1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4901 of 2009 Sadashiv Vishnu Rayate, Age 53 years, Occu – Nil, R/o G-3 Thakkar Retreat, Old Gangapur Naka, Gangapur Road, Nashik. ..... Petitioner V/s. 1. The State of Maharashtra, Principal Secretary, Law and Judiciary, Sachivalay, Mumbai. 2. High Court of Bombay, at Mumbai (Registrar General, High Court), Mumbai. ..... Respondents Mr.P.R.Arjunwadkar, for the petitioner. Mr.C.R.Sonawane, AGP, for respondent No.1. Mr.G.S.Godbole, for respondent No.2. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 25th June, 2010 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J.) :- 1. Rule. 2. Rule made returnable forthwith. Heard the learned counsel for the parties. 3. This petition filed under Article 226 of the Constitution of 2 India, challenges the order of respondent No.1 dated 26-03-2008, by which order the petitioner has been compulsory retired from service. The petitioner was serving as a Judicial Officer and at the relevant time, was serving as Ad Hoc District Judge and Additional Sessions Judge, Pune. At the time of completion of 53 years, the case of the petitioner was reviewed for continuation by the High Court on its administrative side. After considering the service record of the petitioner for the preceding five years, the administration of the High Court took a decision not to continue the petitioner in service as the High Court was satisfied that no useful purpose will be served by continuing the petitioner. In terms of the aforesaid order passed by the Review Committee of the High Court, that the impugned order came to be passed by the respondent No.1. The said order has been assailed by the petitioner on two grounds i.e. the power of review was not available with the High Court at the time when the petitioner completed 53 years of age and such powers could have exercised only at the time when a Judicial Officer attains the age of 50 and 55 years and that the service record of the petitioner was not that bad, which may justify taking such action. 4. The High Court has filed affidavit-in-reply to this petition, which is at Page 64 in the compilation, dealing with the claims and contentions raised in the petition. 3 5. The learned counsel for the petitioner submitted that the petitioner’s case could have been taken in review at the time when the petitioner reaches the age of 55 years and in between it was not permissible to take his case in review at the age of 53 years, as it could have been done only when the petitioner reach the age of 50 years and 55 years. In order to buttress his submission, learned counsel for the petitioner has placed on record a copy of the letter dated 14-10-2008 addressed to the Honourable Chief Justice of this High Court by the Honourable Chief Justice of India, a copy of which according to the learned counsel for the petitioner, has been received by the petitioner on an application under the Right to Information Act. Based on the said letter, the learned counsel for the petitioner submitted that such a review is permissible in case of a judicial officer who has attained the age of 50 years and thereafter only at the age of 55 years and there could be no review in between. Learned counsel for the petitioner further contended that in any case, the petitioner was not communicated any adverse remarks and therefore, impugned order could not have been passed. 6. On the other hand, Mr.Godbole, learned counsel appearing for respondent No.2 contended that such review is permissible under the Service Rules, especially when the petitioner had joined the service at the age of 33 years i.e. before 35 years of age as per the rules applicable. He 4 further submitted that looking to the service record and the Annual Confidential Reports of the petitioner, the High Court administration came to the conclusion that no useful purpose would be served in continuing the petitioner in service. He contended that a perusal of the service record of the petitioner would indicate that his service record was ‘Average’ in nature for a long period of time. 7. We have heard Mr.Arjunwadkar, the learned counsel for the petitioner and Mr.Godbole, the learned counsel appearing for the Respondent No.2, at some length and have considered the averments made in the petition as well as affidavit-in-reply filed by the respondents. So far as the first contention of the petitioner that a review of his case could not have been made at the age of 53 years is concerned, it would be relevant to reproduce Rule 10(4)(a) (i) of the Maharashtra Civil Service (Pension) Rules, 1982, which reads as under : - (4) Notwithstanding anything contained in sub-rules(1) and (2) of this rule, the appropriate authority, if it is of the opinion that it is in the public interest so to do, by giving (notice of three months) in writing in Form 30 or in Form 31, as the case may be, or three months’ pay and allowances in lieu of such notice, have the absolute right to retire - (a) any Gazetted Government servant under the rule making control of the State government : - (i) if he had entered government service under any government in India, before attaining the age of thirty-five years, after he has attained the age of fifty years, and (ii)............. 5 8. It is not in dispute that the petitioner was retired at the age of 53 years. It is pertinent to note that the petitioner was recruited at the time when he was 33 years of age, the High Court administration was therefore, entitled to review his case after the petitioner completed 50 years of age in terms of Rule 10(4) (a) (i) as above. It was therefore, not necessary to wait till the petitioner completed 55 years of age, as his case could be reviewed periodically after he had attained the age of 50 years. The learned counsel for the petitioner is not in a position to point out as to how the case of the petitioner cannot be reviewed at the age of 53 years so as to find out the suitability of the petitioner for being continued. The Administrative Committee of five Senior Judges of this Court after considering the entire service record of the petitioner and after considering his annual confidential reports, ultimately reached the conclusion that the services of the petitioner are not required to be continued, as he is not likely to be of utility to the institution. The decision of the review committee of the High Court, is placed on record by the learned counsel for the petitioner, which is taken on record, as the same was furnished to the petitioner under the Right to Information Act. 9. So far as the annual confidential reports of the petitioner are concerned, which are at pages 89 to 152 in the compilation, the same indicate that the service record of the petitioner was ‘average’ or ‘good’. 6 So far as order of compulsory retirement passed against the petitioner on review is concerned, the said order cannot be said to be penalty or stigma in any manner. The said order is passed after considering the service record and other attendant circumstances and it was found that it was not in the public interest to continue the petitioner in service. As indicated earlier, the said decision has been taken on a review of the petitioner’s case. The said conclusion has been reached by taking the relevant material into consideration. In a judicial service, if a particular Judicial Officer is not found to be meritorious, then there is no need to retain him in a service and recourse to the statutory provisions can be adopted in such cases, as it is the need of the hour that a judicial officer not only should be honest but also should be efficient. Efficiency and integrity are sine qua non as regards the services of the judicial officers are concerned. This Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India, cannot substitute its own assessment for the one reached by the Administrative Committee of the High Court in this behalf. We therefore, do not find any merit in the petition, which is accordingly dismissed. Rule discharged. ( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )