Now we turn to the proviso. The Proviso makes it very clear that there
is a power to consider the case for review even after a judicial officer attaining
age of 50 years, 55 years or 58 years, as the case may be. The last part of the
Rule cannot be interpreted to mean that power under the proviso can be exercised
between the age of 50 to 55 years only if the case of the Judicial Officer is
considered before attaining the age of 50 years. The object of the proviso is to
clarify that a wider power is retained by the employer which can be exercised
even after the Judicial Officer attaining the age of 50 years, 55 years or 58
years, as the case may be. The proviso cannot be interpreted to mean that the
power to retire a Judicial officer cannot be exercised, if the case of the Judicial
Officer has not been considered before he actually attains the age of 50 years, 55
years or 58 years. The proviso clarifies that a residuary power is retained which
can be exercised notwithstanding the fact that the case of the Judicial Officer has
been already considered in accordance with the sub-Rule (1) of Rule 19.
Therefore, interpretation tried to be suggested by the learned Counsel for the petitioner cannot be accepted.
WRIT PETITION NO.4158 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Avinash Vitthalrao Choudhary.
Vs.
1.The State of Maharashtra
Coram;A. S. OKA &
G. S. KULKARNI, JJ.
Citation;2015(2) ALLMR726
A notice for final disposal was issued. The submissions of the
learned Counsel for parties were heard in the last week. The petitioner who was a
Judicial Officer has challenged the order dated 28 th September,2011 passed under
the directions of and in the name of the Hon'ble Governor of Maharashtra which
is an order of compulsory retirement. The order of compulsory retirement has
been passed in purported exercise of powers under the Maharashtra Judicial
Services Rules 2008 as amended on 6 th August,2011 ( for short 'the said Rules')
as well as under clause (a) of sub-Rule (4) of Rule 10 of the Maharashtra Civil
Services (Pension Rules), 1982 (for short 'the Pension Rules').
The date of birth of the petitioner is 17 th June,1960.
Pvr
He was
appointed as a Civil Judge (Junior Division) and Judicial Magistrate First Class
with effect from 14th August,1995. The case made out by the petitioner is that he
was granted benefit of Assured Career Progression Scheme in the year 2002-
2003. It is the case of the petitioner that in April,2011 he was granted promotion
on ad-hoc basis to the post of Senior Civil Judge. Thus, the case made out in the
petition is that the day on which the petitioner was actually appointed, his age
was more than 35 years. On 26 th April,2011 the case of the petitioner was placed
before the Special Review Committee of this Court consisting of five Hon'ble
Judges of this Court of which the Hon'ble the Chief Justice was the Chairman.
On 26th April,2011 the Review Committee recommended the case of the
petitioner for passing an order of compulsory retirement in public interest. As
stated above, the impugned order of compulsory retirement has been passed on
28th September,2011 under the order of and in the name of the Governor of
Maharashtra.
3.
The learned Counsel appearing for the petitioner invited out
attention to the said Rules and in particular Rule 19 thereof. He pointed out that
under the unamended Rule 19 as it existed prior to 6 th August,2011, the power to
retire a member of the Judicial Service could be exercised upon a Judicial Officer
attaining age of 50 years, 55 years or 58 years. He pointed out that Rule 19
underwent an amendment on 6th August,2011 after the recommendation of the
Review Committee in the present case which provides that whether a member of
the Judicial Service should be retired in public interest under sub-Rule (1) shall
be considered at least three times, that is, when he is about to attain the age of 50
years, 55 years and 58 years. He submitted that though the case for review was
considered before the amendment, the impugned order makes a reference to the
exercise of powers under Rule 19 of the said Rules as amended by the
Notification dated 6th August,2011. He submits that when the impugned order of
compulsory retirement was actually passed, the amended Rule 19 was on the
Rule Book. He submitted that in view of the amended Rule, the case of the
petitioner could have been considered only when he was about to attain the age
of 50 years and not long after he attained the age of 50 years. He pointed out that
when the case of the Petitioner was actually considered, the age of the petitioner
was 50 years 10 months 9 days.
