R. L. Narasimham, C. J.
1. This is a petition under Article 226 of the Constitution by the Sheristadar of the Munsif's Court, Berhampur, against the order of the District Judge, Berhampur, conveyed in his Memo No. 119-III-D. 3/53-55, dated the 18-1-1955, declining to give further extension of service to the petitioner and directing his retirement with effect from the 1-7-1955.
2. The petitioner was a ministerial officer attached to the District Judge's office at Berhampur. He attained the age of superannuation (55 years) on the 1-7-1953 while working as Sheristadar of the Munsif's Court. Under sub-rule (b) of Rule 71 of the Orissa Service Code (Vol I), a ministerial officer may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues to be efficient, upto the age of 60 years.
When the' time for his superannuation drew near, the District Judge, after inspection 'of the Munsif's court and review of his work, granted him an extension of service for one year. On 1-2-1954, however, he passed another order, in Memo No. 203(3)-111-D/53-54 to the effect that as the petitioner was incapable of coping with old arrear work, his efficiency had deteriorated and he was not fit to avail of any further extension of service.
He directed the petitioner to retire from service on 1-7-1954 after availing himself of the leave due to him. But on a representation made by the petitioner the District Judge by a subsequent order dated the 8-5-1954 modified his previous order and allowed him to continue in service subject to his work being reviewed in January 1955. Then, on the 18-1-1955 he passed the following order:
'Sri Apparao Patnaib, Sharistadar, Munsif's Court, Berhampur, was due to retire on the 1-7-1953. In the annual review of 1953 he was given notice that his retention in service will be considered alter inspection of the Munsif's Court. In April 1953 he was granted extension till the next review. In January 1954 his work was found not efficient after consideration of the inspection note and he was asked to retire from 1-7-54.
On his representation dated 7-5-54 he was allowed to continue till the period of next review subject to his keeping up continued fitness. The Munsif, under whom he was serving reported in favour of his fitness. But on a consideration of his entire service career, the question of broad public interest, and lastly his continued fitness to carry on the heavy responsibility of Sheristadar of a Court, I am of the view that his services shall be made to terminate with effect from 1-7-55.
Notice of this order be given, enabling him to apply for leave due to him.
Sd/- D. N. DAS
The immediate superior of the petitioner, namely the Munsif of Berhampur, recommended the petitioner's case for extension and also stated that he was physically fit. But the District Judge apparently did not accept his recommendation. The petitioner then filed an appeal before the Government which was dismissed and he has now come up to this Court with a petition under Article 226.
3. Mr. G. K. Misra on behalf of the petitioner raised the following two grounds:
(i) There was no material before the District Judge, to hold that the petitioner's efficiency had deteriorated and consequently his order dated the 18th January was not in conformity with Sub-rule (b) of Rule 71 of the Orissa Service Code (Vol. I).
(ii) In any case compulsory retirement amounted to a punishment and the petitioner ought to have been given the special notice as required by Clause (2) of Article 311 of the Constitution.
In my opinion neither of these grounds can stand.
4. The right of a ministerial officer to be retained in service until he attains the age of sixty years as recognised in Sub-rule (b) of Rule 71 of the Orissa Service Code (Vol. I) is not an absolute right. It is a qualified right depending on his continuing to be efficient. The authority to decide whether he so continues to be efficient is the appointing authority; and if the appointing authority, after a review of the officer's work is satisfied that his efficiency has deteriorated and that he should not be granted further extension of service, it will not be proper for this Court in exercise of its extraordinary jurisdiction under Article 226, to sit in judgment over the opinion of the appointing authority and decide whether the materials before that authority for forming such an opinion are sufficient or not.
It is true that the petitioner was working as Sharistadar of the Munsif's office at Berhampur, and from the character roll and the report of the Munsif it appears that the Munsif's opinion was in favour of the petitioner, but the District Judge is not bound by that opinion and as the Munsif's office is located in the same building as the District Judge's office and not in an outlying station the District Judge has opportunities to keep a general watch over the work of the petitioner and to form his own opinion. In fact, in the report which the District Judge submitted to the Government on the 29-7-1955, with his letter No. 1265-III-E-5/55 of that date while forwarding the appeal of the petitioner, he stated as follows:
'since the petitioner was granted extension on his representation (dated 7-)5-1954, I had kept an eye on his work by paying surprise visits and every time I could notice severe indiscipline in the working of his office which mainfested his lack of control and too much mixing with the parties.'
This statement of fact by the District Judge has not been challenged by the petitioner by any counter-affidavit and though this statement was made in his report to Government about seven months after he had passed the order declining to grant any further extension of service to the petitioner, I am not prepared to hold, in the absence of any material, that it is untrue be mala fide.
It is true that in the impugned order directing the retirement of the petitioner the District Judge has not mentioned this fact but merely stated that 'on a consideration of Ms entire service career, the question of broad public interest, and lastly, his continued fitnessto carry on the heavy responsibility of the Sheristadar of a Court, I am of the view that his services shall be made to terminate with effect from 1-7-1955.'
The language of the aforesaid order of the District Judge is not very happy, but a fair construction of the same would show that the District Judge was of opinion that the efficiency of the petitioner had deteriorated and that he could not carry on his duties as Sharistadar satisfactorily after the 1-7-1955. I am not therefore inclined to hold that the conditions laid down in Sub-rule (b) of Rule 71 of the Orissa Service Code (Vol. I) have not been complied with.
5. As regards the applicability of Clause (2) of Article 311 of the Constitution I should point out that this question will depend on whether the petitioner has an unqualified right to continue in service till his sixtieth year. In such a case his compulsory retirement prior to his attaining the age of sixty years may amount to a punishment.
But where it is held that he has no such unqualified right and that his retention in service beyond the age of fifty-five depends on his continuing to be efficient to the satisfaction of the competent authority, it cannot be said that refusal by that competent authority to grant further extension of service after judging his efficiency, would amount to a punishment so as to attract the provisions of Clause (2) of Article 311. In the Supreme Court decision reported in Jai Ram v. Union of India, AIR 1954 SC 584 (A) it was pointed out that the right of a ministerial servant to be retained in service till his sixtieth year is 'conditional undoubtedly upon his continuing to be efficient.'
If the competent authority holds that he has ceased to be efficient he has no right to continue in service and there can be no question of any punishment being inflicted upon him. Mr. Misra has not been able to cite any authority in support of the view that in a case similar to the present one, a notice as required under Clause 2 of Article 311 of the Constitution should issue.
On the other hand he very properly drew my attention to a Calcutta decision reported in Basant Kumar v. C. E. Engineer, AIR 1956 Cat 93 (B) where, following previous decisions, it was held, while construing similar provisions in the State Railway Establishment Code, in Rule 2046 (2)(a), that there is no legal right in the employee to continue in employment after attaining the age of fifty-five years and that it is discretionary with the competent authority, either to continue to employ him or to require him to retire and that this discretion cannot be controlled by the Court.
It is unnecessary for the purpose of this petition to examine the correctness of the aforesaid extreme view of the Calcutta High Court. Even if it be held that a ministerial officer has a qualified right to continue in service after attaining the age of fifty-five years, yet that right is subject to his continuing to be efficient to the satisfaction of the competent authority and once it is held that the saidcondition is not fulfilled he cannot claim any right at all.
6. For the aforesaid reasons, the petition is rejected but in the circumstances of the case there will be no order for costs.
G.C. Das, J.
7. I agree.