum period of probation has been provided thereunder, at the end of that period the probationer

must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam

Singh.

49. We are also satisfied, after perusing the confidential reports and other relevant vigilance files, etc. that the

respondent is not entitled to continue as a judicial officer. The order of termination is termination simpliciter

and not punitive in nature and, therefore, no opportunity needs to be given to the respondent herein. Since the

overall performance of the respondent was found to be unsatisfactory by the High Court during the period of

probation, it was decided by the High Court that the services of the respondent during the period of probation

of the respondent be terminated because of his unsuitability for the post.

50. In this view of the matter, order of termination simpliciter cannot be said to be violative of Articles 14, 16

and 311 of the Constitution. The law on the point is crystallised that the probationer remains a probationer

unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the

respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or

deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation

period, are misconceived.

51. On a clear analysis of the above enunciated law, particularly, the Seven Judge Bench judgment of this

Court in the case of Samsher Singh 1974 Indlaw SC 127 (supra) and three Judge Bench judgments, which are

certainly the larger Benches and are binding on us, the Courts have taken the view with reference to the facts

and relevant Rules involved in those cases that the principle of 'automatic' or 'deemed confirmation' would not

be attracted. The pith and substance of the stated principles of law is that it will be the facts and the Rules,

which will have to be examined by the Courts as a condition precedent to the application of the dictum stated in any of the line of the cases afore noticed. There can be cases where the Rules require a definite act on the

part of the employer before officer on probation can be confirmed. In other words, there may a Rule or

Regulation requiring the competent authority to examine the suitability of the probationer and then upon

recording its satisfaction issue an order of confirmation. Where the Rules are of this nature the question of

automatic confirmation would not even arise. Of course, every authority is expected to act properly and

expeditiously. It cannot and ought not to keep issuance of such order in abeyance without any reason or

justification. While there could be some other cases where the Rules do not contemplate issuance of such a

specific order in writing but merely require that there will not be any automatic confirmation or some acts,

other than issuance of specific orders, are required to be performed by the parties, even in those cases it is

difficult to attract the application of this doctrine.

53. However, there will be cases where not only such specific Rules, as noticed above, are absent but the Rules

specifically prohibit extension of the period of probation or even specifically provide that upon expiry of that

period he shall attain the status of a temporary or a confirmed employee. In such cases, again, two situations

would rise: one, that he would attain the status of an employee being eligible for confirmation and second, that actually he will attain the status of a confirmed employee. The Courts have repeatedly held that it may not be

11

possible to prescribe a straight jacket formulae of universal implementation for all cases involving such

questions. It will always depend upon the facts of a case and the relevant Rules applicable to that service.

54. Reverting back to the Rules of the present case it is clear that Rule 3, unlike other Rules which have been

referred in different cases, contains negative command that the period of probation shall not be less than two

years. This period could be extended by the competent authority for half of the period of probation by a

specific order. But on satisfactory completion of the probation period, the authorities shall have to consider suitability of the probationer to hold the post to which he was appointed. If he is found to be suitable then as

soon as possible order is to be issued in terms of Rule 5(1)(a). On the other hand, if he is found to be unsuitable

or has not passed the requisite examination and unless an order of extension of probation period is passed by

the competent authority in exercise of its power under Rule 4, then it shall discharge the probationer from

service in terms of Rule 5 (1)(b). At this juncture Entry 2 of schedule under Rule 2 of 1983 Rules would come

into play as it is a mandatory requirement that the probationer should complete his judicial training. Unless

such training was completed no certificate of satisfactory completion of probation period could be issued.

55. Obviously, power is vested with the appropriate authority to extend the probation period and in alternative

to discharge him from service. The option is to be exercised by the authorities but emphasis has been applied

by the framers on the expression 'as soon as possible' they should pass the order and not keep the matters in

abeyance for indefinite period or for years together. The language of Rule 5(2) is a clear indication of the

intent of the framers that the concept of deeming confirmation could not be attracted in the present case. This

Rule is preceded by the powers vested with the authorities under Rules 4 and 5(1) respectively. This Rule

mandates that a probationer shall not be deemed to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule does not stop at that but further more specifically states that

any delay in issuance of order shall not entitle the probationer to be deemed to have satisfactorily completed

his probation.

56. Thus, use of unambiguous language clearly demonstrates that the fiction of deeming confirmation, if

permitted to operate, it would entirely frustrate the very purpose of these Rules. On the ground of

unsuitability, despite what is contained in Rule 5, the competent authority is empowered to discharge the

probationer at any time on account of his unsuitability for the service post. That discharge has to be simplicitor

without causing a stigma upon the concerned probationer. In our view, it is difficult for the Court to bring the present case within the class of cases, where 'deemed confirmation' or principle of 'automatic confirmation'

can be judiciously applied. The 1977 Rules are quite different to the Rules in some of the other mentioned

cases. The 1977 Rules do not contain any provision which places a ceiling to the maximum period of

probation, for example, the probation period shall not be extended beyond a period of two years. On the

contrary, a clear distinction is visible in these Rules as it is stated that probation period shall not be less than

two years and can be extended by the authority by such period not exceeding half the period. The negative

expression is for half the period and not the maximum period totally to be put together by adding to the initial

period of probation and to extended period.

57. Even if, for the sake of argument, we assume that this period is of three years, then in view of the language

of Rules 5 (1) and 5(2) there cannot be automatic confirmation, a definite act on the part of the authority is

contemplated. The act is not a mere formality but a mandatory requirement which has to be completed by due

application of mind. The suitability or unsuitability, as the case may be, has to be recorded by the authority

after due application of mind and once it comes to such a decision the other requirement is that a specific order

in that behalf has to be issued and unless such an order is issued it will be presumed that there shall not be

satisfactorily completion of probation period. The Rules, being specific and admitting no ambiguity, must be

construed on their plain language to mean that the concept of 'deemed confirmation' or 'automatic

confirmation' cannot be applied in the present case.

59. In the present case, the appellant was appointed to the post vide letter dated 9/10th May, 1996 and he

reported for his duty on 15th May, 1996. He was on probation for a period of two years. Thereafter, as it

appears from the record, no letter of extension of probation or order stating that the appellant has completed

the period of probation successfully in terms of Rule 5(1) was ever issued. Rule 5(2), therefore, would come into play and till the issuance of such an order and certificate of satisfactorily completion of probation period,

the appellant cannot claim to be a confirmed employee by virtue of principle of automatic or deemed

confirmation. His services were terminated vide order dated 24th March, 2000. It was discharge from service

12

simplicitor without causing any stigma on the appellant.

61. Before we part with this file, it is required of this Court to notice and declare that the concerned authorities

have failed to act expeditiously and in accordance with the spirit of the relevant Rules. Rule 5(2) of 1977 Rules

has used the expression 'as soon as possible' which clearly shows the intent of the rule framers explicitly

implying urgency and in any case applicability of the concept of reasonable time which would help in

minimizing the litigation arising from such similar cases. May be, strictly speaking, this may not be true in the case of the appellant but generally every step should be taken which would avoid bias or arbitrariness in

administrative matters, no matter, which is the authority concerned including the High Court itself. Long back

in the case of Shiv Kumar Sharma v. Haryana State Electricity Board [JT 1988 (3) SC 131 : 1988 (Suppl.)

SCC 669 1988 Indlaw SC 531] this Court had the occasion to notice that due to delay in recording satisfactory

completion of probation period where juniors were promoted, the action of the authority was arbitrary and it

resulted in infliction of even double punishment.

62. We reiterate this principle with respect and approval and hope that all the authorities concerned should

take care that timely actions are taken in comity to the Rules governing the service and every attempt is made

to avoid prejudicial results against the employee/ probationer. It is expected of the Courts to pass orders which

would help in minimizing the litigation arising from such similar cases. Timely action by the authority

concerned would ensure implementation of rule of fair play on the one hand and serve greater ends of justice

on the other.It would also boost the element of greater understanding and improving the employer employee

relationship in all branches of the States and its instrumentalities. The Courts, while pronouncing judgments,

should also take into consideration the issuance of direction which would remove the very cause of litigation.

63. It will be really unfortunate that a person, who is involved in the process of judicial dispensation, is dealt

with in a manner that for years neither his confidential reports are written nor the competent authority issues

an order of satisfactory completion of probation period or otherwise. Another very important aspect is that in

the present days of high competition and absolute integrity and even to satisfy the requirements of out of turn

promotions by competition it is expected of the High Court to inform the concerned judicial officer as of his

draw backs so as to provide him a fair opportunity to improve. We certainly notice it with some sense of regret

that the High Court has not maintained the expected standards of proper administration.

