Pratap Singh Vs. State of U.P. & Anr.
Email[From the Judgement and Order dated 21.12.2009 of the High Court of Judicature at Allahabad, Lucknow Bench at Lucknow in Civil Misc. Writ No. 8 [S/B] Now D.B. of 1999]
[From the Judgement and Order dated 21.12.2009 of the High Court of Judicature at Allahabad, Lucknow Bench at Lucknow in Civil Misc. Writ No. 8 [S/B] Now D.B. of 1999]
Mr. Dinesh Dwivedi, Senior Advocate, Mr. P.N. Gupta, Mr. Manish Shankar Srivastava, Mr. Varun Chaudhary, Mr. Prateek Dwivedi, Advocates, with him for the Appellant(s).
Mr. Ravi Prakash Mehrotra, Mr. Vibhu Tiwari, Advocates, for the Respondent(s).
Uttar Pradesh Higher Judicial Service Rules, 1975
Rules 22(3), 22(1) – Constitution of India, 1950, Articles 14, 16, 226 – Substantive appointment – Promotion of Civil Judge as Additional District and Sessions Judge in June 1996 – ACR of 1996-97 assessed as ‘average’ – Complaint by him against employee of Court and involving District Judge – ACR recorded by District Judge as ‘irresponsible and indisciplined’, converted to ‘average’ on representation – Not recommended for substantive appointment in 1998 on basis of remarks ‘irresponsible and indisciplined’ – If non-approval of name for substantive appointment is illegal. Held that once the remarks of District Judge are expunged, those could not have been considered. Matter of substantive appointment of officer to be reconsidered in one month.
The copy of the decision of the Inspecting Judge was not sent to the appellant and he was informed of what was contained in the communication dated October 21, 1997 only. In the above circumstances the text of the decision of the Inspecting Judge dated August 6, 1997 cannot be used against the appellant. The remarks of the District Judge that the appellant was, `irresponsible and indisciplined officer who has no regard for superiors or truth’ have been expunged/substituted by the Inspecting Judge. The effect of such expunction/substitution is that the appellant cannot be considered an irresponsible or indisciplined officer on the basis of remarks recorded by the District Judge. The gravity of what has been recorded in column (3) is, thus, lost. (Para 17)
Due to consideration of the remarks recorded by the District Judge and not taking into consideration that such remarks were expunged/substituted as communicated to the appellant vide communication dated October 21, 1997, the very consideration of the appellant’s case for promotion in the substantive vacancy in UPHJS under the 1975 Rules by the selection committee in its meeting dated May 18, 1998 and by the full court in its meeting held on July 11, 1998 gets seriously and vitally affected. (Para 18)
The matter for the appellant’s promotion in the substantive vacancy in UPHJS which was considered by the selection committee on May 18, 1998 and by the full court on July 11, 1998 needs to be reconsidered in light of the discussion made above and in accordance with law. Since the appellant is likely to superannuate shortly, we expect the High Court on its administrative side to complete this exercise as early as possible and preferably within one month from the date of the communication of this order. (Para 21)
1. The appellant – a judicial officer – having not been promoted in the substantive vacancy to Uttar Pradesh Higher Judicial Service (for short, `UPHJS’) and, as a result of which, was reverted as Civil Judge (Senior Division) is in appeal, by special leave.
2. The appellant, after due selection, joined judicial service in Uttar Pradesh as Munsiff on May 16, 1977 and was confirmed as such on August 30, 1982. He became Additional Civil Judge on January 4, 1986 and got selection grade of Rs. 3700 – 5000 with effect from April 1, 1990. He then became Civil Judge (Senior Division).
3. The Allahabad High Court, on the administrative side, in its full court meeting held on November 18, 1995, approved promotion of the appellant in officiating capacity under Rule 22(3) of Uttar Pradesh Higher Judicial Service Rules, 1975 (for short, `1975 Rules’). Pursuant to the above decision taken by the full court, a notification was issued on June 7, 1996 promoting and posting the appellant as Additional District and Sessions Judge, Lalitpur.
