GEETA RAMESH AGRAWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Petition, the Petitioner, who is a legal representative of a judicial officer, challenges the order dated 28 October 2003 by which the original Petitioner Mrs. Geeta Agrawal was compulsorily retired from the judicial service. At the time when that order was made, she was holding the post of Metropolitan Magistrate. She was compulsorily retired by giving her three months pay. There are three challenges raised to the order of compulsory retirement :

(2.) So far as the first submission is concerned, according to the Petitioner, an order of compulsory retirement can be made by the Appropriate Authority. The term "Appropriate Authority" has been defined to mean the Authority which has power to make substantive appointment to the post or service. As per the Bombay Judicial Service Recruitment Rules, 1956, so far as the post of Metropolitan Magistrate is concerned, persons who are appointed to the post of Metropolitan Magistrate by promotion, their appointing Authority is the High Court. According to the Petitioner, therefore, the order of compulsory retirement could have been made only by the High Court. The Respondents, on the other hand, relied on Article 234 of the Constitution of India and two judgments of the Supreme Court, one in the case of Registrar, High Court of Madras vs. R. Rajiah1 and the other of a Constitution Bench of the Supreme Court in the case of Registrar (Admn), High Court of Orissa, Cuttack vs. Sisir Kanta Satapathy (Dead) by lrs & anr.,2, to contend that notwithstanding what is contained in the service Rules in view of the provisions of Article 234 of the Constitution of India the appointing Authority of a person who is holding the post of Metropolitan Magistrate is the Governor of State and, therefore, the order of compulsory retirement issued by the Governor is issued by the Competent Authority.

(3.) It is true that as per the Bombay Judicial Service Recruitment Rules, 1956, power to make appointment by promotion to the post of Metropolitan Magistrate is vested in the High Court. Article 234 of the Constitution of India reads as under : "