64. There is a constitutional obligation on the High Court to ensure that the members of the judicial services of

the State are treated appropriately, with dignity and without undue delay. They are the face of the judiciary

inasmuch as a common man, primarily, comes in contact with these members of the judicial hierarchy. It is a

matter of concern, as we are of the considered view, that timely action on behalf of the High Court would have

avoided this uncalled for litigation as it would have been a matter of great doubt whether the appellant could at

all be inducted into the service in face of the admitted position that the name of the appellant was stated to be

on the rowdy list at the relevant time.

65. Although for the reasons afore recorded we find no merit in this appeal and dismiss the same. While

dismissing the appeal we feel constrained to issue the following directions:

"1) The judgment of this Court shall be placed before the Hon'ble the Chief Justice of Karnataka High Court

for appropriate action. We do express a pious hope that steps will be taken to ensure timely recording of the

confidential reports of the judicial officers by appropriate authority (which in terms of Chapter VI with

particular reference to the provisions of Art. 235 of the Constitution is the High Court) and in an elaborate

format depicting performance of the judicial officers in all relevant fields, so as to ensure that every judicial

officer in the State will not be denied what is due to him in accordance with law and on the basis of his

performance;

2) We direct the Secretary of the Union of India, Ministry of Personnel, Public Grievances and Pension as

well as all the Chief Secretaries of the States to issue appropriate guidelines, in the light of this judgment,

within eight weeks from the date of the pronouncement of this judgment;

3) We further direct that all the High Courts would ensure that 'police verification reports', conducted in

accordance with law, are received by the concerned authority before an order of appointment/posting in the

State Judicial Service is issued by the said authority."

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66. With the above directions, the appeal is dismissed. However, the parties are left to bear their own costs.

………………………….

Syed T.A. Naqshbandi v State of Jammu & Kashmir

(2003) 9 SCC 592

Bench : Doraiswamy Raju, D.M. Dharmadhikari

The Judgment was delivered by : D. Raju, J.

1. The above Writ Petition has been filed under Article 32 of the Constitution of India seeking for a writ in the

nature of Certiorari to quash the order and also to quash the grant of selection grade and super-time scale to the

third respondent herein, including the recommendations said to have been made for consideration of the name

of R-3 for further elevation. In addition thereto, relief of Certiorari was sought even to quash the grant of

selection grade to respondents 4 to 8 on the ground that the criteria on which it was accorded to them was

wholly arbitrary, illegal and unconstitutional and violative of Article 16 of the Constitution of India. As a consequence to the above, relief in the nature of Mandamus was also sought to direct the second respondent to

grant selection grade to the petitioners 1 to 3 with effect from 28.6.2001and further grant to the petitioners 1 to

3 super-time scale with effect from 27.4.2002, the date on which it was said to have been given to R-3, in

addition to seeking for such relief for Mandamus to give selection grade to petitioners 4 and 5 with effect from

27.4.2002, the date from which it was given to respondents 4 to 8, with all consequential benefits including the

seniority and arrears of pay.

2. The petitioners and respondents 3 and 7 were said to have been selected as Munsiffs after passing the

Kashmir Civil Services (Judicial) Examination on 28.8.1974 and respondents 4 to 6 and 8 were selected for appointment during the period between 1978 and 1982. The first petitioner was said to have been promoted on

30.8.1995, whereas petitioners 2 to 4 and respondent 3 promoted as District & Sessions Judges in November

1995. Petitioners 1 to 4 and respondent 3 were confirmed as District & Sessions Judges on 22.1.1998 with

effect from 1997 while the other private parties-respondents are said to be continued as temporary/officiating

District & Sessions Judges. In the Gradation List published by the High Court on 1.1.2001, petitioners 1 to 4

were said to have been shown at Serial Nos.15, 16, 17 and 19, whereas respondents 3 to 8 were shown at Serial

Nos.18, 31, 32, 36, 23 and 37 respectively. On 4.7.2001, the third respondent was placed in the selection grade

w.e.f. 28.6.2001, according to the writ petitioners, over the head of six District Judges senior to him. The

grievance of the petitioners, among other things, is that the third respondent had never worked as District and

Sessions Judge for any period and he was not even entitled to be considered for according such selection

grade. On coming to know of the same, the petitioners 1 and 3 sought for copies of the proceedings and as soon

as they were given in September 2001, the petitioners 1 to 3 also seem to have made Representations/Review

Petitions against the order No.283 dated 4.7.2001. The second petitioner was said to have been granted selection grade by order No.810 dated 24.12.2001 w.e.f. 22.12.2001 without restoring his original seniority,

while at the same time bypassing the claims of petitioner No.1. On 16.4.2002, the petitioners 1 and 2 seem to

have made representations to the President of India.

3. It may be stated at this stage that the High Court of Jammu and Kashmir held a Full Court Meeting on

27.4.2002 to consider the issue relating to the grant of super-time scale/selection grade in Higher Judicial

Services and the Full Court formulated the criteria/guidelines for grant of super-time scale and selection grade

for members of the Higher Judicial Services. On the same day by yet another proceedings on 27.4.2002 in

order No. 142, the third respondent was placed in the super-time scale applying the norms formulated by the High Court, which are also the subject matter of challenge in these proceedings. The third respondent was said

to have been given the super-time scale superseding eight District Judges senior to him.

8. As has often been reiterated by this Court, judicial review is permissible only to the extent of finding

whether the process in reaching the decision has been observed correctly and not the decision itself, as such.

Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial

review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of

either the officers concerned or the system and institutions of administration of justice with which we are

concerned in this case, by going into the correctness as such of the ACRs or the assessment made by the

14

Committee and approval accorded by the Full Court of the High Court.

9. The conditions of service of members of any service for that matter is governed by statutory rules and

orders, lawfully made in the absence of rules to cover the area which has not been specifically covered by such

rules, and so long they are not replaced or amended in the manner known to law, it would be futile for anyone

to claim for those existing rules/orders being ignored yielding place to certain policy decisions taken even to

alter, amend or modify them. Alive to this indisputable position of law only, this Court observed that " we are aware that it will become necessary for service and other rules to be amended so as to implement this

judgment". Consequently, the High Court could not be found fault with for considering the matters in question

in the light of the Jammu and Kashmir Higher Judicial Service Rules, 1983 and the Jammu and Kashmir

District and Sessions Judges (Selection Grade Post) Rules, 1968 as well as the criteria formulated by the High

Court. Equally, the guidelines laid down by the High Court for the purpose of adjudging the efficiency, merit

and integrity of the respective candidates cannot be said to be either arbitrary or irrational or illegal in any

manner to warrant the interference of this Court with the same. Even dehors any provision of law specifically

enabling the High Courts with such powers in view of Article 235 of the Constitution of India unless the

exercise of power in this regard is shown to violate any other provision of the Constitution of India or any of

the existing statutory rules, the same cannot be challenged by making it a justiciable issue before courts. The

grievance of the petitioners, in this regard, has no merit of acceptance.

10. So far as the preparation of ACRs in this case are concerned and the assessment made by the Committee

constituted as well as the approval accorded by the Full Court therefor, we see no merit in the challenge made

to the same. The claim that only such a District and Sessions Judge who actively serve and discharge duties holding such office in the field alone can be considered for according selection grade or super-time scale

proceed upon not only a total misreading of the relevant rules but is also opposed to the well settled position in

law in this regard, besides, if accepted, rendering it completely unworkable, impracticable and opposed to

realities. Appointment to the selection grade posts in the service envisaged from amongst the members of the

service 'holding the post of District and Sessions Judge' should, in the context, mean only of any person borne

on the cadre of District and Sessions Judge and who is a member of the Jammu and Kashmir Higher Judicial

Service and it is not necessary that to be one such, he should be only functioning and discharging duties in the districts in the regular Courts doing conventional court work. Such of those District and Sessions Judges who

are on deputation to other departments and that too to the High Court in this case to serve as Registrar, etc.

cannot by such deputation be considered to suffer any disability or viewed to have lost their right and

entitlement in their usual turn to be considered along with others for being granted selection grade or

super-time scale according to the relevant guidelines there for.

11. That apart, much of the grievance in this regard also seem to proceed upon a misconception of the real

purport of selection grade/super-time scale and the scheme underlying the grant thereof. As rightly contended

for the respondents not only the Jammu and Kashmir Higher Judicial Service consist of posts of District and

Sessions Judges and Additional District and Sessions Judges but they consist of a 'Single Cadre' only. There

are no specially earmarked or classified posts to be manned only by such District and Sessions Judges, who

were accorded with selection grade or super-time scale. Though loosely called selection grade posts, unless

any post itself is separately and distinctly created for that purpose and specifically identified to be filled up

with such persons only, usually it involves only grant of higher scales of pay in the same category of posts.

