MAHANTHA GOUDA BIRADARA, S/O. LATE BASAVANNA BIRADARA 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 R

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 7 -3 -1983. Having regard to merit and seniority, he was promoted to the post of Civil Judge (Senior Division) during the year 1993. He has served at various places in the State of Karnataka, without incident. It transpires that while he was working at Virajpet during the year 2009, the judicial work entrusted to the petitioner was withdrawn vide letter dated 15.5.2009. Thereafter, the petitioner was transferred and posted as an Additional Solicitor and Ex -Officio Deputy Secretary to the Government of Karnataka. 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, by a Notification dated 23 -6 -2009, that 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). He was relieved from service on the afternoon of 24.6.2009. The petitioner had made a representation, after the withdrawal of the judicial work at Virajpet to His Excellency Governor of Karnataka on 28.5.2009 seeking reconsideration and review of the order withdrawing the judicial work. He was aged 57 at that point of time. 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 10 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 235(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 he attains the age of superannuation at 60, subject to satisfying the test of suitability. The review contemplated at the age of 58 is for purposes of extending the age of superannuation from 58 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.) BRIJ Mohan Singh Chopra Vs. State of Punjab, AIR 1987 SC 948 .