- (1.) SUDHIR Agarwal, J. Petitioner, Rajendra Swaroop Kashyap, has been compulsorily retired in exercise of power under Fundamental Rule 56 (in short "f. R.-56") vide order dated 17th May, 2005 issued by the respondent No. 1 on the recommendation of the High Court. Aggrieved, the petitioner has approached ' this Court in this writ petition under Article 226 of the Constitution of India, seek ing a writ of certiorari for quashing the aforesaid order dated 17th May, 2005. He has also sought a writ of mandamus, commanding the respondents to reinstate him as District and Sessions Judge with all consequential benefits including ar rears of salary and contract of service etc.
(2.) THE facts in brief, as stated in the writ petition, giving rise to the present dispute are that the petitioner was selected for recruitment in U. P. Nyayik Sewa in the year 1972. He was appointed as Munsif-Magistrate and after completion of his training, was posted in District Judgeship, Banda where he joined on 22nd April, 1975. He was promoted as Additional Chief Judicial Magistrate/civil Judge in August 1983 and was further appointed by promotion in U. P. Higher Judicial' Service as Additional District and Sessions Judge on 18th March, 1987. He was granted selection grade in the pay scale of Rs. 3700-5000 with effect from 1st January, 1986 vide order dated 8th April, 1991 and was confirmed in U. P. Higher Judicial Service vide order dated 3rt February, 1996. Selection grade in the pay scale of Rs. 18750-22850 fell due to the petitioner in 1997 but it was sanctioned vide Court's order dated 29th September, 2004 though w. e. f. 12th September, 1997. In September 2004 the petitioner was posted as District Judge, Mahoba, wherefrom he was transferred to Hamirpur in April 2005. While working as District Judge, Hamirpur, he received the impugned order dated 17th May, 2005 retiring him compulsorily in public interest. It is said that after the petitioner was promoted as District and Sessions Judge and was sanctioned selection grade in U. P. Higher Judicial Service, subse quent thereto, there is no adverse material justifying his compulsory retirement under FR 56 and, therefore, the decision to retire him pre-mature is arbitrary, based on no adverse material at all. It is said that any adverse material of the period prior to 29th September, 2004 ought not to have been considered to form opinion as to whether the petitioner should be compulsorily retired or not. Since there is no adverse material for the subsequent period, it is evident that the au thorities have considered the adverse remarks prior to 29th September, 2004, it is contended that it vitiate the entire proceedings including the impugned order of compulsory retirement. To fortify his submissions, learned Counsel for the peti tioner placed reliance on Apex Court's decisions in Swami Saran Saksena v. Sfafe of U. P. , AIR 1980 SC 269; Brij Behari Lalagarwalv. Hon'ble High Court of Madhya Prade'sh and others, AIR 1981 SC 594; Sfafe of U. P. and anotherv. Lalsa Ram, (2001) 3 SCC 389; State of Gujarat v. Umed Bhai M. Patel, (2001) 3 SCC 314; D. Ramaswami v. State of Tamil Nadu, AIR 1982 SC 793; Madan Mohan Choudharyv. State of Bihar and others, (1999) 3 SCC 396 and Prifam Singh v. Union of India and others, 2004 (103) FLR 310 (SC) and further contended that in the past though there were certain character roll entries containing remarks about disposal of cases "below standard" or "inadequate" or "rated low" but it is said that the reasons for such lower disposal of work was always explained by the peti tioner and, therefore, the same could not have been the basis to form an opinion to retire him compulsorily, particularly when for other period disposal of work by the petitioner has been found satisfactory, adequate and much higher than the prescribed standard. It is thus submitted that the aforesaid entries could not have been the basis justifying his compulsory retirement under FR 56 and, therefore, the impugned order is vitiated in law. The matter has been contested mainly by respondent No. 3 who has also filed a counter affidavit as well as supplementary counter affidavit. Furnishing details of petitioner's service record, his date of appointment in service and vari ous promotions are not disputed. During service career, the petitioner was awarded entries by the concerned Hon'ble Administrative Judges/district Judges which are adverse in some or the other respects and have been detailed in the counter affidavit which are summarized as under: Authority givingyear Relevant extract of adverse part of the entry remarks Inspecting Judge 1975-76 "disposal very inadequate, inspection notes are not satisfactory. Should be very careful in granting adjournments. Character good. In tegrity certified by the District Judge. " Inspecting Judge 1976-77 "disposal in 1976-77 and 1977-78 below 1 1977-78 standard being 89% and 95. 86% respectively. In 1978-79 it was just 100%. Integrity beyond doubt. " Inspecting Judge 1985-86 "disposal not adequate being 90. 2 per cent. The District Judge has rated him as a fair officer. Integrity certified. " Inspecting Judge 1987-88 "disposal not adequate being 90. 2 per cent. The District Judge has rated him as a fair officer. Integrity certified. " Inspecting Judge 1988-89 "disposal 79%, which is not adequate. The District Judge, otherwise, has rated him as a good officer. Integrity certified. " Inspecting Judge 1993-94 "disposal is only 38%. It is most inadequate. No plausible explanation has been given for such shortfall. From Annual Confidential Re marks of the District Judge it appears that progress and disposal of execution cases was also unsatisfactory and further he was not careful in granting adjournments. Integrity certified. " Inspecting Judge 1997-98 "the officer shall try to dispose of the execution cases expeditiously. " District Judge Gorakhpur 1999-2000 "the work of the officer is 87% as he has been able to give work of 169-5/6 days work against 198 working days. Thus his standard of work is not adequate and is short" (awarded toy District Judge, Gorakhpur) District Judge Chitrakoot 2000-2001 "he has given work 72. 42%, which is below the standard. " (awarded by District Judgechitrakoot) Administrative Judge 2000-2001 "as reported by the District Judge the out-turn being 72. 42%, is below the prescribed stan dard for which no reasons have been given nor any explanation in this regard has been sought by the District Judge from the officer concerned which is below the standard. " (by Hon'ble Administrative Judge)
(3.) BESIDES above, in Criminal Revision No. 203 of 1994, Shrawan Kumar Yadavv. State, this Court made following remarks against the petitioner. "shown utter ignorance to the understanding of decision of High Court in considering the decision reported in the case of Prakash Dhobi v. State of U. P. , (1994 JIC101)" It is not disputed that all these remarks including the judgment of the Court wherein observations were made against him were duly communicated to him. In respect to some of the remarks he made representations which were rejected. In respect to adverse remarks of 1997-98 where the Administrative Committee passed an order that the remarks being advisory in nature, the representation is rejected. The fact remains that all the aforesaid remarks have continued to exist'in the service record of the petitioner.;