The same is the position in regard to super-time scale also. It is also not the case of the petitioners that out of

the total strength constituting the J & K Higher Judicial Service, anyone or the other of such posts are

identified to be exclusively earmarked for one holding a selection grade/super-time scale. Having regard to the

rules in force the staff pattern in vogue and the guidelines further formulated by the High Court, it is futile for

the petitioners to contend that it should be accorded on the basis of seniority only. In any event, even in this

regard the difference in seniority could not be said to be so substantial or vast as to lend room for any

legitimate plea that it is so arbitrary or unreasonable as to call for interference. Viewed in the context of the

basis or criteria for according selection grade, as envisaged in the Statutory Rules, it involves process of

selection and seniority, if at all will be to reckon the zone of consideration or when the merit ranking is equal

and not for the grant itself. Therefore, there is no merit in the plea on behalf of the petitioners that the third

respondent could not have been even considered for the grant of selection grade/super-time scale, at the

relevant and respective points of time.

12. So far as the actual consideration, the preparation of ACRs, the method and manner adopted therefor and

15

the actual assessment ultimately made by the Committee and the High Court in this case is concerned, much is

sought to be made out for the petitioners more on the treatment meted out to the third respondent, than on the

merits of their own claims or realities of the situation based on facts. If on an assessment of the materials on

record, some one has been adjudged to be more meritorious and preferred to others it could not even be said to

be supersession of senior by the junior, unlike in cases relating to promotion to a higher post with higher scales of pay by virtue of seniority. As for the grievance made on the supersession of report said to have been

submitted by the Committee headed by Justice A.M. Mir, least said is better. It is seen that after the

constitution of the said Committee, the Committee in its meeting on 1.4.2000 resolved to call for judgments of

judicial officers, whose ACRs have not been so far written for such periods and such officers, including

petitioners, were said to have been even asked to send copies of judgments. In the meeting on 23.6.2000, the

Committee again seems to have resolved to have the judgments received circulated for assessment in different

lots and the Committee resolved to meet after four weeks. It seems that even before the judgments could be so

circulated, the Private Secretary to Justice A.M. Mir forwarded ACRs of the officers with a cryptic one word

assessment without filling up the prescribed format by making any proper assessment as envisaged with a

covering letter and, therefore, it is not only necessary but inevitable for the Chief Justice to ignore such

unilateral and perfunctory remark which by no means could be called even a report and which cannot, in our

view, also be given any credence whatsoever.

13. Therefore, the subsequent steps taken in this regard by the Chief Justice with the newly constituted

Committee are well justified and in accordance with law and they do not suffer from any infirmity. The fact that subsequently it was got meticulously prepared by the Committee and the assessment came thereafter to be

duly made and further was got unanimously approved by the Full Court will belie the bald and self-serving

claims of the petitioners, to the contrary. Neither the High Court nor this Court, in exercise of its powers of

judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of

the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a

careful consideration of the entire materials brought to our notice by learned counsel on either side, we are

satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or

justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of

multiple factors play a vital and important role and no one factor should be allowed to be overblown out of

proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the

very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken

by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some

monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the

Committee/Full Court.

14. Viewed thus, and considered in the background of the factual details and materials on record, there is

absolutely no need or justification for this Court to interfere in the matter, with the impugned proceedings.

15. It is not anybody's case that the delay, if any, in preparing ACRs of some or the other of the officers for all

previous years or during any particular period was deliberate and with any ulterior motive. On the other hand,

dehors the plea based upon disturbances in the area it is also highlighted for the respondent that for want of

self-assessment also the same could not be prepared and kept ready then and there which necessitated the

calling for copies of judgments rendered by such persons for the relevant period. The grievance about alleged

lack of uniform principles or criteria in the matter of preparing ACRs for the missing period attempted to be

made by citing two instances has been properly explained by the respondents in the Counter as well as at the

time of hearing and we could not find any infirmity in the same. That apart merely from the fact that uniformly

the third respondent has been assessed with 'outstanding' gradation unlike others, which, according to the

petitioners, themselves amount to fluctuating fortunes, it cannot be readily assumed that their claims suffered

any vice of arbitrariness or lack of rationality or uniformity.The job requirements of a Registrar or Registrar

General of the High Court, the studiousness expected of him and the legal acumen necessary therefor cannot

be so said to be of any less importance than that required for a District & Sessions Judge trying regular cases in

the conventional courts at Districts.

16. The plea that a new incumbent in the office of Chief Justice or Judge of the High Court, could not be that

efficacious for assessing the merit, with reference to their past period under review, of the candidates

16

constituting the members of judicial service proceed upon a wrong perception altogether and do not merit

acceptance. The grievance against alleged non-consideration of the claims of the first petitioner merely

because it was passed over on earlier occasions, also does not merit our acceptance with reference to the

challenge now made in respect of the latest consideration. The further grievance that the impugned

proceedings according selection grade/super-time scale do not give specific reasons or the details of what are all the records, which have been perused, is devoid of merit.The expression 'service record' is so

comprehensive and has a well-accepted meaning in service law parlance, to leave anything for being guessed

or to admit of any doubts about the records that would have been actually considered. The grievance made

about the provisions in the guidelines for taking into account even records for some years spread over to the

service as Subordinate Judge in a given case pales into insignificance when it is considered in the light of the

object of such consideration. The consideration in question was not for purpose of determining the inter se

seniority among the members of service in the cadre of District & Sessions Judges, but, on the other hand, for

the purpose of adjudging the efficiency, aptitude, capability and general reputation and integrity for according

selection grade.

17. The challenge to the grant of super-time scale to the third respondent on the ground that he had put in only

about nine months service as selection grade District & Sessions Judge has no merit inasmuch as there is no

minimum stipulated period of service required, to accord such super-time scale in the rules in force and as a

matter of fact, the conspicuous omission to stipulate any such requirement would go to show that no such

criteria is a must and all or any of the selection grade District and Sessions Judges available could become eligible for consideration.

18. The recommendations of Justice K. Jaganatha Shetty Commission having not been duly implemented by

any amendment of rules so far, the same cannot be insisted upon as a binding criteria. That apart, in a given

situation, there may be no one satisfying such required service and that insisting upon any such minimum

service as selection grade District & Sessions Judge may have counter productive result in that it may even

lead to a situation where no one could be given the super-time scale at all dehors their intrinsic merit. The

absence of reasons in the order rejecting the representations or the original resolution granting selection

grade/super-time scale, in the nature of proceedings themselves cannot be said to be an infirmity. The noting in the files dealing with those aspects would be sufficient record and the proceedings in the form of resolutions

cannot be expected to be in the format of a judicial order dealing with each and every claim.

19. As noticed supra, on going through the materials on record and on a careful consideration of the procedure

and the mechanism followed by the Committee constituted as well as the Full Court of the High Court, we are

unable to persuade ourselves to agree to or sustain the stand of petitioners in respect of their challenge to the

impugned proceedings. We specifically desist from making any further observations on the assertions made

relating to their entitlement based on the credentials claimed for the petitioners, lest it may affect their future

prospects of consideration in one way or the other, when such an exercise is taken up subsequently, also.

Suffice it to place on record that the proceedings relating to the grant of selection grade/super-time scale,

which are assailed in these proceedings, are not shown to be vitiated in such a manner as to warrant or justify

the interference of this Court in these proceedings. The challenge projected on behalf of the petitioners,

therefore, fails and shall stand rejected.

20. As for the grievance made by the learned senior counsel for the official- respondents on some of the

unwarranted, unjustified as well as unpleasant remarks, allegations which tend to cast certain aspersions upon

some of the constitutional functionaries bordering on insinuations, we are of the view that they could have

been well avoided, without even sacrificing in any manner their right to challenge the impugned proceedings.

The language used as well as the purport of such allegations seem to be of not good taste, befitting the status of

judicial officers even when they are litigants before the Court and may consider to have any real or genuine

grievance about anything done or not done by the authorities. Without elaborating on this aspect further, we

expunge such unwarranted remarks and observations made in Para 8 and further order deletion of Paras 10, 15

and portions in Para (XII) of the grounds commencing from "Naturally, therefore, respondent No.3.till the end

of the said Para", in entirety, from the record. That apart, we find that the petitioners could have equally

avoided making allegations of the nature made, in this case, to justify their action to directly approach this

Court under Article 32 of the Constitution of India. We make it clear that we intend no damage or injury to the

petitioners on the above account, at the same time we feel constrained to and it has been rendered necessary to

say that much at least, to avoid repetition of such things in future either by the petitioners or any such persons

17

holding responsible positions in the system of administration of justice, even for vindicating any of their

legitimate rights.

21. For all the reasons stated above, the Writ Petition fails as of no merits and shall stand dismissed without

any costs. Petition dismissed

…………………………

Chandra Singh v State of Rajasthan and Another

(2003) 6 SCC 545

Bench : AR. Lakshmanan, S.B. Sinha

The Judgment was delivered by: Dr. A. R. Lakshmanan, J.

2. By order dated 23.03.1999, the appellants, who are the officers of the Rajasthan Higher Judicial Service,

were retired from service w.e.f. 31.03.1999 on attaining the age of superannuation. The appellants, who

received the order, challenged the same before the High Court of Rajasthan by filing writ petitions which were

disposed of by a Division Bench of the said Court. All the writ petitions were dismissed by the High Court and

being aggrieved by the said judgments, the appellants preferred the above appeals in this Court.

4. We have perused the Minutes of the meeting of the Committee of three Hon'ble Judges headed by the then

Chief Justice and other relevant records. Pursuant to the judgment of this Court in All India Judges'

Association's case 1993 Indlaw SC 1712 (supra), the matter of several officers (including the three appellants)

was placed before the Committee to consider for giving them the benefit of extension up to the age of 60 years.

In the Full Court meeting held on 15.01.1999, it was resolved to screen the officers in accordance with the

decision of this Court. The Committee, on examination of the service record, character roll, quality of their

work, disposal, integrity, general reputation and their potentiality and utility found that the appellants are not

fit to be given the benefit of extension.

26. Times without number this Court pointed out the difference between a judicial service and other services.

Keeping in view the rigours, constraints and difficulties faced by the Judicial Officers in discharge of their

duties in All India Judges' Association vs. Union of India and Others [(1992) 1 SCC 119], this Court issued a

direction to all the States and the Union Territories to the effect that the age of superannuation of the judicial

officers be fixed at 60 years with effect from 31.12.1992. A large number of review petitions came to be filed

and in All India Judges' Association case (review case 1993 Indlaw SC 1712) (supra) while maintaining that

the normal age of superannuation of the judicial officers would be 60 years, but it was directed that a

committee appointed by the Chief Justice would review the records of the members of the judicial service with

view to find out their potentiality before they attain the age of 58 years and those who, in the opinion of the High Court are not found suitable, would be made to compulsorily retire at the age of 58 years. In other words,

the services of those members of the judicial service would not be extended to 60 years.

34. The impugned orders, therefore, could not have been passed in terms of the 'Exception' contained in Rule

56 of the Rajasthan Service Rules. Further contention of the appellants to the effect that the High Court,

keeping in view the fact that amended rules were to come into force with effect from 31.3.1999, could not

have initiated a proceeding, prior thereto also appears to be correct. This Court in Boppanna Venkateswaraloo

and Others 1952 Indlaw SC 25 (supra) categorically held that the orders affecting substantive right could be

made under such law only after it comes into force and not in anticipation thereof.

37. We are, however, unable to accept the submission of the appellants that Rule 56 is not applicable to the

judicial officers at all as no other rules fixing the age of judicial officers has been placed before us. The

appellants themselves have relied upon the un-amended Rule 56. The Rajasthan Service Rules, 1951 apply

also to the judicial officers in terms whereof the age of superannuation had been fixed at 60 years or 58 years,

as the case may be. Exception provided for in Rule 56 of the said Rules also is a pointer to the fact that the said

Rules apply to the judicial officers. Unless they said rules are per se applicable, the question of making any

exception to the applicability thereof would not arise. In other words, the exclusionary clause contained in the

exception points out to the applicability of the rules and thus it must be held that the members of the judicial

18

service come within the purview thereof. The contention of the appellants to the effect that the said exception

runs contrary to the decisions of this Court in All India Judges Association's case 1993 Indlaw SC 1712

(supra) is not correct. The said exception, in our opinion, has been provided in conformity with the directions

contained in said decision.

38. This takes us to the question as to the whether the action of the High Court in making the assessment of the

performance of the appellants prior to 31.3.1999 stand the scrutiny of Rule 53 of the Rajasthan Civil Service (Pension) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took

any stand that its action was justified thereunder. Ex facie the said rule is not applicable inasmuch as it has

never been the contention of the respondents that the impugned order had been passed in public interest or

other pre-requisite therefor, namely, giving of three months' notice in writing to the Government servant

before the date on which he is required to retire in public interest or three months' pay and allowances in lieu

thereof, had been complied with. Compliance of pre-requisites of such a rule, it is well-settled, is mandatory

and not directory. Such a plea has expressly been negatived by this Court. [See Rajat Baran Roy's case 1999

Indlaw SC 1306 ]. It is fairly well-settled, that the legality or otherwise of an order passed by a statutory

authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an

affidavit.

40. We have, therefore, no option but to hold that the actions on the part of the High Court or the State in

compulsorily retiring the appellants herein were illegal. Art. 235 of the Constitution of India enables the High

Court to assess the performance of any judicial officer at any time with a view to discipline the blacksheep or

weed out the deadwood. This constitutional power of the High Court cannot be circumscribed by any rule or order. However, our aforementioned findings did not lead to a conclusion that the appellants would not be

entitled to a discretionary relief.

42. In any event, even assuming that there is some force in the contention of the appellants, this Court will be

justified in following Taherakhatoon vs. Salambin Mohammad, (1999) 2 SCC 635 wherein this Court

declared that even if the appellants contention is right in law having regard to the overall circumstances of the

case, this Court would be justified in declining to grant relief u/art. 136 while declaring the law in favour of the

appellants.

43. Issuance of a Writ of Certiorari is a discretionary remedy. [See Champalal Binani vs. CIT, West Bengal,

AIR 1970 SC 645]. The High Court and consequently this Court while exercising its extra-ordinary

jurisdiction u/arts. 226 or 32 of the Constitution of India may not strike down an illegal order although it

would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a

discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction u/art. 136

of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be

erroneous if by reason thereof substantial justice is being done. [See S.D.S. Shipping Pvt. Ltd. vs. Jay

Container Services Co. Pvt. Ltd. & Ors. [2003 Indlaw SC 436]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal

one. This Court also in exercise of its jurisdiction u/art. 142 of the Constitution of India is entitled to pass such

order which will be complete justice to the parties.

44. We have been taken through the annual confidential reports as against the appellants. Having gone through

the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary

jurisdiction in favour of the appellant. This Court in Brij Mohan Gupta's case 2003 Indlaw SC 142 (supra) has

also refused to exercise its discretionary jurisdiction in favour of the appellant although the order of the High

Court was found liable to be set aside being not in accordance with law.

45. This Court said that this principle applies to all kinds of appeals admitted by special leave under Article

136, irrespective of the nature of the subject-matter. So even after the appeal is admitted and special leave is

granted, the appellant must show that exceptional and special circumstances exist, and that, if there is no

interference, substantial and grave injustice will result and that the case has features of sufficient gravity to

warrant a review of the decision appealed against on merits. So this Court may declare the law or point out the

lower Courts error, still it may not interfere if special circumstances are not shown to exist and the justice of

the case on facts does not require interference or if it feels the relief could be molded in a different fashion.

47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the

19

observations made by the committee of three Judges. The nature of judicial service is such that it cannot afford

to suffer continuance in service of persons of doubtful integrity or who have lost their utility.

48. In the instant case, the appellants, so retired, does not lose any part of their benefit that they have earned

during their service and it involves no penal consequence and in our view the retirement is not considered

prima facie and per se as punishment. We, therefore, would although dismiss the appeals, but we would direct

the High Court and the State Government to pay all retrial benefits to the appellants herein as expeditiously as possible preferably within a period of three months from the date of communication of this order. No Costs.

……………………..

High Court of Judicature for Rajasthan v P.P. Singh

(2003) 4 SCC 239

Bench : S.B. Sinha, AR. Lakshmanan

The Judgment was delivered by: S. B. Sinha, J.

1. The effect of the recommendations of a Committee of two Judges as regards criteria for grant of selection

scale appointed by an Acting Chief Justice which have subsequently been approved by a Full Court of the

High Court is in question in these appeals which arise out of a judgment and order passed by a Division Bench

of Rajasthan High Court dated 23rd November, 2000 in D.B. Civil Writ Petitions No. 671 of 2000, 987 of 2000 and 1263 of 2000. On or about 30th of April, 1990 a Committee of two Hon'ble Judges of the said Court

was constituted by the Full Court for the purpose of consideration of individual merit of the judicial officers of

Rajasthan Higher Judicial Service (RHJS) relating to appointment to selection scale. A Committee of two

Judges considered the same and suggested that last five years of ACRs to be considered in the merit criteria

therefor. However, the Full Court by Resolution dated 5th October, 1990 took a decision to take into

consideration three good ACRs out of five ACRs only for the said purpose. As regards grant of super time

scale to Rajasthan Judicial Service, the Full Court of the High Court by a Resolution dated 14.8.1997 adopted

the criteria of five good ACRs out of seven ACRs for grant of super time scale.

