VIJOY NARAIN JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner in this writ application was a Judicial Officer who was appointed as a Munsif in Bihar Judicial Service on 15.4.1976 and joined his service on 8.9.1976. He was confirmed on the post of Munsif after two years and was promoted to the post of Sub -Judge in 1989 and joined as such at Dhanbad in May, 1989. Subsequently he was posted as such at Naogachhia within the district of Bhagalpur and lastly at Katihar.

(2.) WHILE at Katihar the petitioner received a letter dated 15.4.1997 from District and Sessions Judge, Katihar as contained in annexure -8 through which he was communicated that in view of confidential letter dated 15.4.1997 of the Registrar General, High Court, Patna the petitioner was relieved of all judicial work forthwith. Thereafter petitioner found out details of High Court 's letter dated 15.4.97 (annexure -9) by which the Registrar General of the High Court has communicated the recommendation of the High Court to retire the petitioner compulsorlly in public interest under Rule 74(b) (ii) of the Bihar Service Code (hereinafter referred to as the 'Code '). Initially through this writ application filed on 15.5.97 the petitioner sought 5/1/2013 Page 114 Shobh Nath Ram Versus State Of Bihar quashing of annexures 8 and 9 on the ground that his service record contained very limited adverse entries and it did not warrant any recommendation for his compulsory retirement in public interest. His other stand was that although he had completed 50 years of age but had completed less than 25 years of service and therefore by virtue of provisions in the Bihar Pension Rules 1950 he would not get his full pension and therefore any order of compulsory retirement in his case would amount to an order of. punishment and would therefore be violative of Article 311 of the Constitution of India.

(3.) IN the facts of the case and in view of amended writ application, learned counsel for the petitioner, at the stage of hearing, challenged the recommendation dated 15.4.97 (annexure -9) as well as the final order of compulsory retirement dated 12.12.1997 (annexure 12) mainly on the following three grounds : '' (i) Rule 74 (b) (ii) of the Code no doubt gives power to the appointing authority to retire a government servant in public interest on or after he completes 30 years of qualifying service or attains 50 years of age but this provision should be read along with Rules 134. and 135 of the Bihar Pension Rules, 1950 and on such reading it should be held that retiring pension is granted to a government servant only when he has completed 25. years of qualifying service or more and therefore, the order of compulsory retirement in case of a government servant who has not completed 25 years of qualifying service must be taken as a punishment and therefore in such cases the protection of Article 311 of the Constitution of India should be held to be applicable. Since such protection was admittedly not afforded to the petitioner hence the impugned order of compulsory retirement should be quashed, (ii) the Adverse material in the service record of the petitioner are not adequate and not of such nature as to warrant an order of compulsory retirement in public interest. The impugned orders are, therefore, arbitrary and mala fide, (iii) Rule 74 (b) (ii) of the Code contains a mandatory condition that the appointing authority may require a government servant to retire from service in public interest after giving a government servant atleast three months ' previous notice in writing, or an amount equal to three months ' pay and allowance in lieu of such notice. Since in the case of the petitioner no notice or an amount equal to three months ' pay and allowance in lieu of notice have been given hence the impugned order is illegal