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PETITIONER: MEGHRA URKUDAJI TEMPE

       Vs.

RESPONDENT: THE STATE OF MAHARASTRA

DATE OF JUDGMENT:       13/05/1998

BENCH: S.P. BHARUCHA. M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R. JAGANNADA RAO.J.      The 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. It is  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.      After 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.      In 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

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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 relevant.      We 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.