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1994 Supreme(Bom) 122
IN THE HIGH COURT OF BOMBAY
M.S. Rane Vishnu Sahai, JJ.
Dashrath s/o Ramkrishna Shelke.... Petitioner.
Versus
The State of Maharashtra through the Chief Secretary to the Government of
Maharashtra and others.... Respondents.
Writ Petition No. 1587 of 1994, decided on 3-8-1994.
Advocates appeared :
K.K. Singhavi with Nitin Pradhan with Mrs. S.D. Khot, for the petitioner.
C.J. Sawant, S.C., with R.D. Soni, A.P.P., for respondent Nos. 1 to 4.
Headnote:Rule 10(4)(a)(1)-Scope of.
The following essential ingredients of the rule must be satisfied before an order compulsorily retiring a Government Servant is passed.
(i) That the member of the service must be a Gazetted Government Servant is passed.
(ii) He had entered the service before attaining the age of 35 years.
(iii) That the member of the service must have completed 30 years of qualifying service of the age of 50 years.
(iv) That the Government had an absolute right to retire the Government servant.
(v) That the order must be passed in public interest.
(vi) That three months previous notice in writing shall be given or three months pay and allowances in lieu of such notice.
It may be noted that the settled legal position on this aspect has clearly revealed from various judicial pronouncements which proceed to enunciate the principles as under:
(i) Compulsory retirement is not a punishment and does not involve stigma.
(ii) It is a sole prerogative of the Government. (iii) Speaking order is not required.
(iv) Uncommunicated adverse remarks can be taken into consideration.
(v) Principles of natural justice do not apply.
On perusal of the order of this petition, we find that the same fully conforms all the condition, mentioned in the rule in question and the guidelines. The Review Committee constituted under the rules comprising of 5 Senior Judges of this Court considered the case of the petitioner and has unanimously recommended his compulsory retirement. All the relevant service record of the petitioner as mentioned in the return of the 4th Respondent was placed before the Committee, which has benefit of its perusal for reaching its conclusion. As stated we have also perused and examined the said report. The same was also made available to the learned Counsel appearing for the petitioner. We do not find any substance and merits after perusal of the said service record of the petitioner, that the decision recommended by the Review Committee is arbitrary in the sense that no reasonable person would form the opinion on the given material made available as has been done by the Review Committee in the case of the petitioner. It is quite apparent that the Committee has assessed and evaluated the service record of the petitioner for the last 5 years and has reached unanimous conclusion with regard to the potentiality for continuity in service of the petitioner and has recommended the course which in our view is justified having regard to the service record of the petitioner. It is also further noticed that all the conditions mentioned in the rules referred to above and the guidelines prescribed have been complied with.
2. The petitioner, a District Judge, in this petition challenges order dated 18th November, 1993 issued by Law and Judiciary Department, Mantralaya, Bombay compulsorily retiring him from service as a District Judge in public interest. The said order has been passed under sub-clause (1) of Clause (a) of sub-rule (4) of Rule 10 of the Maharashtra Civil Services (Pension) Rules, 1982 (for the sake of brevity hereinafter referred to as the Rules).
3. The brief appraisal of the facts would be necessary.
The petitioner joined the judicial service in Maharashtra in the year, 1970 as Civil Judge. Junior Division and Judicial Magistrate, First Class, in the year 1979 was promoted to the post of Civil Judge, Junior Division, in the year 1982 promoted and appointed as an Assistant Judge and Assistant Sessions Judge, in the year 1988 appointed in the cadre of District and Sessions Judge and in the year 1993 his appointment as District and Sessions Judge was confirmed.
4. The petitioner has in his petition stated various facts with regard to his postings at various places which are not relevant in the present context.
5. The order impugned in this petition as stated is dated 18th November, 1993 which the petitioner has sought to challenge broadly on the following grounds :
(i) The same is not in the public interest.
(ii) The order is vitiated because of mala fide.
(iii) He has been victimised and indiscriminated.
6. The matter came before us sometime back when the respondents were directed to file the affidavit. Accordingly they have filed the return through Shri Vidyadhar Ramchandra Datar, Additional Registrar (Legal), High Court, Appellate Side, Bombay, being dated 2nd August, 1994, wherein the respondents have denied the various allegations made by the petitioner in his petition asserting that the steps taken in premature retirement of the petitioner are strictly in accordance with the rules. It is stated that the procedure needed to be followed and complied with in that behalf has been adhered to. It is also stated that the case of the petitioner alongwith various other judicial officers was considered by the Review Committee constituted by the Honourable the Chief Justice comprising of 3 Senior Judges of this Court in accordance with the modalities fixed in the Chamber Meeting of all the Honourable Judges in accordance with the decision of the Supreme Court in the case of, (State of U.P. v. B. Tripathi)1, reported in (1978)2 Supreme Court Cases, page 102.
7. It is stated that the Review Committee considered the service record of the petitioner for the last five years as well as his leave record, the disposal chart and the complaints received by the S.I.D. i.e. Special Investigation Department. The report of the said Committee reads :
"The Committee examined the case of Shri D.R. Shelke. After examining the confidential record for the last five years as well as leave record, the disposal chart and the complaints received by S.I.D., the Review Committee is of the unanimous opinion that the officer should be retired in accordance with the provisions of Rule 10(4)(a)(i), Shri Shelke was born on October 11, 1939 and had joined the service on April 30, 1970, i.e. before attaining the age of 35 years and can be retired after attaining age of 50 years. The Review Committee is of the opinion that it is in the public interest to retire Shri D.R. Shelke. The Review Committee recommends that instead of giving notice of three months as contemplated under Rule 10(4), it is desirable, as permitted by the Rule, to give three months pay and allowances in lieu of such notice".
8. The return further mentions that the rep
