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Shital Prasad Thakur v/s State of Bihar

    C.W.J.C. 3234 Of 2002

    Decided On, 05 October 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE BARIN GHOSH & THE HONOURABLE MR. JUSTICE V.N. SINHA

    For the Appearing Parties: P.K. Shahi, R.K. Dutta, Advocates.



Judgment Text

V.N. SINHA, J.

(1.) Heard learned counsel for the petitioner as also learned counsel appearing on behalf of the respondents.

(2.) The petitioner who is an awardee of Ph. D degree for his research on Indian Constitution and Gandhian thought and earlier served as the Additional District and Sessions Judge, Gaya has filed the present writ petition assailing the decision of the Full Court as communicated to him by the Registrar General of this Court under Letter No. 59 dated 3.1.2002, Annexure 1 whereunder the Full Court having assessed and evaluated the services rendered by him as a judicial officer in the light of the judgment and order of the, Hon'ble Supreme Court dated 24.8. 1993, passed in review petition No. 249 of 1992 (Writ Petition No. 1022 of 1988 All Indian Judges Association and Ors. v. The Union of India and Ors., decided not to grant him the benefit of enhancement of retirement age from 58 years to 60 years. He has further prayed for a direction to the respondent authorities to allow him the benefit of the enhanced retirement age from 58 years to 60 years with all consequential benefits.

(3.) The ground of challenge raised against the decision of the Full Court not to extend his service up to 60 years is that the said decision of the Full Court is contrary to the criteria laid down by the Hon'ble Supreme Court in the case of All India Judges Association and Ors. v. The Union of India and Ors. and has been recorded ignoring the unblemished and good service record of the petitioner for about 26 years. In support of the aforesaid contention the petitioner has submitted that he was appointed as a Munsif in the Bihar Judicial Service after he became successful in the competitive examination conducted by the Bihar Public Service Commission for appointment in the said service, whereafter he was appointed Munsif on probation vide Memo No. 158-A dated 10.6.1975 which post he joined on 22.11.1975. Considering the satisfactory service rendered by the petitioner as Munsif he was confirmed vide Notifica

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tion dated 21.1.1988 with effect from 22.11.1977. Service of the petitioner being satisfactory he was promoted to the rank of Subordinate Judge under Memo No. 350-H dated 6.11.1986 and served in the capacity of Subordinate Judge, Registrar, Civil Court, Chapra from, where he was transferred to Buxar in 1989 where he served as Subordinate Judge-cum-Additional Chief Judicial Magistrate. From Buxar he was transferred to Araria as Subordinate Judge-cum-Chief Judicial Magistrate vide Notification of the High Court bearing Memo No. 127-A and 152-A dated 19.3.1990 and 6.4.1990 where he joined on 21.5.1990. This Court being satisfied with his performance over, deputed him to serve the State Government as Presiding Officer, Labour Court, Jamshedpur where he joined in January, 1991 but on account of circumstances which were not conducive to his temperament, he was constrained to request the High Court to take his service back. Considering the request of the petitioner, his service was taken back from the State Government and he was initially posted as Subordinate Judge, Jamshedpur and then transferred to Khagaria and then to Aurangabad in the capacity of Subordinate Judge. He joined in Aurangabad in May, 1994 and continued there till June, 1996. Considering the overall satisfactory service the petitioner was promoted to Bihar Superior Judicial Service and posted as Additional District and Sessions Judge, Dhanbad vide Notification of the Bihar Government bearing Memo No. 5292 dated 24.5.1996. Soon thereafter, he was placed under suspension with immediate effect in contemplation of the disciplinary proceeding against him in terms of the resolution of the Standing Committee taken in the proceedings dated 28/29.6.1996. The charges which became the subject matter of the departmental enquiry initiated against the petitioner, according to the petitioner, were already enquired into by the then Hon'ble Inspecting Judge Mr. Justice Chy. S.N. Mishra and his Lordship had found those charges to be baseless and then only the petitioner was promoted to the Bihar Superior Judicial Service. Under the proceedings of the Standing Committee dated 6.11.1996 it was resolved to request Mr. Justice P.K. Sarin to conduct a disciplinary proceeding initiated against the petitioner. Sri Justice Sarin conducted the enquiry and submitted his report dated 30.4.1998 which was considered by the Standing Committee whereafter suspension of the petitioner was revoked and he was reinstated and posted as Additional District and Sessions Judge, Dhanbad with, all consequential benefits and he continued at Dhanbad in the same capacity until 19.3.2001. During the period between June, 1998 to March, 2001 judgeship of Dhanbad was inspected by two of the Hon'ble Judges of this Court and from the inspection note as contained in Annexures 2 and 3 it appears that the performance of the petitioner was found good. From Dhanbad the petitioner was transferred to Gaya and at Gaya his performance as is evident from the quarterly assessment of wok, performance, disposal chart as contained in Annexure 4 series was good. Considering the fact that he was exonerated in the departmental proceeding and reinstated in service with full arrears of salary as also the fact that his out turn was good he was first confirmed in the cadre of Bihar Superior Judicial Service vide Notification dated 17.3.2001 with effect from 1.2.1998 and then promoted to the selection grade vide Notification bearing Memo No. 428 dated 21.9.2001.

