{"id":193031,"date":"1986-08-05T00:00:00","date_gmt":"1986-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tej-pal-singh-dead-through-lrs-vs-state-of-u-p-anr-on-5-august-1986"},"modified":"2018-04-17T06:55:10","modified_gmt":"2018-04-17T01:25:10","slug":"tej-pal-singh-dead-through-lrs-vs-state-of-u-p-anr-on-5-august-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tej-pal-singh-dead-through-lrs-vs-state-of-u-p-anr-on-5-august-1986","title":{"rendered":"Tej Pal Singh (Dead) Through Lrs vs State Of U.P. & Anr on 5 August, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tej Pal Singh (Dead) Through Lrs vs State Of U.P. & Anr on 5 August, 1986<\/div>\n
Equivalent citations: 1986 AIR 1815, \t\t 1986 SCR (3) 428<\/div>\n
Author: E Venkataramiah<\/div>\n
Bench: Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nTEJ PAL SINGH (DEAD) THROUGH LRS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. & ANR.\n\nDATE OF JUDGMENT05\/08\/1986\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nMISRA RANGNATH\n\nCITATION:\n 1986 AIR 1815\t\t  1986 SCR  (3) 428\n 1986 SCC  (3) 604\t  JT 1986    66\n 1986 SCALE  (2)176\n\n\nACT:\n     Constitution  of\tIndia,\tArticle\t  235:\t Subordinate\nJudiciary-High Court's control-Nature and scope of-Premature\nretirement of judicial officer-High Court alone competent to\ncome to\t conclusion after assessment of performance-Governor\nthereafter to pass order.\n     Rules of  Court (High  Court of Allahabad), 1952: Rules\n3,4,5 &\t 12-Administrative Committee  could act\t for and  on\nbehalf\tof   the  Court-Not   Administrative  Judge-Judicial\nofficer-Premature retirement-only  Administrative  Committee\ncan recommend to Government.\n\n\n\nHEADNOTE:\n     The appellant was working as an Additional District and\nSessions Judge\tin the\tState of  Uttar Pradesh.  The  State\nGovernment moved  the High  Court in  the year\t1967 for his\npremature retirement.  On July\t8, 1968\t the  Administrative\nJudge agreed with the proposal to retire the appellant after\ngiving him  three months  notice. The  Governor\t passed\t the\norder  of   retirement\ton   August  24,  1968.\t Three\tdays\nthereafter, on\tAugust 27, 1968 the Administrative Committee\nof the\tHigh Court  gave its  approval to the opinion of the\nAdministrative\tJudge  earlier\tcommunicated  to  the  State\nGovernment. Thereafter,\t on August  30, 1968  the additional\nRegistrar  transmitted\t the  order  of\t retirement  to\t the\nappellant. The order was purported to be made under para (i)\nof the first proviso to cl. (a) of Fundamental Rule 56.\n     Aggrieved by  the said order the appellant filed a writ\npetition before\t the  High  Court  alleging:  (i)  that\t the\nretirement bad\tbeen ordered  without the  recommendation of\nthe  High   Court  as\trequired  by   Article\t235  of\t the\nConstitution; (ii) that Fundamental Rule 56, under which the\norder had  been issued\twas violative of Articles 14 and 16,\nand (iii)  that the premature retirement was in violation of\nArticle 311(2).\n     As the  question relating\tto the\tvires of Fundamental\nRule 56 was\n429\npending before\tthe High  Court in two other writ petitions,\nthe three  A matters  were referred  to a  Full Bench. which\nheld that  paragraph (i)  of  the  proviso  to\tcl.  (a)  of\nFundamental Rule 56 was violative of Articles 14 and 16.\n     Immediately thereafter the Governor issued an ordinance\namending Fundamental  Rule 56 and validating actions already\ntaken Ihereunder.  The appellant  thereupon sought amendment\nof  his\t writ  petition\t questioning  the  validity  of\t the\nordinance and  the U.P. Act No. 5 of 1970 which replaced the\nordinance.