SHAKTI KUMAR GUPTA Vs. STATE OF J & K & ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 355 of 2014, Judgment Date: Dec 11, 2015
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION(C) NO. 355 OF 2014 Shakti Kumar Gupta ..Petitioner versus State of Jammu and Kashmir and another ..Respondents J U D G M E N T JAGDISH SINGH KHEHAR, J. 1. The petitioner was selected by the Jammu and Kashmir Public Service Commission for appointment to the Kashmir Civil Service (Judicial) on 5.1.1987. He joined as Munsif (-cum-Judicial Magistrate, First Class) at Basohli in District Kathua. He was thereafter promoted as a Subordinate Judge (-cum- Chief Judicial Magistrate) on 18.11.1996. And thereafter, as an adhoc District & Sessions Judge on 8.8.2002. While in the cadre of District & Sessions Judge, he was placed in the selection grade on 15.06.2011. 2. For the controversy in hand, some of the Annual Confidential Reports recorded in respect of work and conduct of the petitioner are important. A brief summary thereof is recorded hereunder: Sl.No. Annual Confidential Reports Remarks for the period 01. 1.1.2002 to 31.12.2002 Good 02. 1.1.2003 to 31.12.2003 Average 03. 1.1.2004 to 31.12.2004 Average 04. 1.1.2005 to 31.12.2005 Good 05. 1.1.2007 to 31.12.2007 Very Good 06. 1.1.2008 to 31.12.2008 Very Good 07. 2.1.2009 to 31.12.2009 Average 3. So far as the present controversy is concerned, it pertains to the compulsory retirement of the petitioner. Compulsory retirement is regulated under the provisions of Higher Judicial Service Rules, 2009 (issued vide SRO 339, dated 27.10.2009, Law Department). Rule 24 of the aforesaid rules pertains to the subject of premature retirement. The same is being extracted hereunder: “24. Premature retirement The High Court shall assess and evaluate the record of the members of the service for his/her continued utility before he/she attains the age of 50 years, 55 years and 58 years by following the procedure for compulsory retirement under the service rules applicable to him/her and if he/she is not found fit and eligible he/she will compulsorily retire on his/her attaining the age of 50 years, 55 years and 58 years, as the case may be.” 4. A perusal of the aforesaid rule reveals, that it is open to the High Court to evaluate the record of a judicial officer, before he attains the ages of 50, 55 and 58 years, for ordering his premature retirement. In evaluating the record of the concerned judicial officer, the High Court is to follow the procedure for compulsory retirement under the service rules applicable to him. In the event of a judicial officer being found unfit to continue in service, it is open to the High Court to prematurely retire him, on attaining the ages of 50,55 and 58 years. 5. In conjunction with the rule of premature retirement, it is also essential for us to refer to the criteria/norms for continuity in service after the ages of 50,55 and 58 years. The criteria/norms were adopted by a resolution of the Full Court of the High Court of Jammu and Kashmir on 3.6.2013. Some parts of the resolution are relevant for the present controversy, and are being extracted hereunder: “While considering the cases of the Judicial Officers for their continued utility in service at 50, 55 and 58 years of age in terms of the judgment of the Hon'ble Supreme Court in All India Judges Association Vs. Union of India AIR 1993 SC 2493 and (2011) 10 SCC. I, the following criteria/norms shall be taken into account by the High Court in its administrative capacity. A. Assessment Standards: Following are the factors to be taken into consideration individually/collectively to assess the officer. 1. Over all past service record of the Officer shall be examined and considered with emphasis on the last 5 years' record to assess his potential for continued utility in the service beyond 50,55 and 58 years. 2. The quality of the judgments delivered by the officer, whether or not assailed before the High Court, in suits, appeals, Session cases, Revisions and other proceedings during the past ten years of his service tenure. The quality of judgments will be determined by its content, the legal acumen it reveals, the nature of approach adopted, the language employed and the results achieved etc. etc. 3. Rate of disposal of the case by the officer in the light of the separate criteria prescribed by the High Court for this purpose. 