HC tears into compulsory retirement order, indicts own Judge for adverse remarks

In a rare indictment of one of its own Judges, the Punjab and Haryana High Court has struck down the compulsory retirement of a District and Sessions Judge in Haryana, holding that the order was vitiated by “illegality, impropriety and mala fide in law” as it rested entirely on unsubstantiated adverse remarks recorded during the last five months of his career.

The assertion came as the Division Bench of Chief Justice Sheel Nagu and Justice Sanjiv Berry allowed the petition filed by Dr Shiva Sharma against the 2011 retirement order passed by the Governor of Haryana on the high court’s recommendation. Senior advocate SK Garg Narwana and counsel Arav Gupta, appeared for the petitioner.

Coming down heavily on the manner in which the Judge was shown the door after three decades of unblemished service, the Bench observed “irrelevant material of the adverse remarks” recorded by the then Administrative Judge, Justice Alok Singh, were further taken into account, by ignoring the

fact that an officer who had earned ‘good’ or ‘very good’ remarks throughout his service career of 30 years could not overnight become bad to the extent of rendering his ‘integrity doubtful’.

“No man of ordinary prudence can take such a decision…The competent authority in all probability did not notice the element of mala fide in law, which became palpable in the present case, especially on the administrative judge’s part, who recorded adverse remarks in the last five months of the petitioner’s ACR, for the appraisal year 2010-2011.”

The controversy arose in the appraisal year 2010-11, where no remarks could be recorded from April to October 2010 owing to the then Administrative Judge’s transfer to the Madras High Court. The new Administrative Judge, Justice Alok Singh, who took charge from November 2010, carried out an inspection and recorded scathing remarks for the remaining five months, grading the petitioner as “C – Doubtful Integrity.”

The Bench asserted that compulsory retirement in public interest was not a punishment, but the power could not be exercised arbitrarily. “The same has to be issued only after due application of mind to the relevant material/evidence available on record… while the irrelevant material is discarded,” the judgment declared.

The Bench added inconsequential remarks and the adverse entry of 2010-11 – “neither based on written complaints nor on verified material or any covert or overt inquiry” – was relied upon. Tracing the petitioner’s service record, the court observed that he was designated District and Sessions Judge in 2009 after scrutiny of his Annual Confidential Reports (ACRs) and interaction with a committee of senior Judges. “Whatever sting or adverse effect remained in the ACRs, prior to such designation, became redundant,” the Bench observed, adding that the petitioner consistently earned “good” or “very good” entries throughout his 30-year career, with the last full appraisal year of 2009-10 grading him as “very good”.

The Bench added “closer scrutiny” revealed that the adverse remarks were wholly unsupported. For the same period, the ACR itself categorised the petitioner as “just efficient,” with “good” quality of judgments, “very good” quantity of work, but deficiencies in leadership and interpersonal relationships.

Referring to the standard procedure, the Bench asserted the least the then Administrative Judge ought to have done was to conduct a covert vigilance inquiry asking for the petitioner’s response.

“If such an inquiry would have revealed some prima facie material of petitioner having committed misconduct, then proper course would have been to initiate a regular inquiry… None of these steps were adopted. Instead, the short-cut method was adopted by declaring the petitioner to be unfit to be retained in service at the age of 58 years.”

Allowing the writ petition, the high court set aside the Governor’s order dated September 5, 2011, and restored all consequential benefits to the petitioner, including notional seniority, pay fixation, and arrears of pension — though not salary for the period out of service.