PETITIONER:
TEJ PAL SINGH (DEAD) THROUGH LRS.
Vs.
RESPONDENT:
STATE OF U.P. & ANR.
DATE OF JUDGMENT05/08/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
MISRA RANGNATH
CITATION:
1986 AIR 1815 1986 SCR (3) 428
1986 SCC (3) 604 JT 1986 66
1986 SCALE (2)176
ACT:
Constitution of India, Article 235: Subordinate
Judiciary-High Court's control-Nature and scope of-Premature
retirement of judicial officer-High Court alone competent to
come to conclusion after assessment of performance-Governor
thereafter to pass order.
Rules of Court (High Court of Allahabad), 1952: Rules
3,4,5 & 12-Administrative Committee could act for and on
behalf of the Court-Not Administrative Judge-Judicial
officer-Premature retirement-only Administrative Committee
can recommend to Government.
HEADNOTE:
The appellant was working as an Additional District and
Sessions Judge in the State of Uttar Pradesh. The State
Government moved the High Court in the year 1967 for his
premature retirement. On July 8, 1968 the Administrative
Judge agreed with the proposal to retire the appellant after
giving him three months notice. The Governor passed the
order of retirement on August 24, 1968. Three days
thereafter, on August 27, 1968 the Administrative Committee
of the High Court gave its approval to the opinion of the
Administrative Judge earlier communicated to the State
Government. Thereafter, on August 30, 1968 the additional
Registrar transmitted the order of retirement to the
appellant. The order was purported to be made under para (i)
of the first proviso to cl. (a) of Fundamental Rule 56.
Aggrieved by the said order the appellant filed a writ
petition before the High Court alleging: (i) that the
retirement bad been ordered without the recommendation of
the High Court as required by Article 235 of the
Constitution; (ii) that Fundamental Rule 56, under which the
order had been issued was violative of Articles 14 and 16,
and (iii) that the premature retirement was in violation of
Article 311(2).
As the question relating to the vires of Fundamental
Rule 56 was
429
pending before the High Court in two other writ petitions,
the three A matters were referred to a Full Bench. which
held that paragraph (i) of the proviso to cl. (a) of
Fundamental Rule 56 was violative of Articles 14 and 16.
Immediately thereafter the Governor issued an ordinance
amending Fundamental Rule 56 and validating actions already
taken Ihereunder. The appellant thereupon sought amendment
of his writ petition questioning the validity of the
ordinance and the U.P. Act No. 5 of 1970 which replaced the
ordinance.
Dismissing the writ petition the High Court took the
view that whenever the Governor proposed to make an order of
premature retirement in respect of a District Judge or a
Subordinate Judicial officer he was only expected to consult
the High Court on the question and that this consultation
with the High Court was permissible even after the Governor
had passed the order of compulsory retirement. It equated
the recommendation that should be made by the High Court
under Article 235 before a judicial officer can be
prematurely retired to the consultation contemplated under
Article 320(3) (c) in respect of disciplinary matters
affecting civil services and held that such consultation
with the High Court was not mandatory and that failure to do
so did not afford a cause of action in a court of law.
On the question: whether the order of compulsory
retirement passed against the appellant satisfies the
requirements of the Constitution.
Allowing the appeal, the Court,
^
HELD: l. The impugned order of premature retirement
passed by the Governor on the opinion of the Administrative
Judge without having before him the recommendation of the
Administrative Committee or of the Full Court was void and
ineffective. The High Court was in error in not construing
the applicability and scope of Article 235 of the
Constitution while deciding the case.
2.1 Without the recommendation of the High Court it is
not open to the Governor to issue an order retiring
prematurely Judges of District Courts and the subordinate
courts.
2.2 While it may be open to the Government to bring to
the notice H
430
of the High Court all materials having a bearing on the
conduct of a District Judge or a subordinate judicial
officer, which may be in its possession, the Government
cannot take the initiative to retire prematurely a District
Judge or a subordinate judicial officer. Such initiative
should rest with the High Court.
2.3 It is for the High Court, on the basis of
assessment of performance and all other aspects germane to
the matter to come to the conclusion whether any particular
judicial officer under its control is to be prematurely
retired and once the High Court comes to the conclusion that
there should be such retirement, the Court recommends to the
Governor to do so. The conclusion is to be of the High Court
since the control vests therein.
