Orissa High Court
Sanjaya Kumar Sahoo vs State Of Odisha And Others .... Opposite ... on 11 July, 2025
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.11654 OF 2022
Sanjaya Kumar Sahoo .... Petitioner
-Versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in this case:
For Petitioner : M/s. (Dr.) Purusottam Chuli, P. Nath, A. Routray,
(Dr.) S. Patnaik and (Ms.) S. Patnaik, Advocates
For Opp. Parties : Mr. Prabhu Prasanna Behera,
Additional Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
AND
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
--------------------------------------------------------------------------------------
Date of hearing : 24.06.2025 : Date of judgment : 11.07.2025
--------------------------------------------------------------------------------------
PER DIXIT KRISHNA SHRIPAD, J.
Petitioner, a Judicial Officer (then a Family Court Judge), is
invoking the Writ Jurisdiction of this Court for calling in question the
Government Notification No. 8351/HS dated 11.03.2022 (Annexure-1),
whereby he has been prematurely retired from service at the age of 55
years, normal age of superannuation being 60.
(II) Foundational Facts:
(i) Petitioner joined the District Judiciary on 17.11.1997 as
Addl. Civil Judge (Jr. Dn.)-cum-Judicial Magistrate Second Class. He
was granted ACP-II Scale of Pay vide order 15.10.2009. He earned his
first promotion as Sub-Divisional Judicial Magistrate on 03.06.2010.
His second promotion to the cadre of Civil Judge (Sr. Dn.) was vide
order dated 11.02.2011. A little later, he was granted ACP-II Pay Scale
with retrospective effect from 16.11.2007 vide order dated 20.07.2011.
(ii) Petitioner was granted next promotion to the post of Chief
Judicial Magistrate vide order dated 01.08.2013 and later to that of
District Judge vide order dated 29.07.2015. In 2017 his performance
having been reviewed at the age of 50 years, he was allowed to
continue. He got Selection Grade w.e.f. 09.08.2020 vide notification
dated 29.01.2021 issued by this Court on the administrative side.
However, he came to be prematurely retired at the age of 55 years
whilst presiding over the Family Court at Nabarangpur vide impugned
notification dated 11.03.2022. After service of notice, the opposite
parties having entered appearance through their counsel filed their
counter to resist the petition.
(III) Submissions on behalf of the Petitioner, as concised by us:
(i) Petitioner is a meritorious candidate with the spotless service
of District Judiciary and his service credentials are unimpeachable by
any standards, more particularly the normative ones promulgated in
Rule-44 of The Odisha Superior Judicial Service and Odisha Judicial
Service Rules, 2007 (hereafter called "2007 Rules").
(ii) In respect of subject allegations, disciplinary proceedings
came to be dropped without imposing any punishment prescribed under
the extant Rules and once that having happened, the same could not be
treated as the material impeaching credentials of the petitioner.
(iii) Petitioner earned several promotions and that after the review
of his credentials, the Review Committee decided to continue him in
service beyond 50 years. Very importantly, within a short period
reckoned from the grant of Time Scale/Promotion, he could not have
been asked to quit the service.
(iv) When an employee is granted promotion, whatever arguable
black spots that obtained in the Service Records do pale away and
therefore there is absolutely no justification for compulsorily retiring
the petitioner in a premature way.
(v) Lastly, the extant Rule provides for notice and therefore
without such notice the petitioner being asked to retire is in violation of
the principles of natural justice, especially when the impugned order
has stigmatic elements, notwithstanding its apparent innocuous
appearance.
(IV) Contentions urged on behalf of opposite parties:
(i) The Jurisdictional Committee on the administrative side of
this Court and the Full Court having examined the matter have taken
the decision to prematurely retire and that being the bedrock of the
impugned order, this Court exercising limited supervisory jurisdiction
should loathe to interfere in matters like this.
(ii) The impugned decision is a product of collective factors,
namely: disciplinary proceedings in D.P. No.2 of 2007; Night
Watchman‟s allegation as to caste aspersions & use of filthy language;
complaint of District Bar Association and boycott of petitioner‟s Court
because of his unruly behavior, unfair practice & non-supply of cause
list.
(iii) Grant of promotions does not erase adverse remarks entered
in the Service Records of an employee; in any event, petitioner does not
have unblemished service records, as sought to be projected before the
Court;
(iv) A Judicial Officer is not just another public servant; he
discharges sovereign functions of the State and therefore the standard
of his conduct has to be much higher; even a thick doubt as to the
integrity would justify premature retirement, as has happened in this
case.