He urged that if a case for compulsory
retirement is considered in terms of sub-Rule (1) even after a judicial officer
attains the age of 50 years, 55 years or 58 years, as the case may be, sub-Rule (2)
of Rule 19 as amended will become redundant. He invited out attention to the
proviso to sub-Rule (2). He submitted that under the proviso, the case of a
Judicial Officer for compulsory retirement can be considered any time after
attaining the age of 50 years, 55 years or 58 years, as the case may be, provided
his case is considered before attaining the age of 50 years, 55 years or 58 years.
His submission is that the case of the petitioner could not have been considered
either under sub-Rule (2) or under the proviso under sub-Rule (2) of Rule 19 of
the said Rules as his case was not considered before attaining the age of 50 years.
His submission is that in any event, the order of compulsory retirement should
not have been made by exercising the power under Rule 10 of the Pension Rules
in as much as when the petitioner was appointed, he had already completed age
of 35 years.
Turning to the recommendation of the Review Committee, he
4.
pointed out that the Review Committee has predominantly considered the Annual
Confidential Reports for the years 1999-2000 to 2002-2003.
He has taken us
through the said Annual Confidential Reports and urged that by no stretch of
imagination, the Annual Confidential Reports for the said years are adverse and
the remarks which are projected as adverse are at highest suggestive in nature.
He has invited out attention to the additional compilation tendered across the bar
which contains Annual Confidential Reports from the year 2004-05 till the year
2009-10. He pointed out that the grading of the petitioner is consistently good in
the said Annual Confidential Reports . He pointed out that Annual Confidential
Report for the year 2010-11, the net result of good was assigned by the Reporting
Authority and even by the reviewing Authority. He pointed out that the said
Annual Confidential Reports from the year 2004-05 which show a remarkable
improvement in the work of the petitioner were not considered by the Review
Committee. He pointed out that in the year 2002-03, the petitioner was awarded
benefit of Assured Career Progression Scheme and in the year 2011, he was
given promotion to the post of Senior Civil Judge on ad-hoc basis.
5.
As regards the First Information Report considered by the Review
Committee being Crime No.137 of 2010, after the conclusion of the submission,
he has tendered an affidavit of the petitioner by which the petitioner purported to
give an explanation about what is stated by him in his statement recorded by the
police during the investigation of the said crime. His contention is that the
petitioner granted bail on merits of the case. He submitted that an attempt has
been made to brand the petitioner as dishonest only on the basis of the First
Information Report. He pointed out that on two occasions, the petitioner
remanded the accused in the said case to the police custody. He extended the
police custody again on 25th November,2010 till 26th November,2010 and
thereafter, the accused were remanded to the Magisterial custody till 10 th
December,2010. He submitted that on the application for grant of bail, the
petitioner passed an order calling upon the Prosecution to file a reply and kept
the application on 29th November,2010. He stated that he passed an order on that
date releasing the accused on bail by imposing stringent conditions. In the
affidavit which was tendered after the conclusion of the arguments, the Petitioner
has tried to make a distinction between a release order addressed to the
Superintendent of Adharwadi Jail, Kalyan and the order granting bail. By the
affidavit, he has pointed out that the release order was signed by him on 29 th
November,2010 that is the date on which the bail was granted and it was handed
over to the Advocate representing the accused by the outward clerk. He has
stated that the order granting bail was never issued before 30 th November,2010,
but the release order was issued on the earlier day on which he dictated the order
6.
granting bail.
The learned Counsel appearing for the petitioner relied upon the
decision of the Apex Court in the case of Baldev Raj Chadha Vs. Union of
India and Ors1 . He submitted that while testing the order of compulsory
retirement, the Court must be satisfied that there was a material on record on the
basis of which a rational mind may conceivably be satisfied that the compulsory
retirement of the officer concerned is necessary in public interest.
He pointed
out that this was a case where there is were no adverse entries in the Annual
Confidential reports for last five years immediately preceding the impugned
order of the compulsory retirement. He submitted that the Apex court held that
such order of compulsory retirement cannot be upheld.
