- (1.) SUDHIR Agarwal, J. Petitioner Shiv Kant Tripathi a Judicial Of ficer in the State of UP. working on the post of Civil Judge (Senior Division) was compulsorily retired in exercise of power under Fundamental Rule 56 (in short "f. R.-56") vide order dated 17th May, 2005. Aggrieved thereto, he has preferred this writ petition seeking a writ of certiorari for quashing the said order and has also sought a writ of mandamus commanding the respondents to reinstate him on his original post and not to interfere with his functioning as Additional Civil Judge (S. D ).
(2.) THE facts in brief as stated in the writ petition giving rise to the present dispute are that the petitioner was appointed as Munsif [now designated as Civil Judge (Junior Division)] in the year 1978. While posted as Judicial Magistrate, Unnao an adverse remark was recorded in his Annual Character Roll (hereinafter referred to as "a. C. R. ") for the year T994-95 by the then District Judge, Unnao and he also recommended for departmental inquiry against him wherein ultimately, he was exonerated as communicated by letter dated 15th April, 2005. In the meantime, various annual confidential remarks were given by the concerned Dis trict Judge (s) referring to pendency of the said inquiry and his integrity was either withheld or otherwise made subject to the said inquiry which ultimately, resulted in exoneration. It is said that there was no adverse material otherwise existing in his service record, despite thereto, the Screening Committee constituted by Hon'ble the Chief Justice recommended his name for compulsory retirement. THE said recommendation was accepted by the Full Court on 30th April, 2005. Recom mendation was made to the Governor by this Court's letter dated 2nd May, 2005 pursuant where to, the impugned order dated 27th May, 2005 was issued compulsorily retiring the petitioner. Though in the writ petition, a number of grounds have been taken but Sri Vikas Budhwar, learned Counsel appearing for the petitioner assailed the im pugned order of compulsory retirement also on the ground that it is arbitrary and has been passed without there being any material and, therefore, is liable to be set aside. He contended that though compulsory retirement is not a punishment but it ceases his right to continue in service till he attains the age of superannua tion and thus has to be founded on some material. The competent authority has to form its opinion objectively otherwise the order of compulsory retirement is liable to be set aside. Placing reliance on the Apex Court decisions on All India Judges Association and others v. Union of India and others ,air 1993 SC 2493 S. Ram Chandra Raju v. State of Orissa. AIR 1995 SC 111 State of U. P. v. Batuk Deo Pati Tripathi and another, (1979) 2 SCC 102 Nawal Singh v. State of UP and another, AIR 2003 SC 4303 The State of West Bengal and another Nripendra Nath Bagchi ,air 1966 SC 447 State of U. P. and others v. Vijay Kumar Jain, AIR 2002 SC 1345 Shyam Lal v. State of U. P. and another, AIR 1954 SC 369 State of Haryana v. Inder Prakash Anand H. C. S: and others, (1976) 2 SCC 977 Registrar, High Court of Madras V. R. Rajiah, (1988) 3 SCC 211 Baikunth Nath Das and another v. Chief District Medical Officer Baripada and another, (1992) 2 SCC 299 Ashok Tanwar and another v. State of H. P. and others, (2005) 2 SCC 104 Bishwanath Prasad Singh v. State of Bihar and others, (2001) 2 SCC 305 State of U. P. and another v. Bihari Lal, 1994 Supp. (3) SCC 593 Jugal Chandra Saikia v. State of Assam and another, AIR 2003 SC 1362 and MS. Bindra v. Union of India and others, (1998) 7 SCC 310, he contended that in view of the law laid down therein and considering the service record of the petitioner, it is evident that there was no material to substantiate any allegation of corruption or dishonesty against the petitioner. Character Roll entries awarded during the period when the disciplinary inquiry was pending could not be treated to be adverse for the pur pose of justifying the impugned order. Since there was no other material justifying formation of opinion that the petitioner has outlived his utility or is not a person who should be allowed to remain in service any more in public interest, the opinion formed by the respondents is clearly arbitrary and it vitiates the impugned order. Respondent No. 2 has filed a detailed counter-affidavit placing on record besides others, gist of the service record of the petitioner. It is said that the petitioner joined U. P. Nyayik Sewa (hereinafter referred to as "upns") on 20th November, 1978 and after completion of training at Administrative Training Institute, Nainital, was posted as Munsif, Mirzapur on 27th January 1979. He was confirmed in UPNS on 18th May, 1985 and was promoted as Add ). Chief Judicial Magistrate, Etowah on 28th November, 1989. For the year 1994-95 District Judge, Unnao recorded ACR of the petitioner when he was working as C. J. M. Unnao and awarded following entry: Integrity not certified at present as Enquiry No. 24/95 Head No. X is pending against him on the complaint made by members of the Bar Associa tion Unnao in which his integrity is in question. " "relations with members of Bar.-Not good as enquiry is pending against the RO. filed by members of Bar.
(3.) THE aforesaid entry was communicated to the petitioner vide letter dated 30th April, 1996 where against he represented on 4th June, 1996 which was con sidered and rejected by this Court vide order dated 3rd September, 1996. With respect to the complaint received against the petitioner involving his integrity, a vigilance enquiry was directed and on the basis of report submitted by the Officer on Special Duty, Enquiries, (Vigilance), the administrative committee vide dated 18th September, 1994 decided to hold a regular enquiry against the petitioner. A charge-sheet was issued and the District Judge, Lucknow was ap pointed Inquiry Officer who submitted his report on 3rd February, 2005 exonerating petitioner which was accepted by the administrative committee in its meeting dated 6th April, 2005 and it resolved not to take any further action in the matter. For the year 1997-98 while the petitioner was working as Civil Judge (Se nior Division), Bah, he was awarded following adverse entry by the Administrative Judge: "the officer has not taken interest in the disposal of execution cases. He has disposed of only two contested regular execution cases and did not dispose of even a single SCC Execution Case. The District Judge has reported that there were complaint touching integ rity but the same were not substantiated. Some complaints against the in tegrity of the officer are pending in the High Court as well. The office has reported that a vigilance enquiry is pending against the officer. In the circum stances, the integrity of the officer may be kept under supervision for the next two years. ";