REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 2307 OF 2011

Pratap Singh …. Appellant

Versus

State of U.P. & Anr.          ….Respondents

JUDGMENT

R.M. Lodha, J.  

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  1

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  

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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,  doubtful  or  positively lacking.

Beyond  doubt.  No  complaint received.

(b) If  he  is  fair  and  impartial  in  dealing with the public and bar.

No  specific  complaint  was  made to me.

(c) If he is cool-mind and does not  lose temper in court.

Yes

(d) His private character, if such as  to lower him in the estimation of  the public and adversely affects  the  discharge  of  his  official  duties.

No  complaint  received  against  his  private  character.

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(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     adjournments

Satisfactory

(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       execution cases.

There  were  3  execution  cases  of  1996  but  no  case  was  disposed  of.  One case is stayed  by the Hon’ble High  Court.

(v) Interim orders, injunctions  Being  granted,  refused  to  retained for sufficient reasons.

Yes.

(vi) Are  cases  remanded  on  substantial grounds?

No  appeal  was  remanded.

(f) Whether  judgments  on  facts  and  law  are  on  the  whole  sound,  well  reasoned  and  expressed in good language.

Judgments  of  average quality.

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(g) Whether  disposal  of  work  is  adequate  (give  percentage  &  reasons for short disposal).

Out-turn being 132%  is  above  the  standard.  As  per  statement  received  as  against  133  working  days,  he  gave  work  for  175.88.

(h) Control  over  the  office  and  administrative capacity and tact.

Proper.

(i) Relation  with  members  of  the  bar [mention incidents, if any]

Normal

(j) Behaviour in relation to brother  Officers  [mention  incidents,  if  any]

Normal

(k) Whether  the  officer  has  made  Regular inspections of his court  and Offices in his charge during  the  year  and  whether  such  inspections  were  full  and  effective.

YES

(l) His punctuality in sitting in the  court     

Punctual.

(m) Whether amenable to advice of  District  Judge  and  other  superior Officers.

He is  not  amenable  at all to the advice of  the  District  Judge.  Reasons  given  below in column no.  3.

2. Overall assessment of the merit  of  the officer-out-standing,  very  good, good, fair, poor.     

Poor.  Irresponsible  and  indisciplined  officer  who  has  no  regard  for  his  super- iors  or  truth.  Details  mentioned  in  column  

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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  

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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.    

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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  

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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.

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.  

………………………J            (R.M. LODHA)   

               ….…………………………….J.        (JAGDISH SINGH KHEHAR )

NEW DELHI NOVEMBER 15, 2011.                         

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