6. The Acting Chief Justice of the High Court, however, constituted a Committee consisting of two Judges of

the said Court to consider/ examine and to make recommendations for formation of officiating promotee

RHJS officers for their substantive appointment in their service and for promotion of RHJS officers in the

ordinary scale to selection scale by an order dated 26th March, 1998. The Committee submitted its report on

30th March, 1998, upon considering the cases of all eligible candidates in the light of the existing Rules as also

the Full Court Resolutions. With a view to arrive at its finding, the Committee, however, found those officers

fit and meritorious for grant of selection grade who obtained at least five outstanding/ very good/ good ACRs

out of seven and where no adverse entry was recorded. As regards those, whose ACRs have not been recorded

for one reason or the other, the Committee deferred consideration of their cases for the time being. The

Committee, however filed an additional report on 27.4.1999 whose cases were deferred earlier.

7. The matter was placed before the Full Court on 30th April, 1999 by the Chief Justice. Twenty Hon'ble

Judges of the High Court participated therein. By Resolution dated 30th April, 1999, the Full Court considered

the report submitted by the said two Judges Committee and approved the name of 25 officers who were found fit for grant of selection scale. The cases of the respondents herein along with four others, however, were

deferred. The matter relating to the additional report of the said two Judges' Committee was again placed

before the Full Court on 27-11-1999. It accepted the report of the Committee and declined to grant selection

scale to the respondents herein. Pursuant to or in furtherance of the aforementioned recommendations made by

the High Court, the Governor by a notification dated 5.2.2000 made appointment to the officers of Higher

Judicial Service named therein to the post of selection grade with effect from the date mentioned against their

names respectively.

8. The first respondent in each of these appeals filed writ petitions questioning non-grant of selection grade to

them by filing writ petitions before the Jaipur Bench of the Rajasthan High Court.

9. By reason of the impugned judgment the High Court inter alia held :

(1) The Acting Chief Justice was not authorized to constitute the two Judges Committee, and, thus, it could not

20

make/ lay down any merit criteria.

(2) As all the Judges of the High Court have not been consulted, the Committee appointed by the Acting Chief

Justice alone could not evolve the merit criteria in view of sub-rule (h) of Rule 15 of 1952 Rules.

(3) The earlier policy decision adopted by the Full Court could not be changed as Rule 15 of 1952 provides for

prior consultation of the Judges of the High Court and as all Judges were not consulted in the matter

subsequent approval thereof could not cure illegality.

10. The said writ petitions were disposed of with the following directions:-

(i) We direct the respondents to consider the cases of all the three petitioners afresh against the vacancies

occasioned in 1998 and 1999 in view of the merit criterion evolved and approved by the Full Court in the year

1990 and 1994. If they are found eligible for promotion to selection scale of the RHJS, they can be accorded

the selection scale by creating supernumerary posts in terms of Rule 18 of the Rajasthan Service Rules.

(ii) This decision shall not affect the order dated February 5, 2000 whereby selection scale of the RHJS was

granted to twenty six officers.

(iii) The fresh consideration as directed above is expected to be done as expeditiously as possible, in the

meanwhile three posts in the selection scale of the RHJS shall be kept vacant.

14. The term "Chief Justice" will include the Judges authorised to act on his behalf in view of interpretation

clause contained in S. 3. Chapter III of the Rules provides for administrative business of the Court. In terms of

Rule 14 of the Rules, Administrative Business of the Court relating to control over subordinate courts vested

either u/art. 235 or 227 of the Constitution of India were to be disposed of as provided therein.

15. The Rules have been made by the High Court. The High Court, therefore, can also amend the Rules. It is

not the case of the writ petitioners-First respondents herein that the High Court had no jurisdiction to evolve

the criteria for grant of selection scale to the officers of the Rajasthan Judicial Service or Rajasthan Higher

Judicial Service. It may be true that by reason of Resolution dated 5th October, 1990 the Full Court inter alia

opined that for the purpose of grant of selection scale three good ACRs out of five ACRs were to be taken into

consideration but the said decision of the Full Court was subject to amendment/modification thereof.

16. A reading of the aforementioned rules clearly goes to show that the Chief Justice has the requisite

jurisdiction to constitute a Committee and the report of the Committee upon consultations of all the Judges of

the High Court in terms of Rule 15 shall become a decision of the Court. Rule 29(2) and Rule 32 as quoted

(supra) also clearly show that even no irregularity which might have taken place in the procedure laid down in

Chapter III shall not affect the validity of the order passed or anything done in the Rules and the same shall be

deemed to be disposed of by the Court. The legal fiction created must also be given its full effect.

17. It is beyond any pale of controversy that the control over the subordinate courts within the meaning of Art.

235 of the Constitution of India is that of the High Court. Such control of the High Court includes general superintendence of the working of the subordinate courts, disciplinary control over the Presiding Officers,

disciplinary proceedings, transfer, confirmation and promotion and appointment etc. Such control vested in

the High Court is complete.

18. It is also true that the powers of the Chief Justice u/arts. 235 and 229 of the Constitution of India are

different and distinct. Whereas control over the subordinate courts vests in the High Court as a whole, the

control over the High Court vests in the Chief Justices only. [See All India Judges' Association v. Union of

India, (1992) 1 SCC 119]. However, the same does not mean that a Full Court cannot authorise the Chief

Justice in respect of any matter whatsoever. In relation to certain matters keeping the rest of it in itself by the

Full Court, authorization to act on its behalf in favour of the Chief Justice on a Committee of Judges is

permissible in law. How far and to what extent such power has been or can be delegated would be discernible

only from the Rules. Such a power by the Full Court can also be exercised from time to time.

19. The Judges of the Rajasthan High Court, as noticed hereinbefore, in terms of sub-rule (2) of Rule 21 of the

Rules authorized the Chief Justice to constitute a committee. Such constitution of the committee by the Chief

Justice having been made in terms of the Rules must be held to have been made by the High Court itself. Such

21

authorization is not a limited one as thereby the extent to which such authorization can be exercised has not

been spelt out. Furthermore, authorization in terms of sub-rule (2) of Rule 21 of the Rules having been laid

down in Chapter III which relates to the Administrative Business of the Court, there cannot be any doubt

whatsoever even in the matter of control of the High Court in terms of Art. 235 of the Constitution of India, the

Chief Justice of the High Court had the jurisdiction to exercise the said power.

20. Once such a resolution authorizing the Chief Justice to constitute a committee has been passed having

regard to the decision of this Court in the High Court of Judicature of Bombay v. Shirish Kumar Rangrao Patil

[(1997) 6 SCC 339], there cannot be doubt whatsoever that the exercise of power by the Chief Justice in that

behalf was absolutely valid. It is, therefore, not correct to contend that the Chief Justice could appoint the

two-Judges committee only with the approval of the Full Court.

21. Exercise of power by the Chief Justice, however, indisputably must be made in terms of the Rules. The

questions raised in these appeals must, therefore, be considered from that angle.

22. The High Court, in our opinion, therefore, clearly erred in arriving at the aforementioned finding that the

Constitution of the committee was illegal.

23. The submission on behalf of the respondents to the effect that in the matter relating to fixation of criteria

for the purpose of appointment to the selection grade, the two-Judges committee could not be made without

consulting all the Judges is stated to be rejected. The said submission is based on a total misconception.

Laying down the merit criteria for appointment to the selection grade also was within the domain of the High

Court. It could not only lay down such criteria but also amend or modify the same from time to time. For the

said purpose also the Chief Justice could appoint a committee, the recommendation whereof was to be subject

to the approval of the Full Court. Rule 15 of the Rules does not say that before an action can be initiated in that

behalf by the Chief Justice all the Judges are to be consulted. Rule 15 of the Rules postulates a final decision in

the matter specified therein and not initiation of process therefor.

24. It is also incorrect to contend that all the Judges of the High Court are required to be consulted at a time.

26. The procedure for holding a Full Court meeting as quoted supra would clearly show that the meeting

which had requisite quorum as contemplated under Rule 29 would amount to compliance of the Rules.

27. Although Rule 15 provides that all the Judges shall be consulted in the matters enumerated therein but

Rule 18 provides for the mode and manner thereof.

28. If such consultation is to be made by circulation, undoubtedly, the relevant documents are required to be

circulated to all the Judges. In the event, however, such consultation is to be effected by placing the matter

before a Full Court, all the Judges are therefor invited but the same would not mean that in the event, one or more Judge (s) does/do not attend the Full Court, the resolution passed by it shall be invalid. Rule 29 provides

for a quorum. In the case of a meeting of the Judges of the court, the quorum will be complete if one-half or

more of the Judges attend the same. Consultation with all the Judges would, thus, not mean that even if some

of the Judges do not choose to make themselves available in a Full Court Meeting, consultation with all the

Judges shall not be complete.

29. We may notice that even in the Full Court meeting held on 26th November, 1966 all the Hon'ble Judges of

the High Court were not present.

30. The Committee was constituted for the purpose of considering the cases of concerned officers. It is not and

cannot be the case or the contention of the writ petitions that even for the purpose of considering the case of the

eligible judicial officers at the threshold, it was absolutely necessary to place the matter before the Full Court.

