The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.11654 OF 2022 Sanjaya Kumar Sahoo …. Petitioner -Versus- State of Odisha and others …. Opposite Parties Advocates appeared in this case: For Petitioner : M/s. (Dr.) Purusottam Chuli, P. Nath, A. Routray, (Dr.) S. Patnaik and (Ms.) S. Patnaik, Advocates For Opp. Parties : Mr. Prabhu Prasanna Behera, Additional Standing Counsel CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T -------------------------------------------------------------------------------------- Date of hearing : 24.06.2025 : Date of judgment : 11.07.2025 -------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD, J. Petitioner, a Judicial Officer (then a Family Court Judge), is invoking the Writ Jurisdiction of this Court for calling in question the Government Notification No. 8351/HS dated 11.03.2022 (Annexure-1), whereby he has been prematurely retired from service at the age of 55 years, normal age of superannuation being 60. Page 1 of 17 (II) Foundational Facts: (i) Petitioner joined the District Judiciary on 17.11.1997 as Addl. Civil Judge (Jr. Dn.)-cum-Judicial Magistrate Second Class. He was granted ACP-II Scale of Pay vide order 15.10.2009. He earned his first promotion as Sub-Divisional Judicial Magistrate on 03.06.2010. His second promotion to the cadre of Civil Judge (Sr. Dn.) was vide order dated 11.02.2011. A little later, he was granted ACP-II Pay Scale with retrospective effect from 16.11.2007 vide order dated 20.07.2011. (ii) Petitioner was granted next promotion to the post of Chief Judicial Magistrate vide order dated 01.08.2013 and later to that of District Judge vide order dated 29.07.2015. In 2017 his performance having been reviewed at the age of 50 years, he was allowed to continue. He got Selection Grade w.e.f. 09.08.2020 vide notification dated 29.01.2021 issued by this Court on the administrative side. However, he came to be prematurely retired at the age of 55 years whilst presiding over the Family Court at Nabarangpur vide impugned notification dated 11.03.2022. After service of notice, the opposite parties having entered appearance through their counsel filed their counter to resist the petition. (III) Submissions on behalf of the Petitioner, as concised by us: (i) Petitioner is a meritorious candidate with the spotless service of District Judiciary and his service credentials are unimpeachable by any standards, more particularly the normative ones promulgated in Page 2 of 17 Rule-44 of The Odisha Superior Judicial Service and Odisha Judicial Service Rules, 2007 (hereafter called “2007 Rules”). (ii) In respect of subject allegations, disciplinary proceedings came to be dropped without imposing any punishment prescribed under the extant Rules and once that having happened, the same could not be treated as the material impeaching credentials of the petitioner. (iii) Petitioner earned several promotions and that after the review of his credentials, the Review Committee decided to continue him in service beyond 50 years. Very importantly, within a short period reckoned from the grant of Time Scale/Promotion, he could not have been asked to quit the service. (iv) When an employee is granted promotion, whatever arguable black spots that obtained in the Service Records do pale away and therefore there is absolutely no justification for compulsorily retiring the petitioner in a premature way. (v) Lastly, the extant Rule provides for notice and therefore without such notice the petitioner being asked to retire is in violation of the principles of natural justice, especially when the impugned order has stigmatic elements, notwithstanding its apparent innocuous appearance. (IV) Contentions urged on behalf of opposite parties: (i) The Jurisdictional Committee on the administrative side of this Court and the Full Court having examined the matter have taken Page 3 of 17 the decision to prematurely retire and that being the bedrock of the impugned order, this Court exercising limited supervisory jurisdiction should loathe to interfere in matters like this. (ii) The impugned decision is a product of collective factors, namely: disciplinary proceedings in D.P. No.2 of 2007; Night Watchman‟s allegation as to caste aspersions & use of filthy language; complaint of District Bar Association and boycott of petitioner‟s Court because of his unruly behavior, unfair practice & non-supply of cause list. (iii) Grant of promotions does not erase adverse remarks entered in the Service Records of an employee; in any event, petitioner does not have unblemished service records, as sought to be projected before the Court; (iv) A Judicial Officer is not just another public servant; he discharges sovereign functions of the State and therefore the standard of his conduct has to be much higher; even a thick doubt as to the integrity would justify premature retirement, as has happened in this case. (v)
Decision
The impugned order is not stigmatic; it has been made in the public interest after scrupulously following the normative procedure promulgated in the extant Rules applicable to the case and no prejudice is caused to the petitioner, who draws full pension and all terminal benefits. Page 4 of 17 (vi) Lastly, the principles of natural justice do not apply to cases of the kind and even otherwise granting of an opportunity of hearing would not have brought about a different end product and therefore no case on that count is made out by the petitioner. (V) We have heard learned counsel for the parties and perused the petition papers. We also looked into the records furnished in Sealed Cover. Advertence to relevant of the Rulings cited at the Bar, is also made. We are inclined to grant limited relief to the petitioner, as under and for the following reasons: (1) As to the Statutory Scheme providing for premature retirement: (a) The 2007 Rules have been promulgated by the Governor of Odisha in exercise of power conferred by the Proviso to Article 309 read with Articles 233, 234 & 235 of the Constitution of India. Rule 42 prescribes 60 years as the age of superannuation. Rule 44 provides for premature retirement in public interest. This Rule, being relevant to the case at hand, is reproduced below:- “44. Retirement in public interest-(1) Notwithstanding anything contained in these rules the Governor shall, in consultation with the High Court, if he is of the opinion that it is in the public interest so to do, have absolute right to retire any member of the service who has attained the age of fifty years, by giving him/her notice of not less than three months in writing or three months pay and allowances in lieu of such notice. (2) Whether