(4.) Within three months of his promotion to the selection grade of the Bihar Superior Judicial Service the petitioner was served with the impugned communication dated 3.1.2002, Annexure 1 whereunder he was informed of the Full Court decision not to extend his retirement age from 58 years to 60 years. The said decision, according to the petitioner, has been taken without there being any material available on record which could have persuaded any reasonable man of ordinary prudence to take such decision. According to the petitioner, there was absolutely no material after 2001 regarding his integrity, efficiency and utility which could have persuaded this Court to take a view holding him unsuitable to continue in judicial service. In the circumstances, the petitioner by filing the present writ petition called upon the High Court to produce the materials which were considered by the Full Court in coming to the impugned decision. In this connection learned counsel appearing in support of this application has relied on the judgment of the Hon'ble Supreme Court in the case, of All India Judges Association and Ors. v. The Union of India and Ors. (supra) as also on a Bench decision of this Court dated 20.5.2005, passed in C.W.J.C. No. 9325 of 2003 the case of Sidheshwar Narain.

(5.) The High Court administration filed counter affidavit duly affirmed by Sri Bijendra Kumar Singh, the Officer on Special Duty. It appears in paragraph 9 of the counter affidavit it has been candidly accepted that there was no adverse remark recorded against the petitioner during the period between 1975-76 till 1988-89 but in the year 1989-90 the District and Sessions Judge, Araria vide remarks dated 21.8.1990 did make adverse comment against the petitioner in regard to his disposal as also the fact that his actions left an impression that he had formed a group among the brother officers and his judicial work was of average standard which indicates lack of Administrative control over his staff. In paragraphs 10 and 19 of the counter affidavit averments have been made that allegation petition was received against the petitioner from Kaushal Kishore Singh that he was granting bail on extrenuous consideration which was considered by the Inspecting Judge along with original records of the case on 1.6.1995 and the inspecting Judge after considering the matter in detail concluded that the petitioner exercised his power in a bona fide manner and the order confirming bail does not smack of any extrenuous consideration, however, while concluding the report the Hon'ble Inspecting Judge observed that the petitioner (C.J.M.) cannot be held to be absolutely immune from the negligence alleged but allowed him to be let off with a warning to be careful in future. The suggestion of the Inspecting Judge was approved by the then Hon'ble Chief Justice with direction that the warning should not only be communicated to the petitioner but should also be incorporated in his service book. The aforesaid direction of the Hon'ble Chief Justice was duly endorsed by other members of the Standing Committee through circulation. Again representations were received from M/s. Rajesh Mishra, Advocate, Aurangabad, Abdul Rashid, Shep Pujan Chauhan and Tribhuwan Singh alleging extrenuous consideration by the petitioner in granting bail which was also considered by the then Inspecting Judge Sri Justice Chy. S.N. Mishra with reference, to the enquiry report of the District and Sessions Judge, comments of the petitioner and the records of seven of those cases in which allegations were made under his Lordships note dated 26.2.1996 and his Lordship was of the opinion that the matter does not deserve to be pursued any further and may be dropped which recommendation of his Lordship was approved by the then Hon'ble Chief Justice under his note dated 17.3.1996. Meanwhile on 14.1.1996 against a representation from Sri Mukhlal Singh and other 34 lawyers of Aurangabad Civil Court was received alleging extrenuous consideration by the petitioner in granting ball with reference to 28 cases, the details whereof were included in the representation. The aforesaid allegations were also supported by printed