In the instant case, the Government had sought the
opinion of the High Court regarding the question whether the
appellant could be pre maturely retired. Under the rules
obtaining in the Allahabad High Court the Administrative
Committee could act for and on behalf of the Court but the
Administrative Judge could not. Before giving his opinion in
support of the view expressed by the Government the
Administrative Judge should have either circulated the
letter received from the Government amongst the members of
the Administrative Committee or placed it before them at a
meeting. He did not adapt either of the two courses but on
his own forwarded his opinion to the Government stating that
the appellant could be prematurely retired. It was only
after the Governor had passed the order on the basis of such
recommendation that the matter was placed before the
Administrative Committee. Therefore, the Administrative
Judge agreeing with the Government proposal was of no
consequence and did not amount to satisfaction of the
requirement of Article 235 of the Constitution.
3. The deviation in this case is not a mere
irregularity which can be cured by the ex post facto
approval given by the Administrative Committee to the action
of the Governor after the order of premature retirement had
been passed. The error committed in this case amounts to an
incurable defect amounting to an illegality.
State of Uttar Pradesh v. Batuk Deo Patil Tripathi &
Anr., [1978] (3) S.C.R. 131; State of Haryana v. Inder
Prakash Anand H.C.S. & Ors., [1976] (Supp) S.C.R. 603; High
Court of Andhra Pradesh & ors. v. V. V.S. Krishnamurthy and
Ors., [1979] (1) S.C.R. 26 referred to.
431
State of U.P. v. Manbodhan Lal Srivastava, [1958]
S.C.R. 533, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1243 of
1972
From the Judgment and Decree dated 23.2.1970 of the
Allahabad High Court in Writ Petition No. 3958 of 1968.
S.M. Ashri, Ramesh Kumar Khanna, R.A. Mishra and
N.N.Sharma for the Appellant.
Gopal Subramaniam and Mrs. Shobha Dikshit for the Res-
pondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The appellant was working as an Addi-
tional District and Sessions Judge in the State of Uttar
Pradesh in the year 1968. His date of birth was April 1,
1913. He would have retired from service on the expiry of
March 31, 1971 on completing 58 years of age. But on
September 3, 1968 the appellant was served with an order
dated August 24, 1968 issued by the Secretary to the
Government of Uttar Pradesh (Home Department) stating that
the Governor of Uttar Pradesh in exercise of the powers
under para (i) of the first proviso to clause (a) of
Fundamental Rule 56 contained in the Financial Hand Book,
Volume II, Parts II to IV, as amended from time to time, had
been pleased to order that the appellant should retire from
service on the expiry of three months from the date of
service of the notice. Aggrieved by the said notice of
premature retirement, the appellant filed Writ Petition No.
3958 of 1968 before the High Court of Allahabad under
Article 226 of the Constitution urging inter alia (i) that
the retirement of the appellant as per order dated August
24, 1968 had been ordered without the recommendation of the
High Court as required by Article 235 of the Constitution,
(ii) that Fundamental Rule 56 under which the impugned order
had been issued was violative of Articles 14 and 16 of the
Constitution, and (iii) that the appellant’s premature
retirement was in violation of Article 311 (2) of the
Constitution. The question relating to the validity of
Fundamental Rule 56 was involved in two other cases which
were pending before the High Court The Writ Petition filed
by the appellant and the other two writ petitions were heard
together by a Division Bench of the High
432
Court. The Division Bench referred all the three matters to
a Full Bench to consider two specific questions of law,
namely (i) whether under Fundamental Rule 56 the age of
superannuation was 55 or 58 years and (ii) whether the
proviso to clause (a) of Fundamental Rule 56 violated
Articles 14 and 16 of the Constitution. Thereafter the Full
Bench heard all the three cases and answered the two
questions as follows: (i) Under clause (a) of Fundamental
Rule 56 the age of superannuation was 58 years and (ii)
Paragraph (i) of the proviso to clause (a) of the
Fundamental Rule 56 violated Articles 14 and 16 of the
Constitution. The judgment of the Full Bench was pronounced
on September 26, 1969. Immediately thereafter the Governor
of Uttar Pradesh issued an ordinance dated November 5, 1969
making amendments to Fundamental Rule 56 and validating
actions already taken there under. The ordinance was
replaced by U.P. Act No. 5 of 1970 on April 1, 1970. The
appellant sought the amendment of the Writ Petition
questioning the validity of the ordinance and the Act.
Thereafter the Writ Petititon was heard by a Division Bench
of the High Court and it came to be dismissed on February
23, 1970. This appeal by certificate is filed against the
judgment of the High Court.
