'Compulsory Retirement Not An Alternative To Disciplinary Action': Orissa High Court Sets Aside District Judge's Premature Retirement

In a huge relief to a former senior Judicial Officer, the Orissa High Court has set aside an order passed by the Government prematurely/compulsorily retiring him at the age of 55, instead of normal age of superannuation, i.e. 60.A Division Bench of Justice Dixit Krishna Shripad and Justice Mruganka Sekhar Sahoo found the impugned order to be punitive and stigmatic, which was passed without affording any opportunity of hearing to the officer. It underlined that premature removal is an exceptional step which should not be adopted in a whimsical manner.“It hardly needs to be stated that cutting short tenure of public office is a serious matter; such decisions have to be consistent with the intent of Makers of the Constitution as lurking in Article 16. Though right to public employment is not guaranteed, once a citizen is duly employed, he cannot be whimsically removed. Therefore, the power to prematurely retire is in the nature of an exception and the sine qua non for exercising such power has to be strictly complied with.”Case Background The petitioner, Sanjaya Kumar Sahoo joined the Odisha Judicial Service (OJS) in the year 1997 and posted as an Additional Civil Judge (Junior Division)-cum-Judicial Magistrate Second Class. He got gradual promotions and elevated to the positions/cadres of SDJM, Civil Judge (Senior Division) and District Judge (Entry Level) in 2010, 2011 and 2015 respectively.In the year 2017, he attained the age of 50, inviting first review of performance in his judicial career. The Review Committee allowed him to continue in the service. After putting in a service of five years in the cadre of District Judge (Entry Level), he was accorded the Selection Grade with effect from August 2020.However, even before completion of two years in the Selection Grade, his performance was subjected to review upon him attaining 55 years of age in 2022. Surprisingly, by a government notification dated 11.03.2022, he was compulsorily retired from service while being posted as the Judge, Family Court, Nabarangpur. Impugning the removal order, the petitioner filed the writ petition.“Absolute power”: An ornamental relic of colonial eraThe State entered appearance to vehemently oppose the relief claimed by the petitioner. It argued that as per Rule 44 of the Odisha Superior Judicial Service and Judicial Service Rules, 2017, the Governor has got “absolute right” to compulsorily retire any judicial officer in public interest, who has attained the age of fifty years, after consulting with the High Court. However, the Court was candid enough to remind the State that any form of absolute power vested in any authority is an anathema to the rule of law.“In a constitutionally ordained Welfare State, there is nothing like “absolute right” or “absolute power”, and the very text & context of this Rule makes it abundantly clear that the adjective “absolute‟ remains on the Rule Book as an ornamental relic of bygone Colonial Era,” it added.The Bench outlined certain preconditions like requirement to consult with the High Court, minimum age of the officer concerned, a minimum notice period etc. which are needed to be complied with by the Governor before drawing curtain on the career of a judicial officer prematurely.“A riddle wrapped in enigma”It was noted that the petitioner got promotions in regular intervals and was ultimately promoted to the cadre of District Judge in 2015. He also successfully passed the muster of review at the age of 50 and was granted the Selection Grade in 2021, with effect from 2020. Everything was done as per the decision of the Full Court. However, what led the same Full Court to recommend his premature termination within two years of promotion was not known.“We repeat that petitioner was promoted to the position of Selection Grade District Judge vide notification dated 29.01.2021 issued by the High Court itself. The impugned order of premature retirement is essentially founded on the subject Full Court decision dated 23.02.2022. That being the position, what grave thing happened during the short period between 29.01.2021 & 23.02.2022, remains a riddle wrapped in enigma. Thus, the first pillar of the structure of the impugned order is shaken,” the Court observed.Though it was submitted on behalf of the State that the decision to prematurely retire the petitioner was taken on the basis of spotted service record, the Court took such contention with a pinch of salt.“Admittedly, there is not even one sporadic adverse remark in the CCRs/PARs of the petitioner all these years. It is not that he has been found guilty in any of the disciplinary proceedings. True it is that he was “cautioned to be careful in future”. However, this is not a prescribed punishment in the extant Rules. At the most, it is advisory in character and therefore cannot be construed as an adverse remark.”Judge can't be blamed for boycott by BarIt was stated that the Review Committee and the Full Court also took into account a boycott...

'Compulsory Retirement Not An Alternative To Disciplinary Action': Orissa High Court Sets Aside District Judge's Premature Retirement

Jyoti Prakash Dutta

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