LexMADAN MOHAN CHOUDHARY versus STATE OF BIHAR
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A B MADAN MOHAN CHOUDHARY v. STATE OF BIHAR FEBRUARY 12, 1999 [S. SAGHIR AHMAD AND M. JAGANNADHA RAO, JJ.] Constitution of India-A1ticle 235-Bihar Se1vice Code 1952--Rule 74--Compulsmy retirement of Dist1ict and Sessions Judge whethe1; on facts, arbitrmy--Matter of grant of anticipatmy bail by District and Sessions Judge C refemd to administrative side of High Cowt to examine his conduct-Char- acter rolls for preceding three years prepared simultaneously, after decision to compulsorily retire him-Prior entries not bad, and integrity never doubted-Held, order granting anticipatory bail may have been wrong order, but was bona fide judicial order and not motivated by extraneous considera- tions Character rolls for preceding three years recorded after Standing Com- D mittee of High Cowt had made up its mind to compuls01ily retire him-Held, no reasonable person could have concluded that appellant had outlived his utility as judicial office1~A1ticles 233, 234, 236, 237. Constitution of India-A1ticles 233 and 23~"Consult''--Duty of High Cowt--Where Govemor cannot act unless he has consulted High Cowt, held, E High Court to tender advice after due deliberation---lf advice not suppmted by any matelial on record or arbitrary, held ftuther, it may not have binding value. Se1vice La~haracter roll---E11tries contammg adverse remarks recorded 'at one go' for three years whe11 decision to compulsorily retire F already taken-Opp01tunity to make representation not given before directing compulsory retirement-Held, entries were 11ot recorded in 11onnal course, and representation not dealt with promptitude-Held, therefore, entries cannot legally be taken into consideration-Constitution of India Articles 235--Bihar Service Code 1952, Rule 74-Natural justice. G Constitution of India-Article 235-'Control' over subordinate courts-Held, disciplinary control, and premature and compulsory retirement within 'control' of High Court-Words & Phrases. On 14.11.95, while working as District and Sessions Judge in charge, H the appellant granted anticipatory .bail to certain persons accused under 596 ·' ' M.M. CHOUDHARYv. STATE 597 Section 307, IPC. The bail order was challenged in the High Court where the Judge hearing the matter, while proceeding to reconsider, and eventual- ly reverse, the order of bail vis-a-vis two of the accused, directed that the matter be referred to the administrative side of the High Court to examine the conduct of the appellant who had granted anticipatory bail in the case. On 16.11.96, the Standing Committee of the High Court resolved that the appellant be compulsorily retired,. and the office prepare a note to this effect. On 30.11.96, the Full Court approved the resolution. The State Government thereafter compulsorily retired the appellant by order dated 2.8.97. Between 1984 and 1990,the appellant was categorised in the character rolls as being between B (average) in 1984 to B Plus in 1990. For the year 1991-1992, 1992-1993 an 1993-1994, however, there were no remarks given in the character roll's; these were given all at one time and he was categorised as "C" Grade officer. These remarks were communicated to him on 29.11.96. His representation, filed on 20.2.97, was rejected by the High A B c Court on 12.12.97. D The appellant challenged the order of compulsory retirement in a writ petition which was dismissed by the High Court. Before this Court, it was contended that the appellant was an honest, hardworking and sincere officer and there had at no stage been any adverse remark, and his integrity had never been doubted. It was contended that the order granting anticipatory bail, passed by him on the judilial side, could not be made the basis of an order of compulsory retirement, specially when ~here was also a cross-case. Further, there was no material on the basis of which the High Court could recommend compulsory retirement and the whole decision-making process was conducted in an arbitrary manner. It was urged for the High Court, and for the State, of Bihar, that the High Court having resolved to compulsorily retire the appellant in public interest, had taken a bona fide decision on an overall assessment of the work E F and conduct of the appellant and, therefore, it was not open to judicial G scrutiny. Allowing the appeal, this Court Held: 1. The action of compulsory retiring the appellant from service cannot but be termed as arbitrary in
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