(v) The impugned order is not stigmatic; it has been made in the
public interest after scrupulously following the normative procedure
promulgated in the extant Rules applicable to the case and no prejudice
is caused to the petitioner, who draws full pension and all terminal
benefits.
(vi) Lastly, the principles of natural justice do not apply to cases
of the kind and even otherwise granting of an opportunity of hearing
would not have brought about a different end product and therefore no
case on that count is made out by the petitioner.
(V) We have heard learned counsel for the parties and perused
the petition papers. We also looked into the records furnished in Sealed
Cover. Advertence to relevant of the Rulings cited at the Bar, is also
made. We are inclined to grant limited relief to the petitioner, as under
and for the following reasons:
(1) As to the Statutory Scheme providing for premature
retirement:
(a) The 2007 Rules have been promulgated by the Governor of
Odisha in exercise of power conferred by the Proviso to Article 309
read with Articles 233, 234 & 235 of the Constitution of India. Rule 42
prescribes 60 years as the age of superannuation. Rule 44 provides for
premature retirement in public interest. This Rule, being relevant to the
case at hand, is reproduced below:-
"44. Retirement in public interest-(1) Notwithstanding
anything contained in these rules the Governor shall, in
consultation with the High Court, if he is of the opinion
that it is in the public interest so to do, have absolute right
to retire any member of the service who has attained the
age of fifty years, by giving him/her notice of not less than
three months in writing or three months pay and
allowances in lieu of such notice.
(2) Whether any officer of the service should be retired in
public interest under Sub-rule (1) shall be considered at
least three times, that is, when he is about to attain the age
of fifty years, fifty five years and fifty eight years:
Provided that nothing in Sub-rule (2) shall be construed in
public interest as preventing the Governor to retire a
member of the service at any time after he/she attains the
age of fifty years on the recommendation of High Court
under Sub- rule (1)."
(b) In the ordinary circumstances, every Judicial Officer shall
retire on attaining the age of superannuation which Rule 42 fixes to be
60 years. This one sentence Rule has the following text:
"42.Age of superannuation- The age of superannuation of an
officer of the service shall be sixty years.
This Rule in a normal way guarantees every Judicial Officer the right to
hold and continue in office till he completes the age of 60 years. It
hardly needs to be stated that the cases of termination of service by
virtue of disciplinary action do not fall within the parameters of this
Rule. Rule 44 is in the nature of an exception to the general norm
promulgated in Rule 42. Sub-Rule (1) of Rule 44 vests "absolute right"
in the Governor of the State to retire any Member of Judicial Service in
public interest. The expression "absolute right" is an anathema to the
Rule of Law. In a constitutionally ordained Welfare State, there is
nothing like "absolute right" or "absolute power", and the very text &
context of this Rule makes it abundantly clear that the adjective
„absolute‟ remains on the Rule Book as an ornamental relic of bygone
Colonial Era. Rule 42 prescribes certain conditions, which the
Governor is required to satisfy himself.
(c) The pre-conditions, which Rule 42 prescribes for causing
premature retirement of a Judicial Officer, are: (i) He should have
attained the age of 50 years; (ii) Governor has to have consultation with
the High Court; & (iii) three months‟ prior notice or three months‟ pay
& allowances in lieu of such notice. It hardly needs to be stated that
cutting short tenure of public office is a serious matter; such decisions
have to be consistent with the intent of Makers of the Constitution as
lurking in Article 16. Though right to public employment is not
guaranteed, once a citizen is duly employed, he cannot be whimsically
removed. Therefore, the power to prematurely retire is in the nature of
an exception and the sine qua non for exercising such power has to be
strictly complied with. Appreciably, there is no much divergence of
opinions at the Bar in this regard.
(2) As to the scope of judicial review in matters of premature
retirement:
(a) The vehement contention of learned State Counsel appearing
for the opposite parties that a Writ Court cannot undertake a deeper
examination of the matter like this, as if it is an appellate authority, is
too broad a proposition. We are not exercising appellate power, because
we do not have such power granted under the subject Rules or under
any other law. The case at hand is not an appeal, is also not disputed.
That being said, a worthy cause brought before the Court cannot be
turned down by quoting some jurisprudential theories. It was Justice
Oliver Wendell Holmes, who in DAVIS v. MILLS,1 observed as under:
"Constitutions are intended to preserve practical and
substantial rights, not to maintain theories..."
