V.GOPALA GOWDA, CJ & H.S. BHALLA, J.
W.P.(C ) NO.11302 OF 2010 (Decided on 19.09.2011).
LALIT KUMAR MISHRA

……Petitioner.
.Vrs.

UNION OF INDIA, & 3 ORS.

……Opp.Parties.

CONSTITUTION OF INDIA, 1950 – ART. 311.r/w Rule 44 of OSJS & OJS Rules 2007.

For Petitioner

- Mr. P.K.Ray, M/s. Ashok Ku. Mohpatra,
A.K.Mohapatra, S.C.Sahu, N.C.Rout,
S.K.padhi & J.K.Behera.

For Opp.Parties - Mr. S.D.Das, Asst. solicitor General (for Op No.1)
Mr. Ashok Mohanty, Advocate General
(for Op.2 to 4)
V. GOPALA GOWDA,C.J.
The petitioner, who was appointed as Additional Judge of this Court
by the President of India for a period of two years from the date of taking oath i.e. on 17.01.2008 and after
completion of two years he was not made permanent Judge, therefore he is before this Court by filing this
writ petition seeking the following reliefs:
“(i)

The opposite party No.1 Government of India be directed to implement the recommendation of
the Hon’ble Chief Justice of India and Hon’ble Chief Justice of Orissa High Court in favour of
the petitioner for appointment as a permanent Judge of Orissa High Court with
effect from 17.1.2010 within the stipulated time.

(ii)

The Full Court administrative decision dated 16.1.2010 with deemed reversion of
the petitioner to the cadre of District Judge from 17.1.2010 vide Annexure-1 and
further decision to give compulsory retirement to the petitioner from Government
Service and recommendation and notification by the Home Department dated
9.3.2010 be quashed as it is illegal, unconstitutional and without jurisdiction and
nullity in the eye of law.

(iii) The opposite party No.1 be directed to implement/carryout the recommendation of
the Hon’ble Chief Justice of India for appointment of permanent Judge within a
stipulated time.”
2.
Bereft of unnecessary details, it would be appropriate to refer only to the
necessary facts with reference to the original record of the Government of India
produced before this Court on the request of the petitioner which contains the decision
for not making the petitioner a permanent Judge.

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3.
The case of the petitioner in brief is that the petitioner was appointed as a District
Judge through direct recruitment on 26.07.1993 and continued as such. After
completion of about 15 years of service in the cadre of District Judge, his name was
recommended by this Court along with the name of Sri B.K. Patel, who was also a
Senior District Judge at that time, for appointing them as Additional Judges of this Court.
Thereafter the said recommendation was considered by the collegium of the Hon’ble
Supreme Court of India and matter was recommended to His Excellency the President
of India. Accordingly, petitioner and Justice B.K. Patel were appointed as Additional
Judges of this Court for a period of two years from the date of taking oath i.e.
17.01.2008 making the petitioner as senior to Justice B.K. Patel. It is the further case of
the petitioner that he reliably learnt that before completion of two years as additional
Judge, his name as well as the name Justice B.K. Patel was recommended to the
Hon’ble Supreme Court of India by the then Chief Justice of this Court during May,2009
for their appointment as permanent judges of the Court. The Supreme Court after
approving and accepting the said recommendation, forwarded the same to the Central
Government in June, 2009 for implementation, which was much before the completion of
two years. It is stated by the petitioner that the Central Government implemented the
recommendation of the Supreme Court in favour of Justice B.K. Patel, who was junior to
the petitioner, as permanent Judge of this Court, but nothing has been done in relation to
the case of the petitioner in making him permanent Judge of this Court and no
communication was made to the petitioner though his term ended on 16.01.2010 and
accordingly only Justice B.K. Patel was made permanent Judge of this Court and he
took oath on 14.01.2010. Therefore, it is stated that non implementation of the
recommendation of the Hon’ble Supreme Court of India by the Central Government, in
making the petitioner as permanent Judge of this Court, is against the principle of fair
play and reasonableness and there is serious discrimination in considering the case of
the petitioner.
4.
It is further stated that as the term of the petitioner as an additional Judge of this
Court ended on 16.1.2010 forenoon, a Full Court meeting was held on 16.01.2010 at
about 10.00 P.M. in which the petitioner was not invited nor he was intimated about the
Full Court though he was a sitting Judge at that time.
The Full Court took an
administrative decision that on expiry of period of two years as an additional Judge of
this Court on 16.1.2010, the petitioner was deemed to have been reverted to his original
cadre i.e. the cadre of District Judge with effect from the forenoon of 17.01.2010 and
petitioner was posted as the District & Sessions Judge, Kalahandi-Bhawanipatna with a
direction to join his place of posting immediately. It is submitted by the petitioner that the
said decision is illegal and nullity in the eye of law and as such is liable to be quashed.
5.
On 8.3.2010, petitioner wrote a letter to the then Acting Chief Justice of this Court
to inquire as to whether the recommendations in favour of the petitioner to appoint him
as permanent judge has been rejected or not. It is submitted by the petitioner that it
should not be assumed that the recommendation has been rejected because no
intimation has been received in this regard and therefore, no action should have been
taken for reverting him to the cadre of District Judge. It is stated that petitioner has also
submitted a representation in this regard to the Hon’ble Chief Justice of India on
8.3.2010 and on 10.3.2010 requesting him to intervene in the matter and ask the
Central Government to implement the recommendation of the Hon’ble Supreme Court
with regard to the appointment of the petitioner as a permanent Judge of this Court.