In this case we are not concerned much with the
validity of Fundamental Rule 56 since it can be disposed of
on the ground based on Article 235 of the Constitution
The undisputed facts as can be gathered from the
records in this case which are relevant for purposes of this
appeal are these. The State Government moved the High Court
in the year 1967 for the premature retirement of the
appellant. On July 8, 1968 the Administrative Judge agreed
with the proposal of the State Government to retire the
appellant prematurely after giving him three months’ notice.
The Governor passed the order of retirement on August 24,
1968. Three days there after, on August 27, 1968 the
Administrative Committee of the High Court gave its approval
to the recommendation of the Administrative Judge earlier
communicated to the State Government. Thereafter on August
30, 1968 the Additional Registrar transmitted the order of
retirement to the appellant. It was actually served on
September 3, 1968. The question for consideration in this
case is whether the order of compulsory retirement passed
against the appellant satisfies the requirements of the
Constitution.
Article 235 of the Constitution provides that the
control over district courts and courts subordinate thereto
including the posting and
433
promotion of and the grant of leave to persons belonging to
the judicial service of the State and holding any post
inferior to the post of District Judge shall be vested in
the High Court. It has been held in State of Uttar Pradesh
v. Batuk Deo Patil Tripathi & Anr,. [1978] 3 S.C.R. 131 that
premature retirement of Judges of District Courts and of
subordinate courts is a matter which falls squarely within
the power of control vested in the High Courts by Article
235 of the Constitution. Without the recommendation of the
High Court it is not open to the Governor to issue an order
retiring prematurely Judges of District Courts and of
subordinate courts.
Insofar as the High Court of Allahabad is concerned
rules are framed under Article 225 of the Constitution and
all other powers enabling it in that behalf by the High
Court regarding the manner in which the administrative work
of the High Court should be carried out. They are known as
Rules of Court, 1952. The relevant rules are found in
Chapter III of the Rules of Court, 1952. The material part
of Chapter III is set out below:-
“CHAPTER III
Executive and Administrative Business of the Court
1. Subject to these Rules, a Committee of Judges
com posed of the Chief Justice, the Judge in the
Administrative Department and five other Judges to
be appointed by the Chief Justice, referred to in
these Rules as the Administrative Committee, shall
act for the Court. The Chief Justice shall have
the charge of, and may act for the Court in the
Administrative Department and the executive and
administrative business pertaining to the Court,
except that the Judge in the Administrative
Department shall have charge of, and may act for
the Court in the Administrative Department and the
executive and administrative business pertaining
to the Courts subordinate to the Court. As far as
possible, the Judge in the Administrative
Department shall discharge his duties and
functions in consultation with the Inspection
Judges concerned, who shall be appointed by the
Chief Justice from time to time.
The membership of the Committee shall be for
two years except in the case of the Chief Justice
and the Judge in the Administrative Department. H
434
2. From time to time and as occasion arises the
Chief Justice shall nominate one of the Judges to
act as the Judge in the Administrative Department,
whose term of office shall be three years unless
renominated.
3. All executive and administrative business and
all business in the Administrative Department
requiring orders ….. shall be submitted by the
Registrar to the Chief Justice or the Judge in the
Administrative Department, as the case may be,
together with his comments thereon, if any, and
may, subject to these Rules, be disposed of by
that Judge.
4. The Judge in the Administrative Department
shall, be fore passing final orders cause to be
circulated for the information of the Judges of
the Administrative Committee then present in
Allahabad, his recommendations as to the
appointment, promotion or suspension of judicial
officers.
Should any Judge dissent from such
recommenda- tions, he shall signify his dissent
and his reasons therefor in writing.
5(1). In regard to the following matters the Judge
in the Administrative Department shall consult the
Administrative Committee either by circulating the
papers connected with the matter together with his
own opinion or recommendation thereon to the
members of the Committee then present in Allahabad
or by laying it before a meeting of the
Administrative Committee, namely:
(a) the issue of General Letters to subordinate courts;
(b) the issue of directions regarding the preparation
of returns and statements:
(c) all matters of importance upon which the Government
desires the opinion of the Court;
(d) appointment of the U.P. Higher Judicial Service;
and
(e) any other matter which the Chief Justice or the
Judge in the
435
Administrative Department may consider fit to be laid before
it for A consideration.
