Patna High Court
Md. Kalim KhanversusThe Principal Secretary, to the Governor
- Decided
- Disposal
- WITHDRAWN
- Bench
- ANSHUMAN
Holding
The impugned compulsory retirement order is quashed as it contravenes Rule 74 of the Bihar Service Code and the principles of natural justice.
Summary
The petitioner, Md. Kalim Khan, challenged a compulsory retirement order issued through Memo No.193 dated 10‑02‑2023 by the Principal Secretary, Governor's Secretariat, Bihar, alleging that it was passed without the three‑month prior notice and show‑cause opportunity mandated by Rule 74 of the Bihar Service Code. He contended that the order violated the principles of natural justice and that his service record for the preceding five years showed no adverse remarks, rendering the efficiency‑based retirement unjustified. The respondent admitted that the procedural requirement of a three‑month notice was not complied with. The Court examined Rule 74, which requires a written notice of at least three months before an employee can be retired on grounds of inefficiency or conduct, and held that the failure to give such notice rendered the order illegal. Consequently, the Court quashed the retirement order, allowing the petitioner to remain in service, and disposed of the writ petition.
Issues considered
- Whether the compulsory retirement order issued under Memo No.193 dated 10‑02‑2023 violated Rule 74 of the Bihar Service Code by not providing the statutory three‑month prior notice.
- Whether the absence of a show‑cause notice and hearing infringed the principles of natural justice.
- Whether the impugned order is liable to be quashed.
Legislation cited
- Bihar Service Code — s. Rule 74
Subjects
- compulsory retirement
- natural justice
- Bihar Service Code
- Rule 74
- writ petition
- quashing order
- service law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10537 of 2024
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Md. Kalim Khan son of Md. Jamil Khan, resident of B-13 A, Indrapuri
Colony, Raza Bazar, Samanpura, Police Station-Shastri Nagar, District-Patna.
... ... Petitioner/s
Versus
The Principal Secretary, to the Governor Governors Secretariat, BIhar, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sarva Deo Singh, Advocate
Mr.Sanjay Kumar, Advocate
For the Respondent/s : Mr. Janardan Pd. Singh, Sr. Advocate
Mr.Rajiv Ranjan Kr. Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 15-07-2024
Heard Mr. Sarva Deo Singh along with Mr. Sanjay
Kumar, learned counsels appearing on behalf of the petitioner;
Mr. Janardan Pd. Singh, learned senior counsel along with Mr.
Rajiv Ranjan Kr. Pandey, learned counsel for respondent no.1.
2. Petitioner has inter alia prayed for following
reliefs in the paragraph No.1 of the writ petition:-
“That the petitioner prays for issuance of
an appropriate writ/writs, order/orders,
direction/directions for quashing the office order which
contain in memo no.193 dated 10.02.2023 by which the
petitioner has been inflicted of compulsory retired.
However, the impugned order has been passed in
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violation of principle of natural justice. The petitioner
even has not been asked for any show cause, on the
other hand the punishment of compulsory retirement is
a major punishment.
And for any other relief/reliefs the
petitioner may be found entitled.”
3. Learned counsel appearing on behalf of the
petitioner submitted that the impugned order contained in
Memo No.193 dated 10.02.2023 has been passed without giving
any opportunity of hearing to the petitioner, not having served
show cause to the petitioner, allegedly which has been passed as
per the provision of Rule 74 (b) of the Bihar Service Code.
Learned counsel further submitted that sub-clause (ii)(b) of
Rule 74 provides that a government servant may, after giving at
least three months previous notice, in writing, to the appointing
authority concerned retire from service on the date on which
such a Government servant completes thirty years of qualifying
service or attains fifty years of qualifying service or attains fifty
years of age or on any date thereafter to be specified in the
notice. Learned counsel submitted that there is a complete
violation of the Rule 74 and the procedure prescribed therein by
not giving any clear three months previous notice to the
petitioner in writing. Learned counsel submitted that Rule 74
provides that efficiency or conduct of the concerned employee
is required to be assessed for making him to retire in special
circumstances as contained in the said Rule. Learned counsel
Patna High Court CWJC No.10537 of 2024 dt.15-07-2024
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referring to paragraph no.4 of the impugned order, which
requires that the work assessment of an employee was required
to be taken in respect of all such employees, in whose respect,
the Governor of Bihar has taken a decision for compulsorily
retiring such employee on the basis o conduct and efficiency.
4. Leaned counsel further submitted that it is the case
of in the case of the petitioner that the authority concerned has
not considered the five years past service record of the
petitioner, which reveals that from period 01.04.2021 to
31.03.2022, no adverse remark has been entered into his service
book and same finds reference in the impugned order. Learned
counsel further submitted that the authority has also taken into
consideration the past penalty order, which was passed against
the petitioner relating to the year 1999, which has no relevance
in view of assessment as required in paragraph no. 4 of the order
impugned. Learned counsel has emphatically submitted that the
remark which was entered into against the petitioner is in
respect of the fact that he was not efficient in his work which
don’t constitute misconduct.
5. Learned senior counsel appearing on behalf of the
respondent submitted that there is no infirmity in the impugned
order, however, he has not denied the fact that the prescribed
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procedure, as required under Rule 74 of the Bihar Service Code
has not been followed by giving three months prior notice to the
petitioner.
6. Having considered the rival submissions, as well
as, the fact that the impugned order contained in Memo No. 193
dated 10.02.2023 is not in accordance with the prescribed Rule
74, under which the authority has acted upon to compulsorily
retired the petitioner on the ground of his inefficiency or
conduct which is not such as to justify his retention in service, I
find it proper to reproduce Rule 74 as contained in Bihar
Service Code.
74(a) The State Government may require
any Government servant who has completed twenty one
years of duty and twenty-five years of total service
calculated from the date of his first appointment to
retire from Government service, if it considers that his
efficiency or conduct is not such as to justify his
retention in service. Where any Government servant is
so required to retire no claim to any special
compensation shall be entertained.
(b)(i) Notwithstanding anything contained
in the preceding sub-rule a Government servant may,
after giving at least three months previous notice, in
writing, to the appointing authority concerned retire
from service on the date on which such a Government
servant completes thirty years of qualifying service or
attains fifty years of age or on any date thereafter to
be specified in the notice
provided that no Government servant
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under suspension shall retire from service except with
the specific approval of the State Government:
Provided further that in case of the officers
and servants of the Patna High Court (including those
of Circuit Bench at Ranchi) under the rule making
authority of the Chief Justice, no such officer and
servant under suspension shall retire from service
except with the specific approval of the Chief Justice.
ii. The appointing authority concerned
may after giving a Government servant at least three
month’s previous notice in writing, or an amount equal
to three month’s pay and allowance in lieu of such
notice, require him in public interest, to retire from
service on the date on which such a Government
servant completes thirty years of qualifying service or
attains fifty years of age or on any date tehreafter to be
specified in the notice.
iii. A Government servant who retires
voluntarily is required to retire in public interest under
this rule on attaining the age of 50 years, or
completing qualifying service of 30 years, shall be
entitled to retiring pension and death cum-retirement
gratuity.”
7. From the perusal of the Rule prescribed therein, it
appears that any employee is required to retire in special
circumstances as contained in the Rules, who is not efficient or
his conduct is not satisfactory, sub-rule (ii)(b) which came into
effect from 30.06.1976 provides for three months previous
notice in writing and in the present case, from the impugned
order, it is reflected that no three months previous notice was
given to the petitioner to make him retire on the ground of
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inefficiency and his conduct which may be not satisfactory.
From the impugned order, one can gather that from paragraph
no.5 therein the authority has found no adverse remark against
the petitioner from 01.04.2021 to 31.03.2022 relating to the past
five years conduct and at the same time, the remark contained in
paragraph no.6 in respect of the fact that the petitioner used to
delay in pagenation and producing the record, for which he was
already issued show cause notice and the remark is that he could
not improve himself.
8. The interference which calls for by this Court in
respect of the impugned order contained in Memo No.193 dated
10.02.2023 is for the reason that the statutory Rule 74 prescribes
for previous three months notice before the State requires an
employee to retire on the basis of inefficiency or conduct and
the same having not been done in the case of petitioner, is
violative of principle of natural justice and at the same time,
Sub-rule(ii)(b) of Rule 74 of Bihar Service Code, and as such
the impugned order as contained in Memo No.193 dated
10.02.2023 is hereby quashed and set aside. Since the order
impugned has been quashed, the petitioner will continue in the
service and the authority may take appropriate action in
accordance with law, if so required.
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9. The writ petition is accordingly disposed of.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.07.2024
Transmission Date NA
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