PARADESI THYAGARAJAN Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) HEARD M/s. P. K. Suresh Kumar and M. R. Sreelatha for the petitioner and Government Pleader for the respondents.

(2.) THE appellant, aggrieved against the judgment in O. P. No. 7958 of 1998 dated 28th April, 1998, preferred the above appeal. THE appellant was a member of the Kerala Judicial Service and was working as a subordinate Judge at Kattappana, A committee constituted and headed by the chief Justice of the High Court of Kerala, on the basis of records of service and performance during the last five years, assessed and evaluated the potential for the continued utility of the service of the appellant and, on such evaluation, the Committee came to the opinion that the appellant does not have the potential for continued useful service. THE opinion of the Committee of the Hon'ble Judges was considered by the High Court and the High Court also was not satisfied about the continued utility of (he service of the appellant. Accordingly, the High Court decided to compulsorily retire the appellant on the afternoon of 30. 4. 1998, as the appellant was found not fit and eligible to continue in service beyond the age of 58 years. THE said decision was communicated to the petitioner by Ext. PI proceedings dated 15. 4. 1998. THE original Petition was filed against Ext. PI order. J. B. Koshy, J. , by judgment dated 28th April, 1998, dismissed the Original Petition holding that Ext. P1 was issued in accordance with R. 13a of the Kerala Judicial Service Rules read with r. 60 (aa) of Part I of the Kerala Service Rules. Since the order was passed in accordance with the directions of the Supreme Court and the rules, the learned judge was of the view that there was no defect in the order passed by the High court. This appeal is against the said judgment of the learned single judge. . THE appellant joined the service as a Judicial magistrate of the II Class on 30. 11. 1974. He was promoted as Judicial magistrate of the I Class on 10. 4. 1980 and after the integration of Civil and criminal Wings of the Judicial Service, the appellant was given promotion as subordinate Judge with effect from 7. 3. 1994. THE appellant's date of birth is 20. 4. 1940 and, in the normal course, he could have continued in service upto 30. 4. 2000. But on 21. 4. 1998 the appellant was served with Ext. PI order referred to above, compulsorily retiring him from service on 30. 4. 1998. 4. Learned counsel for the appellant challenge Ext. PI order on the following grounds: (A) Ext. PI order, which cast stigma on the appellant, is punitive in nature and, therefore, unsustainable. (B) Ext. PI order is passed in violation of the principles of natural justice. Citing the decision of the Supreme Court of india, the appellant submitted that the scope and ambit of exercise of the power to compulsorily retire an officer is always subject to constitutional limitations and that the rules do not confer any unfettered power to order compulsory retirement even without complying with the principles of natural justice. This aspect was not considered by the learned single Judge. THErefore, ext. PI order passed without any notice to the appellant, it is contended, is bad and unconstitutional. (C) No Court has held that in the matter of compulsory retirement, principles of natural justice need not be complied with. In the process of assessment of the performance of the officer, which preceded the order of compulsory retirement, the officer is bound to be heard when there are materials adverse to him. Unless there are materials adverse to him, no authority can come to the conclusion that an officer is unfit to continue in service. THErefore, the officer is entitled to be heard prior to the formation of an opinion based on materials adverse to him. (D) THE impugned order does not reveal as to what are the materials upon which the order of compulsory retirement is made. THE materials that were prejudicial to the appellant ought to have been disclosed to him and the appellant should have been given an opportunity to represent against such material as has been held by the Supreme Court. (E) Ext. PI order, in so far as it proclaims that the petitioner does not have potential for continued useful service and that he is not eligible to continue in service, is punitive in nature, and casts a stigma on the petitioner. A stigmatic order can be passed only after complying with the provisions contained in Art. 311 of the Constitution of India, and therefore, Ext. PI order issued without complying with the provisions contained in Art. 311 (2) of the Constitution is unconstitutional and void. (F) When an order of compulsory retirement contains a statement casting aspersion on the officer's conduct, character, work etc. it becomes punitive in nature and attracts Art. 311 of the Constitution. THE remarks in Ext. PI are prejudicial to the petitioner/ appellant herein and they cast a stigma on him. So, the compulsory retirement ordered as per Ext. PI order is not an innocuous one, but is punitive in nature and amounts to removal from service as contemplated by Art. 311 of the Constitution of India. (G) THE absence of an enquiry as contemplated by Art. 311 prior to the passing of Ext. PI order makes the said order void. (H) According to the appellant, a reading of the judgment of the Supreme Court rendered in All India Judge's Association case would show that a detailed enquiry is contemplated prior to the passing of an order of compulsory retirement. Such an enquiry has not been conducted in the instant case. (I) THE Supreme Court of India, in the decision in All india Judges Association, v. Union of India ( (1993) scc 288) has specifically held that the procedure for compulsory retirement as provided under the local laws shall be followed. THE local law applicable in the instant case is Kerala civil Services (C. C. & a.) Rules which prescribes a procedure for compulsory retirement. As the procedure prescribed by those rules are not complied with, Ext. PI order is illegal. (J) As per the judgment of the Supreme Court, the assessment of an officer's utility shall be completed before he attains the age of 58 years. THE appellant, it is submitted, attained the age of 58 years in the eye of law on 20. 4. 1997 and completed 58 years on 20. 4. 1998 and, therefore, the assessment ought to have been completed prior to 20. 4. 1997. As this mandatory direction of the Supreme Court is not complied with, Ext. PI cannot be sustained. THE above are the legal contentions raised in a nut shell, and argued at the time of hearing. 5. Before adverting to the arguments of counsel, it is but proper that we recapitulate the circumstances leading to the judgment of the Supreme Court relating to the increased age of superannuation and the scope of the order of the Screening Committee. We would like to straight away point out that the impugned order is not based on any rule or regulation, but is solely based on the judgment of the Supreme Court. 6. THE All India Judges Association moved the apex Court for directions regarding the setting up of an All India Judicial Service and for bringing about uniform conditions of service for the members of the subordinate judiciary throughout the country. At the time of hearing of the case, several demands were pressed and reliefs under the following heads were claimed. 1. Uniformity in the judicial cadres in the different states and Union Territories; 2 An appropriate enhanced uniform age of retirement for the judicial Officers throughout the country;

(3.) TRANSPORT facility to be made available and conveyance allowance provided;