4. While the appellant was posted as Additional District and Sessions Judge, Lalitpur, Shri Mukteshwar Prasad happened to be District Judge, Lalitpur. The appellant was made Officer in-charge, Nazarat by the District Judge with effect from September 10, 1996. The appellant continued as such until March, 1997 or so. It so happened that in the intervening night of January 30/31, 1997, some thieves entered the residence of the appellant and tried to break open the doors. The appellant suspected the involvement of class-IV employees of Lalitpur Judgeship. On that day, the District Judge was on leave and the appellant handed over an application to the Senior Administrative Officer wherein he alleged the support of the District Judge to class IV employees suspected to have entered the house of the appellant for theft. The application made by the appellant to the Senior Administrative Officer was kept in an open envelope. The District Judge, Lalitpur sought explanation from the appellant with regard to the allegations made by him in his application and also gave information of the incident to the Registrar of the High Court as well as the inspecting Judge of Lalitpur Judgeship on February 19, 1997.
5. In the appellant’s annual confidential report (ACR) of the year 1996-97 (June 12, 1996 to March 31, 1997), the District Judge (Shri Mukteshwar Prasad) made the following remarks:
‘
(a) Integrity of the officer whether Beyond doubt. No
beyond doubt, doubtful or complaint received.
positively lacking.
(b) If he is fair and impartial in No specific
dealing with the public and bar. complaint was
made to me.
(c) If he is cool-mind and does not Yes
lose temper in court.
(d) His private character, if such as No complaint
to lower him in the estimation of received against
the public and adversely affects his private
the discharge of his official character.
duties.
(e) Control over the file in the
matter of-
(i) Proper fixation of cause list. Not proper. On an
Average, he fixed
22-23 cases.
(ii) Avoidance of unnecessary Satisfactory
adjournments
(iii) Disposal of old cases. Not satisfactory.
Disposed of one
S.T. of 1991, 2 of
1992 and 6 of 1993
out of 7 of 1991, 32
of 1992 and 36 of 1993.
(iv) Progress and disposal of There were 3
execution cases. execution cases of
1996 but no case
was disposed of.
One case is stayed
by the Hon’ble High Court.
(v) Interim orders, injunctions Yes.
Being granted, refused to
retained for sufficient reasons.
(vi) Are cases remanded on No appeal was
substantial grounds? remanded.
(f) Whether judgments on facts Judgments of
and law are on the whole average quality.
sound, well reasoned and
expressed in good language.
(g) Whether disposal of work is Out-turn being 132%
adequate (give percentage & is above the
reasons for short disposal). standard. As per
statement received
as against 133
working days, he
gave work for 175.88.
(h) Control over the office and Proper.
administrative capacity and tact.
(i) Relation with members of the Normal
bar [mention incidents, if any]
(j) Behaviour in relation to brother Normal
Officers [mention incidents, if any]
(k) Whether the officer has made YES
Regular inspections of his court
and Offices in his charge during
the year and whether such
inspections were full and
effective.
(l) His punctuality in sitting in the Punctual.
court
(m) Whether amenable to advice of He is not amenable
District Judge and other at all to the advice of
superior Officers. the District Judge.
Reasons given
below in column no. 3.
2. Overall assessment of the merit Poor. Irresponsible
of the officer-out-standing, very and indisciplined
good, good, fair, poor. officer who has no
regard for his superiors or
truth. Details mentioned in
column no. 3 below.
3. Other Remarks, if any.
After taking over charge by me in this district, the officer was appointed Officer-in-Charge, Nazarat w.e.f. 10.9.1996. He being the next senior most officer in the Judgeship and only Addl. District Judge at that time, was expected to extend his full cooperation and assistance in the affairs of the Judgeship. Since very beginning, I found that his attitude was not cooperative and in fact he took no interest at all for improvement in working of Nazarat. He never came to me in the chamber or at the residence to discuss any problem relating to Nazarat. In the month of November, 1996, he made a request in writing for relieving him from the post of Officer-in-charge, Nazarat. I summoned him and persuaded to continue as Officer-in-charge, Nazarat. With reluctance, he agreed to continue. Again he sent an application on 22.1.97 for removing him from the post of Officer-in-charge, Nazarat on the ground that Sri Shanker Lal, a Class IV employee was not transferred by me on his oral and written request. It is noteworthy that Sri Shanker Lal was transferred and in his place Sri Manik Chand was posted in his court vide order dated 30.1.97. Sri Singh was highly interested in a Class IV employee [Sri Swand Singh] and wanted his posting in his court but he was not transferred there for some administrative reasons. He joined the service in August, 1996.
