1. The petitioner, a junior head assistant on leave (at the time the writ was filed), Government ofOrissa in the Finance Department (Bureau of Statistics Branch), challenges an order of his premature retirement on the ground that he being a Bihar and Orissa entrant is entitled to continue till he attains the age of 60 years; he also challenges an order of reduction in rank from the post of junior head assistant in the Finance Department to the post of senior assistant in the Bureau of Statistics Branch, In view of the position that the petitioner has since long retired from service, his relief as against the order of reduction has become infructuous and we, therefore, express no opinion on that count.
2. As regards his relief against premature retirement the admitted facts are these The petitioner was born on 15 September 1905. At about the age of 23 years on 2 April 1928 he was appointed as a clerk in the office of the Divisional Commissioner, Orissa Division, and was confirmed in that post on 1 July 1928. On 1 September 1950 he was confirmed as grade I assistant and with effect from 2 September 1950 he was posted as grade I assistant in the Planning (Bureau of Statistics) Department. On 19 June 1953, the petitioner was appointed as head assistant on a special pay of Rs. 20. On 1 July 1954, the Bureau of Statistics was transferred from the Planning Department to the Finance Department. On 17 February 1956, the petitioner was appointed as junior head assistant in the Finance Department on a pay-scale of Rs. 235 to 300 but his special pay was taken away. It is about this time that there was a proposal to make the Bureau of Statistics and Economics as head of department. On 14 April 1951, Government asked for options as to whether the petitioner would continue in the Finance Department or come over to the Bureau of Statistics as bead of department. On 18 April 1958, the petitioner exercised his option to remain in the Finance Department.
3. It was on 13 December 1961 that the Director, Bureau of Satistics and Economics, retired the petitioner prematurely : the petitioner was then aged 56 years 3 months. It is this order which the petitioner challenges as illegal. The material portion of the impugned order dated 13 December 1961 is quoted below:
B.N. Mohanti, senior assistant, Bureau of Statistics and Economics, Orissa, who was retained in service for a period of one year with effect from 15 September 1960 after attaining his fifty-fifth year of age is allowed to continue in the post of senior assistant for a further period of six months with effect from 15 September 1961.
(Sd.) C. Mishra,
Memorandum No. 5420, dated 13 December 1961.
4. Copy forwarded to B.N. Mohanti, Accounts section, for information (and necessary action).
5. B.N. Mohanti is hereby given notice that he is required to retire at the end of the period of extension granted in this office-order as it has been noticed that he has not been able to discharge his duties efficiently. He should, therefore, immediately inform the undersigned if he wishes to proceed on leave preparatory to his retirement and, if so, the date from which he wishes to avail.
(Sd.) C. Mishra,
Accordingly, the petitioner proceeded on leave preparatory to retirement and continued to remain on leave until 26 July 1964 when he was made to retire pursuant to the said order.
6. The petitioner claims that he should have been allowed to continue in service by virtue of Rule 7(b) of the Orissa Service Code which is quoted as follows:
A ministerial servant who was in permanent Government service on 31 March 1936, may be required to retire at the age of 55 years but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years. He must not be retained after that age, except In very special circumstances, which must be recorded in writing, and with the sanction of the State Government.
For the purpose of this case, it is not necessary to interpret Rule 71(6) in its application to the facts and circumstances of this case.
7. It appears from the impugned order dated 13 December 1961 that the petitioner was made to retire on the ground that he had not been able to discharge his duties efficiently which amounts to a stigma and thus involves punishment. Admittedly, no opportunity was given to the petitioner to meet the charge against him; the procedure adopted is against the principles of natural justice. It is on this ground that the impugned order of premature retirement can be struck down as contrary to law.
8. In the result, therefore, the impugned order of premature retirement dated 13 December 1961 is quashed. The writ petition is accordingly allowed to the extent as aforesaid. There will be no order as to costs.
9. I agree.