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6.
While the matter stood thus, on 19.03.2010 a paper publication was made in
‘Times of India’ that the Government of Orissa in the Home Department vide notification
dated 9.3.2010 in exercise of power under Rule 44 of the Orissa Superior Judicial
Service and Orissa Judicial Service Rules, 2007 (hereinafter called the “OSJC & OJC
Rules, 2007), has retired the petitioner from service compulsorily giving him three
months pay and allowances in lieu of three months notice as prescribed under the
Rules. It is stated by the petitioner that he was directed to receive the special advance
within 15 days failing which appropriate action would be taken. It is reliably learnt by him
that the Full Court of this Court administratively decided to retire the petitioner
compulsorily and recommended to the Governor of the State for compulsory retirement
of the petitioner. It is stated that the said action is illegal and non est in the eye of law.
7.
Petitioner preferred a writ petition being W.P.(Civil) No. 167 of 2010 before the
Supreme Court of India under Article 32 of the Constitution challenging the delayed and
deferred action of the Government of India in implementing the recommendation of the
Supreme Court of India for appointing the petitioner as a permanent Judge of this Court.
He also challenged the administrative decision of the Full Court dated 16.1.2010
reverting the petitioner to the cadre of District Judge and subsequently compulsorily
retiring him from the service when, according to the petitioner, the matter of
recommendation of the petitioner to be appointed as a permanent Judge of this Court
was pending consideration as illegal and a nullity. Be that as it may, the aforesaid writ
petition filed before the Supreme Court of India was withdrawn wherein the Supreme
Court after hearing the learned counsel for the parties vide order dated 3.5.2010 made
the following observation:
“We have heard the learned counsel for the parties.
We are not inclined to interfere in this matter directly under Article 32 of the
Constitution of India.
Mr. P.H. Parekh, learned Senior Counsel prays that the writ petition be
dismissed as withdrawn with liberty to approach the High Court for relief. He
also points out that the petitioner who has since been compulsorily retired should
be allowed to retain the accommodation allotted has since been compulsorily
retired should be allowed to retain the accommodation allotted.
This point may also be raised before the High Court which may pass
appropriate orders.
The writ petition is disposed of with the above observation.”
Hence this writ petition.
8.
It is submitted by the learned counsel for the petitioner that the inaction and
inordinate delay on the part of opposite party No.1 in implementing the
recommendations of the Chief Justice of this Court as well as the recommendation of the
Chief Justice of India for appointment of the petitioner as the permanent Judge of this
Court while making his junior Mr.Justice B.K.Patel as a permanent judge is arbitrary,
unreasonable and cannot be respected in law. This action is also violative of Articles 14
and 21 of the Constitution of India and it requires interference by this Court. It is further

