Compulsory retirement of judicial officers shall be based on a comprehensive review; past actions are not to be ignored

Asmita Kuvalekar | Government Law College, Mumbai | 02^nd April 2020

ARUN KUMAR GUPTA V STATE OF JHARKHAND AND ANR (WRIT PETITION (CIVIL) NO 190 OF 2018) 

FACTS OF THE CASE: 

Removed from judicial service by way of compulsory retirement, this petition brings to the fore latent issues of dignity, past record and promotions proving competence in relation to the same. The Apex Court carefully examines the crucial basis of public interest that has to be proved by the authority ordering compulsory retirement. Additionally, it also evaluates the force and applicability of the washed off theory which states that promotions wash off past incompetence or adverse facts.  

ISSUE: 

1. When can judicial officers be subjected to compulsory retirement? 
2. Is the washed off theory legitimate and if yes, how effective is it? 

JUDGEMENT: 

First and foremost, the Supreme Court examined the legal basis of compulsory retirement. I n the present case, the impugned action was taken under Rule 74(b) (ii) of the Jharkhand Service Code, 2001. Accordingly, an appointing authority can order compulsory retirement if it is satisfied that the same would be in public interest. Referring to its judgement in Union of India v Col. J.N Sinha¹, the Court elucidated the term ‘public interest’. Deeming it to be a part and parcel of the pleasure doctrine under Article 310 of the Indian Constitution, it was held that as long as the appointing authority makes such a decision bonafide, no challenge to it can lie in a Court of law. 

Public interest affords a substantially wide ambit, albeit not unreasonable. It includes aspects of better efficiency, more competence, “undoubted ability and integrity” etc. It is clear therefore that the final decision on this count is made subjectively by the Government and the same is legally tenable. However, an order of compulsory retirement is not a punishment and creates neither stigma nor a presumption of misbehaviour. Fundamental principles of natural justice do not play a role in this context but High Courts and the Supreme Court are empowered to look into actions impleaded as malafide, not based on evidence or completely arbitrary. 

Referring to the summary given on this point in Pyare Mohan Lal v State of Jharkhand², the Court underlined the complexity of this decision and the need thereby to review all possible factors involved. It was held that no action should be considered in isolation and nothing said or done by an officer should be overlooked merely because it was said or done in the past. In R C Chandel v High Court of Madras³, this position of law was further justified by an explanation of the expected standard of conduct of Judges. Judicial service being no common service, the standard of conduct is much higher than the one expected of a layman. Judges represent the State and carry out a Constitutional function of rendering justice so that rights can be restored and upheld at all times. Thus, the internal checks and balances system by way of compulsory retirement is significant and substantially justified. 

With respect to the washed off theory, the Court highlighted the stance post the decision in Pyare Mohan Lal. When deciding on promotions, a past mistake may be ignored but when the continuation of service itself is being considered, the washed off theory has no application and the review must be of the past and the present, the good and the bad with no exceptions. To that end, the Court emphasized its observations in the case of Rajasthan SRTC V Babu Lal Jangir⁴, “…if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant”. 

Thus, on the petitioners’ principal contention that their promotions effectively ‘wiped off’, it was held that even if the recent past of a Judicial Officer is exemplary, for the purposes of continued service, the assessment has to be of the entire span of work and not just the favourable milestones. The contemporary record may be given greater weightage but past record is indubitable. Lastly, judicial review of the same should be exercised with great restraint as the decision is made by a high level committee of the High Court and due respect must be afforded. In the present case, both officers having a jarring past record completely opposed to the high ideals of judicial service, their compulsory retirement was upheld by the Court. 

In its own words, “…adverse entries with regard to integrity do not lose their sting at any stage. A judicial officer’s integrity must be of a higher order and even a single aberration is not permitted.” 

1. (1970) 2 SCC 458
2. (2010) 10 SCC 693 
3. (2012) 8 SCC 58 
4. (2013) 10 SCC 551