SAHADEV PATNAIK Vs. STATE OF ORISSA REPRESENTED THROUGH SECRETARY, FOREST AND ANIMAL HUSBANDARY DEPARTMENT, BHUBANESWAR

JUDGEMENT

(1.) Petitioner's case may be stated in short. The petitioner was appointed as District Fisheries Officer on 29-3-1946 after having received necessary training in fisheries and was confirmed in that post on 1-11-1949. He was promoted as Assistant Director of Fisheries in Class II and was confirmed in that post on 21-8-1957. In 1961 he was deputed to Japan for advanced training in fisheries. On return he was promoted on 25-9-1962 as Deputy Director of Fisheries in Class I. He remained in charge from 24-6-1964 to 18-8-1964 as Director of Fisheries. On 19-8-1964 he was deputed as Managing Director to Orissa Fisheries Development Corporation Ltd. (hereinafter to be referred to as the Corporation) where he remained till 1-1-1967. He came back to the parent department as Deputy Director of Fisheries on 2-1-1967. As Managing Director he had been sent to Poland in a study tour regarding Polish Trawlers. A proceeding was started against him in Aug. 1967 relating to some lapses in the Corporation. On 15-7-1969 the petitioner was reduced in rank as Assistant Director of Fisheries by way of punishment in the proceeding. On 28-10-1971 certain adverse entries in his character roll were communicated to him for the period 1964 to 1967. The adverse entry for 1964-65 was that he was an officer of poor capabilities. For 1965-66 he was stated to have lacked in grasp, expression, control over staff and official conduct. For 1966-67 the entry was that his work on the whole showed improvement but some of the transactions in the Corporation were not appreciated by the Board and he was found unable to tackle complications. According to the petitioner, the effect of the adverse entries as well as of the punishment in the departmental proceeding ceased to have any weight in 1971 as on 17-8-1971 the Director of Fisheries recommended his name for ad hoc promotion as Deputy Director of Fisheries and the Government also recommended his name to the Public Service Commission on 12-8-1972 for being appointed as Deputy Director of Fisheries. In April, 1973 the Director reminded the Government to appoint the petitioner as Deputy Director of Fisheries on ad hoc basis. In May, 1973 Government in the Fisheries and Animal Husbandry Department recommended the petitioner's name to the P & S Department for ad hoc appointment to the post of Deputy Director of Fisheries. On 17-10-1973 the Public Service Commission recommended the petitioner for promotion as Deputy Director of Fisheries after selecting him out of a list of 17 persons. On the aforesaid facts, the petitioner averred that his efficiency, integrity and capability cannot be doubted. An order (Annexure-1) dated 8-9-1973 was served upon him on 14-9-1973 under rule 71(a) of the Orissa Service Code (hereinafter to be referred to as the Code) giving a notice of three months for retirement from service. Rule 71 (a) was amended by two notifications on 22nd April, 197 2 and 16th Aug., 1972 whereby a Government servant may be retired on his attaining the age of 50 years by giving a notice of three months. The first amendment was made retrospective with effect from the 20th June, 1950. On 15th June, 1973 the Chief Secretary to Government of Orissa issued a letter (Annexure-4) indicating the procedure as to how action under rule 71(a) would be taken for compulsory retirement. The amendments to rule 71(a) are attacked as unconstitutional being hit by Articles 14, 16 and 311 of the Constitution. The impugned order (Annexurc-1) is assailed as mala fide, arbitrary and based on collateral considerations. The prayer is that the amendments to rule 71 (a) be declared ultra vires and a writ of certiorari be issued quashing Annexure-1. In the counter filed by the State the impugned order is supported as not being mala fide and unconstitutional. The impugned order was passed by the Governor and was valid under the amended rule 71(a) which is asserted to be constitutionally valid.

(2.) Mr. Rath for the petitioner urged the following contentions:

(3.) Before the various contentions are examined, it would be appropriate to notice the impugned rule and the subsequent amendments there to and the administrative instruction issued in that connection.