4. Material reflecting the character of the officer, including the complaints, enquiries and vigilance reports lodged against him. The fact that the officer was superseded in the last promotion shall also be taken into consideration. B. Annual Confidential Reports (A.C.Rs.) 1. General a) The ACRs for the last five years should be taken into account. b) If the other record of the officer is at Variance with ACRs. Provided, however, that if the ACR of the officer for a particular year has not been recorded or approved by the High Court, as can be the situation in case of a deputationist, the other record of the officer for that year would be considered for rating him. 2. Special Considerations: A Judicial Officer shall be permitted to continue beyond 50, 55 and 58 years of age if he fulfills the following conditions: i) The Officer has on the basis of the prescribed criteria earned seventy five per cent or more ('A' Grading) of his total ACR entries in 'Very Good' or 'Good' gradings. ii) If the officer has not earned any adverse or average entry in his ACRs after his last promotion. C. Other relevant factors: Besides above standard and recording of ACR, following factors shall also be taken into account while evaluating all round potential of the officer: i). His integrity, honesty and judicial conduct shall be kept in view and utmost importance be attached; ii). His relations with the Bar and his administrative capacity should also be considered; iii). His dealing with the finance shall also be taken into account while evaluating the all round potential of the officer; iv). The ACRs shall not constitute the sole guiding factor but shall be given due weightage along with other equally relevant factors; v). The institutional integrity being in larger public interest is the uppermost and shall be preferred to individual interest. These are guidelines for internal use of the High Court. However, it would not limit the power of the High Court vested by Article 235 of the Constitution of India read with Article 104 of the J&K Constitution.” It is therefore apparent, that Rule 24 has to be read in conjunction with the Resolution dated 3.6.2013, in order to determine, whether or not a judicial officer should be prematurely retired. 6. Before we venture to deal with the evaluation of the record of the petitioner in terms of the Instructions/Resolution dated 3.6.2013, it is imperative for us to notice, that the afore-stated Resolution constituted the basis for determining the retain-ability of the petitioner in service. In the Resolution dated 3.6.2013, emphasis was placed on the immediately preceding five years record, to assess the potentiality and utility of the employee under consideration. Likewise, the Instruction dated 3.6.2013, postulated in addition to the consideration of the quality of his judgments, his institutional integrity in larger public interest, his judicial conduct, his administrative capacity, the rate of his disposal of cases, the character of the officer, the complaints, the enquiries and the vigilance reports lodged against him, his dealing with financial matters, and the like. Since the issue of premature retirement of the petitioner came up for consideration in the year 2013, mainly the annual confidential reports for the years 2008 to 2012 were to be taken into consideration. In the summary, extracted hereinabove, it is apparent, that for the period from 1.1.2008 to 31.12.2008, the petitioner was assessed as “Very Good”, whereas for the period 2.1.2009 to 31.12.2009, he was assessed as “Average”. In terms of the Resolution dated 3.6.2013 since no annual confidential report was recorded after the year 2009, assessment made for the previous year, i.e., for the year 2009 was taken into consideration as the assessment for the years 2010, 2011 and 2012. It is therefore, that the High Court arrived at the conclusion, that the work and conduct of the petitioner was merely “Average”, as his annual confidential report from the year 2009 to the year 2012 reflected him and having been graded as “Average”. 7. The first question that arises for our consideration, is about the veracity of the Annual Confidential Report for the period from 2.1.2009 to 31.12.2009. In fact, this was the main and emphatic submission of the learned counsel for the petitioner. In the above report, the learned Administrative Judge on 29.05.2013 recorded as under: “Note: It is being brought on record that when this Judicial Officer did not choose to send his self Assessment Report for year 2009 ending 31st December, 2009, Registry was informed by the Secretary vide letter dated 06.10.2012 addressed to R/G asking him to send his S.A.R. at the earliest and in turn he was duly informed by Registry vide Commn. No.6474-80/GS dated 11.10.2012 which was received by him on 16.X.2012. Despite that this Judical Officer has not cared to respond/comply with the direction. Even vide Commn. No.2507/GS dated 24.5.2013, this Judicial Officer once again has been asked by R/G to send his S.A.R. for the year 2009, but till date no response has been sent by him. Keeping all these aspects into consideration, I am awarding his A.C.R. as AVERAGE only. Sd/- Administrative Judge 29.5.013” It would be pertinent to mention, that a Annual Confidential Report evaluates a judicial officer on a variety of aspects. To highlight the subjects on which an officer is assessed, it is considered just and appropriate to extract hereunder relevant parts of the annual confidential report of the petitioner, for the period from 2.1.2009 to 31.12.2009. This would also permit a closer examination of the above report: |1. |Knowledge of Law & Procedure |Since Self Assessment Report has | | | |not been sent by the Judicial | | | |Officer, I cannot comment upon it | |2. |Impression during inspection (how he | | | |conducts the Court, his behaviour |________ | | |with