194 US 451 (1904)
The above observation cannot be lost sight of, when Writ Jurisdiction is
invoked by the aggrieved citizens. We also have to bear in mind that
litigants come to Court inevitably and with no joy at heart, for obvious
reasons. A Writ Court has to be doubly sure before sending them back,
empty handed. This is not to say that in every case, regardless of its
intrinsic merits, indulgence should be sought, conventional limitations
obtaining in the realm of Law of Writs, notwithstanding.
(b) It again would be too farfetched an argument that whenever
the Full Court of a High Court on the administrative side takes a
decision, an Island of Immunity from judicial review, is created. We
hasten to add that such a decision by its very nature raises a high
presumptive validity, is also true. Learned State Counsel is right in
drawing our attention to Arun Kumar Gupta v. State of Jharkhand,2
which restricts judicial review whilst examining decisions of Screening
Committee & Standing Committee comprising of Senior Judges of the
High Court. Obviously, these limitations do apply with more vigor to
the Resolutions of Full Court. We also appreciate the fair stand taken
up by both the sides that this case be heard and decided at our hands on
merits, one of us (Justice M.S. Sahoo) being a party to the Full Court
decision, notwithstanding. Administrative decision is one thing and
judicial determination is another. There is difference between them in
terms of approach, nature, quality & content. This is not to belittle the
deliberations that happen in a Full Court meeting. A Writ Court
exercising original jurisdiction in a service dispute would be
committing a grave error if it declines indulgence only on the ground
(2020) 13 SCC 355
that the impugned action is founded on the administrative opinion of
Full Court. It all depends upon errors demonstrable from the records.
Much is not necessary to discuss and less is insufficient to leave it
unsaid.
(c) Both the sides have cited a plethora of rulings and that since
we do not have quarrel with their ratio decedendi, reference to most of
them is avoidable. In UOI v. M. E. Reddy,3 it is said that compulsory
retirement causes no prejudice to the official, since he draws full
pension and other terminal benefits, which would provide solace to him
even if he feels a bit hurt. In Baldev Raj Chhada v. UOI,4, it is
observed that the order to retire can be passed on a broad principle as to
whether a rationale mind in the trade might conceivably be satisfied
that the compulsory retirement of the official is necessary in public
interest. The Apex Court faltered such an order on the ground that vital
materials relevant to the decision such as, 14 years of spotless service,
absence of any adverse entries for the preceding five years, crossing of
efficiency bar, etc. were ignored. In State of Gujurat v. Umedbhai M
Patel,5 it is observed that the order of compulsory retirement shall not
be passed as a short cut to avoid departmental enquiry when such
course is more desirable, and that if the officer was given a promotion
despite adverse entries made in the confidential record, that is a fact
weighing in favour of the official, and that compulsory retirement shall
not be imposed as a punitive measure. In UOI v. Dulal Dutta,6 it is
(1980) 2 SCC 15
AIR 1981 SC 70
(2001) 3 SCC 314
(1993) 2 SCC 179
ruled that such an order need not invariably be a speaking order, since it
is made on subjective satisfaction of the competent authority.
(d) A Coordinate Bench of this Court in Pradeep Kumar
Pattnaik v. State of Odisha7 decided on 04.04.2022 surveyed the
growth of law relating to premature retirement and observed at Para-14
as under:
"14. xxxx The Officer in question did not have an unblemished
service record and for many years, his rating was „Average‟. It is
entirely possible that he received his promotions in due course, but
the parameters that weigh with the Court when it comes to retaining
a Judicial Officer in service after attaining the ages of fifty years,
fifty-five years and fifty-eight years would be based on a review of
the entire service career of the Officer and not just on a few years of
performance. In that sense, the grant of promotion a few months
earlier to the review of such performance would not ipso facto
preclude such a review for the purposes of the decision to be taken
regarding compulsory retirement of such Officer."
In State of U.P. v. Vijay Kumar Jain,8 it is held that the vigor or sting
of an adverse entry does not get wiped out while considering the case
for compulsory retirement. In Pyare Mohn Lal v. State of Jharkhand,9
it is observed that the authority has to consider the "entire service
records" of the official while assessing whether it is desirable to part
ways with him, despite granting of promotion disregarding the adverse
entries. One single adverse entry as to integrity may justify premature
retirement.