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submitted that once a constitutional authority takes oath under the constitutional
mandate, he cannot be reverted to his parent post, therefore, the deemed reversion of
the petitioner to his parent post is illegal and arbitrary.
9.
Placing reliance upon the decision of the Supreme Court in the case of Shanti
Bhusan Vs. Union of India, reported in 2009 (1) OLR 276 (SC), it is submitted that Article
217(1) of the Constitution of India clearly provides that Every Judge of a High Court,
once the person is appointed as the Judge of the High Court by the President’s warrant
he ceases to be in any post, cadre or service and becomes a constitutional creature.
This aspect of the matter has not been taken into account by this Court in the Full Court
meeting when it took administrative decision for deemed reversion and compulsory
retirement of the petitioner.
10.
Further placing reliance upon the memorandum showing procedure for
appointment of Judges of High Court, it is submitted that the appointment or
reappointment of Additional Judge / Permanent Judge are executive acts which must be
carried out fairly, reasonably and promptly as per law, which has not been done in the
instant case. one additional Judge cannot be dropped without consideration. The non
arbitrariness is the essential attribute of the rule of law and the rule of law is all pervasive
under the Constitution of India. The rule of law displaces arbitrariness and inaction of
the authorities. The recommendation of the Hon’ble Chief Justice of India is to be
carried out by the opposite party No.1 promptly and there is no just cause to delay
the matter without implementation when the recommendation of the case of one junior is
already implemented by appointing him as the permanent Judge. It is clearly an open
discrimination and violative of the rule of law. To fortify the said submission, reliance
has been placed upon the decisions of the Supreme Court in the case of Supreme Court
Advocates on Record Association Vs. Union of India, reported in (1993) 4 SCC 441;
Special Reference No.1 of 1998, reported in (1998) 7 SCC 739; and S.P. Gupta Vs.
Union of India 1981 (Supp.) SCC 87, wherein it is held that the opinion of the Chief
Justice of India has primacy in the matter of appointment of the Judges of the Supreme
Court and High Courts. It is submitted that the case of the petitioner has been delayed
by the Central Government without any reason whatsoever for about more than eight
moths, therefore, it is in willful violation of the law laid down by the Supreme Court.
Therefore, it is prayed that the petitioner is entitled for the relief sought for in this writ
petition.
11.
At the time of preliminary hearing of the matter, since the learned counsel for the
petitioner insisted the Court to call for the original record with regard to the case of the
petitioner from the Union of India, learned Asst. Solicitor General has made available of
the original records in sealed cover for our perusal. During the time of dictating the
judgment, we have very carefully perused the same.
12.
One counter affidavit has also been filed by the Union of India denying the
averments made by the petitioner in the writ petition. There is no need for this Court to
refer to the stand taken by the Union of India in the counter affidavit except the relevant
stand taken by it.
13.
It is specifically stated in the counter affidavit that the judgment of the Hon’ble
Apex Court in the case of Supreme Court Advocates on Record & Anr.(supra) is

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followed by the Government of India. In accordance with the said judgment read with
the Advisory Opinion of the Supreme Court on 28th October, 1998 “ Memorandum of
Procedure for Appointment of Judges in the High Court” have been framed and same
are strictly being followed in every appointment. It is submitted that the then Chief
Justice, Orissa High court had recommended the name of the petitioner, who was an
Additional Judge for appointment as a permanent Judge of the Orissa High Court in
April, 2009. Then the matter was referred to the Chief Justice of India who did not find it
appropriate to proceed with the proposal for appointment of the petitioner
as a
permanent Judge and accordingly the matter was not processed any further and
the term of two years as Additional Judge was allowed to expire without extension. In
answering the averments of the petitioner that inordinate delay and deference has been
made by the Union of India, it is submitted that as per the Memorandum of Procedure for
Appointment of Judges in the High court, the proposal was initiated by the Chief Justice
of this Court and thereafter the proposal was passed through consultative process
through the State Constitutional authorities and the collegium of the Supreme Court
before being presented to the President of India, who is the appointing authority, and all
the processing was made promptly, therefore it cannot be said that there was inaction on
the part of the Union of India. It is further stated that the averments of the petitioner to
the effect that the Hon’ble Supreme Court has approved and recommended the name of
the petitioner to make him permanent is not at all correct.
14.
It is also stated by the Union of India that the petitioner was appointed as an
Additional Judge for a fixed tenure of two years from the date he assumed charge of his
office. It is not obligatory to extend his term or appoint him as a Permanent Judge.
Seniority is not the only criteria for appointment as a Judge of the High Court. The
petitioner was not approved for appointment as a Permanent Judge or for further
extension as Additional Judge by the appointing authority. The term of the petitioner
expired on 16.01.2010. Extension of term as an Additional Judge or appointment as a
Permanent Judge of the Orissa High Court was not conveyed, therefore, he
automatically ceases to be a Judge of the Orissa High Court with effect from 17.01.2010
on expiry of the fixed tenure of two years. Therefore, he cannot claim any facilities
provided to him as a Judge after the expiry of his term as Additional Judge. Further
there is no requirement on the part of the opposite parties to intimate any decision of the
authority as the petitioner had a fixed term of two years which was very much known to
him.
15.
Replying upon the averments made at paragraph 15 of the writ petition, it is
submitted by the Union of India that disclosure of information relating to the consulting
process of appointment has serious impact on the independence of the Judiciary,
sanctity of constitutional procedures in regard to the manner in which constitutional
provisions and particular those relating to interactions between the different organs of
the State are to be interpreted, administered and construed. The details cannot be
made public. It is sufficient to say that the petitioner was not approved either for
extension as an Additional Judge or for appointment as a Permanent Judge of the
Orissa High Court by the authorities.
16.
In view of the aforesaid submission, learned Assistant Solicitor General
submitted that the averments and presumption made by the petitioner is baseless