representation received from Intellectual Forum, Aurangabad which was duly forwarded by Sri Akshay Kumar Paswan, Secy. Pradesh Samata Party in which it was indicated that the forum had decided to hold dharna in front of the C.J.M. Court room on 19.2.1996 as the C.J. M. was granting bail on extrenuous consideration. The details of the cases were mentioned in the representation of the forum. The aforesaid two representations were referred to the District and Sessions Judge, Aurangabad for enquiry and report who submitted report dated 25.3.1996 and 1.6.1996 with reference to the specific cases mentioned in the two representations and having discussed the facts of each case the District and Sessions Judge concluded that there was substance in the allegations made against the petitioner. The petitioner was also asked to comment on the aforesaid two reports of the District and Sessions Judge and it appears that the petitioner submitted his comments dated 13.5.1996. The report along with the comments was considered by the Inspecting Judge who opined under his notes dated 20.6.1996 that the matter taken as a whole appears to be serious and grave and require consideration by the Standing Committee. The Standing Committee considered the minutes of the Inspecting Judge dated 20.6.1996. on 28/29.6.1996 and resolved to place the petitioner under suspension in contemplation of the disciplinary proceedings against him, whereafter under Memo No. 1352 dated 24.8.1996 Memorandum containing articles of charge, statement of allegations and documents substantiating the charge were served on him and then under resolution of the Standing Committee dated 6.11.1996 it was resolved to request Mr. Justice P.K. Sarin to conduct the disciplinary proceeding initiated against the petitioner. Having seen the articles of charge, statement of allegations and minutes of the Standing Committee dated 6.11.1996, his Lordship issued notice to the petitioner who appeared and filed his written statement on 16.5.1997 in which the petitioner took the stand that he never exercised his power as C.J. M. on extrenuous consideration rather he exercised his discretion considering the facts of the case and allegations levelled against him is wholly without substance. The enquiry officer having considered the matter in detail submitted his report dated 30.4.1998 perusal whereof indicates that the petitioner was exonerated of the allegation that he granted bail on extrenuous consideration. However, in regard to the charge No. 1 it was said that by not granting bail in a bailable, offence the charged officer did not act with the judicial propriety with which he should have acted as it appears that he was swayed by sentiments perhaps on account of death of child of a brother Judicial Officer. In regard to the two reports of the District and Sessions Judge dated 25.3.1996, Ext-1 and 1.5.1996, Ext-2 it was observed that two reports of the District and Sessions Judge were based on enquiries made from a number of Advocates and others including Akshay Kumar Paswan could not be read in evidence against the petitioner in the departmental enquiry proceeding as persons examined in support of the allegations were neither examined in presence of the petitioner nor any Memorandum of their statements was prepared and given to the petitioner. It was also observed that the District and Sessions Judge who proved the aforesaid two reports also did not said anything in respect of the present charges and on those two grounds the Hon'ble Judge conducting the enquiry did not deem it expedient to rely on the two reports in the departmental enquiry proceedings. The report of the enquiry officer was considered by the Standing Committee and then the petitioner was reinstated in service with full salary for the period of suspension.

(6.) It was submitted on behalf of the petitioner that in view of the petitioner's exoneration in the departmental proceeding with full salary and consequential benefit and in view of his promotion in the selection grade of superior judicial service under the Notification dated 21.9.2001 he should have been given the benefit of extension of retirement age from 58 years to 60 years.