any officer of the service should be retired in public interest under Sub-rule (1) shall be considered at Page 5 of 17 least three times, that is, when he is about to attain the age of fifty years, fifty five years and fifty eight years: Provided that nothing in Sub-rule (2) shall be construed in public interest as preventing the Governor to retire a member of the service at any time after he/she attains the age of fifty years on the recommendation of High Court under Sub- rule (1).” (b) In the ordinary circumstances, every Judicial Officer shall retire on attaining the age of superannuation which Rule 42 fixes to be 60 years. This one sentence Rule has the following text: “42.Age of superannuation- The age of superannuation of an officer of the service shall be sixty years. This Rule in a normal way guarantees every Judicial Officer the right to hold and continue in office till he completes the age of 60 years. It hardly needs to be stated that the cases of termination of service by virtue of disciplinary action do not fall within the parameters of this Rule. Rule 44 is in the nature of an exception to the general norm promulgated in Rule 42. Sub-Rule (1) of Rule 44 vests “absolute right” in the Governor of the State to retire any Member of Judicial Service in public interest. The expression “absolute right” is an anathema to the Rule of Law. In a constitutionally ordained Welfare State, there is nothing like “absolute right” or “absolute power”, and the very text & context of this Rule makes it abundantly clear that the adjective „absolute‟ remains on the Rule Book as an ornamental relic of bygone Colonial Era. Rule 42 prescribes certain conditions, which the Governor is required to satisfy himself. (c) The pre-conditions, which Rule 42 prescribes for causing premature retirement of a Judicial Officer, are: (i) He should have Page 6 of 17 attained the age of 50 years; (ii) Governor has to have consultation with the High Court; & (iii) three months‟ prior notice or three months‟ pay & allowances in lieu of such notice. It hardly needs to be stated that cutting short tenure of public office is a serious matter; such decisions have to be consistent with the intent of Makers of the Constitution as lurking in Article 16. Though right to public employment is not guaranteed, once a citizen is duly employed, he cannot be whimsically removed. Therefore, the power to prematurely retire is in the nature of an exception and the sine qua non for exercising such power has to be strictly complied with. Appreciably, there is no much divergence of opinions at the Bar in this regard. (2) As to the scope of judicial review in matters of premature retirement: (a) The vehement contention of learned State Counsel appearing for the opposite parties that a Writ Court cannot undertake a deeper examination of the matter like this, as if it is an appellate authority, is too broad a proposition. We are not exercising appellate power, because we do not have such power granted under the subject Rules or under any other law. The case at hand is not an appeal, is also not disputed. That being said, a worthy cause brought before the Court cannot be turned down by quoting some jurisprudential theories. It was Justice Oliver Wendell Holmes, who in DAVIS v. MILLS,1 observed as under: “Constitutions are intended to preserve practical and substantial rights, not to maintain theories…” 1 194 US 451 (1904) Page 7 of 17 The above observation cannot be lost sight of, when Writ Jurisdiction is invoked by the aggrieved citizens. We also have to bear in mind that litigants come to Court inevitably and with no joy at heart, for obvious reasons. A Writ Court has to be doubly sure before sending them back, empty handed. This is not to say that in every case, regardless of its intrinsic merits, indulgence should be sought, conventional limitations obtaining in the realm of Law of Writs, notwithstanding. (b) It again would be too farfetched an argument that whenever the Full Court of a High Court on the administrative side takes a decision, an Island of Immunity from judicial review, is created. We hasten to add that such a decision by its very nature raises a high presumptive validity, is also true. Learned State Counsel is right in drawing our attention to Arun Kumar Gupta v. State of Jharkhand,2 which restricts judicial review whilst examining decisions of Screening Committee & Standing Committee comprising of Senior Judges of the High Court. Obviously, these limitations do apply with more vigor to the Resolutions of Full Court. We also appreciate the fair stand taken up by both the sides that this case be heard and decided at our hands on merits, one of us (Justice M.S. Sahoo) being a party to the Full Court decision, notwithstanding. Administrative decision is one thing and judicial determination is another. There is difference between them in terms of approach, nature, quality & content. This is not to belittle the deliberations that happen in a Full Court meeting. A Writ Court exercising original jurisdiction in a service dispute would be committing a grave error if it declines indulgence only on the ground 2 (2020) 13 SCC 355 Page 8 of 17 that the impugned action is founded on the administrative opinion of Full Court. It all depends upon errors demonstrable from the records. Much is not necessary to discuss and less is insufficient to leave it unsaid. (c) Both the sides have cited a plethora of rulings and that since we do not have quarrel with their ratio decedendi, reference to most of them is avoidable. In UOI v. M. E. Reddy,3 it is said that compulsory retirement causes no prejudice to the official, since he draws full pension and other terminal benefits, which would provide solace to him even if he feels a bit hurt. In Baldev Raj Chhada v. UOI,4, it is observed that the order to retire can be passed on a broad principle as to whether a rationale mind in the trade might conceivably be satisfied that the compulsory retirement of the official is necessary in public interest. The Apex Court faltered such an order on the ground that vital materials relevant to the decision such as, 14 years of spotless service, absence of any adverse entries for the preceding five years, crossing of efficiency bar, etc. were ignored. In State of Gujurat v. Umedbhai M Patel,5 it is observed that the order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable, and that if the officer was given a promotion despite adverse entries made in the confidential record, that is a fact weighing in favour of the official, and that compulsory retirement shall not be imposed as a punitive measure. In UOI v. Dulal Dutta,6 it is