He also relied on the
decision of the Supreme Court in the case of Swami Saran Saksena Vs. State of
Uttar Pradesh2. He pointed out that in this case, few months before the date of
passing the order of compulsory retirement, for the purpose of crossing the
second efficiency bar, the appellant was considered to have worked with distinct
ability and with integrity. He pointed out that in this case on the ground that
there was no evidence to show that suddenly there was sudden deterioration in
the quality of the work, the Apex Court proceeded to quash and set aside the
order of compulsory retirement. He also relied on the decision of the Apex Court
1 AIR 1981 Supreme Court 70(1)
2 (1980) 1 Supreme Court Cases 12
in the case of M.S.Bindra Vs. Union of India3. He urged that when the order of
compulsory retirement is found to be based on no material, the order of
compulsory retirement calls for interference. He urged that the material in the
form of Annual Confidential Reports after 2002-2003 has not been considered.
He urged that most relevant material was not placed before the Review
Committee.
The learned Counsel representing the High Court Administration
7.
submitted that the scope of interference in writ jurisdiction with the order of
compulsory retirement is very limited. He urged that Rule 19 cannot be applied
to a mathematical precision. He invited out attention to the decision of the Apex
Court in the case of R.C.Chandel Vs. High Court of Madhya Pradesh and
another4 and in particular what is held in paragraphs 26 to 29. He also made an
extensive reference to the decision in the case of Pyare Mohan Lal Vs. State of
Jharkhand & Ors 5. Lastly, he invited our attention to the decision of the Apex
Court in the case of High Court of Judicature at Bombay Vs. Shirishkumar
Rangrao Patil & Anr 6. He, therefore, submits that no interference is called for
in the impugned order which is passed on the basis of the material available.
8.
We have considered the submissions. As far as the scope of judicial
3 AIR 1998 SC 3058
4 (2012)8 Supreme Court Cases 58
5
6
(2010)10 SCC 693
(1997)6 SCC 339
review of an order of compulsory retirement in exercise of powers under the
Article 226 of the Constitution of India is concerned , the law is very well settled.
It is permissible to interfere with the said order only if it is found that the order is
arbitrary or malafide or is based on no material. Such order can be interfered
with if the same is passed without any legal authority.
Before we go to the merits, it will be necessary to make a reference
9.
to the law laid down by the Apex Court in the case of R.C.Chandel Vs. High
Court of Madhya Pradesh and another wherein the Apex Court was dealing
with the legality and validity of an order of compulsory retirement passed against
a Judicial Officer. Paragraph 26 of the said decision reads thus:-
“26.
It is true that the appellant was confirmed
as District Judge in 1985; he got lower selection grade
with effect from 24-3-1989; he was awarded super
timescale in May 1999 and he was also given above
super timescale in 2002 but the confirmation as
District Judge and grant of selection grade and
super timescale do not wipe out the earlier adverse
entries which have remained on record and
continued to hold the field.
The criterion for
promotion or grant of increment or higher scale is
different from an exercise which is undertaken by
the High Court to assess a judicial officer's
continued utility to the judicial system. In assessing
potential for continued useful service of a judicial
officer in the system, the High Court is required to take
into account the entire service record. Overall profile
of a judicial officer is the guiding factor. Those of
doubtful integrity, questionable reputation and
wanting in utility are not entitled to benefit of
service after attaining the requisite length of service
or age.”
(emphasis added)
The Apex Court categorically held that in case of the Judicial Officers, the
criterion for promotion or grant of increment for higher scale is different from
the exercise which is undertaken by the High Court in assessing the Judicial
Officer's continued utility to the judicial system. While assessing the continued
utility of the Judicial Officer to the judicial system what is required to be seen is
the overall profile of the Judicial Officer. The Apex Court emphasized on the
fact that a judicial officer of doubtful integrity or questionable reputation, or an
officer found wanting in utility is not entitled to continuation in service after
attaining the requisite length of service. Even paragraph 29 of the said decision
is material which reads thus:-
“Judicial service is not an ordinary government service
and the Judges are not employees as such. Judges hold
the public office; their function is one of the essential
functions of the State. In discharge of their functions
and duties, the Judges represent the State. The office
that a Judge holds is an office of public trust. A Judge
must be a person of impeccable integrity and
unimpeachable independence. He must be honest to the
core with high moral values. When a litigant enters the
courtroom, he must feel secured that the Judge before
whom his matter has come, would deliver justice
impartially and uninfluenced by any consideration.
