JOGESWAR BORA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner, an advocate of Golaghat Bar, was appointed in the Assam Judicial Service and he joined a Judicial Magistrate on 13.2.1973. Later on, in due course the petitioner was promoted to Assam Judicial Service Grade-II and then to Grade-I in September, 1994. The petitioner was to complete the age of 58 years on 31.12.2001. The Assessing Committee of the Gauhati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh) constituted by the Full Court of the High Court has considered the case of the petitioner under the Assam Judicial Officers (Retirement) on Superannuation Rules, 1995 (hereinafter referred to as "the Rules 1995") and recommended not to continue the services of the petitioner up to the age of 60 years. The recommendation made by the Assessing Committee has been accepted by the Full Court of the High Court and consequent thereof the order has been issued by the Governor of Assam compulsorily retiring the petitioner from service w.e.f. 31.12.2001. The order of compulsory retirement has been issued in exercise of the powers conferred under Rule 5 of the Rules 1995 and on the recommendation of the Gauhati High Court.

(2.) Under Rule 5 a Judicial Officer shall retire from service on superannuation in the afternoon of the last day of the preceding month on which he attains the age of sixty years if the date of birth is the 1st day of any month. In other cases the official shall retire on the last day of the month in which he attains sixty years of age. The first proviso to Rule 5 gives option to Judicial Officer to exercise his option in writing before he attains the age of fifty seven years to retire at the age of fifty eight years. Under the second proviso to Rule 5 if the Judicial Officer did not exercise such option he shall retire on his attaining the age of sixty years if he is found fit and eligible to continue in service by the High Court after assessing and evaluating his record for his continued utility well within time before attains the age of fifty eight years. Thus if the Judicial Officer did not exercise the option of retirement on his attaining the age of 58 years he shall normally continue in service till he attains 60 years. His continuation in service up to 60 years after he attains the age of 58 years is subject to his case being cleared by High Court after assessing and re-evaluating his record. The High Court has the power to recommend retirement of a Judicial Officer at the age of 58 years and not to continue him in service till he attains the age of 60 years, if in the opinion of the High Court he does not hold utility for such continuation till the age of 60 years. Under the proviso the High Court gets an authority and jurisdiction to assess the utility of a Judicial Officer to be continued till the age of 60 years. If the High Court reaches to a conclusion that the Judicial Officer has to be continued beyond the age of 58 years up to the age of 60 years, his case shall be cleared by the High Court for such continuation. If the High Court reaches to a conclusion that his utility is, in not continuing his employment beyond the age of 58 years, the High Court may exercise the power of compulsorily retiring such Judicial Officer on attaining the age of 58 years in public interest. This power shall be exercised by the High Court by following the procedure for compulsory retirement under the service rules applicable to the judicial officers. If the recommendation is made by the High Court not to continue with the service of the judicial officer beyond the age of 58 years up to the age of 60 years under the third proviso, the State shall compulsorily retire the Judicial Officer on his attaining the age of 58 years.

(3.) The petitioner has been compulsorily retired on attaining the age of 58 years in exercise of this power by the Governor of Assam on recommendation of the High Court. It is the case of the petitioner that throughout his service career he had carried out his duties sincerely and best of his ability and at no point of time any adverse remarks had been recorded in his service record or any adverse remarks has ever been communicated to him by the High Court, therefore, his service could not have been dispensed with at the age of 58 years and he should have been allowed to continue in service till he attains the age of 60 years.