Orissa High Court Dismisses Challenge To Notification Compulsorily Retiring A Former Additional District & Sessions Judge

The Orissa High Court has dismissed challenge to a notification which notified the decision to compulsorily retire a former Additional District & Sessions Judge (AD&SJ) of the Odisha Superior Judicial Service (OSJS). While upholding the said notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held, "While it is true that the decision to compulsorily retire a judicial officer cannot be taken arbitrarily, and should be based on some material, it cannot be said that there has to be some particular instance of misbehaviour by an Officer that could warrant such a decision." Factual Background: The Petitioner was appointed as a Munsif on probation in the Orissa Judicial Service (OJS) Class-II by a Notification dated 28th January, 1987. He received promotions first as Additional Civil Judge (Junior Division)-cum-Sub-Divisional Judicial Magistrate (SDJM) by a Notification dated 26th April, 1999 and then as Civil Judge (Senior Division) with effect from 16th September, 2005. He received his Assured Career Progression (ACP) Scale of Pay in the Cadre of Civil Judge with effect from 1st January, 1996 and the financial benefit was extended to him with effect from 1st July, 1996 by a Notification dated 15th October, 2009. Later, he was promoted to the Cadre of District Judge in the OSJS and was transferred and posted as Additional District and Sessions Judge, Malkangiri by virtue of a Notification dated 24th May, 2013. He joined in his post at Malkangiri on 17th July, 2013. However, on 28th March 2014, while continuing as such, he was compulsorily retired with immediate effect giving him three months' pay and allowances in lieu of three months' notice. Thus, the petitioner has filed this petition questioning the notification which effectuated his compulsory retirement. Contentions of the Petitioner: Mr. Budhadev Routray, Senior Advocate appearing on behalf of the petitioner, submitted that the petitioner was never communicated any adverse entries during the entire career of his service. He had successfully crossed the efficiency bar at the age of fifty and was allowed to get ACP Scale-I and the ACP Scale-II in the Cadre of Civil Judge (Junior Division). He received ACP Scale-I in the Cadre of Senior Civil Judge. He also got his promotions from time to time. He pointed out that even in the counter affidavit filed by the Opposite Parties, not a single incident had been indicated which would prove otherwise. He argued that only eight months prior to his compulsory retirement, the petitioner was promoted as AD&SJ and therefore, there was no reason why suddenly in March 2014 he was to be compulsorily retired. He challenged the said decision as being based on no evidence. He further contended that when a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting. In other words, any adverse remarks passed earlier would be deemed to be wiped out. Consequently, once the Petitioner was promoted as AD&SJ, he cannot be said to be a 'dead wood' requiring to be weeded out. He stressed that the decision to compulsorily retire a judicial officer cannot be taken arbitrarily and there has to be some material on the basis of which such decision could be arrived at. The power to compulsorily retire a judicial officer should not be used to humiliate the person. Contentions of the Respondents: Mr. P.K. Muduli, Additional Government Advocate appearing for the respondents, pointed out that an order of compulsory retirement is not a punishment as has been settled in a catena of decisions, including Rajasthan State Road Transport Corporation v. Babulal Jangir, (2013) 10 SCC 551 and Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299. While not disputing the fact that the petitioner had received ACPs in the cadre of Civil Judge both in Junior Division and Senior Division, he submitted that the contention that there were no adverse remarks recorded in his entire service career at any time was not true. He further submitted that the entire service rendered by the officer till the date of consideration of his case was required to be looked into and assessed. He argued, an order of compulsory retirement is not passed taking into account any specific instance. The capability of a person to continue in service cannot be based on solitary instances. Therefore, the claim of the petitioner that he had an 'unblemished' service record was stated to be 'far from truth'. Again, he argued that merely because he was granted promotion only eight months earlier, it cannot be said that there was no material on the basis of which he could be compulsorily retired. He pointed out that the requirements of Rule 44 of the OSJS and OJS Rules, 2007 read with Rule 71(A) of the Orissa Service Code had been adhered to while...

Orissa High Court Dismisses Challenge To Notification Compulsorily Retiring A Former Additional District & Sessions Judge

Jyoti Prakash Dutta

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