\n     Dismissing the  writ petition  the High  Court took the\nview that whenever the Governor proposed to make an order of\npremature retirement  in respect  of a\tDistrict Judge\tor a\nSubordinate Judicial officer he was only expected to consult\nthe High  Court on  the question  and that this consultation\nwith the  High Court was permissible even after the Governor\nhad passed  the order  of compulsory  retirement. It equated\nthe recommendation  that should\t be made  by the  High Court\nunder  Article\t 235  before   a  judicial  officer  can  be\nprematurely retired  to the  consultation contemplated under\nArticle\t 320(3)\t (c)  in  respect  of  disciplinary  matters\naffecting civil\t services and  held that  such\tconsultation\nwith the High Court was not mandatory and that failure to do\nso did not afford a cause of action in a court of law.\n     On\t the  question:\t whether  the  order  of  compulsory\nretirement  passed   against  the  appellant  satisfies\t the\nrequirements of the Constitution.\n     Allowing the appeal, the Court,\n^\n     HELD: l.  The impugned  order of  premature  retirement\npassed by  the Governor on the opinion of the Administrative\nJudge without  having before  him the  recommendation of the\nAdministrative Committee  or of\t the Full Court was void and\nineffective. The  High Court  was in error in not construing\nthe  applicability   and  scope\t  of  Article\t235  of\t the\nConstitution while deciding the case.\n     2.1 Without  the recommendation of the High Court it is\nnot  open  to  the  Governor  to  issue\t an  order  retiring\nprematurely Judges  of District\t Courts and  the subordinate\ncourts.\n     2.2 While\tit may be open to the Government to bring to\nthe notice H\n430\nof the\tHigh Court  all materials  having a  bearing on\t the\nconduct of  a  District\t Judge\tor  a  subordinate  judicial\nofficer, which\tmay be\tin its\tpossession,  the  Government\ncannot take  the initiative to retire prematurely a District\nJudge or  a subordinate\t judicial officer.  Such  initiative\nshould rest with the High Court.\n     2.3  It  is  for  the  High  Court,  on  the  basis  of\nassessment of  performance and\tall other aspects germane to\nthe matter  to come to the conclusion whether any particular\njudicial officer  under its  control is\t to  be\t prematurely\nretired and once the High Court comes to the conclusion that\nthere should be such retirement, the Court recommends to the\nGovernor to do so. The conclusion is to be of the High Court\nsince the control vests therein.\n     In the  instant case,  the Government  had\t sought\t the\nopinion of the High Court regarding the question whether the\nappellant could\t be pre\t maturely retired.  Under the  rules\nobtaining in  the Allahabad  High Court\t the  Administrative\nCommittee could\t act for  and on behalf of the Court but the\nAdministrative Judge could not. Before giving his opinion in\nsupport\t of   the  view\t expressed  by\tthe  Government\t the\nAdministrative\tJudge  should  have  either  circulated\t the\nletter received\t from the  Government amongst the members of\nthe Administrative  Committee or  placed it before them at a\nmeeting. He  did not  adapt either of the two courses but on\nhis own forwarded his opinion to the Government stating that\nthe appellant  could be\t prematurely retired.  It  was\tonly\nafter the Governor had passed the order on the basis of such\nrecommendation\tthat   the  matter  was\t placed\t before\t the\nAdministrative\tCommittee.   Therefore,\t the  Administrative\nJudge agreeing\twith  the  Government  proposal\t was  of  no\nconsequence and\t did  not  amount  to  satisfaction  of\t the\nrequirement of Article 235 of the Constitution.\n     3.