advocates and litigants, his | | | |clarity in understanding and | | | |appreciating the arguments adjudged | | | |from his interaction with advocates | | | |during arguments. Whether he is able | | | |to dictate in Court, at least in | | | |miscellaneous applications). | | |3. |Areas in which he was counselled |_________ | | |during inspection | | |4. |Is he industrious and prompt in the | | | |disposal of cases and has be coped |Average | | |effectively with heavy work? | | |5. |Is he/she an efficient Judicial |–do- | | |Officer | | |6. |What is his/her reputation for | | | |honesty, integrity and impartiality. |Average | | |Whether Very Good, Average, Doubtful,| | | |bad or positively lacking. | | |7. |Remarks about his/her attitude |_________ | | |towards his superiors, subordinates | | | |and colleagues. | | |8. |Behaviour towards members of the Bar |_________ | | |and the Public. | | |9. |Remarks about Administrative |_________ | | |capability. | | |10. |How is his/her reputation for private|__________ | | |life/character and does it tend to | | | |lower him/her in the estimation of | | | |public members of Bar and adversely | | | |affect the discharge of his/her | | | |judicial functions? | | |11. |What degree of control does he/she |__________ | | |exercise over the files in the matter| | | |of : | | | |a) Proper fixation of cause list |__________ | | |b) Avoidance of unnecessary | | | |adjournments | | | |c) Disposal of old cases | | |12. |Is he/she punctual in coming to the |__________ | | |office and sitting in the court? | | |13. |Did any incident/incidents, involving| | | |him/her occurred during the year | | | |which warrants or led to, recording | | | |of commendatory/critical remarks | | | |about his/her conduct/behaviour in | | | |relation to such incident/incidents? | | |14. |Is his supervision and distribution |__________ | | |of business among, and his control | | | |over the Subordinate Courts Good? | | |15. |Are his judgments and orders well |No comments as SAR not sent | | |written and clearly expressed? | | |16. |Grading of Judgments | | | | |Average | | |A-Outstanding | | | |B-Very Good | | | |C-Good | | | |D-Average | | | |E-Below Average | | |17. |Other remarks, if any |__________ | |18. |Overall assessment as per the grading| | | |given below: |Average | | |A-Outstanding | | | |B-Very Good | | | |C-Good | | | |D-Satisfactory | | | |E- Average | | | |F-Poor | | |19. |Convey the following remarks to the |__________ | | |Officer, for his reply/explanation | | Most of the columns in the annual confidential report were left blank. It is obvious, that the petitioner was not assessed for the columns left blank. In some columns, the Administrative Judge expressly mentioned, that it was not possible to record the remarks on account of the petitioner not having submitted his “self-assessment report”. In five of the columns, the Administrative Judge recorded the assessment as “Average”. 8. The question that arises for our consideration is, whether the petitioner can be deemed to have been graded for the period from 2.1.2009 to 31.12.2009 as “Average”. It is not possible for us to accept the determination of the High Court, that the aforesaid annual confidential report should be treated as an assessment of the work and conduct of the petitioner. We are satisfied in concluding, that no assessment whatsoever was made at the hands of the Administrative Judge, insofar as the above annual confidential report is concerned. The same was recorded, on the apparent grouse, that the petitioner had not submitted his “self-assessment report”. Even though, it was possible for the Administrative Judge to have filled up a number of columns based on the assessment of the judgments, and the record available to him otherwise, yet merely on account of the fact that the petitioner had not submitted his “self-assessment report”, the Administrative Judge recorded the “Average” report. The above report being not a truthful assessment of the various constituents of the judicial officer's work and conduct, it could certainly not be taken as an assessment of his work for the period from 2.1.2009 to 31.12.2009. It may be mentioned illustratively, that on the basis of the record accessible and available to the High Court, it was not at all difficult to evaluate the petitioner (or for that matter any judicial officer) in respect of his knowledge of law and procedure, about impressions during inspection (how he conducts the Court, how he behaves with advocates and litigants, his clarity and understanding of the submissions made at the bar, and whether he is able to dictate from the dias – at least miscellaneous orders), whether he is industrious and prompt in disposal of cases, whether he is an efficient judicial officer. Without any inputs which a judicial officer would provide in a “self-assessment report”, the Administrative Judge can also record his views on the judicial officer's reputation for honesty, integrity and impartiality, and his assessment about the officers attitude towards his superiors, subordinates and colleague, as well as, behaviour toward members of the Bar and