LAKSHMANAN, CJ. - (1.) THE petitioner is presently working as Additional District & Sessions Judge in Rajasthan Higher Judicial Service. He was appointed as Munsif & Judicial Magistrate in the Year 1977 and joined duties on 14. 2. 1997 in the Rajasthan Judicial Service. According to the petitioner his judicial work has never been marked upon on the judicial side. THE petitioner was also promoted to the post of Additional Chief Judicial Magistrate on 26. 5. 1990 and promoted to the Rajasthan Higher judicial Service on 9. 2. 1995. THE petitioner was compulsorily retired vide order dated 9. 11. 2000. A copy of the order dated 9. 11. 2000, covering letter dated 11. 11. 2000 and the pay order sent along with the letter in lieu of three months notice have been filed and marked as Annex. 4, 5 and 6. It is also submitted that the petitioner had not been granted senior scale with effect from 13. 8. 1987 in the Rajasthan Judicial Service while persons junior to him were granted the said scale. Even on his representation is this regard, no action was taken. However, the writ petition filed challenging the denial of the benefit of senior scale and selection scale in the Rajasthan Judicial Service is pending before this Court. THE petitioner was communicated adverse remarks for the years 1989, 1990 and 1991 which were challenged by him before this Court by filing the writ petitions. According to the petitioner this Court quashed the adverse remarks made in the ACRs made for the above period. THE petitioner was again conveyed with adverse remarks for the years 1995, 1996 and 1997 and the writ petitions filed by the petitioner challenging the rejection of his representations against the adverse remarks are pending before this Court.
(2.) THE petitioner has also furnished certain details regarding departmental enquiries. In support of the above departmental enquiries the petitioner has relied on Annex. 13, 14, 15, 16, 17 and 18. THE petitioner was again served with a charge sheet on 10. 8. 2000 wherein it was alleged that the petitioner had tried to conceal the fact that he had come late on a day and his Reader had written in the order-sheet that he was on leave and it was alleged that the petitioner had interpolated in the judicial record of the order-sheets. A copy of the charge-sheet dated 10. 8. 2000 has also been filed which has been marked as Annex. 20. An enquiry is still pending on the above matter. The petitioner had been served now with the order dated 9. 11. 2000 with a covering letter dated 11. 11. 2000, by which, the petitioner had been retired compulsorily in public interest on the payment of there months pay and allowances in lieu of three months notice. The said order has been passed following the provisions of sub-rule 2 of Rule 244 of the Rajasthan Service Rules (Old) as amended by Rule 53 (1) of Rajasthan Service (Pension) Rules, 1996. The correctness of the said order is questioned in this writ petition. Shri S. P. Sharma, learned counsel for the petitioner made the following submissions:- (a) That the Full Court Meeting of the Rajasthan High Court held on 9. 12. 2000 at 2. 00 P. M. and continued upto 4. 30 and as per the information of the petitioner the agenda of the compulsorily retiring judicial officers was placed in the Full Court Meeting on the basis of the reviewing committee report. It is surprising to note that on the same day i. e. 9. 11. 2000, the State Government has issued an order and the recommendation of the Governor had also been received on the same day. According to the petitioner the State Government had already prepared compulsory retirement orders even before the case of the petitioner was placed before the Full Court Meeting and a decision of the compulsory retirement had been taken without the application of mind by the Full Court in its proper prospective. The Full Court had not taken into account the orders earlier passed in the departmental enquiries and on the basis of a coloured version the compulsory retirement order was made by the Full Court. (B) The petitioner can be compulsory retired only on the basis of finding with regard to the function of a government servant in the terms as mentioned in Rule 53 (1) of the Rules vide amendment dated 1. 12. 1999. No notice of opportunity of hearing was given to the petitioner before passing of the aforesaid order. Rule 53 (1) of the Rules as it existed is quoted below:- Compulsory retirement on completion of 25 years qualifying service- (1) At any time after a Government servant has completed twenty-five years qualifying whichever is earlier, he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension. ] By amendment dated 1. 12. 1999 the aforesaid Rule 53 (1) was substituted as under:- Compulsory retirement on completion of 15 years' qualifying service- (1) At any time, after a Government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned Government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or incompetence to discharge official duties or inefficiency in the performance of official duties, has lost his utility, may require the concerned Government servant to retire in public interest. In case of such retirement, the Government servant shall be entitled to retiring pension. (C) The issuance of the order of the compulsory retirement has seriously marked the reputation of the petitioner in the society as the order had been published in the local newspaper and the petitioner has been branded generally as an officer who was not having fair reputation. Hence, the order of compulsory retirement passed is punitive in nature and with the sole object to remove the petitioner from the post of Additional District Judge and is virtually an order without giving fair and proper opportunity of hearing. (D) It is submitted by Mr. Sharma that the entire records have not been placed before the Full Court and before the Reviewing Committee and both the Full Court and the Reviewing Committee and both the Full Court and the Reviewing Committee have not examined the entire case records of the petitioner. Some of exoneration orders of the departmental enquiries have not been placed before the reviewing committee which was necessary in the case of compulsory retirement of the judicial officers. (E) Both the good and bad entries in the ACRs have not been placed before the reviewing committee and before the Full Court and, therefore, the reviewing committee and the Full Court had no occasion to consider both the good and bad entries. (F) The disposal of the cases by the petitioner has always remained more than 125% at least even in adverse circumstances. The respondents are not sure as to which rule has to be applied for compulsory retiring the petitioner. The order dated 9. 