(2) Copies of all General Letters issued to subordinate
courts shall be circulated to all Judges for information as
soon as may be after issue …………. B
(7) As soon as the Administrative Committee has disposed of
any businees, a statement showing what matters were laid
before the Committee and the manner in which they were
disposed of shall be circulated for information to all
Judges except such Judges as may be on leave.”
In the above decision-State of Uttar Pradesh v. Batuk
Deo Patil Tripathi & Anr. (supra) this Court has held that
the power of the High Court under Article 235 of the
constitution to make recommendation to the Government to
retire a subordinate judicial officer prematurely could be
exercised by the Administrative Committee of the High Court.
In the instant case it is seen that the Administrative
Committee of the High Court came into the picture only after
the State Government had passed the order of retirement. It
was no doubt true that the Administrative Judge had agreed
with the proposal of the State Government to retire the
appellant prematurely on July 8, 1968 and that on the basis
of the opinion expressed by the Administrative Judge the
Governor had passed the order on August 24, 1968. It was
only on August 27, 1968 the order of the Governor was placed
before the Administrative Committee of the High Court when
it gave its approval to the opinion of the Administrative
Judge earlier communicated to the State Government. After
the Administrative Committee had expressed its opinion the
matter was not again referred to the Governor at all. After
the Administrative Committee had approved the opinion of the
Administrative Judge the order of retirement was served on
the appellant on September 3, 1968. It is thus seen that the
Governor had not acted in the instant case on the basis of
the recommendation of either the Full Court or of the
Administrative Committee of the High Court but only on the
opinion of the Administrative Judge. G
The two learned Judges who finally heard the Writ
Petition of the appellant dealt with the question of
compliance with Article 235 of the Constitution in the two
separate judgments delivered by them. Both the learned
Judges, we regret to say, missed the essence of the question
agitated before them. They have referred to Article 233 of
the
436
Constitution in the course of their judgments while the
proper Article which arose for consideration before them was
Article 235 of the Constitution Both the learned Judges have
taken the view that the Governor is only expected to consult
the High Court on the question when he proposes to make an
order of premature retirement in respect of a District Judge
or a subordinate judicial officer. They have overlooked that
the Governor can pass such an order only on a recommendation
made by the High Court or the Administrative Committee. The
second error committed by both of them is that they have
held that such consultation with the High Court is
permissible even after the Governor has passed the order of
compulsory retirement. Thirdly, they have equated the
recommendation that should be made by the High Court before
a judicial officer can be prematurely retired to the
consultation contemplated under Article 320(3)(c) of the
Constitution, which provides that the Union Public Service
Commission or the State Public Service commission as the
case may be, shall be consulted on all disciplinary matters
affecting a person serving under the Government of India or
the Government of a State in a civil capacity, including
memorials or petitions relating to such matters, and have
held relying upon a decision of this Court in State of U.P.
v. Manbodhan Lal Srivastava, [1958] S.C.R. 533 that such
consultation was not mandatory and that failure to do so did
not afford a cause of action to the appellant in a court of
law
In Stale of Haryana v. Inder Prakash Anand H.C.S. &
ors., [1976] (Supp) S.C.R. 603, this Court has held that
Article 235 of the Constitution vests in the High Court
control over district courts and courts subordinate thereto.
This “control” includes both disciplinary and administrative
jurisdiction. Disciplinary control means not merely
jurisdiction to award punishment for misconduct, but also
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 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 of service is a matter pertaining to disciplinary
as well as
437
administrative control. The control which is vested in the
High Court A 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 the rank of District Judge. 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 consequences will be
unfortunate. 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 or control over the judicial officers is
by the High Court and by no other authority otherwise, it
will affect the independence of the judiciary. It is in
order to effectuate that high purpose that Article 235 of
the Constitution, as construed by this Court in various
decisions, requires that all matters relating to the
subordinate judiciary including premature retirement and
disciplinary proceedings but excluding the imposition of
punishment falling within the scope of Article 311 of the
Constitution and the first appointment on promotion should
be dealt with and decided upon by the High Courts in
exercise of the control vested in them .
In High Court of Andhra Pradesh and ors. v. V.V.S.
Krishnamurity and ors., [1979] 1 S.C.R. 26 this Court has
again observed that Article 235 of the Constitution is the
pivot around which the entire scheme of the Chapter VI of
Part VI of the Constitution revolves. Under it the control
of district courts and courts subordinate thereto including
the posting and promotions of and the grant of leave to
persons belonging to the judicial service of a State is
vested in the High Court. After considering a number of
decisions, the Court in that case has set out the true legal
position crystalized by the said decisions as regards the
scope of the control of the High Court over the subordinate
judiciary vested in it under Article 235 of the
Constitution. The Court proceeded to observe that the said
power under Article 235 of the constitution was exclusive in
nature, comprehensive in extent and effective in operation.