[WP(C) No. 19416 of 2014]
(2002) 3 SCC 641
(2010) 10 SCC 693
3. As to service credentials of the petitioner & arbitrariness
in impugned action:
(a) Learned counsel for the petitioner vehemently submitted and
that is not much disputed that: petitioner has put in a long service from
17.11.1997 to 11.03.2022, i.e., the date of the impugned order and he
earned promotion to the post of Sub-Divisional Judicial Magistrate in
2010, Civil Judge (Sr. Dn.) in 2011, Chief Judicial Magistrate in 2013,
District Judge in 2015 & Selection Grade District Judge in 2021. These
promotions are on the basis of merit-cum-seniority. He was allowed to
continue in service in 2017, pursuant to recommendation of the Review
Committee, after he attained 50 years. All this is founded on the
decision/opinion of the Full Court itself. We repeat that petitioner was
promoted to the position of Selection Grade District Judge vide
notification dated 29.01.2021 issued by the High Court itself. The
impugned order of premature retirement is essentially founded on the
subject Full Court decision dated 23.02.2022. That being the position,
what grave thing happened during the short period between 29.01.2021
& 23.02.2022, remains a riddle wrapped in enigma. Thus, the first
pillar of the structure of the impugned order is shaken.
(b) The vehement submission of learned State Counsel that the
decision to prematurely retire the petitioner is taken keeping in view the
spotted service records, is bit difficult to countenance. Reasons for this
are not far to seek: Admittedly, there is not even one sporadic adverse
remark in the CCRs/PARs of the petitioner all these years. It is not that
he has been found guilty in any of the disciplinary proceedings. True it
is that he was "cautioned to be careful in future". However, this is not a
prescribed punishment in the extant Rules. At the most, it is advisory
in character and therefore cannot be construed as an adverse remark.
What punitive action was taken, pursuant to complaint of the Bar
Association, is also not demonstrated. If Lawyers boycotted his Court,
that is deprecable, since they do not have such a right, other avenues
availing for redressal vide District Bar Association Dehradun v.
Ishwar Shandilya,10. Contra contention if accepted amounts to placing
premium on illegality. „Judging is difficult‟, said U.S. Judge Richard A
Posner. And being a judge is also. Nowadays, judicial functions by
their very nature have become sensitive for several reasons, one of
them being unregulated social media. It is not uncommon that even tall
judges of unimpeachable integrity at times suffer the ire of public and
face red eye of a section of the Bar. Unless the material is loaded to the
CCR/PAR as an adverse entry in due process, no Judicial Officer can
be put to prejudice.
(c) We have perused the original records by opening the sealed
cover. They reveal the fact that the petitioner earned career progression
on regular basis as obtaining in the hierarchy; he was granted
promotion to District Judge Selection Grade, vide notification dated
29.01.2021; this was done on the recommendation of the Jurisdictional
Committee that comprised of judges of this Court, followed by the
Resolution of Full Court. The Review Committee, after due
deliberation, recommended his retention in service in terms of Sub-
Rule (1) of Rule 44 of 2007 Rules after he attained 50 years. Even this
2023 SCC OnLine SC 45
was accepted by the Full Court and accordingly he was continued in the
service.
(d) At the stage of Statutory Review of petitioner‟s performance
for his retention in service, the following were available on record:
(i) Petitioner had average ratings in the ACRs during the
initial five years of service;
(ii) Inquiry vide DP No.2 of 2007 had ended in exoneration,
asking him to be "cautious in future";
(iii) Inquiry into Night Watchman‟s allegation of caste
aspersions & use of filthy words was dropped vide Minutes
dated 24.12.2009 after receiving discrete report;
(iv) Inquiry into anonymous complaint of the year 2015 of
District Bar Association was dropped vide Minutes dated
03.11.2016;
(v) Inquiry as to misconduct with the Bar Members that led
to boycott of his Court (such boycott itself being legally
impermissible) was dropped vide Minutes dated 10.09.2018.
(vi) Full Court approved Jurisdictional Committee
recommendation and accordingly petitioner came to be
promoted as Selection Grade District Judge vide Notification
dated 29.01.2021.
It sounds strange that on 23.02.2022 the "Full Court/Review
Committee" resolved to prematurely retire the petitioner, there being
absolutely no change of circumstance after he was accorded promotion
to Selection Grade. By and large, the fact matrix of petitioner‟s case
matches with that of High Court of Patna v. Shyam Deo Singh,11 (2014) 4
SCC 773 and also the legal principles laid down therein.
(2014) 4 SCC 773
(e) There is one striking aspect in the matter: Allegations were
received regarding manipulation of depositions, of asking the advocates
to arrange for women & money. Despite such wild allegations, no
disciplinary proceedings were drawn up. The Apex Court in Umedbhai
supra has observed that an order of compulsory retirement cannot be
passed as a short cut to avoid departmental inquiry, when such course is
eminently desirable. It also said that if the officer was given a
promotion, despite adverse entries in ACRs, that is a fact weighing in
his favour. In Shyam Deo Singh supra it is ruled that subsequent
promotions would have the effect of wiping out adverse remarks. We
repeat that there were absolutely no adverse entries in the CCRs/PARs
of petitioner.