He always complained of non-cooperation of Central Nazir and other officials working in the Nazarat and passed an order also on 23.12.96 to the effect that the Central Nazir never took round of the courts and never checked Chowkidars. In pursuance of this order, Central Nazir Sri Shamsher Bahadur Srivastava took a surprise round of the Civil Court building on 12.1.97 at about 3.35 a.m. and checked both Chowkidars at 3.50 a.m. Both Chowkidars, namely, Sarvasri Swank Singh and Gulab Chand Saroj were found sleeping. He submitted his report to the Officer-in-charge, Nazarat to call explanation of the Chowkidars. Sri Singh took no action against the Chowkidars and warned them to be vigilant in future.
Sri Singh always found shirking from work and never rendered any assistance to me in dealing with various problems of the Judgeship. Before posting of Sri Jai Singh, a newly promoted Addl. District Judge in the district in the month of March, 1997, he was senior most Addl. District Judge in the Judgeship. He, however, did not play his role properly for the simple reason that a Class IV employee of his choice was not posted by me in his court.
2. Sri Singh levelled totally false and baseless allegation against me in writing on 31.1.1997 when I was out of station and had gone to Gwalior. In my absence he handed over an application to Senior Administrative Officer and did not even keep the application in an envelope. Consequently, the contents of the letter were well-known to all the officials and officers working under me before my arrival at the headquarters. He levelled accusation against me that some thieves tried to break open the doors of his residence in the night intervening 30/31.1.1997. He suspected the involvement of some Class IV employees of the judgeship. According to him the thieves were Class IV employees of the judgeship and I was supporting them. After having gone through the contents of the letter, I was stunned. I sent a letter to Sri Singh and sought his reply on a few questions. In his reply dated 6.2.97, he tried to twist his letter dated 31.1.97. Thus the officer tried to tarnish my image in the eyes of other officers and officials of the Judgeship and committed an act of gross indiscipline.
I have already communicated these facts to the Registrar of the Hon’ble High Court of Judicature at Allahabad as well as Hon’ble the Inspecting Judge of Lalitpur through my D.O. letters No. 4 and 5/P.A./1997 dated 19.2.1997.
For all the above reasons, I have rated the officer to be most irresponsible and indisciplined.’
6. The above adverse remarks recorded by the District Judge, Lalitpur were communicated to the appellant on May 30, 1997. On receipt of the communication, the appellant made representation to the Registrar on June 28, 1997 and prayed that the adverse remarks recorded by the District Judge be expunged.
7. On October 21, 1997, the appellant was communicated by the Joint Registrar that after consideration of his representation, the remarks recorded by the District Judge in Column No. 1(e)(iii), 1(e)(iv) for the year 1996-97 have been expunged and Column No. 2 has been substituted by the court as – `overall assessment – just average’.
8. It is the appellant’s case that on July 11, 1998, he came to know that the full court in its meeting held on that day did not approve the appellant’s name for his appointment in the substantive vacancy in UPHJS. The appellant submitted a representation to the High Court on administrative side on August 19, 1998 to reconsider the decision taken on July 11, 1998. The representation of the appellant was not favourably considered and on December 5, 1998 a notification was issued on the basis of the decision taken by the full court on July 11, 1998 reverting the appellant to the judicial service, i.e. Civil Judge (Senior Division).
9. The appellant challenged the notification dated December 5, 1998 in a writ petition before the Allahabad High Court at Lucknow Bench and prayed for quashing the same. He prayed that report of the selection committee dated May 18, 1998 and record of the decision of the full court taken on July 11, 1998 insofar as appellant was concerned be called for and a writ of mandamus be issued commanding the respondents to treat the appellant having been promoted to the UPHJS and ignore the remarks made by the District Judge in the ACR for the year 1996-97.
10. The above writ petition was contested by the respondents.
11. The Division Bench of the High Court, after hearing the parties, by its order dated December 21, 2009 dismissed the writ petition.
12. We heard Mr. Dinesh Dwivedi, learned senior counsel for the appellant and Mr. Ravi Prakash Mehrotra, learned counsel for the respondent no. 2.