The standard of conduct expected of a Judge is
much higher than an ordinary man.
This is no
excuse that since the standards in the society have
fallen, the Judges who are drawn from the society
cannot be expected to have high standards and
ethical firmness required of a Judge. A Judge, like
Caesar's wife, must be above suspicion.
The
credibility of the judicial system is dependent upon
the Judges who man it. For a democracy to thrive and
the Rule of law to survive, justice system and the
judicial process have to be strong and every Judge must
discharge
his
judicial
functions
with
integrity,
impartiality and intellectual honesty.”
10.
(emphasis added)
In the case of Pyare Mohan Lal Vs. State of Jharkhand & Ors. ,
the Apex Court has considered all its earlier decisions on the issue. What is
relevant for this case is in paragraph 29 which reads as under:-
“29. The law requires the authority to consider the
“entire service record” of the employee while assessing
whether he can be given compulsory retirement
irrespective of the fact that the adverse entries had not
been communicated to him and the officer had been
promoted earlier in spite of those adverse entries.
More so, a single adverse entry regarding the
integrity of an officer even in remote past is
sufficient to award compulsory retirement. The case
of a judicial officer is required to be examined, treating
him to be different from other wings of the society, as
he is serving the State in a different capacity. The case
of a Judicial officer is considered by a committee of
Judges of the High Court duly constituted by the
Hon'ble the Chief Justice and then the report of the
Committee is placed before the Full Court.
A
decision is taken by the Full Court after due
deliberation on the matter.
Therefore, there is
hardly any chance to make the allegations of non
application of mind or mala fides.”
11.
The argument of the learned Counsel appearing for the petitioner was
that even assuming that the entries in the Annual Confidential Reports upto the
year 2003 are treated as adverse, the same are remote in point of time
considering the fact that the case of the Petitioner for review was considered in
the year 2011. The Apex Court has precisely negatived the such submission by
holding that a single adverse entry on integrity of the officer even in remote past
is sufficient to award compulsory retirement as the case of the Judicial Officer is
required to be examined treating him to be different from other wings of the
State. Therefore, the argument that reliance could not have been placed on the
entries in the ACRs which are remote in point of time has been expressly over-
turned by the Apex Court in the case of the Judicial Officers. The last decision is
in the case of High Court of Judicature at Bombay Vs. Shirishkumar Rangrao
Patil. In paragraph 14 of the said decision, the Apex Court has reiterated the
special position enjoyed by the Judicial Officers. In paragraph 17, the Apex
Court has observed thus:-
“17. It would, therefore, be necessary to see whether
the
respondent
has
committed
misconduct
by
demanding illegal gratification. The fallen standard in
ig
morality and rectitude in the general public finds its
transmission into the judiciary as well.
Since the
respondent was a probationer, he was more prone to
tread the path of corrupt practice of demanding illegal
gratification to do judicial work, namely, to grant or
refuse to grant an order of injunction in the suit. The
tendency to corrupt activity is more serious and
deleterious than the actual catching of a corrupt judicial
officer
while
demanding
and
accepting
illegal
gratification. Therefore, if the evidence adduced during
the departmental enquiry proves the proclivity of
corrupt conduct on the part of the judicial officer and
enquiry into his conduct is fair and germane, the
imposition of punishment should be appropriate to the
magnitude of the misconduct. The question, therefore,
is whether the respondent has committed misconduct.
In various decisions of the Apex Court, emphasis has been laid on the probity
of conduct on the part of the judicial officers.
Now we turn to the minutes of the meeting of the Review Committee
12.
of this Court. The Review Committee has observed that the net result of the
Petitioner of the year 1999 to 2003 was average. It is observed that adverse
remarks were communicated in the year 2000-01 and 2002-03. What is material
is further portion of the minutes of the meeting which reads thus:-
“
On
17/11/2010,
Crime
No.137/2010
was
registered against two brothers of Shri.Ramesh Budhaji
Patil and four others with Padgha Police Station. On
23/11/2010 all the accused were arrested in the above
crime. The bail application filed by the accused was
kept for hearing on 29/11/2010 before the Court
presided by Mr.A.V.Choudhary, the then Civil Judge,
Junior Division and JMFC, Bhiwandi, District Thane.
