In the High Court of Kerala WP(C).No.9521 OF 2013(R) Petitioner V. Jayakumar Respondents The High Court of Kerala & ors. Date of Judgement 19th February, 2020 Bench Justice K.Vinod Chandran & V.G.Arun
Facts of the Case:
The petitioner was compulsorily retired under Rule 13A of the Kerala Judicial Service Rules, 1991, while he was working as Judicial Magistrate of the First Class-I Pathanamthitta. The order of the High Court of Kerala is produced at Ext.P1 dated 13.07.2010 and he had completed the age of 50 years as on 21.04.2010. The compulsory retirement was on an evaluation and assessment of his service records at the age of 50 as has been stipulated in the aforementioned Rule. The order indicates that there was a Committee of Judges headed by the Hon’ble The Chief Justice of the High Court, who on the basis of the records of service assessed his performance and evaluated the suitability for continuance and found him to be W.P(C) No.9521/2013 not entitled to be continued. It was found that the proviso to the Rule saves the rigour of sub-rule (2), the latter of which requires consideration of suitability to continue in service, at least three times before attainment of the age of 50, 55 and 58 years. It was found that sub-rule (1) saved by the proviso does not mandate compulsory retirement to be ‘on attainment’ of 50, 55 and 58 or ‘at that W.P(C) No.9521/2013 age’. It was found that the detection of a major delinquency in the conduct of a Judicial Officer after he attains 50 years cannot be ignored; till he attains 55 or 58 years of age. We also notice that the petitioner had attained the age of 50 on 21.04.2010 and was compulsorily retired by Ext.P1 on 30.07.2010. But, however, the order of the Governor had come only subsequently and is dated 11.10.2011.
- Whether the contention of Rule 13A being not enforceable for reason of Rule 60(aa) of Part I KSR, not being amended suitably?
- Whether the petitioner was in the habit of discharging the accused in criminal cases under Section 239 Cr.P.C without a proper hearing and without even notice to the Assistant Public W.P(C) No.9521/2013 Prosecutor?
Arguments from the Petitioner:
- The specific rule (R.13A) does not survive for reason of the judgment of the Hon’ble Supreme Court in Civil Appeal No.9700-9701 of 2013 dated 21.11.2017 which upheld in pari materia provision in the State of Andhra Pradesh.
- The rule hence has to be found to be intra-vires. The next ground, that the Shetty Commission Report though generally accepted, the recommendation for consideration of suitability to continue, after the age of 50, 55 and 58 had not been accepted by the Hon’ble Supreme Court.
- Rule 60(aa) of Part I Kerala Service Rules (for brevity “KSR”) providing for retirement of an officer in the Kerala Judicial Service only at the age of 60 years with an option to retire at the age of 58 years.
The Committee of Judges specifically noticed the complaint against the Officer, of adopting short cut methods to dispose of cases, and that too without examining material witnesses. There were also allegations with respect to leave being availed and leaving station without permission from the Chief Judicial Magistrate. The Officer was reported to be indifferent and insensitive in his work. The Judge in charge of the District in which the petitioner was working noticed that, the Reporting Officer had by two page remarks found him to be indifferent and of slightly doubtful integrity, as also disposal of cases in a casual manner. The Judge in Charge also had agreed with the Reporting Officer. Court reject the writ petition but notice that going by the decision in WA 1633/2013 and connected cases, the petitioner is entitled to pay and allowances till the order of the Governor. In such circumstances, he shall be paid the entire pay and allowances between the date on which he was compulsorily retired (01.8.2010) and the order of the Governor (11.10.2011), however deducting three W.P(C) No.9521/2013 months’ pay which was given in lieu of notice.
Writ petition is rejected with the above observations. Parties had to suffer their respective costs.
“The views of the authors are personal“