13. From the counter affidavit filed before this Court on behalf of respondent No. 2 – High Court of Judicature at Allahabad – it transpires that the matter for promotion of the appellant in UPHJS under Rule 22 (3) of the 1975 Rules was considered by the HJS Selection Committee of three-Judges in its meeting held on November 10, 1995 and the name of the appellant was recommended for promotion to UPHJS in ad-hoc capacity. The report of the selection committee was considered by the full court in its meeting held on November 18, 1995 and the appellant’s name was approved for promotion to UPHJS in ad-hoc capacity. The appellant was accordingly promoted to UPHJS and given posting at Lalitpur as Additional District and Sessions Judge. Thereafter appellant’s matter for promotion in the substantive vacancy in UPHJS was considered by the selection committee comprising of three-Judges on May 18, 1998. The committee, however, did not recommend the appellant’s name for promotion under Rule 22(1) of the 1975 Rules in view of the remarks given by the District Judge in the ACR for the year 1996-97. The committee referred to the remarks of the District Judge made in column 3 that he was most irresponsible and indisciplined officer. The report of the above committee was considered by the full court in its meeting held on July 11, 1998 and his name was not approved for appointment in UPHJS under Rule 22 (1) of the 1975 Rules. The question before us is : whether non-approval of the appellant for promotion in the substantive vacancy in UPHJS under Rule 22(1) of the 1975 Rules suffers from any illegality.
14. It is not in dispute that the remarks recorded by the District Judge, Lalitpur in the ACR for 1996-97 (June 12, 1996 to March 31, 1997) formed the basis of non-approval of the appellant’s name for promotion in the substantive vacancy in the UPHJS. That the District Judge, Lalitpur rated the appellant in the ACR recorded for the above period as an `irresponsible and indisciplined officer’ is borne out from the record. Against the remarks made by the District Judge, the appellant made a comprehensive representation to the Registrar on June 28, 1997. It is not necessary to refer to the representation made by the appellant in detail. Suffice it to say that the appellant did highlight that his integrity has been found to be beyond doubt and that in about 20 years of his judicial service, he has been posted with 24 District Judges and except the adverse remarks made by Shri Mukteshwar Prasad, District Judge, Lalitpur for the above period at no point of time any District Judge recorded any adverse remark about his conduct, integrity or performance. The appellant emphatically denied the observations of the District Judge, Lalitpur, recorded in the ACR and explained the entire episode.
15. The representation made by the appellant was considered by the Inspecting Judge of Lalitpur District. Vide communication dated October 21, 1997, the appellant was informed that the adverse remarks recorded by the District Judge in column No. 1 (e)(iii) – `disposal of old cases : not satisfactory’ and the adverse remarks in column no. 1 (e)(iv) -‘progress and disposal of execution cases: there were three execution cases of 1996 but no case was disposed of’ had been expunged. In the above communication, the appellant was also informed that column no. 2–‘overall assessment of the merit of the officer – outstanding, very good, good, fair, poor : Poor. Irresponsible and indisciplined officer who has no regard for his superiors or truth. Details mentioned in column no. 3 below’ has been substituted by ‘overall assessment – just average’. A careful reading of the communication dated October 21, 1997 leaves no manner of doubt that the adverse remarks given by the District Judge, Lalitpur in column no. 2 that appellant was irresponsible and indisciplined officer for the facts stated in column no. 3 no longer remained as it is and were substituted by ‘just average’. The consideration of the remarks recorded by the District Judge, Lalitpur by the selection committee as well as by the full court in its meeting held on July 11, 1998 was, thus, not proper.
16. However, in the counter affidavit filed on behalf of respondent No. 2 before this Court, in paragraph `C’, the complete text of the order passed by the Inspecting Judge on August 6, 1997 on the representation of the appellant has been re-produced which reads as follows:
‘I have gone through the adverse remarks given by the District Judge, Sri Mukteshwar Prasad in para – 1 (e)(i), 1(e)(iii), 1(e)(iv), 1(f) and 1(m) as well as in column no. 2 relating to ‘over all assessment’ and column no. 3 relating to ‘other remarks, if any’, I have also gone through the representation preferred by the officer concerned. Looking to the representation made by the officer concerned, I feel that the conclusions arrived at by the District Judge in para 1(e)(i) and 1(f) do not deserve to be expunged while the conclusions arrived at under column 1(e)(iii) and 1(e)(iv) deserve to be expunged.
