SISIR KANTA SATAPATHY Vs. REGISTRAR ADMINISTRATION

JUDGEMENT

(1.) THE 'important point to decide in this writ petitton is whether a High Court can compulsorily retire a Chief Judicial Magistrate. This question has come to the fore because the petitioner has challenged the competence of the Orissa High Court in having prematurely retired him while serving as Chief Judicial Magistrate, Mayurbhanj on his attaining the age of 50 years in exercise of powers conferred by the first proviso to Sub -rule (a) of Rule 71 of the Orissa Service Code and Art. 235 of the Constitution. The other ground of attacking the impugned order dated 5 -2 -1987 as at Annexure -7 is the lack of materials to retire the petitioner.

(2.) THERE is no dispute before us that the power of premature retirement as conferred by the first proviso to Rule 71(a) of the Orissa Service Code can be exercised by the appointing authority. This stand has been taken also because of the latest decision of the Apex Court in Registrar, High Court of Madras v. R.Rajiah, AIR 1988 SC 1388, The decision in Tej Pal Singh v. State of U.P., AIR 1986 SC 1814 would also support this stand.

(3.) IT would be opposite to note what has happened in Batuk Deo Pati Tripathy's case (supra). There, a decision was taken to retire a judicial officer by the High Court and the Governor accepted the recommendation and retired the officer compulsorily. It was thus a case where the ultimate order of retirement had been passed by the Governor and not the High Court. In Inder Prakash Anand's case (supra) also, the ultimate order of compulsory retirement had been passed by the State Government though the same was against the view taken by the High Court. In this connection it was stated in para 12 that if the State Government is to have the power of deciding whether a judicial officer should be retained in service after the age of 55 years up to the age of 58 years, that will seriously affect the independence of the judiciary and take away the control vested in the High Court, It was further observed : 'It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily Under Section 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Govevernment is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court'