IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.9317 OF 2009 ====================================================== Krishna Kant Shukla, S/o Sri Paras Nath Shukla, R/o Mohalla-725 ‘A’ Baghambari Gaddi Allahpur, P.S.-Jorge Town (Allahpur), District- Allahabad (Uttar Pradesh). ………. Petitioner. Versus 1. The State of Bihar through the Principal Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 2. The High Court of Judicature at Patna through its Registrar General, Bailey Road, High Court, Patna. 3. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. ……. Respondents. ====================================================== APPEARANCE : For the Petitioner : Mr. Chandra Shekhar, Sr. Advocate with Mr. Lalan Kumar Singh, Mr. Yashraj Bardhan and Mr. Kumar Devashish, Advocates. For the High Court: Mr. Lalit kishore, Sr. Advocate with Mr. Piyush Lal, Advocate. For the State : Mr. S.D.Sanjay, A.A.G. 12. with Mr. Akash Chaturvedi, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT (The 22nd April 2011) (Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution is filed by one Krishna Kant Shukla, a Sub-Judge in the Bihar State Judicial Service, against the order of compulsory retirement under Rule 74(b)(ii) of the Bihar Service Code, 1952 notified on 16th June 2009. The learned Advocate Mr. Chandra Shekhar has appeared for the petitioner. He has challenged the impugned Notification dated 16th June 2009 on three grounds. He has submitted that the compulsory retirement purportedly made 2 under Rule 74(b)(ii) of the Bihar Service Code, 1952 (hereinafter referred to as ‘the Code’), is punitive and is actually made in lieu of the disciplinary action. He has submitted that as indicated in the counter affidavit there were several allegations of lack of integrity against the writ petitioner. In that case a disciplinary action ought to have been held against the petitioner and if found guilty the petitioner ought to have been dismissed from service. The petitioner’s service could not have been terminated unceremoniously under the garb of ‘public interest’ under Rule 74(b)(ii) of the Code. He has next submitted that Rule 74(b)(ii) of the Code empowers the appointing authority to retire a Government servant before reaching the age of superannuation in ‘public interest’. In the present case the impugned Notification does not indicate that the petitioner was required to be retired from the service in ‘public interest’. He has next contended that Rule 74(b)(ii) of the Code empowers the appointing authority to retire an employee in ‘public interest’ after giving him notice of three months. The appointing authority may, in lieu of notice, remit the pay and allowances for three months. The aforesaid requirement is mandatory. In case of breach of the said mandatory requirement, the order of retirement would stand vitiated. In the present case neither the petitioner was given notice of retirement nor was he paid pay and allowances in lieu of notice. The impugned Notification dated 16th June 2009 is, therefore, vitiated. The petitioner is entitled to reinstatement in service with all consequential reliefs. In support of his submissions Mr. Chandra Shekhar has relied upon the 3 Division Bench Judgments of this Court in the matters of Rana Abhai Singh Vs. The Hon’ble High Court of Judicature at Patna & Ors. [2006(3) PLJR 400] and of Hira Prasad Pandey Vs. The State of Bihar & Ors. [2008(4) BLJ 173]. Mr. Chandra Shekhar has also relied upon the judgment of the Hon’ble Supreme Court in the matter of State of Gujarat Vs. Umedbhai M.Patel [(2001) 3 SCC 314]. Learned Additional Advocate General-1 Mr. Lalit Kishore has appeared for the High Court. He has contested the petition. He has relied upon the counter affidavit made on behalf of the High Court. He has submitted that the matter was considered by the inspecting judge, the judges in the Standing Committee of the High Court and by the Full Court. After examining the entire service record of the petitioner the decision to recommend the petitioner’s compulsory retirement in ‘public interest’ in exercise of power conferred by Rule 74(b)(ii) of the Code was taken. He has placed before us copy of the entire service record of the writ petitioner. In support of his arguments, Mr. Lalit Kishore has relied upon the judgment of the Hon’ble Supreme Court in the matters of Baikuntha Nath Das & Another Vs. Chief District Medical Officer and Another [(1992)2 SCC 299] and of Rakesh Kumar Singh Vs. Committee of Management [(1996) 8 SCC 595]. The petition is also contested by learned Additional Advocate General-12 Mr. S.D.Sanjay, appearing for the respondent State Government. He has submitted that sheer reference to Rule 74(b)(ii) of the Code in the impugned Notification indicates that the said order was made in ‘public 4 interest’. He has also submitted that the omission to refer to retirement in ‘public interest’ in the impugned Notification or remittance of the pay and allowances in lieu of notice after certain procedural requirement will not vitiate the order of compulsory retirement. In support of his submission Mr. Sanjay has relied upon the judgments of the Hon’ble Supreme Court in the matters of State of Uttar Pradesh & Another Vs. Raj Kishore Bhargava [1992 Supp(2) SCC 92] and of Pyare Mohan Lal Vs. State of Jharkhand & Ors. [2010(4) PLJR 70(SC)]. We have considered the counter affidavit made on behalf of the High Court. It does appear that several allegations were made against the writ petitioner particularly reflecting upon lack of integrity. An enquiry in respect of the genuineness of the said allegations was made by the learned Inspecting Judge. In view of the report made by the learned Inspecting Judge, the matter was taken up by the Standing Committee. The Standing Committee perused the entire service record of the writ petitioner. The Committee opined that the writ petitioner was required to be retired compulsorily in ‘public interest’. The said decision of the Standing Committee was approved by the Full Court. Thus, it is evident that while recommending the petitioner’s case for compulsory retirement in ‘public interest’ the learned judges of the High Court considered the entire service record of the writ petitioner. Several allegations made about his integrity or lack of it were the foundation for commencing the enquiry, but were not the cause of compulsory retirement in ‘public interest’. 