(7.) Earlier, having heard the counsel for the parties, we reserved the judgment on 10.8.2005 and then we examined the pleadings and submissions made by the parties with reference to the service record of the petitioner and noticed that besides the aforesaid two reports of the District and Sessions Judge dated 25.3.1996 and 1.5.1996 there is yet another report of the Inspecting Judge Hon'ble Dharm Pal Sinha dated 16.6.1996 which was submitted after surprise inspection of the Judgeship of Aurangabad on 14.6.1996 In which the Inspecting Judge had the opportunity to meet some of the Members of the Bar Association including its office bearers who spoke individually in confidence but did not like their names to be disclosed. The Inspecting Judge thereafter came to the conclusion that the petitioner as C.J.M. Aurangabad was carrying extremely bad reputation and was indulged in several improprieties which is not expected from a judicial officer. In this connection, he concluded that he was passing bail orders on extrenuous consideration, he had formed a group of his own with some judicial officers of his won cast, namely, Sri S.K. Roy and Arun Kumar Singh, who are often seen in his company and to them files of all such original cases were transferred in which rich people are involved or question of release of Bus, Truck etc. is likely to arise. The petitioner as C.J.M. was found entertaining transfer petitions although he had no such power. In order to demoralise and dissuade Advocates from raising their voice against the petitioner he was making indiscreet and arrogant statements to the effect that no one can do any harm to him because he has connection with the Hon'ble Judges of the High Court and that he could earn promotion despite adverse remarks of the District and Sessions Judge who himself was compulsorily retired because of giving adverse remarks against him. Besides, he was keeping matters pending even when police submitted final form and the parties entered into compromise. In this connection Aurangabad P.S. Case Nos. 322 and 323 of 1994 was referred to. Having noticed the contents of the report dated 25.3.1996, 1.5.1996 and 16.6.1996 we directed the matter to be listed under the heading "To be mentioned" so that attention of the Counsel for the parties be invited to the aforesaid two reports of the District and Sessions Judge dated 25.3.1996 and 1.5.1996 and of the Inspecting Judge dated 16.6. 1996. Under order dated 31.8.2005 we allowed the counsel for the parties to take inspection of the three reports and thereafter again heard them on the three reports.

(8.) In regard to the two reports of the District and Sessions Judge, learned counsel for the petitioner submitted that as those reports are based on statement of witnesses who were examined behind the back of the petitioner without there being any memorandum of statement prepared and given to him the two reports were rightly not relied upon in the departmental proceedings and could not have been considered while considering his case for extension of the date of superannuation. In this connection he further pointed out that learned District and Sessions Judge who submitted those reports was otherwise aggrieved by the petitioner as he had reported against him to the High Court that he was indulging in temporary embezzlement of the amount sanctioned for fuel of the staff car which he admitted during the departmental proceeding. In regard to the report of the Inspecting Judge dated 16.6.1996 it was submitted that the said report was submitted by the Inspecting Judge only because he was ill disposed against the petitioner as the petitioner refused his request to oblige him in connection with Aurangabad P.S. Case Nos. 322 and 323 of 1994 which fact was also brought to the notice of the enquiry officer and the enquiry officer having appreciated the defence of the petitioner in regard to the charge No. 16 held that the defence of the petitioner in regard to charge that he was not accepting the final form in the aforesaid two cases on account of some extrenuous consideration cannot be held to be without substance.

(9.) Having heard the counsel for the parties, we are of the view that while the other records could be looked at, the two reports of the District and Sessions. Judge and the report of the Inspecting Judge could also be looked at for on merits no opinion thereon was expressed by any higher authority at any subsequent point of time and since the same could not be wiped of on account of subsequent confirmation of the petitioner in Bihar Superior Judicial Service made under notification dated 17.3.2001 with effect from 1.2.1998 and his promotion in the selection grade of the service with effect from 21.9.2001 inasmuch as confirmation is an incidence of service which is a routine matter and is never preceded by reappraisal of the entire service record and is one of the inglorious uncertainties of service depending neither on efficiency of he incumbent nor on availability of substantive vacancies and does not have to conform to any set of rules, as was observed by the Hon'ble Supreme Court in paragraph 39 in the case of S.B. Patbardhan v. The State of Maharashtra are pertinent, and as grant of selection grade/time bound promotion is only intended to ensure removal of stagnation and does not have the effect of merit promotion on a superior post as observed by the constitution Bench of the Hon'ble Supreme Court in the case of Lalit Mohan Deb v. The Union of India and the Division Bench judgment of the Hon'ble Supreme Court in the case of Patna University and Ors. v. Awadhesh Kishore Prasad Yadav reported in (1994) Suppl. 2 SCC 250 and, accordingly, the same will not have the effect of wiping out the materials collected before, as held by the Hon'ble Supreme Court in the case of Bishwanath Prasad Singh (supra). If those were part of the records, which cold be looked at, then on the basis thereof an opinion as impugned could be expressed by a reasonable man.

(10.) In view of the discussions above, in our opinion, the two reports of the District and Sessions Judge and one of the Inspecting Judge can always be looked into while considering the case of the petitioner for extension of retirement age and it appears the High Court having considered the entire service record of the. petitioner including the three reports came to the conclusion that the petitioner cannot be allowed the benefit of extension, which decision, according to us, is a decision which a prudent man could have taken and in the circumstances, we find no merit in the writ petition which is dismissed
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