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and therefore the writ petition is liable to be dismissed with cost as some of the
averments made by the petitioner are false.
17.
After going through the aforesaid rival legal contentions urged on behalf of the
parties, we have very carefully perused the original records produced before us by the
Union of India in relation to the case of the petitioner with a view to find out as to whether
the assertion made by the petitioner is correct or not.
18.
The assertion of the petitioner that there was recommendation of the Chief
Justice of India for appointment of the petitioner as the permanent Judge of this Court is
not at all correct and it is contrary to the original record. It is seen that the averments
made by the Under Secretary to the Government of India in the counter affidavit are as
per the records, rather the Union of India in its counter affidavit, while replying the
averments made by the petitioner, has not disclosed the detail facts protecting the better
interest of the petitioner and stated that details cannot be made public and therefore it is
rightly stated that the petitioner was not approved either for extension as an Additional
Judge or for appointment as a Permanent Judge of the Orissa High Court by the
authorities.
19.
After perusal of the original records, we are of the considered view that it would
not be worthwhile to extract the notes and minutes recorded in the records in relation to
the case of the petitioner, which will be detrimental to the name and fame of the
petitioner. Therefore, we refrain ourselves from explaining the details. Further, it would
be sufficient for this Court to make it clear that the presumption of the petitioner that
there is inaction and inordinate delay on the part of opposite party No.1 in implementing
the recommendations of the Chief Justice of this Court as well as the recommendation of
the Chief Justice of India for appointment of the petitioner as the permanent Judge of
this Court is not at all factually correct and it is contrary to the original records. Further, it
is the exclusive domain of the appointing authority to take a decision on the
recommendation of the Chief Justice of the High Court either to appoint or not to appoint
a person as a Judge of the High Court. Therefore, as the appointing authority did not
think it fit to recommend the case of the petitioner for making him a permanent Judge of
this Court or for further extension as Additional Judge, question of issuance of a
direction to the opposite party No.1 as prayed for by the petitioner in the writ petition
does not arise. Hence the prayer Nos. (i) & (iii) of the writ petition are rejected.
20.
It is very much clear that the petitioner was elevated from the cadre of District
Judge and appointed as an Additional Judge of this Court for a fixed term of two years.
The term of the petitioner expired on 16.01.2010. Extension of term as an Additional
Judge or appointment as a Permanent Judge of the Orissa High Court was not
conveyed, therefore, he automatically ceased to be an Additional Judge of this High
Court with effect from 17.01.2010 on expiry of the fixed tenure of two years, therefore,
he cannot be treated as an Additional Judge of the Court w.e.f. 17.01.2010 and cannot
claim any facilities provided to him as a Judge after the expiry of his term as Additional
Judge. Therefore, the Full Court of this High Court in its meeting dated 16.01.2010
rightly reverted the petitioner to his parent cadre of District Judge with effect from the
forenoon of 17.01.2010 and posted him as District Judge, Kalahandi-Bhawanipatna.
However, the petitioner did not join in his place of posting. Thereafter, a Review
Committee meeting was held on 16.02.2010 at 4.30 P.M. for reviewing the case of