11. 2000 deserves to be quashed as it followed the provisions of Rule 244 (2) and the Circular issued by the High Court under the said rule for the purpose of compulsorily retiring the petitioner although the same stood removed from the statute in view of the clear provisions of Section 168 which states as under:- 168- Repeal and Saving (1) On the commencement of these rules, every rule, regulation of order including any Notification, Circular etc. (hereinafter referred to in this rule as the old rule) in force immediately before such commencement shall, in so far as it provides for any of the matters contained in these rules, cease to operate. Hence, the mentioning of the Rule 244 (2) of the old rules shows that the respondent had acted under law which has already become extinct and the order, therefore, stands vitiated. Referring the Baikunth Nath Dass case Mr. S. P. Sharma submitted that after the amendment made under Rule 53 (1) of the rules of 1996 vide notification dated 1. 12. 1999 it is apparent that unless there is a finding given with regard to functioning the the Government servant in the terms as mentioned in the rule, the action of the compulsory retiring the employee cannot be made and to reach such a finding an inquiry is to he made and to reach such a finding an inquiry is to be held and such finding so recorded are stigmatic in nature. Therefore, it is contended that the order passed compulsory retiring the petitioner under Rule 53 (1) is bad. The order has to be passed only after affording an opportunity and, therefore, the order passed under Rule 53 (1) is stigmatic in nature. In this regard the Full Court and the Reviewing Committee have not been informed about the pendency of various writ petitions with regard to adverse remarks in the ACRs etc. and therefore, there has not been a subjective assessment of the service records of the petitioner by the Full Court. It is apparent that the orders have been passed in undue haste by the Full Court without applying its mind. The order of compoulsory retirement of the petitioner being punitive and stigmatic in nature under Article 311 of the Constitution of India ought to have been followed before issuance of the order dated 9. 11. 2000. By not following the procedure the petitioner's valuable right under Article 16 and 21 of the Constitution of India has been violated and, therefore, the order of compulsory retirement deserves to be quashed and set aside.
(3.) SINCE the petitioner has made certain unfounded allegation against the Full Court in regard to the meeting dated 9. 11. 2000; the decisions taken by the Full Court; consequential orders passed by the State Government and the Governor, we directed the Registrar General to place before us the Minutes of the Full Court Meetings which were held on 8. 11. 2000 and 9. 11. 2000 to consider the entire material objectively on the judicial side. The Resolution passed by the Full Court on various subjects in the agenda placed before the Full Court on 8. 11. 2000 and 9. 11. 2000 and placed before us. The report submitted by the Reviewing Committee and the service records of the petitioner were also placed before us. We have carefully perused the same. On an anxious consideration of the entire material placed before us and of the perusal of the minutes placed before us passed by the Full Court and of the consideration of the ACRs and records, we are of the opinion that the allegations made by the petitioner in regard to the meeting of the Full Court dated 9. 11. 2000, the Resolution passed and the consequential orders passed by the State Government and the Governor are totally baseless and unfounded and that the same have been made mischievously in order to prejudice the minds of this Court on the judicial side. We hall now consider the notice issued for the Meeting dated 8. 11. 2000 and the decisions taken by the Full Court thereon. Though the Full Court Meeting was scheduled to be held on 7. 11. 2000, latter it was adjourned to 8. 11. 2000 and 9. 11. 2000 due to retirement of Justice G. L. Gupta. On 8. 11. 2000, the Meeting was held in the morning. Eight items were included in the Agenda. On the Additional Agenda four subjects were notified for consideration. The following are the Agenda for the Full Court Meeting held on 8. 11. 2000:- Agenda Item No. 1 Consideration of matter regarding prior consultation and consent of Hon'ble High Court under Sec. 24 (1) Cr. P. C. for appointment of Shri Anil Upadhayaya as Dy. Government Advocate cum-Additional Public Prosecutor. Agenda Item No. 2 Consideration of matter regarding prior consultation and ex-post facto consent of Hon'ble High Court under Sec. 24 (1) Cr. P. C. appointed as Additional Government/dy. Government Advocate cum- Additional Public Prosecutor. Agenda Item No. 3 Constitution of Rule Committee under Rule 123 (3) of the Code of Civil Procedure. Agenda Item No. 4 Consideration of Enquiry Report against Shri Ashok Kumar Jain, RJS, u/r. 16 of the CCA Rules submitted by Hon'ble Dr. Justice B. S. Chaushan, Enquiry Judges. Agenda Item No. 5 Consideration of Enquiry Report against Shri Ajay Kuamr Jain, RHJS, u/r. 16 of the CCA Rules submitted by Hon'ble Justice P. P. Naolekar, Enquiry Judge. Agenda Item No. 6 Consideration of reply submitted by Shri Bharat Ram Meena, RJS, in response to notice dated 29. 8. 2000 against proposed punishment of dismissal from service. Agenda Item No. 7 Consideration of reply submitted by Shri Raj Kamal Gaur, RJS, in response to notice dated 21. 9. 2000 against proposed punishment of dismissal from service. Agenda Item No. 8 Approval of Rajasthan High Court Calendar for the year 2001. After due discussions and delebrations, on Items No. 1, 2, 3, 4, 5, 6 and 7, resolutions were passed. Item No. 8 was deferred for 9. 11. 2000. Immediately after completion of Agenda items No. 1 to 8, the Additional Agenda Items No. 1, 2 and 3 were taken up for consideration. ;