Important Point- An order of compulsory retirement is not a punitive order nor implying any misbehavior or stigma and can be passed only in public interest.

A.S. Supehia, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner (since deceased through his heirs and legal representatives) seeks to challenge notification dated 14.10.2009, Communications dated 14.10.2009 and 15.10.2009, whereby the petitioner is compulsory/prematurely retired from judicial service with immediate effect under Rule 10(4)(a)(i) and (ii) of the Gujarat Civil Services (Pension) Rules, 2002 ('the Rules of 2002' in brief).

2. The facts leading to the petition are adumbrated as under:

3. The petitioner was appointed by the Department of Labour and Employment of the State of Gujarat vide Notification dated 22.08.1990 as Judicial Officer (J.D.) (Class-I) in Labour Court, in the pay-scale of Rs. 2200-4000 on probation for a period of two years. Thereafter he was confirmed on the post of Judge, Labour Court.

4. A charge-sheet dated 25.11.2008 was issued to him in respect of the Departmental Inquiry No. 11/08. It is the case of the petitioner that the said charge-sheet has the genesis in the (common) order dated 03.05.2007 passed in First Appeal No. 2079 of 2007 to First Appeal No. 2082 of 2007 by this Court wherein certain observations are made against the petitioner, and Registry of the High Court was directed to take up the matter on administrative side, and if necessary the order of the Court was to be placed before the Hon'ble the Chief Justice for his kind consideration. Against the said order, the petitioner preferred Special Leave Petition before the Apex Court, and the same was dismissed on the ground of delay vide order dated 06.09.2010. Petitioner submitted his reply dated 20.04.2009 to the charge-sheet. Said departmental inquiry against the petitioner was dropped. By communication dated 08.12.2009 the petitioner was intimated about the same. In the interregnum, the petitioner was prematurely retired vide Notification dated 14.10.2009.

5. Petitioner has challenged the said notification by way of this petition on various grounds. It is the say of the petitioner that the impugned notification is nothing but punitive in nature, and no opportunity of hearing was afforded before compulsory retiring him. It is further stated that the day on which Notification was issued the departmental inquiry was pending, and the same could not have been passed during the pendency of the same. He has relied upon Rule 10(4)(a)(i) and (ii) of the Rules of 2002. As per his contention the aforesaid rule gives "absolute right to the appointing authority to retire an employee after attaining the age of 35 years. However, such absolute right can only be exercised if the appointing authority is of the opinion that it is in public interest to do so, whereas in the impugned notification such public interest is not disclosed. Hence, the impugned notification is stigmatic and the same could not have been passed without affording opportunity of hearing.

No further contention is raised by the learned advocate Mr. Prabhaker Upadhyay appearing for the petitioner.

6. Mr. G.M. Joshi, learned advocate appearing for respondent No. 2, has contended that the compulsory retirement of the petitioner does not cast any stigma and is passed on valid considerations of facts and law. In the affidavit-in-reply it is specifically stated that the adverse confidential remarks for the period from 1998 to 2006 of the petitioner, was found to be consistently unsatisfactory in several respects. It was recorded in the confidential reports that the petitioner had no studious habits, he was not keeping himself abreast of latest law, that he was not active and not industrious and had no knowledge of administrative Rules and showed no interest in the office work. It was also recorded that during the said period General Knowledge of the petitioner was poor, he lacked politeness, and he was not taking initiative. It was fur