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1999 Supreme(Pat) 1324
PATNA HIGH COURT
N.Pandey and Shiva Kirti Singh JJ.
Vijoy Narain Jha
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 4715 of 1997 ;
Decided On : DECEMBER 14, 1999
An order of compulsory retirement in public interest under Rule 74(b)(ii) of the Bihar Service Code is valid if there are sufficient adverse materials against the government servant to justify the order. However, the order is invalid if the government servant is not given three months' notice or salary in lieu of such notice, as required by Rule 74(b)(ii) of the Code.
Headnote:
COMPULSORY RETIREMENT - PUBLIC INTEREST - RULE 74(B)(II) OF THE BIHAR SERVICE CODE - INTERPRETATION AND APPLICATION - LEGAL PRINCIPLES.
Fact of the Case:
The petitioner, a Judicial Officer, challenged the order of his compulsory retirement in public interest under Rule 74(b)(ii) of the Bihar Service Code. He contended that the order was arbitrary, mala fide, and violative of Article 311 of the Constitution of India.
Finding of the Court:
The court held that the order of compulsory retirement was not arbitrary or mala fide, as there were sufficient adverse materials against the petitioner to justify the order. However, the court found that the order was invalid because the petitioner was not given three months' notice or salary in lieu of such notice, as required by Rule 74(b)(ii) of the Code.
Issues: 1. Whether the order of compulsory retirement was arbitrary or mala fide? 2. Whether the order of compulsory retirement was violative of Article 311 of the Constitution of India? 3. Whether the petitioner was given three months' notice or salary in lieu of such notice, as required by Rule 74(b)(ii) of the Code?
Ratio Decidendi: 1. The court held that the order of compulsory retirement was not arbitrary or mala fide, as there were sufficient adverse materials against the petitioner to justify the order. The court relied on the judgments of the Supreme Court in Chief General Manager, State Bank of India V/s. Suresh Chandra Behera and Madan Mohan Choudhary V/s. State of Bihar. 2. The court held that the order of compulsory retirement was not violative of Article 311 of the Constitution of India, as the petitioner was not entitled to the protection of Article 311 because he had not completed 25 years of qualifying service. 3. The court held that the petitioner was not given three months' notice or salary in lieu of such notice, as required by Rule 74(b)(ii) of the Code. The court relied on the clear and unambiguous language of Rule 74(b)(ii) of the Code.
Final Decision: The court allowed the writ petition to the extent of quashing the order of compulsory retirement. The court directed the State of Bihar to pay the petitioner all the dues of salary etc. from the date of his compulsory retirement till a fresh order is served upon him in accordance with law after paying the requisite three months' salary in lieu of notice. The court also directed the State of Bihar to hold an inquiry in the matter and fix responsibility for the lapse.
Shiva Kirti Singh, J.
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 Courts 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 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. It appears that the writ application was admitted for hearing on 18.11.97 and thereafter through I.A. 12681/98 filed on 3.2.98 the petitioner prayed for amendment in the writ application and brought on record a copy of the State Governments order dated 12.12.1997 as annexure-12 to the said interlocutory application. The petitioner, by way of amendment sought quashing of aforesaid order dated 12.12.1997 (annexure-12) on the grounds raised earlier in the writ application and also on the ground that the order of compulsory retirement was made effective against him by service of a copy thereof before 25.12.97 but the same was in violation of mandatory provision of Rule 74(b)(ii) of the Code which require that such order should be passed only after giving three months previous notice or an amount equal to three months pay and allowance in lieu of such notice; but petitioner was not given three months previous notice or three months pay and allowances in lieu of such notice. The amendment in the writ petition prayed for through the aforesaid I.A. was allowed on 2.4.98 and liberty was given to the respondents to file counter affidavit if they so desired. The record of this case, however, shows that a counter affidavit was filed on behalf of respondent no.2, the High Court, Patna on 12th November, 1999. Besides that no counter affidavit was filed by any of the respondents.
4. 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 comp
