Urkudaji Tempe Vs. The State of Maharastra  INSC 305 (13 May 1998)
Bharucha. M. Jagannadha Rao Jagannada Rao.J.
O R D
appellant contends that the notice dated 23.1.89 for compulsory retirement
issued under Rule 10(4)(a)(i) of the Maharastra Civil Service (Pension) Rules,
1982 is bad as much as the procedure indicated in the Circular issued by the
State Government on 1.9.1983 has not been followed before the appellant crossed
50 years and his case must be deemed to have reviewed in his favour before
crossed 50 years. In such a situation, a second review after he crossed 50
years is, according to the appellant, not permissible.
also contented that it is not open to the respondent while issuing notice on
23.1.1989 to apply the norms prescribed in a latter Circular dated 12.5.1986.
It is contended that while the 23.1.1983 Circular prescribed a standard of not
less than average the Circular dated 12.5.1986 prescribed a more stringent
standard of 'not less than good'. If review had been undertaken before the
appellant crossed 50 years, than it would have been satisfied the standard of
'less than average' - which, in fact, he did - as per the norms prescribed by
the circular dated 1.9.1983. The contention of the appellant is that the
circular dated 1.9.1983 is binding on the Government and is intended to see
that the general power under Rule 10(4)(a)(i) is not used arbitrarily.
hearing learned senior council on both sides, we were prima facie inclined to
accept the above contention of the appellant. But we have come to notice a two
Judge Bench decision in Suryakant Govind Oke vs. State of Maharashtra [1995 Suppl.
(2) SCC 420] wherein it has held that even if an officer's case has not been
reviewed before he crossed 50 years, his case can be reviewed under the
circular dated 12.5.1986 read with Rule 10(4)(a)(i) of the Rule, and that this
could be done even after he has crossed 50 years. We have, therefore, thought
it fit that the case is to be decided by a three Judge Bench.
this context, we are of the view that the decisions in Union of India &
others vs. Narsirmiya Ahmadmiya Chauhan [1994 Suppl. (2) SCC 537], K. Chelliah
vs. Industrial Finance Corporation of India & Another [1992 Suppl. (3) SCC
82] and in Brij Mohan Singh Chopra vs. State of Punjab [1987 (2) SCC 188]
decided by Benches of two Judges and also a decision of a three Judges Bench in
State of U.P. vs. Chandra Mohan Nigam [1978 (1) SCR 521] - all concerning the
effect of Circulars/guidelines dealing with compulsory retirement - are also
direct accordingly that the papers be placed before the Hon'ble the Chief
Justice of India, for being listed before a Bench of three learned Judges.