SHIVANAND DHAGE, S/O. NARASINGAPPA DHAGE Vs. THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY TO THE GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BANGALORE AND THE HIGH COURT OF KARNATAKA, REPRESENTED BY ITS REGISTRAR GENE

JUDGEMENT

(1.) HEARD the learned counsel for the parties. The facts of the case are as follows : The petitioner had joined the Karnataka State Judicial Service as Munsiff and JMFC on 5 -12 -1988. Having regard to merit and seniority, he was promoted to the post of Civil Judge (Senior Division) during the year 2900. He has served at various places in the State of Karnataka without incident. It transpires that he was working as Civil Judge (Senior Division) and Additional CJM, Karkala, Udupi District in the year 2009. The petitioner claims that there were no antecedents or any adverse circumstances in his entire career as a judicial officer. There is no indication of any want of efficiency or diligence in the discharge of his official duties. And there was certainly no circumstance which rendered the continuation of the petitioner in service as being opposed to public interest. In the above background, the judicial work of the petitioner was withdrawn by a letter dated 15 -5 -2009 and by a Notification dated 23 -6 -2009, the petitioner, along with 14 other judicial officers, were permitted to be compulsorily retired from service, in public interest - in terms of Sub -rule (4) of Rule 285 of the Karnataka Civil Service Rules (Hereinafter referred to as the 'KCSRs' for brevity). Accordingly, he was relieved from service on the afternoon of 24.6.2009. He was 54 at that point of time. The petitioner had made a representation in this behalf to the second respondent on 27.5.2009 through the District and Sessions Judge, Udupi to reconsider the said order. The same not having evoked any response, the present petition is filed.

(2.) IT is contended that the Notification, by which the petitioner has been permitted to retire, purportedly in public interest, is clearly illegal and is in contravention of Article 311 of the Constitution of India. The KCSRs are framed in exercise of the powers conferred under the Proviso to Article 309. They are subject to other provisions of the Constitution of India. In terms of Article 310, a Civil Servant holds office during the pleasure of the Governor of the State. Article 311 prescribes the conditions which are to be satisfied before the dismissal of a Civil Servant or removal from service, after affording a reasonable opportunity of hearing. The combined reading of Articles 309, 310 and 311 indicates that the Rules made thereunder are subject to doctrine of pleasure, which itself, is subject to the limitations imposed under Article 311. Therefore, while invoking Rule 285(4) of the KCSRs, it is obligatory on the part of the competent authority to follow the procedure prescribed under Article 311 of the Constitution of India and therefore, it is contended that the impugned Notification is violative of the principles of natural justice. It is urged that the meaning ordinarily attributed to the word 'dismissal" is to let go" or "to be rid of" or "to dismiss", in other words, "to take away from the position occupied". Therefore, the effect of removal or dismissal of one from his office is to discharge him from that office. This would take within its fold premature retirement. By that token of reasoning, it is urged that a reasonable opportunity should have been given to the petitioner to show -cause against the proposed action, It is contended that the petitioner has a legal right to continue in service as a Judicial Officer till he attains the age of 60, the age of superannuation, subject to the conditions prescribed under Rule 95 -A of the KCSRs. In other words, the second respondent, as on the relevant date, ought to have assessed and reviewed the petitioner's record for continuing his service beyond 58 and therefore, review of the petitioner's service, prior to his attaining the age of superannuation, is a direct deprivation of his right to continue as a Judicial Officer as the age of superannuation of Civil Servants in the State of Karnataka is 60 since the year 2008. Whereas the State has chosen to apply the Rule mechanically in purportedly permitting the petitioner to retire in public interest on a mere recommendation by the second respondent. Compulsory or Premature Retirement is one of the known modes of termination of employment at the discretion of the appointing authority. It is a determination of service prematurely. The anomaly is that while invoking Rule 285(4) of the KCSRs, no opportunity is granted to the petitioner; Whereas in respect of imposition of the punishment of dismissal, removal or compulsory retirement under Rule 8(vi) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, (hereinafter referred to as ' the 1957 Rules' for brevity) an opportunity is given to such persons by conducting a departmental inquiry. A person, who is guilty of misconduct, has a greater protection than an individual against whom no allegation is made. This is a glaring disadvantage. For if a person, such as the petitioner, is prematurely retired without indicating the blame or reason for such treatment, under the guise of invocation of Rule. 285(4) of the KCSRs, which is clearly arbitrary and falls foul of the due process of law as envisaged under Article 311 of the Constitution. It is also contended that Rule 285(4) enables the appointing authority to prematurely retire a Government Servant working in a substantive post, if it is necessary in public interest by following the guidelines in applying the Rule. But, insofar as the Judicial Officers are concerned, no such guidelines are framed or followed. Therefore, the action initiated by the second respondent is clearly, in contravention of the principles of natural justice. The law as laid down by the apex court is well settled, to the effect that though no express provision is made in following the principles of natural justice, compliance with the same would be implicit, where an affected person suffers civil consequence of an order passed against him, which would be prejudicial to his interest. The present impugned order is certainly prejudicial to the interest of the petitioner and is clearly in violation of the principles of natural justice. The impugned proceedings are also in contravention of Rule 285 of the KCSRs inasmuch as three months' salary in lieu of three months notice has not been paid along with the order of retirement. The law is also settled insofar as the interpretation of the scope of Rule 285 of the KCSRs is concerned, wherein the apex court has pronounced that the age of retirement of a Judicial Officer cannot be compared with that of a Government Servant and the Judicial Officer has a statutory right to continue in service till ne attains the age of superannuation at 60, subject to satisfying the test of suitability. The review contemplated at the age of 38 is for purposes of extending the age of superannuation from 53 to 60 and not for the purpose of compulsory retirement of a Judicial Officer. The law does not permit a career review before a Judicial Officer attains the age of 58. It is also pointed, out that the second respondent in its administrative jurisdiction, has failed to evolve any Rules in exercise of power vested under Article 235 of the Constitution of India, in the absence of which, the decision arrived at is irrational and in violation of the principles of natural justice. The petitioner being picked up for compulsory retirement, would smack of arbitrary action in the absence of any reasons assigned.