The Acting Chief Justice constituted the Committee for a specific purpose. The Committee merely submitted

its opinion which was subject to approval by the Full Court. Once the opinion of the matter is approved by the

Full Court, in our opinion, it must be held that there had been a compliance of Rule 15 of the Rules.

31. Interpretation of a Statute depends upon the text and context thereof. A Statute should be interpreted

having regard to the purpose and object for which the same was made. The Chief Justice of a High Court

although first amongst the Judges, by the nature of office he holds, he is the head of the State Judiciary. Authorisation by the Full Court in favour of the Chief Justice to constitute a Committee and/or take actions for

22

the subordinate judiciary must be viewed from that context. Rule 15 of the Rules provides for such matters

which require consultations with the other Judges of the High Court.

32. Question of consultation with the Judges would not arise unless the subject matter therefor is identified. It

is for Hon'ble the Chief Justice of the High Court to identify such matters and place the same before the Full

Court with relevant papers and documents.

33. It is, therefore, axiomatic that not only the Chief Justice of High Court was free to initiate any proceedings

and obtain the opinion of a Committee of Judges on such matters and the only legal requirement therefor is to place such proposals together with the opinion of the Committee before the Judges of the High Court so that

the matter can be fully thrashed out. Once the Full Court approves the recommendations made by the

Committee of Judges, it becomes decision of the Court which could be sent to the Governor for acting

thereupon.

36. Furthermore, the terminology 'consultation' used in Rule 15 having regard to purport and object thereof

must be given its ordinary meaning. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to

'consult' is defined as 'to discuss something together, to deliberate'. Corpus Juris Secundum (Volume 16A, Ed.

1956, page 1242) also says that the word 'consult' is frequently defined as meaning 'to discuss something

together, or to deliberate'. By giving an opportunity to consultation or deliberation the purpose thereof is to

enable the Judges to make their respective points of view known to the others and discuss and examine the

relative merits of their view. It is neither in doubt nor in dispute that the Judges present in the meeting of the

Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the

Agenda in question.

37. There is another aspect of the matter which may require consideration. For all intent and purport the report

of the two Judges Committee has been approved by the Full Court. Once approved, it terminated into a

decision of the Full Court itself. In the instant case even the Governor has acted upon the recommendations of

the High Court. The writ petitioners-first respondents herein did not question the appointments of the

appointees not the High Court. Thus, there cannot be any doubt whatsoever that for all intent and purport the

opinion of the two Judges Committee received approval at the hands of the Full Court.

38. The High Court, in our opinion, further committed a manifest error in arriving at its conclusion in so far as

it failed to take into consideration that Rule 15 does not postulate the prior approval of the Full Court in

relation to any action which may be initiated by the Chief Justice.

39. When an approval is required, an action holds good. Only if it disapproved it losses its force. Only when a

permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas

Evam Vikas Parishad and Another v. Friends Coop. Housing Society Ltd and Another [(1995) Supp (3) SCC

456 1995 Indlaw SC 430]. In the instant case both the aforementioned requirements have been fulfilled.

40. There is another aspect of the matter. In terms of Rule 2(2) of the Rules, the decision of the Full Court

would have a retrospective effect and retroactive operation.

41. In any view of the matter, even in a case where the initial action is illegal, the same can be ratified by a

body competent therefor. Furthermore, the first respondent herein in these cases Shri P.P. Singh, Shri G.P.

Pandey has been granted selection scale in RHJS with effect from 1.8.2000 and Shri P.K. Bhatia has been

given with effect from 29.3.2000. Shri P.P. Singh has also retired from service on superannuation.

46. We are of the opinion that impugned judgment of the High Court cannot be sustained which is set aside

accordingly. The appeals are allowed but in the facts and circumstances of the case, there shall be no order as

to costs. Appeals allowed.

…………………………….

23

Gauhati High Court and another v Kuladhar Phukan and another

(2002) 4 SCC 524

Bench : R.C. Lahoti, K.G. Balakrishnan

The Judgment was delivered by : R.C. Lahoti, J.

2. On 2.7.1977, Kuladhar Phukan, the respondent No.1, was appointed as a judicial officer in Assam Judicial

Services Grade-III and on 5.7.1977, he was posted as Judicial Magistrate Second Class. On 27.2.1986, the

Government of Assam, Judicial Department: Judicial Branch made an advertisement inviting applications for

appointment for a post of Deputy Secretary in Grade III of Assam Legal Service. Such appointment was to be

made under Regulation 3(e) of APSC Regulations, 1951 to meet the immediate need. The respondent No.1

made an application which was forwarded by the High Court of Assam. He was selected and appointed

"temporarily and until further orders" in Grade III of the Assam Legal Service. Copies of notification of

appointment dated 18.7.1986 were sent to the Registrar, Gauhati High Court, Gauhati with a request to release

the officer immediately so as to enable him to join the new assignment; to the respondent No.1 informing him

that as soon as the post was advertised by the APSC, he should apply to the APSC for regularization of his ad-hoc appointment; and to the Secretary, APSC stating that the appointment became necessary in the interest

of public service and the Commission was requested to advertise the post immediately and send its

recommendation to the Government as early as possible.

The seeds of controversy were sown when the Government of Assam, Judicial Department: Judicial Branch

invited applications for regular appointment on the post of Deputy Secretary, in response to which, the

respondent No.1 also made an application. He was selected by Assam Public Service Commission and

pursuant to the recommendation made by the Commission, the Government of Assam "Regularized" the

appointment of respondent No.1 as Deputy Secretary to the Government of Assam, Legislative Department. A notification to this effect was issued on 10.9.1987 copy whereof was sent to the Registrar (Judicial), Gauhati

High Court, Gauhati. On 19.8.1992 the Government of Assam promoted the respondent no.1 "temporarily and

until further orders" from the post of Deputy Secretary to Grade II of the Assam Legal Service and posted him

as Joint Legal Remembrancer to the Government of Assam, Judicial Department, with effect from the date of

his taking over charge. Copy of the notification was sent to the Registrar, Gauhati High Court. Here again

there was no consultation by the Government with the High Court before directing such promotion.

6. The controversy erupted when on 23.2.1995 the High Court informed the Government of Assam, and the

respondent no.1, of its decision to recall the respondent no.1 to his parent department and that a suitable

substitute in place of respondent no.1 will be provided in due course. On 26.4.1995 the respondent no.1 sent a

communication to the Registrar (Judicial), Gauhati High Court wherein, for the first time, he stated that he was

a direct recruit in the Assam Legal Service through the Assam Public Service Commission and that he had

expressed his desire indicating his option for permanent absorption in the Assam Legal Service. He requested

for his posting as Judicial Officer at North Lakhimpur being cancelled. On 20.3.1996 the Government of

Assam notified the services of respondent no.1 being placed at the disposal of the Gauhati High Court. By yet another notification of the same date the Government of Assam released the respondent no.1 from the post of

Joint Legal Remembrancer and Joint Secretary so that he could join as Assistant District & Sessions Judge,

Lakhimpur pursuant to the notification of the High Court.

7. On 26.3.1996 the respondent no.1 filed a writ petition in the High Court laying challenge to the notification

dated 10.4.1995 issued by the High Court and the two notifications dated 20.3.1996 by the State Government.

A learned Single Judge of the High Court admitted the writ petition for hearing and stayed the impugned

notifications. On 6.5.1996 the learned Single Judge dismissed the writ petition filed by respondent no.1

holding that the respondent no.1 was a member of Assam Judicial Service and could not have been regularized or absorbed in Assam Legal Service without consultation with the High Court. On 17.5.1996 the respondent

no.1 preferred a writ appeal. A Division Bench of the High Court stayed the judgment of the learned Single

Judge. The Division bench went on to state, "we are, therefore, unequivocally of the view that the appellant

has acquired a substantive post in the Assam Legal Service subsequently since from 18.7.1986 and his lien in

the judicial service automatically stands terminated by operation of law with effect from 18.7.1986".

8. Feeling aggrieved by the judgment of the Division Bench of the High Court, the Gauhati High Court and its

24

Registrar have filed this appeal by special leave. It appears that the respondent no.1 does not wish to be

repatriated to the judicial service and wishes to continue in Assam Legal Service. We were informed that the

High Court was not so very serious about the respondent no.1 being brought back to the judicial services - the

right place to which he belongs and ought to be, but the High Court was certainly concerned about its stand

being vindicated for preserving the independence of judiciary and the sanctity of Art. 235 of the Constitution being maintained.

11.The doctrine of separation of powers and the need for having an independent judiciary as a bulwark of

constitutional democracy persuaded the founding fathers of Constitution assigning a place of distinction to

judiciary. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object

to insulating even the subordinate judiciary from the influence of the executive and the legislature. Art. 234

provides for appointments of persons other than District Judges to the judicial services of a State being made

by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the

State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Art.

