AVINASH VITTHALRAO CHOUDHARY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A notice for final disposal was issued. The submissions of the learned Counsel for parties were heard in the last week. The petitioner who was a Judicial Officer has challenged the order dated 28th September,2011 passed under the directions of and in the name of the Hon'ble Governor of Maharashtra which is an order of compulsory retirement. The order of compulsory retirement has been passed in purported exercise of powers under the Maharashtra Judicial Services Rules 2008 as amended on 6th August,2011 ( for short 'the said Rules') as well as under clause (a) of sub-Rule (4) of Rule 10 of the Maharashtra Civil Services (Pension Rules), 1982 (for short 'the Pension Rules').

(2.) The date of birth of the petitioner is 17th June,1960. He was appointed as a Civil Judge (Junior Division) and Judicial Magistrate First Class with effect from 14th August,1995. The case made out by the petitioner is that he was granted benefit of Assured Career Progression Scheme in the year 2002- 2003. It is the case of the petitioner that in April,2011 he was granted promotion on ad-hoc basis to the post of Senior Civil Judge. Thus, the case made out in the petition is that the day on which the petitioner was actually appointed, his age was more than 35 years. On 26th April,2011 the case of the petitioner was placed before the Special Review Committee of this Court consisting of five Hon'ble Judges of this Court of which the Hon'ble the Chief Justice was the Chairman. On 26th April,2011 the Review Committee recommended the case of the petitioner for passing an order of compulsory retirement in public interest. As stated above, the impugned order of compulsory retirement has been passed on 28th September,2011 under the order of and in the name of the Governor of Maharashtra.

(3.) The learned Counsel appearing for the petitioner invited out attention to the said Rules and in particular Rule 19 thereof. He pointed out that under the unamended Rule 19 as it existed prior to 6th August,2011, the power to retire a member of the Judicial Service could be exercised upon a Judicial Officer attaining age of 50 years, 55 years or 58 years. He pointed out that Rule 19 underwent an amendment on 6th August,2011 after the recommendation of the Review Committee in the present case which provides that whether a member of the Judicial Service should be retired in public interest under sub-Rule (1) shall be considered at least three times, that is, when he is about to attain the age of 50 years, 55 years and 58 years. He submitted that though the case for review was considered before the amendment, the impugned order makes a reference to the exercise of powers under Rule 19 of the said Rules as amended by the Notification dated 6th August,2011. He submits that when the impugned order of compulsory retirement was actually passed, the amended Rule 19 was on the Rule Book. He submitted that in view of the amended Rule, the case of the petitioner could have been considered only when he was about to attain the age of 50 years and not long after he attained the age of 50 years. He pointed out that when the case of the Petitioner was actually considered, the age of the petitioner was 50 years 10 months 9 days. He urged that if a case for compulsory retirement is considered in terms of sub-Rule (1) even after a judicial officer attains the age of 50 years, 55 years or 58 years, as the case may be, sub-Rule (2) of Rule 19 as amended will become redundant. He invited out attention to the proviso to sub-Rule (2). He submitted that under the proviso, the case of a Judicial Officer for compulsory retirement can be considered any time after attaining the age of 50 years, 55 years or 58 years, as the case may be, provided his case is considered before attaining the age of 50 years, 55 years or 58 years. His submission is that the case of the petitioner could not have been considered either under sub-Rule (2) or under the proviso under sub-Rule (2) of Rule 19 of the said Rules as his case was not considered before attaining the age of 50 years. His submission is that in any event, the order of compulsory retirement should not have been made by exercising the power under Rule 10 of the Pension Rules in as much as when the petitioner was appointed, he had already completed age of 35 years.