Brij Mohan Gupta vs State of J&K

Mr. N. Paul Vasanthakumar, C.J. - This writ petition is filed praying to declare Government Order No.08-LD(A) of 2014 dated 01.01.2014

issued by the Government sanctioning compulsory retirement on the basis of the recommendations made by the High Court in its communication

dated 11.06.2013 as illegal and against the provisions of law, to quash communication of the High Court dated 11.06.2013 recommending

compulsory retirement and for issuance of directions directing the respondents to allow the petitioner to complete his service up to 60 years with all

consequential benefits.

According to the petitioner, he was selected and appointed as Officiating Munsiff by order of the governor dated 26.10.1983 and was posted

as Munsiff, Banihal by High Court order No.721 dated 27.10.1983. He was promoted as Sub-judge by order dated 23.11.1995 and considering

his integrity and performance, he was considered for appointment as District and Session Judge and ultimately promoted as District and Sessions

Judge by order dated 24.10.2001. He was confirmed on the said post after completing the probation period on 10.06.2003. Petitioner was given

selection grade in the cadre of District and Sessions Judge w.e.f 01.05.2009 by order dated 30.05.2010. Inspection of his court was made for

some time and ACR entries were made sometime on the basis of assessment and sometime without any inspection. On petitioner's completing 58

years of age, the High Court considered his performance in terms of Article 226(2) of the Jammu & Kashmir Civil Service Regulations and 2nd

respondent recommended to issue compulsory retirement instead of retiring the petitioner.

The grievance of the petitioner is that due to low pendency of cases where he served the disposal was less at the fag-end of his service and that

was taken as a ground for not extending his service beyond 58 years.

Mr. Sunil Sethi, learned senior counsel appearing for the petitioner, though argued to allow the writ petition as prayed for, when the matter was

heard on 25.04.2016, learned counsel sought time to ascertain as to whether the petitioner is willing to accept the order of retirement without any

blemish. Today, learned senior counsel appearing for the petitioner submitted that the order of the government; as well as the High Court, which

are impugned are casting stigma on the petitioner as if he has lost his utility to serve beyond 58 years. Therefore, learned senior counsel requested

that this Court may set aside those orders and the petitioner may be given an order of retirement at the age of 58 years in terms of the judgment of

Hon'ble the Supreme Court in 2001 (2) SCC 305 (Bishwanath Prasad Singh v. State of Bihar). Learned senior counsel submitted that in case

a judicial officer is retired on completion of 58 years, the same cannot be treated as compulsory retirement and at best it can be treated as an order

of retirement without extension of service.

In the decision cited above reported in 2001 (2) SCC 305 (Bishwanath Prasad Singh v. State of Bihar), a 3-Judge Bench of Hon'ble the

Supreme Court advised the High Courts that it will be better not to use expression ""compulsory retirement"" for the judicial officer, who is retiring at

the age of 58 years as it creates confusion, it would suffice to communicate, if at all, that the officer concerned, having been found not fit ""for being

given the benefit of extended age of superannuation, would stand retired at the normal age of superannuation. A Full Bench of this Court in

LPASW No. 323/2001 (Hon'ble High Court of Jammu & Kashmir v. Shri Jankar Singh Cheema (deceased substituted by legal heirs)

and anr.) judgment dated 16.02.2016 considered the issue as to whether if a judicial officer is given an order of retirement on completion of the

58 years by the High Court without any order of the Governor, the same is valid or not. Following the judgment of Hon'ble the Supreme Court

cited above, the said issue was answered by holding that the order retiring a judicial officer at the age of 58 years without the order of the

Governor is legal as the Judicial Officer on attaining the age of 58 years shall retire unless extended by the High Court.

In light of the said submissions made by learned senior counsel appearing for the petitioner and having regard to the fact that there was no

allegation of corruption or misbehaviour of any kind and he served with honesty i.e. unblemished, the orders impugned retiring the petitioner

compulsory cannot be sustained as the same are not in accordance with the judgment of Hon'ble Supreme Court cited supra. Hence the said

orders are set aside and the petitioner shall be issued a simple retirement order, retiring him from service w.e.f. 31.08.2013. It is also made clear

that retirement order issued to the petitioner at the age of 58 years shall not be treated as disqualification for any future appointment.

Registrar General is directed to issue order as per above directions within a period of one week from the date of receipt of copy of this order.

The Writ petition is partly allowed with above directions.