Amongst the several matters which fell within its scope,
this Court was of the view that premature retirement of
Judges of the district courts and of the subordinate courts
was one. H
438
It is thus clear that the High Court was in error in
not construing the applicability, and the scope, of Article
235 of the Constitution while deciding the case before it.
It assumed that the Governor after consulting the High Court
could pass an order of premature retirement in respect of a
District Judge or a subordinate judicial officer and that
even if he did not consult in that regard the order of
premature retirement passed by the Governor would not be
vitiated and that in any event it was an irregularity which
could be cured by rule 21 of the Court Rules, 1952.
The relevant passages in the judgments of the two
learned Judges who decided the case in the High Court are
given below:
“(Per D.S. Mathur, J.)
In the case of premature retirement, consultation,
if made subsequently, but before the officer
actually retires, that is, hands over charge,
cannot in each and every case be said to be
illusory and not genuine. It is only when it
appears that after the passing of the order of
compulsory retirement, the High Court did not
consider the matter on merits but accepted the
fait accompli, it can be said that there had been
no consultation as contemplated by Article 233(1);
but where the High Court did consider the matter
on merits and agreed with the order passed by the
Governor directing the compulsory retirement of a
judicial officer, there would be no defect,
considering that the order of retirement shall
take effect from the date of communication or from
the date the government servant is to retire from
service. In the instant case, three months’ notice
was given, that is, the officer was to retire from
service on the expiry of three months from the
date of comunication of the order of retirement.
Within this period the matter could be considered
on merits by the High Court on its own or on a
representation made by the officer. We are,
therefore, of opinion that the consultation of the
High Court cannot be declared invalid simply
because there was no proper and full consultation
before the passing of the order of premature
retirement, provided that the facts and
circumstances of the case made it evident that the
High Court had not been unduly influenced by the
decision of the Governor and the High Court had on
its own and independently considered the matter on
merits.
439
Reference may now be made to rule 21 of
Chapter Ill A of the Rules of Court, which clearly
provides that no irregularity in, or omission to
follow, the procedure laid down in this Chapter
shall effect the validity of any order passed or
anything done under these rules. This rule cannot
cover a case where any order was passed in
complete disregard of the rules contained in
Chapter III: but an irregularity committed in good
faith shall not invalidate the order. The
principles governing the provisions like section 5
of the Limitation Act can easily be made
applicable to a case of the present nature. Where
two opinions are possible, the irregularity, if
any, cannot be deemed to have been committed in
bad faith and such irregularities shall be covered
by the above rule 21.
“(Per Satish Chandra, J.)
Under Chapter III rule 5 the Administrative Judge
had to consult the Administrative Committee. Even
if the consultation takes place subsequently, if
the committee approves of the action of the
Administrative Judge, then the original action
would be valid and effective with effect from its
own date. In this view, the communication of the
Court’s opinion on the 8th July, 1968 would be
valid. E
Even if it be assumed that the communication
of 8th July, 1968 did not satisfy the requirements
of law, still the petitioners have not made out a
case for interference. It has been seen that the
Administrative Committee took the decision on the
28th August, 1968. By then the Governor had
considered the opinion of the Court as sent to it
on the 8th July, 1968. The Governor sent the order
of compulsory retirement to the High Court. The
High Court transmitted it for service on the
petitioners on or about the 2nd September, 1968,
much after the Administrative Committee had
approved the proposal. The order was served on the
petitioners on 3rd September, 1968. Thus before
the order of compulsory retirement came into force
on 3.9.1968, all the requisite requirements of
Article 233 of the Constitution had been
completed. In this situation. rule 21 would come
into play and would cure whatever irregularity
took place in following the procedure laid down in
Chapter III
440
of the Rules of the Court. The impugned order
cannot be held to have violated Article 233 of the
Constitution.”
We do not approve of the above opinions of the learned
Judges of the High Court.
Now, it is settled by the decision of this Court in
State of Uttar Pradesh v. Batuk Deo Patil Tripathi & Anr.
