1998 INSC 0462
                                             Meghraj Urkudaji Tempe

                                                           Vs

                                                State of Maharashtra

                                          Civil Appeal No. 5197 of 1993

                                    (S. P. Bharucha, M. Jagannadha Rao JJ)

                                                      13.05.1998

                                                     JUDGMENT

M. JAGANNADHA RAO, J. ­

1. The appellant contends that the notice dated 23-1-1989 for compulsory retirement issued
under Rule 10(4)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982 is bad inasmuch 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 been reviewed
in his favour before he 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 contended 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 prescribes a standard of "not less than
average", the circular dated 12-5-1986 prescribes a more stringent standard of "not less than good".
If review had been undertaken before the appellant crossed 50 years, then it would have been
sufficient if the appellant 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.

2. After hearing learned Senior Counsel on both sides, we are 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 v. State of Maharashtra (1995 Supp (2) SCC 420 : 1995 SCC (L&S) 872 :
(1995) 30 ATC 137) 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 Rules, 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.

3. In this context, we are of the view that the decisions in Union of India v. Nasirmiya Ahmadmiya
Chauhan, (1994 Supp (2) SCC 537 : 1994 SCC (L&S) 1144 : (1994) 28 ATC 66), K. Chelliah v.
Industrial Finance Corpn. of India (1992 Supp (3) SCC 82 : 1993 SCC (L&S) 70 : (1992) 21 ATC
849) and in Brij Mohan Singh Chopra v. State of Punjab ((1987) 2 SCC 188 : (1987) 3 ATC 496)
decided by Benches of two Judges and also a decision of a three-Judge Bench in State of U. P. v.
Chandra Mohan Nigam ((1977) 4 SCC 345 : 1977 SCC (L&S) 535 : (1978) 1 SCR 521) - all
concerning the effect of circulars/guidelines dealing with compulsory retirement - are also relevant.

4. 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.