The details given by the District Judge in remarks column no. 3 do go to indicate that Sri Pratap Singh–II is not amenable to the advice of the former, i.e. District Judge. As far as the over-all assessment taken to be `poor’ by the District Judge is concerned, I do not agree with the conclusions arrived at by him. Instead, looking to the reasons given by the Judicial Officer, Sri Pratap Singh-II in this regard, I find logic in them; since his integrity has been described by the District Judge to be beyond doubt and his work out-turn has been described to be above standard then, obviously, the over all assessment could not be `poor’. Thus, it deserves to be expunged, and, instead, keeping in mind the complete A.C.R. and the remarks given by the District Judge, overall assessment can be rated as ‘just average’.
Further, since remarks given by the District Judge, Sri Mukteshwar Prasad are based on factual aspects which had also been communicated to the Registrar of the High Court as well as to me, the Inspecting Judge, at the opportune time, hence, they do not deserve to be expunged, and the representation made by the Judicial Officer, Sri Pratap Singh-II in this regard deserves to be rejected.’
17. On October 11, 2011, in course of hearing, Mr. Ravi Prakash Mehrotra, learned counsel for respondent No. 2 made a request for adjournment to enable him to seek instructions as to whether or not along with the communication dated October 21, 1997, copy of the decision of the Inspecting Judge, as reproduced above, was sent to the appellant. We acceded to the request of the counsel and kept the matter for October 18, 2011. On October 18, 2011, Mr. Ravi Prakash Mehrotra, fairly stated that the copy of the decision of the Inspecting Judge was not sent to the appellant and he was informed of what was contained in the communication dated October 21, 1997 only. In our view, in the above circumstances the text of the decision of the Inspecting Judge dated August 6, 1997 cannot be used against the appellant. It needs no emphasis that a judicial officer has to be disciplined and must behave as a responsible officer. Indiscipline in the judiciary cannot be tolerated. However, as noted above, the remarks of the District Judge that the appellant was, `irresponsible and indisciplined officer who has no regard for superiors or truth’ have been expunged/substituted by the Inspecting Judge. The effect of such expunction/substitution is that the appellant cannot be considered an irresponsible or indisciplined officer on the basis of remarks recorded by the District Judge. The gravity of what has been recorded in column (3) is, thus, lost. Moreover, the root of the problem between the two senior judicial officers appears to be clash of ego. In the words of Samuel Johnson, every man is of importance to himself. The observation noted in column (3), `He never came to me in the chamber or at the residence to discuss any problem relating to Nazarat’ indicates that the District Judge was not happy with the appellant for having not given due importance to him.
18. Be that as it may, due to consideration of the remarks recorded by the District Judge and not taking into consideration that such remarks were expunged/substituted as communicated to the appellant vide communication dated October 21, 1997, the very consideration of the appellant’s case for promotion in the substantive vacancy in UPHJS under the 1975 Rules by the selection committee in its meeting dated May 18, 1998 and by the full court in its meeting held on July 11, 1998 gets seriously and vitally affected.
19. It is important to notice that in the counter affidavit filed on behalf of respondent no. 2, it has been stated that appellant’s matter for promotion in the substantive vacancy in UPHJS was again considered by the selection committee on November 24, 2004 but in view of the matter being sub judice, it was resolved that appellant’s name could not be considered for regular appointment under Rule 22(1) of the 1975 Rules and the above report of the selection committee was accepted by the full court in its meeting held on February 5, 2005.
20. In what we have discussed above, it is not necessary to consider the submissions of the learned senior counsel for the appellant that under Chapter III, Rule 4(B)(3) and Rule 4(C)(16) of the Allahabad High Court Rules (Rules of the Court), 1952 framed under Article 225 of the Constitution of India, the District Judge had no competence to make any remark with regard to the appellant.
21. In our view, the matter for the appellant’s promotion in the substantive vacancy in UPHJS which was considered by the selection committee on May 18, 1998 and by the full court on July 11, 1998 needs to be reconsidered in light of the discussion made above and in accordance with law. Since the appellant is likely to superannuate shortly, we expect the High Court on its administrative side to complete this exercise as early as possible and preferably within one month from the date of the communication of this order.
22. The appeal is allowed, as indicated above, with no order as to costs.
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