(3.) ON the other hand, the learned Government Pleader contends that the complaint of the petitioner to the effect that his premature retirement is punitive in nature; under the guise of public interest or that it is arbitrary and in violation of principles of natural justice, as being incorrect. It is contended that the compulsory retirement of the petitioner is not violative of Article 311 of the Constitution of India, as it contemplates dismissal, removal or reduction in rank of a person employed in a Civil capacity under the Union or the State Government, the impugned action is neither an order of dismissal or reduction in rank and hence Article 311 cannot be pressed into service. It is contended that under Rule 285 (4) of the KCSRs, the right to continue in service till attaining the age of superannuation is no longer available, A Government servant can be compulsorily retired from service on the authority forming an opinion that continuing him in service may not be in the public interest. This power is apart from the power available under Rule 95A of the KCSRs. It is asserted that the expressions "dismissal" or "removal" cannot be construed as "retirement". On the other hand, compulsory retirement carries with it no stigma or implication of misbehavior or incapacity, whereas this is implicit in an order of dismissal or removal from service. Yet another distinguishing feature of compulsory retirement is that, it carries with it all the service benefits to which the person so retired would be entitled. It is also pointed out that what was provided for under Rule 95 -A and Rule 285(4) are in respect of different situations and were meant to be complementary. Rule 95 -A addressed the pitfalls of ineligibility that a Government servant may have incurred during his service, may be on account of indiscipline or incapacity. Compulsory retirement under Rule 285(4) on the other hand is an incidence of service and falls entirely outside the scope of Article 311 of the constitution. It is further contended that the tenor of Rule 285(4) does not envisage the issuance of a notice or the holding of a domestic enquiry before invoking the same, hence the plea of violation of principles of natural justice or the violation of Article 311 of the Constitution is not tenable. It is also contended that the very aspect of continuing a Government servant in service till superannuation depending as it does on various other factors such as desirability and incurring of ineligibility by the Government Servant during service, retiring the petitioner under Rule 285 (4) by applying the test of desirability cannot be frowned upon and nor does it infringe upon any right vested in the petitioners as the right to retire a Government Servant compulsorily, is absolute. It is contended that since the consequences directly spring from an order which is passed on the objective decision of the Competent Authority after due application of mind and also where the civil consequences complained of are not the result of any penalty, the rule of natural justice does not come into play. If an enquiry is made, it is more for enabling the authority passing the order to form an opinion that the retirement of the concerned is necessary in public interest. Such enquiry confers no right on the Government Servant to ask for an opportunity to meet the grounds on which a decision is taken to retire him in public interest. The power conferred on the Government cannot be said to be either unguided or uncontrolled in view of the provisions of Sub -Rule (4) of Rule 285 of the KCSRs and the same is not violative of Article 14 of the Constitution of India. It is further contended by the respondents that what is required of a competent authority under Rule 285 (4) is to form an opinion on an objective assessment, in public interest, of the desirability or otherwise of continuing the Government Servant in service. The absence of any rules or guidelines is not fatal to the decision arrived at in so forming an opinion. Where the Rule is silent as to the mode or test to be adopted in examining the desirability of continuing the petitioners in service, the competent authority is free to adopt or follow whatever procedure they may deem fit. The culmination of such exercise under Rule 285 (4) being only "the retirement" of the official concerned, which is not a punishment, the method or basis of forming an opinion by the Competent Authority becomes irrelevant. In the absence of allegations of mala fides, a Government Servant cannot ask for material, on the basis of which, a conclusion was arrived at, as principles of natural justice come into operation, only when a civil servant is proceeded against in an enquiry which could lead to imposition of punishment. In view of fact that Notification NO. DPAR/25/SHC/2009 dated 23.06.2009 is issued in the public interest and the same being in accordance with law, the petitioners are not entitled for quashing of the same, much less, for a direction to reinstate them with continuity of service with all other consequential benefits. It is also contended that the High Court of Karnataka had constituted a Committee for the purpose of screening the performance of judicial -officers of the State Judiciary, for their continuation in service beyond 50 years and before such officers attained 58 years, under a Notification dated 28.9.2005. The said Committee having submitted its report, the same has been accepted by the Full Court of the High Court by its resolution dated 25.4.2009. It is therefore contended that the petition be dismissed as being without any merit.