4. As to punitive nature of impugned order and violation of
principles of natural justice:
(a) Learned State Counsel vehemently controverted the
submission of petitioner‟s counsel that the impugned order is not only
arbitrary but has abundant elements of punitive nature. Let us examine
this: The order ex facie looks innocuous, is true. However, a deeper
examination would reveal its true nature & effect, because of the
following stand taken up by the opposite parties:
(i) Petitioner had thrown some caste aspersions on and used
filthy words against a Night Watchman of the Court in
Jharsuguda.
(ii) Petitioner had shown unruly behaviour qua Bar
Members, and that he was asking them to arrange for women
& money for penning favourable orders, and that he was
receiving cash & kind.
At least, the above allegations are as wild as can be, is not disputable.
Along with other the said allegations too entered the decision making
process that eventually culminated into the impugned order of
premature retirement, stands obviated. In fact, in the written
submissions dated 24.06.2025 filed on behalf of opposite parties, the
said allegations are specifically mentioned at pages 2 & 3. We repeat
that these being wild allegations against a sitting Judicial Officer, ought
to have been enquired into by constituting a disciplinary proceeding.
(b) While adjudging the nature of orders of impugned kind, one
can lift the veil to see the true picture. Reference to above allegations
abound in the records furnished to us in the sealed cover. Even
otherwise, these allegations are specifically pleaded by the opposite
parties, as already mentioned above. A compulsory retirement is no
substitute for holding a disciplinary inquiry and that such decisions
cannot be taken as a punitive measure vide Umedbhai supra. Be that as
it may, once an action is punitive then the question arises as to whether
such an order could have been passed without giving an opportunity of
hearing to the official. The answer has to be in the negative. Records
do not reveal any reasons as to why no disciplinary inquiry was
initiated nor was any opportunity afforded. We hasten to add that the
requirement of hearing arises only because of imperative principles of
natural justice, and not on account of requirement of a 3-month notice
prescribed in Rule 38. It hardly needs to be stated that payment of three
months emoluments dispenses with such a notice. Admittedly, they are
paid in this case.
5. As to the nature of relief to be granted to the petitioner:
(i) Petitioner has put in a pretty long service, having earned
multiple promotions, the last one being to the post of District Judge
Selection Grade. Whatever allegations were leveled against him, were
dropped after being looked into and after securing the reports at the
hands of quarters that be. The Jurisdictional Committees comprising of
Senior Judges of this Court, having seen the allegations & dropped
disciplinary proceedings, had recommended his case for promotion
after promotion in due course and the Full Court accepted the same.
Petitioner successfully crossed the review at the age of 50 years in 2017
and the last promotion was conferred on him in 2021. It is only
thereafter the decision is taken to prematurely retire him from service
and accordingly he has been, by virtue of impugned order.
(ii) The case of petitioner as to impugned order being punitive
and having stigmatic elements is to an extent demonstrated from the
record and also from the pleadings of the parties. Sages of law have
said that what is stated in the pleadings draws the battlelines and
therefore can be construed meaningfully, unless otherwise diluted.
Prima facie, no such rebuttal material avails on papers at our hands.
Grievance of the petitioner as to violation of principles of natural
justice also needs to be addressed. Further, his stand that he has spotless
service records or otherwise, has to be ascertained, with the aid of
records. Who is grieving before us, is not just an ordinary public
servant, but a Presiding Officer of a Court, who discharges functions
involving abundant elements of sovereign powers and they have
enormous implications to the public in general and to the litigants in
particular. Integrity of a judicial officer is not punctus punctilio of the
market place. It has to be unimpeachable. In cases like this, one cannot
straightway seek reinstatement in service or grant of monetary benefits
in lieu thereof, per se because the impugned order is being set at
naught. Therefore, in the fitness of things, matter merits a fresh look at
and from the stage of Jurisdictional Committee of Review, of course
after giving an opportunity of representation to the petitioner.
In the above circumstances, this petition succeeds in part; a
Writ of Certiorari issues quashing the impugned order of premature
retirement of the petitioner. Matter is remitted back for consideration
afresh keeping open all contentions, in the light of observations herein
above made. Costs made easy.
(Dixit Krishna Shripad)
Judge
M.S. SAHOO,J. I agree.
(M.S. Sahoo)
Judge
Orissa High Court, Cuttack
The 11th day of July, 2025/GDS
Designation: JOINT REGISTRAR-CUM-PRINCIPAL
