J M MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of Indiais directed against the order of premature retirement of the petitioner on his completing the age of 50 years from the post of Sales Tax Recovery Mamlatdar, Rajkot, in exercise of powers conferred on the Government under the provisions of Rule 161(1) of the Bombay Civil Services Rules, 1959 by orders, dated 2 3/09/1976. The petitioner is prematurely retired with effect from 31st December, 1976.

(2.) The facts giving rise to the present petition, briefly stated, are as under: (i) The petitioner was recruited as Junior Clerk in the Office of Collector at Kaira on 4-1-1944, and on his passing departmental examination he was promoted to the post of Aval Karkun in Kaira District. In the year 1965- 66 certain allegations were made against the petitioner based on which a criminal complaint was lodged against him. The petitioner was also placed under suspension by order, dated 13/11/1967, pursuant to the criminal complaint. However, it was found that the allegations levelled against the petitioner could not be substantiated, and therefore, the order of suspension was cancelled, and he was reinstated with effect from 2-1-1969. In exercise of the powers conferred upon the authority under Rule 152(2) of the Bombay Civil Services Rules the period of suspension was ordered to be treated as on duty for all purposes. (ii) The petitioner was, thereafter, promoted to the post of Mamlatdar, and he was posted to officiate as Mamlatdar at Deesa. The said order of promotion was passed on 5/10/1971. (iii) The petitioner, thereafter, received the impugned order, dated 2 3/09/1976, whereby he is prematurely retired on his attaining the age of 50 years, with effect from 31/12/1976. Thereupon, the petitioner instituted Special Civil Application No. 2076 of 1976 in this Court challenging the order of his premature retirement. On perusing the record of the said Special Civil Application it appears that notice was issued on the respondents on 20/12/1976 and said notice was made returnable on 23/12/1976. Mr. N. M. Doshi appeared for the respondents and waived the service of notice. The respondents appeared and one N. K. Dholakia, Section Officer, Revenue Department, filed affidavit- in-reply on 23-12-1976. In said affidavit-in-reply the respondents, inter alia, justified the issuance of order of premature retirement contending that a Review Committee was constituted to consider the cases of officers and Mamlatdars for their continuance or otherwise in Government service on their attaining the age of 50 years, and the cases of 27 Mamlatdars were considered by the said Review Committee. It was also stated that after perusing the service record of the petitioner and his confidential report, the said committee recommended the premature retirement of the petitioner on his attaining the age of 50 years and the said recommendations were accepted by the Government. It was also stated that the Gujarat Vigilence Commission has also agreed with the decision of the Government to retire the petitioner prematurely on his completing the age of 50 years. The petitioner has filed his affidavit-in-rejoinder on 27-12-1976. (iv) On the aforesaid record of the petition on 13-1-1977 when the said Special Civil Application was posted for admissional hearing before Mr. Justice J. B. Mehta (as he then was) following order was passed :

(3.) It is in the background of the abovementioned facts, that this petition is required to be decided. When this petition was posted for admissional hearing notice was ordered to be issued on the respondents and the same was made returnable on 13/12/1979. It appears that the respondents appeared in response to the notice and ultimately Rule Nisi was issued on 27/12/1979 and the hearing of the petition was expedited. On behalf of respondents, C. R. Desai, Under Secretary to Govt. of Gujarat, Revenue Department, has filed the affidavit-in-reply, dated 20/10/1983, and further affidavit is also filed by Jitendra S. Dave, Under Secretary, Government of Gujarat, Revenue Department, dated 28/12/1988. Maintainability of the Petition :