(supra) that on a true construction of the rules of business
of the Allahabad High Court it was open to the
Administrative Committee to recommend to the Governor to
pass an order of compulsory retirement in respect of a
District Judge or a subordinate judicial officer. We need
not, therefore, go into the question whether the Full Court
alone should have considered the case of the appellant
before such recommendation was made. In the instant case as
we have already stated above, the Administrative Committee
came to know of the order of premature retirement already
passed by the Governor only after it had been passed on the
basis of the opinion expressed previously by the
Administrative Judge. The Rules of Business in Chapter III
of the Rules of Court, 1952, referred to above, show the
powers which are exercisable by the Full Court, the Chief
Justice, Judge in the Administrative Department
(Administrative Judge) and the Administrative Committee of
the High Court. Rule 3 of Chapter III of the Rules lays down
that all executive and administrative business and all
business in the Administrative Department requiring orders
shall be submitted by the Registrar to the Chief Justice or
the Judge in the Administrative Department, as the case may
be, together with his comments thereon, if any and may be
subject to these Rules disposed of by that Judge. Rule 4
provides that the Judge m the Administrative Department
shall before passing final order, cause to be circulated for
the information of the Judges of the Admimstrative Committee
then present in Allahabad, his recommendations as to the
appointment, promotion or suspension of judicial officers,
and that should any Judge dissent from such recommendations,
he shall signify his dissent and his reasons therefore in
writing. Rule 5 provides that in regard to the matters set
out thereunder the Judge in the Administrative Department
shall consult the Administrative Committee either by
circulating the papers connected with the matter together
with his own opinion or recommendation thereon to the
members of the Committee then present in Allahabad or by
laying it before a meeting of the Administrative Committee
and one of the items mentioned in clause (c) of rule 5(1) of
the Rules is ‘all matters of importance upon which the
Government desires the opinion of the
441
Court.’ In the instant case the Government had sought the
opinion of A the High Court regarding the question whether
the appellant could be prematurely retired and that question
was certainly a very important matter from the point of view
of the subordinate judicial service. The Administrative
Judge before giving his opinion in support of the view
expressed by the Government should have either circulated
the letter received from the Government amongst the members
of the Administrative Committee or placed it before them at
a meeting. He did not adopt either of the two courses. But
he on his own forwarded his opinion to the Government
stating that the appellant could be prematurely retired.
That he could not do. Ordinarily, it is for the High Court,
on the basis of assessment of performance and all other
aspects germane to the matter to come to the conclusion
whether any particular judicial officer under its control is
to be prematurely retired and once the High Court comes to
the conclusion that there should be such retirement, the
Court recommends to the Governor to do so. The conclusion is
to be of the High Court since the control vests therein.
Under the Rules obtaining in the Allahabad High Court, the
Administrative Committee could act for and on behalf of the
Court but the Administrative Judge could not have.
Therefore, his agreeing with the Government proposal was of
in consequence and did not amount to satisfaction of the
requirement of Article 235 of the Constitution. It was only
after the Governor passed the order on the basis of such
recommendation, the matter was placed before the
Administrative Committee before the order of retirement was
actually served on the appellant. The Administrative
Committee may not have dissented from the order of the
Governor or the opinion expressed by the Administrative
Judge earlier. But it is not known what the Administrative
Committee would have done if the matter had come up before
it before the Governor had passed the order of premature
retirement. In any event the deviation in this case is not a
mere irregularity which can be cured by the ex post facto
approval given by the Administrative Committee to the action
of the Governor after the order of premature retirement had
been passed. The error committed in this case amounts to an
incurable defect amounting to an illegality. We may add that
while it may be open to the Government to bring to the
notice of the High Court all materials having a bearing on
the conduct of a District Judge or a subordinate judicial
officer? which may be in its possession, the Government
cannot take the initiative to retire prematurely a District
Judge or a subordinate judicial officer. Such initiative
should rest with the High Court.
Under the circumstances, it has to be held that the
impugned
442
order of premature retirement passed by the Governor without
having before him the recommendation of the Administrative
Committee or of the Full Court is void and ineffective. We,
therefore, set aside the judgment of the High Court and
quash the order of premature retirement passed in respect of
the appellant. He shall be treated as having been in service
until the expiry of 31.3.1971 when he would have retired
from service on attaining 58 years of age.
We are informed that the appellant has died on
27.11.1983 and his legal representatives have been brought
on record. The arrears of salary, pension etc. payable to
the appellant on the above basis till 27.11.1983 shall,
therefore, be paid to the legal representatives of the
appellant within four months from today. This appeal is
accordingly allowed. The legal representatives of the
appellant are also entitled to the costs in both the Courts.
P.S.S. Appeal allowed.
443