It is said that one Shri.Chandrakant Shelar (Court
orderly/
Police
Naik)
had
demanded
bribe
of
Rs.80,000/- for securing bail to the accused by
managing
the
Judicial
Officer
and
the
Public
Prosecutor. It is further said that the said amount was
settled at Rs.50,000/-.
However, the complainant
Ramesh Patil reported the matter to the Anti-corruption
Bureau. Smt.K.J.Kadam, Police Inspector, ACB, who
had verified the complaint of complainant Ramesh
Patil, had recorded the conversation of accused
Chandrakant Shelar with the complainant Ramesh Patil
in the matter of payment of bribe of Rs.50,000/- and
obtaining bail for the accused persons. In the
conversation, accused Chandrakant Shelar (Police
Orderly/ Naik) informed the complainant that his work
will be done 100% on 29/11/2010 itself, that by making
a telephonic call he will ask the Judge to come to his
in his chamber.
chamber from the dais and then he will meet the Judge
Thereafter, when the complainant
Ramesh Patil met the accused Shelar he gave a copy of
the bail order to the complainant.
On 29/11/2010 at 7.15 p.m., the trap was laid
down and the accused Shelar was caught red-handed in
the said trap. However, considering the conversation
recorded by the Police Inspector, permission to record
the statement of Judicial Officer Shri.Choudhary was
solicited to examine his involvement in the said crime
of demand and acceptance of bribe by accused Shelar.
It is seen that bribe was demanded for
securing
bail
on
29/11.2010
whereas,
Shri.Choudhary granted bail on 29/11/2010 itself. In
fact, accused Shelar (Police Naik) had handed over
the photo copy of the bail order to the complainant
Ramesh Patil on 29/11/2010 itself.
Having considered all the above facts, it was
seen that the integrity of the Judicial Officer is
doubtful and therefore, did not deserve to be
continued in the Judicial Service.”
(emphasis added)
The material which was produced before the Review Committee shows that the
bribe was demanded for securing bail on 29th November 2010 and that the
Petitioner granted bail on 29th November,2010. One of the accused who was
trapped was a Police Naik who had handed over a photo copy of the bail order to
the complainant on 29th November,2010. It is on the basis of the facts which are
narrated above that the Review Committee was of the view that the petitioner did
not deserve to be continued in the judicial service. In a matter like this, it is not
the function of the Writ Court to examine whether there was an adequate
material. What is to be seen is whether there was a material available before the
Review Committee on the basis of which a recommendation could be
conceivably made that the petitioner did not deserve to be continued in the
Judicial Service. After having considered the material placed before it, the
Review Committee was of the opinion that the the integrity of the Judicial
service.
Officer appears to be doubtful and that he does not deserve to continue in judicial
13.
In the normal course, the Writ Court would not have entered into
the issue of adequacy of material. However, after the conclusion of the
submissions, an affidavit has been filed by the petitioner affirmed on 10 th
October,2014 in which the petitioner has tried to explain the contents of his
police statement which was placed before the Review Committee . A copy of the
police statement has been placed on record by the petitioner himself alongwith
the additional compilation tendered during the course of hearing. As we are
required to deal with the additional affidavit which deals with the contents of the
police statement, only for the purpose of dealing with the additional affidavit, we
have perused the said police statement. The Petitioner has not at all disputed the
The
correctness of the contents of his statement recorded by the police.
Petitioner has stated in the police statement that on 29 th November,2010 he
dictated the order granting bail to the stenographer in the Court. The order could
not be typed on that date. It records that on the very day, a letter addressed to the
Jail Superintendent was prepared on which he signed and handed over to the the
same to the concerned clerk. He has stated that on the next day in the morning at
about 10.30 a.m, he signed the order granting bail. What is considered by the
Review Committee is the circumstance that on 29 th November,2010 itself the
accused (Police Naik) had handed over a photo copy of the bail order to the
complainant and that on 29th November,2010 itself bribe was demanded by the
accused. It is in this context that in the affidavit, a distinction is sought to be
made by the Petitioner between the release order and the order granting bail.
