PETITIONER:
STATE OF HARYANA
Vs.
RESPONDENT:
INDER PRAKASH ANAND H.C.S. & OTHERS
DATE OF JUDGMENT07/05/1976
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
SINGH, JASWANT
CITATION:
1976 AIR 1841 1976 SCR 603
1976 SCC (2) 977
CITATOR INFO :
RF 1976 SC2490 (24,25)
RF 1977 SC2328 (14)
R 1979 SC 193 (39)
R 1979 SC 478 (152)
R 1986 SC1814 (8)
R 1988 SC1388 (16)
ACT:
Constitution of India [950] Art. 235-Power to
compulsorily retire-Whether vests in the High Court or
Governor- Control, nature and scope of.
HEADNOTE:
The respondent was officiating as Additional District &
Sessions Judge. On a reference to the High Court whether he
should be retained in service till the age of 58 or should
be retired at the age of 55, the High Court recemmended that
he should be reverted to his substantive post of Senior
Subordinate Judge but that he should be allowed to continue
in that post till the age of 58. The State Government
reverted him but retired him from service at 55 under r.
5.32(c) Punjab Civil Service Rules. The rule states that a
retiring pension is granted to a Government servant who is
retired by the appointing authority on or after he attains
the age of 55 by giving him 3 months notice. The High Court
quashed the order of retirement.
Dismissing the appeal to this Court.
^
HELD: (1) Article 235 vests in the High Court control
over district court and courts subordinate thereto. The
control includes both disciplinary and administrative
jurisdiction. Disciplinary control means not merely
jurisdiction award punishment for misconduct, but also the
power to determine whether the record of member of the
service is satisfactory or not so as to entitle him to
continue in service for. the full term till he attains the
age of superannuation. Administrative judicial and
disciplinary control over members of the judicial service is
vested solely in the High Court. Premature retirement is
made in the exercise of administrative and disciplinary
jurisdiction. It is administrative because it is decided in
public interest to retire him prematurely and it is
disciplinary, because, the decision is taken in public
interest that he does not deserve to continue up to the
normal age of superannuation. The fixation of the age of
superannuation is the right of the State Government. The
curtailment of that period under rules governing the
conditions service is a matter pertaining to disciplinary
control as well as administrative control. [605G-H: 606H-
607C]
State of West Bengal v. Nripendra Nath Bagchi [1966] 1
S.C.R. 771 and High Court of Punjab and Haryana etc. v.
State of Haryana (Sub nom Narerdra Singh Rao) [1975] 3
S.C.R. 365, followed.
(2) The control which is vested in the High Court is
complete control subject only to the power of the Governor
in the matter of appointment, dismissal, removal or
reduction in rank and the initial posting of and initial
promotion to District Judges. The vesting of complete
control over the subordinate judiciary in the High Court,
leads to this that if the High Court is of opinion that a
particular officer is not fit to be retained in service, the
High Court will communicate that opinion to the Governor,
because, the Governor is the authority to dismiss, remove or
reduce in rank or terminate the appointment. In such cases,
the Governor, as the head of the State, will act in harmony
with the recommendation of the High Court as otherwise the
consequence will be unfortunate. [605H 606A-G. H: 607E-F]
(3) But, compulsory retirement simpliciter does not
amount to dismissal or removal or reduction in rank under
Article 311 or under service rules. When a case is not of
removal or dismissal or reduction in rank, any order in
respect of exercise of control over the judicial officers is
by the High Court and by no other authority; otherwise, it
will affect the independence of the judiciary. [605F-G;]
604
Shyam Lal v. State of Uttar Pradesh [1955] 1 S.C.R. 26;
Dalip Singh v.State of Punjab [1961] 1 S.C.R. 88; Tara Singh
v. State of Rajasthan [1975] 4 S.C.C.86; B. Venkateswararao
Naidu v. Union of India [1973] 1. S.C.C. 361 and Shamsher
Singh & Anr. v. State of Punjab [1975] 1 S.C.R. 814,
followed:
(4) It is not correct to contend that the Governor and
not the High Court has the power to retire a judicial
officer compulsorily under s. 14 Punjab General Clauses Act.
The suggestion that the High Court recommends and the State
Government implements the recommendation in the matter of
compulsory retirement is to destroy the control of the High
Court. It is only the order terminating the appointment of a
member of the service otherwise than upon his reaching the
age of superannuation that will be passed by the State
Government on the recommendation of the High Court.[606C-D,
G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2454 of
1972.
From the Judgment and Order dated the 18th December,
1971 of the Punjab and Haryana High Court at Chandigarh in
Civil Writ Petition No. 2604 of 1971.
L. N. Sinha, Solicitor General,Naunit Lal, R. N.
Sachthey for the appellant.
Anand Swarup, Harbans Singh Marwah for Respondent No.2.
Ashok Grover; for Respondent No. 1.
The Judgment of the Court was delivered by.
RAY, C.J. This appeal is by certificate from the
judgment dated 18 November, 1971 of the Punjab and Haryana
High Court.
The respondent joined the Punjab Civil Service,
(Executive Branch) in November, 1954. He was selected for
the Judicial Branch of the Punjab Civil Service on or about
1 May,1965. On 15 November, 1968 he was promoted as
officiating Additional District and Sessions Judge.
The respondent was due to attain the age of 55 years on
24 February, 1971. His case was referred to the High Court
for their recommendation whether the respondent should
retire at the age of 55 years or he should be retained in
service till the age of 58 years which is the prescribed age
of superannuation under the Punjab Civil Service Rules.
The High Court was of opinion that the work of the
respondent as Additional District and Sessions Judge was not
satisfactory. The High Court was not inclined to recommend
the respondent’s continuance in Superior Judicial Service up
to the age of 58 years. The High Court recommended that the
respondent should be reverted to his substantive post of
Senior Subordinate Judge/Chief Judicial Magistrate and that
he might be allowed to continue in service till the age of
58 years.
The State Government agreed with the recommendation for
reverting the respondent from the post of Additional
District and Sessions Judge to the Senior Subordinate
Judge/Chief Judicial Magistrate. With regard to the
retention of the respondent in service up to the age of 58
605
years the State again asked the High Court to consider
whether in view of the respondent’s work as Additional
District and Sessions Judge, Hissar, having been found to be
unsatisfactory, the respondent should be retained at all in
service beyond the age of 55 years. The State Government
suggested that it was in public interest to retire the
respondent at the age of 55 years. The High Court did not
agree with the suggestion. By letter dated 16 August, 1971
the High Court reiterated that the respondent might continue
in service up to the age of 58 years. The State Government
did not agree with the recommendation of the High Court and
decided to retire the respondent under Rule 5.32 (c) of the
Punjab Civil Service Rules. A notice was issued to the
respondent on 20 August, 1971 giving him notice of three
months on the expiry of which he would retire from service.
The respondent filed a writ petition in the High Court
impeaching the notice dated 20 August 1971. The matter was
heard by a Bench of three learned Judges. The order retiring
the respondent from service was quashed by the majority
opinion.
The question is whether the State Government could
compulsorily retire a Senior Subordinate Judge cum Chief
Judicial Magistrate under rule 5.32 (c) of the Punjab Civil
Service Rules against the recommendation of the High Court.
This Court in Shyam Lal v. State of Uttar Pradesh held
that compulsory retirement does not involve stigma or any
implication of mis-behaviour or incapacity. In Dalip Singh
v. State of Punjab this Court held that in order to find out
whether an order of compulsory retirement is or is not by
way of punishment, is to find out whether a charge of
imputation against the officer is made the basis of the
exercise of power and second whether the officer is deprived
of any benefit already earned.
In the recent decision in Tara Singh v. State of
Rajasthan this Court held that compulsory retirement is not
a punishment because the officer does not lose the terminal
benefits already earned by him. In B. Venkateswararao Naidu
v. Union of India this Court held that compulsory retirement
does not involve civil consequences.
It, therefore, follows that compulsory retirement
simpliciter does not amount to dismissal or removal or
reduction in rank under Article 311 or under the Service
Rules. It is in fact compulsory retirement in accordance
with the terms and conditions of service.
The decisions of this Court in State of West Bengal v.
Nripendra Nath Bagchi and High Court of Punjab and Haryana
etc. v. State of Haryana (Sub nom Narendra Singh Rao) are
that Article 235 vests in the High Court control over
District Courts and courts subordinate thereto. The Governor
appoints and dismisses and removes Judicial Officers.
Control which is vested in the High Court is complete
control subject only to the power of the Governor in the
606
matter of appointment including dismissal, removal,
reduction in rank and the initial posting and of the initial
promotion to District Judges. There is nothing in Article
235 to restrict the control of the High Court in respect of
Judges other than District Judges in any manner. Article 311
has taken away the power of dismissal or removal or
reduction in rank from the High Court and the Governor has
been given that special power referred to in Article 311(3).
This Court in Shamsher Singh & Anr. v. State of Punjab
held that when a case is not of removal or dismissal or
reduction in rank any order in respect of exercise of
control over the Judicial Officers is by the High Court and
no other authority. There cannot be dual control. If State
Government is to have the power of deciding whether a
Judicial Officer should be retained in service after
attaining the age of 55 years up to the age of 58 years that
will seriously affect the independence of the judiciary and
take away the control vested in the High Court. Compulsory
retirement is neither suspension nor removal nor reduction
in rank. It is unsound to contend that the Governor and not
the High Court has the power to retire a Judicial Officer
compulsorily under section 14 of the Punjab General Clauses
Act. The suggestion that the High Court recommends and the
State Government is to implement the recommendation in the
matter of compulsory retirement is to destroy the control of
the High Court.
The Punjab Civil Service Rules in Rule 3.26(a) deals
with compulsory retirement at the age of 58. Rule 5.32(c)
deals with retirement at the age of 55.
Two relevant rules in the Punjab Civil Service Rules in
the present case are these. Rule 3.26(a) states that the
date of compulsory retirement of a Government servant other
than a Class IV Government servant is the date on which he
attains the age of 58. Rule 5.32(c) states that a retiring
pension is granted to a Government servant who is retired by
the appointing authority on or after he attains the age of
55 years by giving him not less than three months’ notice.
This Court in Bagchi’s case (supra) said that control
vested in the High Court is over the conduct and discipline
of the members of the Judicial Service. Orders passed in
disciplinary jurisdiction by the High Court are subject to
an appeal as provided in the conditions of service. The High
Court further deals with members of the judicial service in
accordance with the rules and conditions of service. This
Court in Bagchi’s case (supra) said that the word “deal”
points to disciplinary and not merely administrative
jurisdiction. The order terminating the appointment of a
member of the service otherwise than upon his reaching the
age fixed for superannuation will be passed by the State
Government on the recommendation of the High Court. This is
because the High Court is not the authority for appointing,
removing, reducing the rank or terminating the service.
It is true that the fixation of the age of
superannuation is the right of the State Government. The
curtailment of that period under rule
607
governing the conditions of service is a matter pertaining
to disciplinary control as well as administrative control.
Disciplinary control means not merely jurisdiction to award
punishment for misconduct. It also embraces the power to
determine whether the record of a member of the service is
satisfactory or not so as to entitle him to continue in
service for the full term till he attains the age of
superannuation. Administrative, judicial and disciplinary
control over members of the Judicial Service is vested
solely in the High Court. Premature retirement is made in
the exercise of administrative and disciplinary
jurisdiction. It is administrative because it is decided in
public interest to retire him pre-maturely. It is
disciplinary because the decision was taken that he does
deserve to continue in service up to the normal age of
superannuation and that it is in the public interest to do
so.
This Court held in State of Assam v. Ranga Mahammad and
Ors. that the Governor under Article 233 is concerned with
the appointment, promotion and posting to the cadre of
District Judges but not with the transfer of District Judges
already appointed or promoted and posted to the cadre. This
Court has held in the Punjab and Haryana case (supra) that
the confirmation of District Judges is to be done by the
High Court because it falls within the control vested in the
High Court. The High Court is acquainted with the capacity
of work of the members of the Service. In the Punjab &
Haryana case (supra) this Court pointed out that if after
the appointment of District Judge till he is confirmed the
State is allowed to control the District Judge there will be
dual control. This is not the meaning of “control” in our
Constitution.
The control vested in the High Court is that if the
High Court is of opinion that a particular Judicial Officer
is not fit to be retained in service the High Court will
communicate that to the Governor because the Governor is the
authority to dismiss, remove, reduce in rank or terminate
the appointment. In such cases it is the contemplation in
the Constitution that the Governor as the head of the State
will act in harmony with the recommendation of the High
Court. If the recommendation of the High Court is not held
to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the
recommendation of the High Court. The vesting of complete
control over the Subordinate Judiciary in the High Court
leads to this that the decision of the High Court in matters
within its jurisdiction will bind the State. “The Government
will act on the recommendation of the High Court. That is
the broad basis of Article 235”. See Shamsher Singh’s case
(supra) at page 841.
In the present case, the order of the State retiring
the respondent from service after the expiry of three months
from the date of the order 20 August, 1971 has been rightly
quashed by the High Court. The High Court did not make any
recommendation to that effect.
The appeal is, therefore, dismissed with costs.
V.P.S. Appeal dismissed.
608