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

"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 28^th January, 1987. He received promotions first as Additional Civil Judge (Junior Division)-cum-Sub-Divisional Judicial Magistrate (SDJM) by a Notification dated 26^th April, 1999 and then as Civil Judge (Senior Division) with effect from 16^th 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 15^th 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 24^th May, 2013. He joined in his post at Malkangiri on 17^th July, 2013. However, on 28^th 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 taking the decision.

Observations and Decision of the Court:

At the outset, the Court observed that career of the petitioner was not such which could be said to be without any adverse remark whatsoever. It went on to cite two instances where adverse remarks were recorded against the officer.

After carefully perusing the entire service record of the petitioner, the Court held that the decision to compulsorily retire him from service is neither arbitrary nor unwarranted or contrary to law. It recorded that the officer in question did not have an unblemished service record and for many years his rating was 'Average'.

It further held that it is entirely possible that he received his promotions in due course, but the parameters that weigh with the Court when it comes to retaining a Judicial Officer in service after attaining the ages of fifty years, fifty-five years and fifty-eight years would be based on a review of the entire service career of the Officer and not just on a few years of performance. Thus, the grant of promotion a few months earlier would not ipso facto preclude such a review for the purposes of the decision to be taken regarding compulsory retirement of such Officer.

While explaining the procedures, the Court noted that before the matter reaches the State Government, a review is done on the officer's entire service record, first by the Standing Committee of the High Court on the Administrative side comprising of the Chief Justice and the Senior Judges and at the next level, by the Full Court of the High Court which deliberates on the recommendations of the Standing Committee. Therefore, on the administrative side of the High Court, the review takes place at two levels prior to placing it before the State Government.

The Court cited the law laid down in S. Ramachandra Raju v. State of Orissa, 1994 Supp. (3) SCC 424, which held that the court may not interfere with the exercise of bona fide exercise of power but at the same time, the court has power and duty to exercise judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service.

However, in the instant case, the Court did not find the notification to be arbitrary or mala fide and therefore, declined to interfere and confirmed the decision to compulsorily retire the petitioner.

Notably, this is not the first challenge (of the year) against compulsory retirement of a judicial officer which got dismissed by the High Court. In January, the High Court dismissed a writ petition filed by another judicial officer who was also retired compulsorily from service for being 'inefficient'. Interestingly, both the officers faced similar fate while serving under the judgeship of Malkangiri district.

Case Title: Pradeep Kumar Pattnaik v. State of Odisha & Ors.

Case No.: W.P.(C) No. 19416 of 2014

Judgment Dated: 04 April 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik

Authored By: Chief Justice Dr. S. Muralidhar

Counsel for the Petitioner: Mr. Budhadev Routray, Senior Advocate along with Mr. Jagdish Biswal, Advocate

Counsel for the Respondents: Mr. P. K. Muduli, Additional Government Advocate

Citation: 2022 LiveLaw (Ori) 47