When he was referring to the release order, he has referred to the letter addressed
to the Jail Superintendent communicating the order granting bail.
He has
reiterated that he issued order granting bail on 30 th November,2010. In the light
of the statement of the petitioner before the police and the explanation sought to
be offered what becomes relevant is that the accused – Police Naik handed over a
copy of the order granting bail to the complainant on 29 th November,2010 itself
on the date on which the bribe was demanded. It is not the case that a copy of the
release order which was addressed the the Jail Superintendent was handed over.
According to the case of the Petitioner,
he signed the order granting bail on
30th November 2010. Thus, the attempt made by the petitioner to improve upon
the case by filing an affidavit, does not help the petitioner but it creates a
question mark.
14.
We have done the exercise of referring to the police statement only
for the purposes of dealing with the affidavit. Suffice it to say that, we find that
there was a material before the Review Committee on 26 th April,2011 when the
recommendation was made. Before we go into the other legal submissions made
by the learned Counsel for the petitioner, we must make a reference to the
decision relied upon by the Petitioner in the case of Baldev Raj Chadha Vs.
Union of India and Ors. The view take therein is in the facts of the case before
the Apex Court. In the present case, even assuming that the material in the form
of the ACRs considered by the Review Committee is remote in point of time, in
addition what is considered is the incident of 29th November,2010 which which
had taken place four to five months before the recommendation was made. In
the case of J.D.Shrivastava V. State of M.P. & Ors 7, the Apex Court was dealing
with the case where a reliance was placed in the order of compulsory retirement
on the entires made twenty years prior to the date of the order. The present case
stands on a completely different footing. In view of the material before the
Review Committee in the case in hand, the decision in the case of Madan
Mohan Choudhary Vs. State of Bihar & Ors 8, will not help the petitioner. In
the said case, a Judicial Officer was ordered to retire on the basis of single act of
granting an anticipatory bail. As far as the decision in the case of M.S.Bindra
7
8
AIR 1984 Supreme Court 630
(1999)3 Supreme Court Cases 396
Vs. Union of India is concerned, this is not a case where the order is based on no
material. There was a material available which we have discussed above. As far
as the malafides are concerned, as held by the Apex Court, it must be noted that
the decision is taken by the Committee of five Senior Judges of this Court
headed by the Hon'ble The Chief Justice after due deliberations as well as perusal
of the record and therefore, there is hardly any scope to make allegations of non
15.
application of mind or malafides against the recommending Authority.
Now we turn to the submissions made on behalf of the learned
Counsel for the Petitioner on the basis of applicability of relevant Rules. Even
assuming that the Pension Rules were not applicable, the order is specifically
made under Rule 19 of the said Rules. Rule 19 reads thus:-
“19.(1) Retirement in public interest.- Notwithstanding
anything contained in these Rules, the Governor shall,
on the recommendation of the High Court, if he is of
the opinion that it is in the Public Interest so to do, have
the absolute right to retire any member of the service
when he attains the age of 50 years, 55 years or 58
years by giving him notice of not less than three months
in writing or three months pay and allowances in lieu of
such notice.
(2)
Whether a member of the Service should be
retired in the public interest under sub-Rule (1) shall be
considered at least three times, that is, when he is about
to attain the age of 50 years, 55 years and 58 years;
Provided that nothing in this Rule shall be
construed as preventing consideration of a member of
the Service again at any time after attaining the age of
50 years or 55 years or 58 years, as the case may be, for
the purpose of retiring him in the public interest despite
such member was considered earlier as per sub-Rule
(2).”
The order of retirement in public interest is required to be made by the Hon'ble
Governor on the recommendation of High Court. When the Review Committee
considered the matter, only the first part of Rule 19 which was subsequently
numbered as sub-Rule (1) was in existence. The said part of the Rule which was
numbered as sub-Rule (1) provides for an absolute right to retire any member of
the judicial service in public interest when he attains the age of 50 years, 55 years
and 58 years. Therefore, the Review Committee was well within its powers to
consider the case of the petitioner for making a recommendation to the Governor.