235 vests in the High Court the control over district courts and courts subordinate thereto. All the matters

touching the service career of incumbents in subordinate judiciary including their posting and promotion are

subject to the control of the High Court. Once a person has entered in the judicial service, he cannot depart

therefrom save by the leave of the High Court.

It is settled by a catena of decisions that the word 'control' referred to in Art. 235 of the Constitution has been

used in a comprehensive sense and includes the control and superintendence of the High Court over the

subordinate courts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may take a decision, the decision cannot be taken save by consultation with

the High Court. The consultation is mandatory and the opinion of the High Court is binding on the State

Government; else the control, as contemplated by Article 235, would be rendered negated. Such control and

consultation are not a matter of mere formality; they are the constitutional power and privilege of the High

Court, also its obligation, and cannot be diluted by sheer inaction or failing to act when the High Court must

act. The Governor cannot proceed to act in any matter relating to subordinate judiciary and bypass the process

of consultation merely because the High Court, though 'informed', did not act or respondent. The consultation here means meaningful, effective and conscious consultation. In Tej Pal Singh vs. State of U.P. & Anr. 1986

Indlaw SC 630, it was held that in a matter affecting the service career of a judicial officer ordinarily the

initiative for an action must come from the High Court and even otherwise in the absence of recommendation

of the High Court an action taken by the Governor would be illegal and devoid of constitutional validity. Such

error, if committed, would be incurable and even an ex-post facto approval would not cure the invalidity.

16.An ad-hoc appointment required to be made 'immediately' in the public interest may be made dispensing

with reference to the Public Service Commission. However, if a candidate already in judicial service is to be

appointed obviously his services shall have to be spared by the High Court failing which he cannot be

appointed even ad-hoc. A post which has been sanctioned for, or is likely to last for, more than four months,

has to be filled up by making appointment on regular basis in consultation with the Public Service

Commission. If the person chosen for such appointment is a judicial officer, he cannot be appointed without

consulting the High Court, such consultation being mandatorily required by Rule 7. The provision for

consultation in the rule is in conformity with the Constitution.

17. The appointment of respondent No.1 as Deputy Secretary in Assam Legal Service Grade-III was made

initially on temporary and ad-hoc basis to satisfy the immediate need of the State Government. For the purpose

the application by respondent No.1 seeking such appointment was forwarded by the High Court and his

services were also spared for taking over the new assignment. However, thereafter the respondent No.1 and

the State Government gave a complete go-by to the constitutional requirement of consultation. While seeking

an appointment on regular basis as Deputy Secretary, neither the respondent No.1 felt the need of having his

application forwarded by the High Court nor did the Government feel the need of 'consulting' the High Court,

though mandatorily required by the Constitution as also by Rule 7 above quoted. Similarly while promoting

the respondent No.1 from Grade-III to Grade-II of Assam Legal Service and appointing him as Joint Secretary

and Legal Remembrancer, the High Court was not consulted. Merely because the State Government sent a

copy of its notifications to the High Court, the requirement of consultation cannot be said to have been

satisfied. Neither it was initiated by the State Government nor did the High Court exercise, avail or discharge

its power, privilege and obligation of consultation. An invalidity caused by failure to comply with mandatory

25

constitutional requirement, such as of consultation, cannot be cured by sheer inaction on the part of one or

both of the functionaries between whom the requirement was to be fulfilled or by mere lapse of time.

18. In almost all the States and Union Territories in the country services of judicial officers are loaned by High

Courts to the governments for being utilized in litigation, judicial, law and legislative affairs departments of

governments, by whatever name the departments may be called. The Secretary (Law) or a Legal

Remembrancer serving under the government though a judicial officer whose services have been placed at the disposal of the government by the High Court has a crucial role to play. He is a vital link of communication

between the High Court and the government and his relationship with the two wings strategically enables a

healthy and appropriate relationship being maintained between the two. As held by this Court in Sudhansu

Sekhar Mishra's case (supra), the State Government requesting the services of a complete judicial officer

being made available to it and the High Court conceding to such request is by consent and willingness of the

two. Neither the High Court can be compelled to spare a particular judicial officer nor can the High Court

thrust upon the services of a particular judicial officer on the Government. A consensus can be arrived at by

dialogue. However, if the services of a competent judicial officer who would otherwise be useful to the High

Court were to be permanently appropriate by the State Government without the consent of the High Court that

will be destructive of the very system and healthy practice apart from breach of a constitutional provision.

19. We are, therefore, clearly of the opinion that there is no merit in the plea that the service of the respondent

No.1 stood absorbed in the Assam Legal Services and the High Court could not have recalled the respondent

No.1's deputation. Equally meritless is the plea that the lien of respondent No.1 in the State Judicial Services

has come to an end and he had acquired a lien in Assam Legal Service. The Division Bench of the High Court was unnecessarily influenced by the factum of the High Court having recalled on 17.9.1996 its notification

dated 10.4.1995 ignoring the reason behind recalling the notification. The notification, posting the respondent

No.1 as a judicial officer, had to be recalled as it was not carried out and required to be recalled so as to issue

another notification filling up judicial office lying vacant. So also the Division Bench ignored the impact of

constitutional provision while forming an opinion that the lien of respondent No.1 in judicial service stood

automatically terminated as the appointment of respondent No.1 to legal service, whilst he was a member of

judicial service, was made without consultation with the High Court and hence was invalid. The question of respondent No.1 acquiring a lien in legal service and the lien in judicial service being terminated did not arise.

The judgment of the Division Bench of the High Court cannot be sustained and is liable to be set aside.

20. The constitutional and legal position having been set at rest, the question which still remains to be decided

is as to the manner in which the relief should be constructed in the peculiar facts and circumstances of this

case. As noted earlier in this judgment, the learned counsel for the appellants made it very clear during the

course of hearing that Gauhati High Court has not approached this Court as a litigant and the High Court was

also not interested so much in the respondent No.1 being brought back to the fold of the judicial services as

was its purpose to vindicate the correct position of law and service jurisprudence concerning members of

judicial services. That has been done.

24. We dispose of the appeal in terms of the following directions:-

(1) The judgment of the Division Bench of the High Court is set aside insofar as findings on questions of law

are concerned;

(2) Within a period of six weeks from today, the State of Assam shall take a decision if the respondent No.1

can be posted in an officer other than that of Secretary (Judicial) and Legal Remembrancer in which case he

shall continue in Assam Legal Service and need not be repatriated;

(3) If the abovesaid direction cannot be carried out then at the end of six weeks the respondent No.1 shall be

repatriated to the High Court as a member of judicial service and he shall be given a posting accordingly and

consistently with the assurance given on behalf of the High Court.

25. The appeal stands disposed of in the abovesaid terms without any order as to the costs. Appeal disposed of.

26

'K' A Judicial Officer(In Re) (2001) 3 SCC 54

Bench : R.C. Lahoti, A.S. Anand

The Judgment was delivered by: R. C. Lahoti, J.

1. This special leave petition u/art. 136 of the Constitution of India filed by a judicial officer, seeks expunging

of remarks detrimental to her, contained in the judgment of the High Court disposing of a criminal

miscellaneous petition u/s. 482 of the Code of Criminal Procedure, 1973 filed by the accused persons seeking

quashing of certain criminal proceedings. The appellant is a serving judicial officer posted as Metropolitan

Magistrate. The courtroom wherein the appellant held her court was not properly furnished and not only her

courtroom but other courtrooms located in the same building also seriously lacked in infrastructural facilities

and needed additions, alterations and improvements. The District Judge was persuading the State officials to

do the needful. So far as the appellant is concerned her courtroom needed a dais to be constructed. That was done during summer vacation when the appellant was away from the headquarters. On her return she found a

mess of the work having been done by the PWD officials. According to the appellant the dais was made like a

box.

The Presiding Judge if seated on the dais would touch the ceiling fan on the head and while looking down from

the dais, would not be able to see the arguing counsel, the parties appearing and the staff seated in the

courtroom. Attention of the District and Sessions Judge was invited who communicated with the officials

concerned but they were non-responsive. As the work done by the PWD personnel caused an obstruction in

the functioning of the court, and yet they would not listen to reason, the appellant initiated proceedings calling upon certain officials to show cause why proceedings under the Contempt of Courts Act, 1971 be not drawn

up and a reference be not made to the High Court. During the pendency of these proceedings the PWD people

chopped off a wooden piece forming part of the dais and removed the same.