5 We are, therefore, unable to hold that the respondents invoked the power of compulsory retirement in ‘public interest’ to avoid disciplinary action against the writ petitioner. We have perused the copy of the service record placed before us. Through out his service career, the petitioner had been reported to be an officer of average caliber or at times even below average. Having regard to the service record of the petitioner, we are satisfied that the petitioner did deserve compulsory retirement in ‘public interest’ in exercise of power conferred by Rule 74(b)(ii) of the Code. In the matter of Baikuntha Nath Das & Another Vs. Chief District Medical Officer and Another (supra) the Hon’ble Supreme Court, having considered the case law in the subject, summarized the principles as under: “34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does no mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if 6 they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary – in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter – of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.” In the matter of Rakesh Kumar Singh Vs. Committee of Management (supra) the Hon’ble Supreme Court reiterated the principle laid down in the matter of K.V. Gopinath[AIR 1972 SC 1487] and in the matter of Dinanath Rai [1969 SLR 646 (SC)] which read as under: 7. Construing that rule this Court observed as under: “The rule does not say that the pay 7 should be given in cash or by cheque at the time the notice is issued. Knowing the way the governments are run, it would be difficult to ascribe this intention to the rule-making authority. There is no doubt that the government servant would be entitled to the pay in lieu of notice but this would be in the ordinary course.” 8. This decision in Dinanath Rai case was considered by this Court in K.V. Gopinath case and distinguished by observing that: “No doubt the language of that rule is somewhat similar to the words of Rule 5 but there is an essential difference. The rule only means that the pay for 30 days or less may be substituted for service for the period of the notice. In other words, the rule only entitles the employees to pay for the period of the notice without laying down any condition as to when the payment is to be given.” In the matter of State of Uttar Pradesh and Another Vs. Raj Kishore Bharbava (supra) the Hon‘ble Supreme Court set aside the order of the High Court setting aside the order of compulsory retirement on the ground, inter alia, “the three months pay in lieu of notice has not been paid simultaneously along with the order of compulsory retirement”. Once again the Hon’ble Supreme Court in the matter of Pyare Mohan Lal Vs. State of Jharkhand (supra) reiterated the aforesaid principles enumerated in the matters of Baikuntha Nath Das & Another Vs. Chief District Medical Officer and Another (supra). The court held with approval, “there was a very limited scope of judicial review in a case of compulsory retirement and it was permissible 8 only on the grounds of non application of mind; mala fides; or want of material particulars. Power to retire compulsorily a government servant in terms of service rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.” The Hon’ble Supreme Court has also held, “as the case of a judicial officer is required to be examined, treating him to be differently 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 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 fide.” In the matter of Rana Abhai Singh Vs. The Hon’ble High Court of Judicature at Patna & Ors (supra) the Division Bench of this Court had the occasion to examine the order of compulsory retirement of a judicial officer in ‘public interest’. The Bench held that “the proviso to give notice of three months or to pay salary and allowances in lieu of notice is mandatory”. In the said case, the Bench held that “the order of compulsory retirement was vitiated as the decision making process itself was influenced by extraneous consideration for whatever reasons, it would be nothing but malice, either in law or fact, or both as well, as the case may be.” It may be noted that in this 9 judgment, the Bench had not considered the judgment of the Hon’ble Supreme Court in the matters of Dinanath Rai (supra) or of Raj Kishore Bhargava(supra). In the matter of Hira Prasad Pandey Vs. The State of Bihar & Ors.(supra), a Bench of this court set aside the order of compulsory retirement made against the writ petitioner, a judicial officer, under Rule 74(b)(ii) of the Code. The Bench noted that the decision of the High Court did not make reference either to Rule 74(b)(ii) of the Code or to the words ‘in public interest’. In other words the High Court in that case did not take a conscious decision to retire the writ petitioner ‘in public interest’ in exercise of the power conferred by Rule 74(b)(ii) of the Code. The reference to Rule 74(b)(ii) of the Code and the words ‘in public interest’ was made by the Registrar General of the High Court while communicating the decision of the High Court to the State Government. This was clearly not permissible. As we have recorded hereinabove, all along the petitioner had been an officer of average caliber and at times he was reported to be the officer ‘below average’. As to the retirement of the petitioner in 'public interest, it is undoubtedly true that the impugned Notification dated 16th June 2009 did not mention that the petitioner was sought to be retired compulsorily in ‘public interest’. Nevertheless, the decision to retire him compulsorily was taken by the High Court in ‘public interest’ as is reflected from the minutes of the decision of the High Court. In our view, as the decision making authority was the High Court, as the High Court did take conscious decision to retire the petitioner compulsorily 10 in public interest, a mere omission to refer to the phrase ‘in public interest’ in the Notification issued by the State Government would not vitiate the decision of the High Court. As regards, the payment for notice period, under the impugned Notification the State Government sought authorization from the Accountant General for payment of three months’ pay and allowances in lieu of notice. On receipt of such authorization the payment was made to the writ petitioner. In our opinion , in view of the judgment of the Hon’ble Supreme Court, the remittance of the pay and allowances to the petitioner litte later should be considered due compliance with the condition under Rule 74(b)(ii) of the Bihar Service Code, 1952. No other contention has been raised before us. We do hold that the impugned Notification dated 16th June 2009 was issued in due compliance with the Rule 74(b)(ii) of the Bihar Service Code, 1952. The challenge to the said Notification is not sustainable. For the aforesaid reasons, the petition is dismissed. The parties will bear their own cost. Patna High Court Dated the 22nd April 2011 NAFR/Sujit (R.M.Doshit, CJ. ) (Jyoti Saran,J.)