On the day on which his case was considered, the age of the Petitioner was 50
years and 10 months. Sub-Rule (2) was brought on the Rule Book on 6 th
August,2011.
We proceed on the assumption that the said Sub-Rule was
applicable. The argument is that the power under sub-Rule (2) can be exercised
only before a Judicial Officer attains the age of 50 years, 55 years and 58 years,
as the case may be. The emphasis in the Sub-Rule is on the consideration of the
case of the Judicial Officer at three stages. The object of the Rule is to weed out
the deadwood from the judicial service. By no stretch of imagination, sub-Rule
(2) can be interpreted to mean that the High Court can consider the case of a
Judicial Officer only before he attains the age of 50 years, 55 years or 58 years,
as the case may be and the recommendation under the Rule cannot be made even
few days after the judicial officer attains age of 50 years, 55 years or 58 years, as
the case may be. This sub-Rule cannot be literally interpreted. Moreover, it
cannot be considered in isolation. Consideration of a proposal for review is not
an empty formality. The Authorities are not expected to act with mathematical
precision in terms of time at which the consideration of the case is made. In a
given case, the process of review of service record may start before a judicial
officer attains age of 50 years, 55 years or 58 years.
But the actual
recommendation of the Review committee and the order of the compulsory
retirement can be made after the officer attains the age of 50 years, 55 years or
58 years, as the case may be. The entire service record of the Judicial Officer is
required to be compiled and placed before the Review Committee. As in this
case, the Review Committee consists of Senior Judges of this Court. Several
cases are placed before it. The Review committee may not be able to take a
decision before the officer actually completes the age of 50 years, 55 years or 58
years. Sub-Rule 1 of Rule 19 confers absolute power to retire any member of
judicial service when he attains age of 50 years, 55 years or 58 years. Sub-Rule 2
lays down that the case for compulsory retirement in public interest shall be
considered at least three times, that is when he is about to attain the age of 50
years, 55 years or 58 years. The object of sub-Rule 2 is to ensure that the cases of
the judicial officers are considered on at least three occasions so that deadwood
is weeded out. The provision regarding the time of consideration provided in the
Sub-Rule 2 cannot be held to be mandatory. Apart from the fact that the plain
reading of the Sub-Rule does not warrant such an interpretation, if such
interpretation is accepted, it will defeat the very object of the Rule of conferring
absolute power. It is impossible to accept the submission of the learned Counsel
for the petitioner that the sub-Rule has to be implemented with mathematical
precision. It is impossible to accept the submission that if the High Court
considers the case of a Judicial Officers after he completes the age of 50 years,
55 years or 58 years, as the case may be, the exercise of the absolute power
conferred by sub-Rule 1 becomes illegal. On conjoint reading of both the sub-
Rules, it is impossible to accept the interpretation sought to be give by the
Petitioner.
16.
Now we turn to the proviso. The Proviso makes it very clear that there
is a power to consider the case for review even after a judicial officer attaining
age of 50 years, 55 years or 58 years, as the case may be. The last part of the
Rule cannot be interpreted to mean that power under the proviso can be exercised
between the age of 50 to 55 years only if the case of the Judicial Officer is
considered before attaining the age of 50 years. The object of the proviso is to
clarify that a wider power is retained by the employer which can be exercised
even after the Judicial Officer attaining the age of 50 years, 55 years or 58
years, as the case may be. The proviso cannot be interpreted to mean that the
power to retire a Judicial officer cannot be exercised, if the case of the Judicial
Officer has not been considered before he actually attains the age of 50 years, 55
years or 58 years. The proviso clarifies that a residuary power is retained which
can be exercised notwithstanding the fact that the case of the Judicial Officer has
been already considered in accordance with the sub-Rule (1) of Rule 19.
Therefore, interpretation tried to be suggested by the learned Counsel for the
17.
petitioner cannot be accepted.
It is well settled that no stigma is attached to the order of
compulsory retirement under Rule 19 of the said Rules. The order under the Rule
19 of the said Rules is not by way of punishment for any misconduct. We find
no merit in the challenge to the impugned order. We, accordingly, reject the
(G. S. KULKARNI, J.)
(A.S.OKA, J.)
petition.
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