4. On these facts coming to the knowledge of the appellant she took cognizance of offences punishable under

Sections 380, 201, 120-B of the Indian Penal Code and issued process requiring presence of the accused

persons before her. The persons proceeded against preferred a petition u/s. 482 of the Code of Criminal

Procedure read with Art. 227 of the Constitution seeking quashing of both the proceedings - one under the

Contempt of Courts Act and the other in the criminal case wherein cognizance for substantive offences under

IPC was taken. During the pendency of the petition before the High Court, the learned Metropolitan

Magistrate having felt satisfied by the response of the PWD officials, directed the notice under the Contempt

of Courts Act to be discharged and to that extent the petition filed before the High Court was rendered

infructuous.

The hearing before the High Court then remained confined to the question of quashing the cognizance of the

offences under Section 380, 201, 120-B IPC taken by the learned Metropolitan Magistrate. The High Court

has directed the proceedings to be quashed. The operative part of the order of the High Court reads as under:

"Thus prima facie, no offence either u/s. 380 or 201 or 120-B IPC is made out against the petitioners. (The

manner in which the cognizance of the said offences came to be taken clearly suggests that the Magistrate

wanted to rope in the petitioners in a criminal case in order to pressurize them to have the dais in Courtroom

No. 8 and other civil work as noted in the petition carried out as desired by her) which matter could well be

taken up by the Judge Incharge .../District and Sessions Judge with the appropriate authority in CPWD on

administrative side."

With the abovesaid order the controversy so far as it related to the persons proceeded against, that is, the PWD

officials had come to an end. But, the appellant is aggrieved by the observations made by the High Court in its

judicial order. The observations grieving the appellant have been quoted with emphasis and placed into

brackets by us.

8. Several cases are coming to our notice wherein observations are being made against the members of

subordinate judiciary in the orders of superior forums made on judicial side and judicial officers who made

orders as Presiding Judges of the subordinate courts are being driven to the necessity of filing appeals to this

Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes

strictures passed against them behind their back. We would therefore like to deal with a few aspects touching

the making of observations or adverse comments against judicial officers and methodology to be followed if it

becomes necessary.

27

9. A Judge entrusted with the task of administering justice should be bold and feel fearless while acting

judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent

to formation and expression of an honest opinion and acting thereon so long as it is within four-comers of law

that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior

forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However,

sobriety, cool, calm and poise should be reflected in every action and expression of a Judge.

10. The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the

parties before it. A Judge is not expected to drift away from pronouncing upon the controversy, to sitting in

judgment over the conduct of the judicial and quasi-judicial authorities whose decisions or orders are put in

issue before him, and indulge in criticizing and commenting thereon unless the conduct of an authority or

subordinate functionary or anyone else than the parties comes of necessity under review and expression of

opinion thereon going to the extent of commenting or criticizing becomes necessary as a part of reasoning

requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to

have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This

applies with added force when the superior court is hearing an appeal or revision against an order of a

subordinate judicial officer and feels inclined to animadvert on him.

11. The courts do have power to express opinion, make observations and even offer criticism on the conduct of

anyone coming within their gaze of judicial review but the question is one of impelling need, justification and

propriety. A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction

seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a

court of record and possessing inherent powers as also the power of superintendence.

12. The view is settled by the law laid down in Raghubir Saran (Dr.) v. State of Bihar 1963 Indlaw SC 350 :).

However, if a similar relief is sought for against remarks or observations contained in judgment or order of the

High Court the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its

jurisdiction u/arts. 136 and/or 142 of the Constitution. With the law laid down by this Court, it is well-settled

that the power to expunge remarks exists for redressing a kind of grievance for which the law does not provide any other remedy in express terms though it is an extraordinary power. Any passage from an order or

judgment may be expunged or directed to be expunged subject to satisfying the following tests:

(i) that the passage complained of is wholly irrelevant and unjustifiable;

(ii) that its retention on the records will cause serious harm to the persons to whom it refers;

(iii) that its expunction will not affect the reasons for the judgment or order.

14. Though the power to make remarks or observations is there but on being questioned, the exercise of power

must withstand judicial scrutiny on the touchstone of following tests : (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is

evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the

decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the

criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation

and reserve.

16. In the case at hand we are concerned with the observations made by the High Court against a judicial

officer who is a serving member of subordinate judiciary. Under the constitutional scheme control over the

district courts and courts subordinate thereto has been vested in the High Courts. The control so vested is

administrative, judicial and disciplinary. The role of High Court is also of a friend, philosopher and guide of

judiciary subordinate to it. The strength of power is not displayed solely in cracking a whip on errors, mistakes

or failures; the power should be so wielded as to have propensity to prevent and to ensure exclusion of

repetition if committed once innocently or unwittingly. "Pardon the error but not its repetition". The power to

control is not to be exercised solely by wielding a teacher's cane; the members of subordinate judiciary look up

to the High Court for the power to control to be exercised with parent-like care and affection. The exercise of statutory jurisdiction, appellate or revisional and the exercise of constitutional power to control and supervise

the functioning of the district courts and courts subordinate thereto empowers the High Court to formulate an

opinion and place it on record not only on the judicial working but also on the conduct of the judicial officers.

28

The existence of power in higher echelons of judiciary to make observations even extending to criticism

incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms

and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their

own mischievous infirmities.

17. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A

member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation

may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or

not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded,

sitting on judicial side, to make observations guided by the facts of a single case against a Subordinate Judge

may, sitting on administrative side and apprised of overall meritorious performance of the Subordinate Judge,

may irretrievably regret his having made those observations on judicial side, the harming effect whereof even

he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a

judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only

over his opponent but also over the Judge who had decided the case against him. This is subversive of judicial

authority of the deciding Judge. Fourthly, seeking expunging of the observations by a judicial officer by filing

an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court

or Supreme Court - a situation not very happy from the point of view of the functioning of the judicial system.

20. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such

legal practitioner may be one practicing before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being

caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a

seriously demoralising effect not only on him but also on his colleagues. If all this is avoidable why should it

not be avoided? We must not be understood as meaning that any conduct of a subordinate judicial officer

unbecoming of him and demanding a rebuff should be simply overlooked. But there is an alternate safer and

advisable course available to choose. The conduct of a judicial officer, unworthy of him, having come to the

notice of a Judge of the High Court hearing a matter on the judicial side, the lis may be disposed of by pronouncing upon the merits thereof as found by him but avoiding in the judicial pronouncement criticism of,

or observations on the "conduct" of the subordinate judicial officer who had decided the case under scrutiny.

21. Simultaneously, but separately, in-office proceedings may be drawn up inviting attention of Hon'ble Chief

Justice to the facts describing the conduct of the Subordinate Judge concerned by sending a confidential letter

or note to the Chief Justice. It will thereafter be open to the Chief Justice to deal with the subordinate judicial

officer either at his own level or through the Inspecting Judge or by placing the matter before the full court for

its consideration. The action so taken would all be on the administrative side. The Subordinate Judge

concerned would have an opportunity of clarifying his position or putting forth the circumstances under which

he acted. He would not be condemned unheard and if the decision be adverse to him, it being on administrative

side, he would have some remedy available to him under the law. He would not be rendered remediless.

24. Reverting back to the case at hand, may be that the learned Metropolitan Magistrate in initiating contempt

proceedings and taking cognizance of substantive offences under the Indian Penal Code against the officials of

Public Works Department was not properly advised or was at the worst indulging in a misadventure and

therefore to the extent of quashing of the proceedings by the High Court we may not find fault and certainly no

one has come up to this Court complaining against the merits of that part of the order of the High Court by

which criminal proceedings have been quashed.

Nevertheless, the ill-advised move or misadventure of the learned Metropolitan Magistrate was neither a

misconduct nor an outcome of malice. Though she acted in a way which did not meet the approval of the High

Court, the facts and the circumstances of the case point out that her only desire was to make her courtroom

functional. Probably she felt aggrieved, rather agitated, by the apathy of the Public Works Department people

who were taking things too easy, unmindful of the practical difficulties faced by the Presiding Judge

occupying the courtroom and discharging judicial functions.

25. The fact remains that the observations were made by the High Court without affording the Metropolitan Magistrate an opportunity of explaining or defending herself. The remarks were not necessary for the decision

29

of the case by the High Court as an integral part thereof. Animadverting on the conduct of the learned

Metropolitan Magistrate was not a necessity for the exercise by the High Court of inherent power or the power

of superintendence to quash the proceedings initiated by the learned Metropolitan Magistrate. Expunging of

the remarks, as we propose to do, will not affect the reasons for the judgment of the High Court. On the other

hand, the remarks have a potential to prejudice the career of the appellant. We must place on record the very fair stand taken by Shri Sanjay Kaul, the learned Senior Counsel for the High Court, who told us that he was

instructed by the High Court to appear in deference to the notice issued by this Court and to offer such

assistance as might be needed and any verdict which this Court may deliver shall be acceptable to it; the High

Court neither opposes nor supports the appellant's prayer; its stand is neutral. For the foregoing reasons the

petition is allowed.

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