RAGHU PATRO APPARAO PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution by the Sheristadar of the Munsif's Court, Berhampur, against the order of the District Judge, Berhampur, conveyed in his Memo No. 119 -III -D. 3/53 -55, dated the 18 -1 -1955, declining to give further extension of service to the petitioner and directing his retirement with effect from the 1 -7 -1955.

(2.) THE petitioner was a ministerial officer attached to the District Judge's office at Berhampur. He attained the age of superannuation (55 years) on the 1 -7 -1953 while working as Sheristadar of the Munsif's Court. Under sub -rule (b) of Rule 71 of the Orissa Service Code (Vol I), a ministerial officer may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues to be efficient, upto the age of 60 years. When the' time for his superannuation drew near, the District Judge, after inspection 'of the Munsif's court and review of his work, granted him an extension of service for one year. On 1 -2 -1954, however, he passed another order, in Memo No. 203(3) -111 -D/53 -54 to the effect that as the petitioner was incapable of coping with old arrear work, his efficiency had deteriorated and he was not fit to avail of any further extension of service. He directed the petitioner to retire from service on 1 -7 -1954 after availing himself of the leave due to him. But on a representation made by the petitioner the District Judge by a subsequent order dated the 8 -5 -1954 modified his previous order and allowed him to continue in service subject to his work being reviewed in January 1955. Then, on the 18 -1 -1955 he passed the following order: 'Sri Apparao Patnaib, Sharistadar, Munsif's Court, Berhampur, was due to retire on the 1 -7 -1953. In the annual review of 1953 he was given notice that his retention in service will be considered alter inspection of the Munsif's Court. In April 1953 he was granted extension till the next review. In January 1954 his work was found not efficient after consideration of the inspection note and he was asked to retire from 1 -7 -54. On his representation dated 7 -5 -54 he was allowed to continue till the period of next review subject to his keeping up continued fitness. The Munsif, under whom he was serving reported in favour of his fitness. But on a consideration of his entire service career, the question of broad public interest, and lastly his continued fitness to carry on the heavy responsibility of Sheristadar of a Court, I am of the view that his services shall be made to terminate with effect from 1 -7 -55. Notice of this order be given, enabling him to apply for leave due to him. Sd/ - D. N. DAS District Judge' The immediate superior of the petitioner, namely the Munsif of Berhampur, recommended the petitioner's case for extension and also stated that he was physically fit. But the District Judge apparently did not accept his recommendation. The petitioner then filed an appeal before the Government which was dismissed and he has now come up to this Court with a petition under Article 226.

(3.) THE right of a ministerial officer to be retained in service until he attains the age of sixty years as recognised in Sub -rule (b) of Rule 71 of the Orissa Service Code (Vol. I) is not an absolute right. It is a qualified right depending on his continuing to be efficient. The authority to decide whether he so continues to be efficient is the appointing authority; and if the appointing authority, after a review of the officer's work is satisfied that his efficiency has deteriorated and that he should not be granted further extension of service, it will not be proper for this Court in exercise of its extraordinary jurisdiction under Article 226, to sit in judgment over the opinion of the appointing authority and decide whether the materials before that authority for forming such an opinion are sufficient or not. It is true that the petitioner was working as Sharistadar of the Munsif's office at Berhampur, and from the character roll and the report of the Munsif it appears that the Munsif's opinion was in favour of the petitioner, but the District Judge is not bound by that opinion and as the Munsif's office is located in the same building as the District Judge's office and not in an outlying station the District Judge has opportunities to keep a general watch over the work of the petitioner and to form his own opinion. In fact, in the report which the District Judge submitted to the Government on the 29 -7 -1955, with his letter No. 1265 -III -E -5/55 of that date while forwarding the appeal of the petitioner, he stated as follows: