ORDER
Devinder Gupta, J.
1. The order (Annexure-P. 4) passed on 1.6.1993 by the Ist respondent, in exercise of powers conferred by sub-rule (3) of Rule 16 of All India Services (Death-cum-Retirement Benefits) Rules, 1958 (hereinafter referred to as ” the A.I.S. Rules”) read with Rule 27 of the Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as “the D.H.J.S.Rules”) ordering petitioner’s retirement from D.H.J.S. with immediate effect, on his attaining the age of 50 years on 11.8.1988, is under challenge in this writ petition filed under Article 226 of the Constitution of India.
2. The petitioner in 1968 was declared selected in Judicial Officers Cadre in a competitive examination conducted by the Public Service Commission of Uttar pradesh. He remained posted in Uttar Pradesh till 16.9.1971. On being selected, he was absorbed in Delhi Judicial Service on 17.9.1971 and was posted at Parliament Street, New Delhi as Judicial Magistrate. He remained posted as Sub Judge Ist Class, Tis Hazari, Delhi from 7.2.1975 to 26.7.1976 and was posted as Presiding officer in the designated Municipal Corporation of Delhi Court. The petitioner also remained posted as Rent Controller, Presiding Officer, Motor Accident Claims Tribunal and in December, 1980 was promoted as Additional District, Judge and thus became member of D.H.J.S.
3. It is the petitioner’s case that during his entire service, spanning over a period of more than 26 years, there has been no adverse remarks ever passed against him. His performance and work has throughout been satisfactory. The work, performance and conduct of the petitioner has regularly been inspected by Judges of the High Court. He was graded as ‘good’ in the Annual Confidential Reports for the years 1990 and 1991. On or about 27.5.1993 the Full Court passed a resolution recommending the petitioner’s compulsory retirement from service in public interest. On 28.5.1993 a communication was received by the petitioner withdrawing all judicial work from him. As a disciplined judicial officer, the petitioner complied with the same and in the early hours of 28.5.1993 itself he submitted a letter seeking voluntary retirement under Rule 16(2) of A.I.S. Rules, in the hope and expectation that the same would be accepted rather than orders of compulsory retirement being made by the Competent Authority. In a meeting of the Full Court held on 28.5.1993 the petitioner’s request for voluntary retirement was accepted. Recommendation to that effect was also made to the Administrator. Before any order could be conveyed to the petitioner, on 31.5.1993 the petitioner withdrew the offer for voluntary retirement. The petitioner’s case is that his request for voluntary retirement was not accepted and on 1.6.1993 respondent No.1, in exercise of its powers under sub-rule (3) of Rule 16 of A.I.S. Rules, 1958 read with Rule 27 of the D.H.J.S.Rules, 1970 ordered his retirement from Higher Judicial Service with immediate effect. The said order is under Challenge, inter alia, on the grounds that there is complete absence of material; the order has been passed arbitrarily in exercise of powers; the petitioner had blemish-free career without a single adverse entry; the last entry awarded to him in the inspection held in March, 1993 was “Good”; statutory power conferred on the respondents has not been exercised bona fide; the object of such power of compulsory retirement is removal of deadwood about keeping in view the petitioner’s work and conduct, he cannot be classified as a deadwood as his service record was not inferior to those who were retained in service.
4. The respondents opposed the petition by filing separate affidavits. Respondent No.2 in its counter affidavit has pleaded that the petitioner being a member of Delhi Higher Judicial Service, by virtue of Rule 27 of D.H.J.S. Rules, 1970 was governed by A.I.S.Rules, 1958. Administrative control over members of D.H.J.S.vests in High Court by virtue of Article 235 of the Constitution of India and Rule 26(A) of D.H.J.S. Rules, 1970.
The Screening Committee consisting of two judges of the High Court screened the cases of Judicial Officers for retirement from service in public interest. The screening Committee considered the record, work and conduct of all judicial officers, who had or would be completing the age of 50/55 years or 30 years qualifying service for pension. Said Committee gave its report on 26.5.1993. The same was laid before the Full Court on 27.5.1993. The Full Court, after considering the recommendations made by the Screening Committee and also taking into consideration the record, work, conduct and general reputation of the petitioner, decided that recommendation be made to the Administrator of Delhi to retire the petitioner from service forthwith in public interest and to pay him three months pay and allowances in lieu of three months notice. As such letter dated 27.5.1993 alongwith relevant material was sent to the Administrator recommending petitioner’s retirement in public interest. The Administrator on 1.6.1993 passed an order retiring the petitioner from service in public interest with immediate effect.
5. Reply of respondent No. 2 further states that after letter dated 27.5.1993 had been sent, letter dated 28.5.1993, addressed to the Chief Justice was received wherein the petitioner had requested for voluntary retirement from service. This request of the petitioner was laid before the Full Court in its meeting held on the same day, namely, 28.5.1993. After considering the request, the Full Court decided to recommended the Administrator that the request of the petitioner be acceded to and the condition of three months previous notice may not be insisted upon and the petitioner be allowed to retire voluntary from service forthwith. It was also decided by the Full Court that if the request of the petitioner for voluntary retirement was acceded to, the earlier recommendation sent through letter dated 27.5.1993 be treated as withdrawn. The decision of the Full Court was communicated to the Administrator through letter dated 28.5.1993. A telegram dated 1.6.1993 was sent to the High Court by the petitioner praying for withdrawal of his request for voluntary retirement stating that he was not in a proper state of mind at the time the request was made. Copy of the telegram was forwarded to the Administrator along with letter dated 9.6.1993 but in the meanwhile, the Administrator on 1.6.1993 had already passed an order retiring the petitioner. The petitioner’s representation thereafter was received, which was considered by the Full Court in its meeting held on 19.7.1993 and the Administrator was informed of the Full Court’s decision recommending rejection of the representation. Respondent No. 2 has supported the impugned order saying that the same is legal, justified and permissible in law and there is no arbitrariness therein. The impugned order was passed in public interest, keeping in view the entire service record of the petitioner.
6. Respondent No.1 in its counter affidavit has stated that there is sufficient material available in the record of High Court justifying the
passing of the impugned order.
7. We heard learned Counsel for the parties and were taken through the entire record, including the proceedings of the Screening Committee, service record of the petitioner and the decision of the Full Court.
8. Taking up the second ground, which was urged in the alternatives, namely, respondent No. 1 not acting on the recommendation of the high Court to accept the petitioner’s request for voluntary retirement; we may notice at the outset that the petitioner had withdrawn his request for voluntary retirement. But this request for withdrawal was subsequent to the passing of the impugned order of compulsory retirement by respondent No. 1 and as such the withdrawal was of no consequence. what needs to be examined is the recommendation, which was made by the High Court on the petitioner’s request to the Administrator for voluntary retirement. The recommendation of the High Court dated 28.5.1993 clearly stated that the earlier recommendation for compulsory retirement be treated as withdrawn. It is the petitioner’s case that the Administrator was bound to act in accordance with the recommendation dated 28.5.1993 but he acted contrary to it, in violation of the mandate of Article 235 of the Constitution of India. It was not open to the Administrator to ignore the recommendation and then to act on the earlier recommendation, which stood nullified.
9. On behalf of respondent No.1 It was contended that the recommendation dated 28.5.1993 by High Court was not in consonance with the Rules, therefore, the same was disregarded by the Administrator. On 28.5.1993 the High court recommended that the request of the petitioner be acceded to and the condition of three months notice need not be insisted upon and he be allowed to retire voluntary from service forthwith. It was argued that this recommendation was not in consonance with Rule 16(2) of the A.I.S. Rules 1958 in as much as requirement of three months notice, stipulated by subrule (2) of Rule 16 could not have been waived by the High Court. Such a submission made on behalf of respondent No.1, on the face of it cannot be accepted. Respondent No.1 could not have, on this ground alone, taken a contrary decision than the one, as recommended by the High Court, period of three months notice provided under Rule 16(2) is to safeguard the interest of the party to whom the notice is given so that alternative arrangement be made in the intervening period. It was the High Court alone, who had to make an alternative arrangement in the intervening period, to cope up with the work. Therefore, this period of three months could be waived or reduced
by the High Court. Reference be made to a Division Bench decision of this Court in D.E.S.U. Vs. Tara Chand 1978 (2) SLR 425. It was held that notice to DESU of the employees resignation was intended to facilitate making of an alternative arrangements by the DESU, such as posting of a substitute etc. and it was open to the DESU to waive this, wholly or in part.
10. While considering the request of the petitioner for voluntrary retirement, the High Court acted within its limits in making recommendation to the Administrator that the conditions of three months notice may not be insisted upon. In terms of the nature of recommendation and scope of control, which the High Court exercises over the members of Higher Judicial Service under Article 235 of the Constitution and as per the ratio of the decision in S. Ramachandra Raju’s case (supra), respondent No.1 was bound to act in accordance with the said recommendation dated 28.5.1993 and could
not have taken a decision contrary to the said recommendation.
11. Before we take note of the stand, which was taken on behalf of respondent No.1 on the remaining submissions on this point, we may quote the minutes of the Full Court dated 28.5.1993 recorded on the request of the petitioner for voluntary retirement from service:-
“The Full Court in its meeting held on 28th May, 1993 during lunch in the Judges Lounge considered the request of Shri Mahinder Pal, an officer of Delhi Higher Judicial Service, as contained in his letter dated 28th May, 1993, addressed to the Hon’ble the Chief Justice of this Court and resolved that it be recommended to the Administrator, Delhi (Appointing Authority of the Officer) that the request of the officer be acceded to and the condition of three months previous notice may not be insisted upon in the instant case and the officer be allowed to retire from service voluntarily as requested by him forthwith. Further resolved that if the request of the officer for voluntary retirement is acceded in, the earlier recommendation made by this Court vide letter NO. 429/Gaz./DHC dated, the 27th May, 1993 in respect of the officer may bindly be treated as withdraw.”
12. As noticed above, on 28.5.1993 itself recommendation had been made by the High Court, which was forwarded to the Lt. Governor stating that the request of the petitioner for voluntary retirement be acceded to and the condition of three months previous notice may not be insisted upon and he be allowed to retire voluntary from service forthwith. The same recommendation further stated that if the request of the petitioner for voluntary retirement was acceded to, the earlier recommendation conveyed through letter dated 27.5.1993 be treated as withdrawn. In substance it stated that in view of the recommendation for acceding the petitioner’s request for voluntary retirement from service, earlier recommendation be treated as nullified.
13. Submission made on behalf of respondent No.1 was that the recommendation dated 28.5.1993 was not actual recommendation but only an information. The decision was left to respondent No.1 as to whether the petitioner was to be compulsorily retired from service or his offer for voluntary retirement was to be accepted. Mr. Mittal placed reliance upon the 2nd part of the decision of Full Court i.e. “if the request of the petitioner for voluntary retirement was acceded to, the earlier recommendation made vide this Court’s letter dated 27.5.1993, referred to above, in respect of the petitioner be treated as withdrawn.” such a submission is contrary to the very nature and scope of Article 235 of the Constitution in as much as respondent No. 2 could not have left it to the Administrator to take a decision on this point. Otherwise it would amount to addicting its constitutional functions, which as per the mandate of Article 235 is to be performed by the High Court alone.
14. Control, which by virtue of Article 235 of the Constitution of India is vested in High Court is complete control over the District Courts and Courts Subordinate thereto, subject only to the power of Governor in the matter of appointment including dismissal, removal, reduction in rank and promotion to the posts of District Judges. This position has amply been clarified in number of decisions by Supreme Court, namely, The State of West Bengal and another Vs. Nripendra Nath Bagchi ;
Shamsher Singh Vs. State of Punjab and another, and The
High Court of Punjab & Haryana etc. Vs.The State of Haryana and others etc.
.
15. In Shamsher Singh’s case (supra) it was held that when the case is not of removal or dismissal or reduction in rank; any order in respect of a judicial officer has to be passed by the High Court and by no other authority. There cannot be dual control. In the matter of compulsory retirement, it was held that such an order simplicitor does not amount to dismissal or removal or reduction in rank and if the State Government is to have the power to decide whether judicial officer should be retained in service, after attaining particular years of age it would seriously effect the independence of judiciary and take away the control vested in the high Court. This position was further reiterated in State of Haryana Vs. Inder Prakash Anand and others holding that administrative, judicial and disciplinary control over members of judicial service is vested solely in the High Court.
16. In Chief Justice of Andhra Pradesh and another etc. Vs. L.V.A. Dikshitulu and others etc. , it was held that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation.
17. Again the position was reiterated in Tejpal Singh Vs. State of U.P.,
holding that vesting of complete control of subordinate judiciary in the High Court leads to this effect that decision of the High Court in the matter of compulsory retirement and the like will bind the Administrator and if the Administrator makes an order contrary to the recommendation of the High Court, then such an order is liable to be quashed.
18. In The Registrar, High Court of Madras Vs. R. Rajiah , it was that the test of control, as envisated under Article 235 of the Constitution, is not the passing of an order against a member of subordinate judicial service, but the decision to take such an action. The Governor being the appointing authority has to pass an order of dismissal or removal etc., but passing of or serving of such orders by Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution of India. An action against any Government servant consists of two parts. The first part being decision whether an
action will be taken against the Government servant or not; and the second part being the decision, which is carried out by formal order. The court further held :-
“The power of control envisaged under article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such
a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court.”
19. In nutshell it was held that the Government cannot take any action against any member of subordinate judicial service without and contrary to the recommendations of the High Court.
20. We may also refer to a later decision of Supreme Court in T. Lakshmi Narasimha Chari Vs. High Court of A.P. and another, ,
where the High Court of Andhra Pradesh had passed orders of removal of members of the subordinate judiciary. It was held that such an order should be treated as a recommendation of the High Court to the Governor for the removal of the judicial officer from service. Similar analogy would apply to the facts of the instant case.
21. The Communication dated 28.5.1993 of the High Court, though worded in a manner, which could suggest that decision with regard to the petitioner was being left to the Administrator, the same has to be read as a formal recommendation to the Administrator, N.C.T. of Delhi, which would be in consonance with the spirit of Article 235 of the Constitution of India. There is no manner of doubt that the Administrator had to act in accordance with the opinion so given by the High Court. The Administrator had no option to act in a manner different from the one recommended by the High Court. Respondent No.1 ignored the recommendation of the 2nd respondent dated 28.5.1993 and accepted the earlier recommendation dated 27.5.1993. Respondent No.1 ought to have accepted the recommendation dated 28.5.1993 treating the earlier recommendation dated 27.5.1993 as withdrawn, in view
of the control over the petitioner, which vested in respondent No. 2 by virtue of Article 235 of the Constitution. For the above reason alone, the order dated 1.6.1993 is bad in law and is liable to be quashed and set aside.
22. Now taking up the main ground of attack to the impugned order that the same is arbitrary based on solitary adverse entry for which there is no material.
23. In Brij Mohan Singh Chopra Vs. State of Punjab, ,
it was held that even is single adverse entry of doubtful integrity is enough for an order of compulsory retirement.
24. With respect to an order of compulsory retirement whether passed under Rule 16(3) of the A.I.S. Rules, 1958 or Rule 50J of the Fundamental Rules, the scope of judicial review is limited. In C.D. Ailawadi Vs. Union of India & Ors., it was held that an order of compulsory retirement would not become illegal once the opinion is reached on the basis of material on record. Such an order cannot be treated to be arbitrary. An order of compulsory retirement does not caste a stigma. In State of Punjab Vs. Gurdas Singh it was held that even an uncommunicated ACR can form basis of ordering compulsory retirement.
25. In Baikuntha Nath Dass and another Vs. Chief District Medical Officer, Baripada and another, , position has been made clear that an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. As the nature of the function to compulsorily retire is not quasi judicial in nature and such action has to be taken on the subjective satisfaction of the Government, there is no room for importing the facel of natural justice. In such a case, more particularly when order of compulsory retirement is not a punishment, nor does it involved any stigma, however, judicial review is not altogether excluded. It was held that High Court or the Supreme Court would not examine the matter as an appellate court. They may interfere, if they are satisfied that the order is based on: (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material. On an analysis of various decisions on the scope and purpose of compulsory retirement, the following principles were culled out :-
“(i) An order of compulsory retirement is not a punishment. It implies no stigma nor, any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that be reasonable person would form the requisite opinion on the given material in short if it is found to be a perverse order.
(iv) The Government for (or the Review Committees, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performing during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be washed by a Court merely on the showing that while passing it
uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above.”
26. Before proceeding further, we may refer to the Minutes/Report of the Screening Committee dated 27.5.1993 comprising two Judges, which was placed before the Full Court for its consideration. The report says:-
“We have gone through the whole record of the officer including the Annual Confidential Reports. The officer was inducted in the Delhi Judicial Service from the State of Uttar Pradesh. Upto the vear 1974-75, he could earn only Average reports. thereafter all through, the reports earned upto 1991 are (B). In the Full Court meeting held on 22nd May, 1993, the judges were unanimously of the view that the integrity of the officer is doubtful and the officer was, therefore, awarded grading ‘C’ (Below Average). The general concennsus was that the officer does not enjoy good reputation and his integrity was doubtful. We, therefore, recommend that the officer be retired from service in public interest forthwith.”
27. The report of the Committee is based upon the petitioner’s service record. Formation of an opinion that a judicial officer does not enjoy good reputation and his integrity is doubtful may not be possible without any basis or material. In the absence of any material or information, such decision would become unreasonable. In Baikunth Nath Das’s case (supra), however, it was observed that it may not be possible that in all cases evidence would be forthcoming about doubtful integrity of a judicial officer and at times the Full Court has to act on the Collective wisdom of all the Judges. Reliance was placed by learned counsel for the petitioner on the decision in S. Ramachandra Raju Vs. State of Orissa JT 1994 (5) S.C. 459 urging that solitary adverse report, if made basis or foundation to compulsory retire the petitioner from service, the order would stand vilitated.
28. Later decision of the Supreme Court in M.S. Bindra Vs. Union of India,
was a case where the officer had suddenly been decided as having doubtful integrity. The Supreme Court had to say:-
“While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a onclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim “Nemo Fruit Repented Turpissimus” (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline in judge human conduct, particularly in the field of Administrative law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier.”
29. The judgment further says that to dunk an officer into the puddle of “doubtful integrity” it is not enough that the doubt fringes on a mere
hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label “doubtful integrity”.
30. This view has been reiterated in a recent decision of Apex Court reported as High Court of Judicature at Allahabad through Registrar Vs. M.Sarnam Singh and another, .
31. The record was made available to us. There is no other material shown to us or brought our notice, which might have been placed before the Committee or before the Full Court, which formed the basis for dubbing the petitioner as an officer of doubtful integrity. In the absence of any material particularly when there was nothing adverse against the petitioner till 1.3.1993, when the Inspecting Judge recorded remarks in petitioner’s ACR for 1992 “Nothing adverse has been brought to my notice”, the decision of Full Court rating the petitioner as “C (integrity doubtful)” without any material has to be held to be arbitrary and thus liable to be quashed. As the said entry of doubtful integrity was made the basis for the report of the Committee, which was considered by the Full Court, while making recommendation to compulsory retire the petitioner, the same is also vitiated.
32. The order passed on 1.6.1993 by respondent No.1 compulsorily retiring the petitioner from service upon acceptance of the recommendation of respondent No.2 dated 27.5.1993 is rendered bad in law. As no orders were passed by respondent No. 1 on the recommendation of respondent No. 2 for accepting the petitioner’s prayer for voluntary retirement, we need not pass any direction thereon because the petitioner is held entitled to the primary relief.
33. Consequently the writ petition is allowed. Order dated 1.6.1993 is quashed and set aside holding the petitioner to have continued in service till attaining the age of superannuation with all consequential benefits. Parties are left to bear their respective costs.