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Judicial Officer under Rule 44 of the OSJS & OJS Rules, 2007 in which the petitioner
case came up for consideration. The Review Committee in that meeting considered the
entire service record of the petitioner and further considering the totality of the fact &
circumstances of the case of the petitioner took a decision that petitioner does not
possess the standard of efficiency required to discharge the duties of the post which he
holds and accordingly the Committee recommended to the Full Court for his premature
retirement in public interest on payment of three months’ salary and allowances in lieu of
three months’ notice, as provided under the aforesaid Rule. The Full Court of this High
Court after examining the case of the petitioner on 17.02.2010 accepted the report of the
Review Committee and recommended to the Government of Orissa for consideration of
the case of the petitioner for premature retirement from service. The Government of
Orissa considered the case of the petitioner and in exercise of powers conferred under
Rule 44 of the OSJS & OJS Rules, 2007 retired the petitioner from the Government
Service with immediate effect giving him three months pay and allowance in lieu of three
months’ notice.
21.
In Union of India Vs. M.E. Reddy, AIR 1980 SC 563, the Hon’ble Supreme Court
examined the issue involved herein and held that it is an absolute right of an employer to
compulsorily retire its employee from service if he falls within the zone of consideration
as it may be necessary to weed out the dead wood or remove a person having doubtful
integrity and his retirement is in the public interest. There may not be material on record
to show that the employee is dishonest, but those who had the opportunity to watch his
performance from close quarter are in position to know the nature and character not only
of his performance but also the reputation that he enjoys. In such a case the principles
of natural justice are not attracted. The removal does not cast any stigma as it is not a
punishment.
22.
In Brij Mohan Singh Chopra Vs. State of Punjab, AIR 1987 SC 948, without
noticing the judgment in M.E. Reddy (supra) the Apex Court held that the principle of
natural justice would apply while giving compulsory retirement to a government
employee on the basis of adverse entries which were neither communicated nor
representation against the same was considered.
23.
In Rajat Baran Roy & ors. Vs. State of West Bengal & Ors, AIR 1999 SC 1661,
the Supreme Court held that there is a very limited scope of judicial review in a case of
compulsory retirement and it is permissible only on the grounds of non-application of
mind and want of material particulars.
24.
In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, the
Supreme Court held that while considering the case of an employee for compulsory
retirement, the public interest is of paramount importance. A dishonest, corrupt and
dead-wood deserves to be dispensed with, how much efficient and honest an employee
is, it is to be assessed on the basis of material on record which may also be ascertained
from confidential reports. However, there must be some tangible material against the
employee warranting his retirement.
25.
In State of U.P. Vs. Vijay Kumar Jain, AIR 2002 SC 1345, the Supreme Court
while dealing with the case of a judicial officer, placed reliance upon its earlier judgments
in Shyamlal Vs. State of Uttar Pradesh & Anr., AIR 1954 SC 369, wherein it has been

 8

held that an order of compulsory retirement is neither a punishment nor any stigma
attached to it, rather, further services of a person are dispensed with in public interest.
The Apex Court held that if an employee has been given the adverse entries regarding
his integrity at any stage of his service career, he loses the right of continuation in
service, and compulsory retirement, if given, should not be interfered with.
26.
In Jugal Chandra Saikia Vs. State of Assam & Anr., AIR 2003 SC 1362, the Apex
Court held that where the screening committee is consisting of responsible officers of the
State and they have examined/assessed the entire service record and form the opinion
objectively as to whether any employee is fit to be retained in service or not, in absence
of any allegation of mala fide, there is no scope of a judicial review against such an
order. While deciding the said case, reliance had been placed upon a large number of
judgments, particularly, upon judgments in S. Ramachandra Raju Vs. State of Orissa,
AIR 1995 SC 111.
27.
In this view of the matter we do not think it fit to interfere with the decision taken
by the Government of Orissa, in exercise of power under Rule 44 of the OSJS & OJS
Rules, 2007, retiring the petitioner compulsorily and hence the prayer No. (ii) is also
rejected.
28.
In view of the reasons stated supra, we do not find any merit in the writ petition
and the same is accordingly dismissed. No order as to costs.
Writ petition dismissed.