\t The   deviation  in   this  case   is\tnot  a\tmere\nirregularity which  can\t be  cured  by\tthe  ex\t post  facto\napproval given by the Administrative Committee to the action\nof the\tGovernor after the order of premature retirement had\nbeen passed.  The error committed in this case amounts to an\nincurable defect amounting to an illegality.\n     State of  Uttar Pradesh  v. Batuk\tDeo Patil Tripathi &\nAnr.,<\/a> [1978]  (3) S.C.R.  131; State  of  Haryana  v.  Inder\nPrakash Anand  H.C.S. & Ors.,<\/a> [1976] (Supp) S.C.R. 603; High\nCourt of  Andhra Pradesh & ors. v. V. V.S. Krishnamurthy and\nOrs.,<\/a> [1979] (1) S.C.R. 26 referred to.\n431\n     State of  U.P.  v.\t Manbodhan  Lal\t Srivastava,<\/a>  [1958]\nS.C.R. 533,  distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1243 of
\n1972<\/span>
\n     From the  Judgment and  Decree dated  23.2.1970 of\t the
\nAllahabad High Court in Writ Petition No. 3958 of 1968.\n<\/p>\n
     S.M.  Ashri,  Ramesh  Kumar  Khanna,  R.A.\t Mishra\t and
\nN.N.Sharma for the Appellant.\n<\/p>\n
     Gopal Subramaniam\tand Mrs. Shobha Dikshit for the Res-
\npondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     VENKATARAMIAH, J. The appellant was working as an Addi-
\ntional District\t and Sessions  Judge in\t the State  of Uttar
\nPradesh in  the year  1968. His\t date of  birth was April 1,
\n1913. He  would have  retired from  service on the expiry of
\nMarch 31,  1971 on  completing\t58  years  of  age.  But  on
\nSeptember 3,  1968 the\tappellant was  served with  an order
\ndated August  24,  1968\t issued\t by  the  Secretary  to\t the
\nGovernment of  Uttar Pradesh  (Home Department) stating that
\nthe Governor  of Uttar\tPradesh in  exercise of\t the  powers
\nunder para  (i) of  the\t first\tproviso\t to  clause  (a)  of
\nFundamental Rule  56 contained\tin the\tFinancial Hand Book,
\nVolume II, Parts II to IV, as amended from time to time, had
\nbeen pleased  to order that the appellant should retire from
\nservice on  the expiry\tof three  months from  the  date  of
\nservice of  the notice.\t Aggrieved by  the  said  notice  of
\npremature retirement,  the appellant filed Writ Petition No.
\n3958 of\t 1968 before  the  High\t Court\tof  Allahabad  under
\nArticle 226  of the  Constitution urging inter alia (i) that
\nthe retirement\tof the\tappellant as  per order dated August
\n24, 1968  had been ordered without the recommendation of the
\nHigh Court  as required\t by Article 235 of the Constitution,\n<\/p>\n
(ii) that Fundamental Rule 56 under which the impugned order
\nhad been  issued was  violative of Articles 14 and 16 of the
\nConstitution,  and  (iii)  that\t the  appellant’s  premature
\nretirement was\tin violation  of  Article  311\t(2)  of\t the
\nConstitution. The  question  relating  to  the\tvalidity  of
\nFundamental Rule  56 was  involved in  two other cases which
\nwere pending  before the  High Court The Writ Petition filed
\nby the appellant and the other two writ petitions were heard
\ntogether by a Division Bench of the High
\n432<\/span>
\nCourt. The  Division Bench referred all the three matters to
\na Full\tBench to  consider two\tspecific questions  of\tlaw,
\nnamely (i)  whether under  Fundamental Rule  56 the  age  of
\nsuperannuation was  55 or  58 years  and  (ii)\twhether\t the
\nproviso to  clause  (a)\t of  Fundamental  Rule\t56  violated
\nArticles 14  and 16 of the Constitution. Thereafter the Full
\nBench heard  all  the  three  cases  and  answered  the\t two
\nquestions as  follows: (i)  Under clause  (a) of Fundamental
\nRule 56\t the age  of superannuation  was 58  years and\t(ii)
\nParagraph  (i)\t of  the   proviso  to\tclause\t(a)  of\t the
\nFundamental Rule  56 violated  Articles 14  and\t 16  of\t the
\nConstitution. The  judgment of the Full Bench was pronounced
\non September  26, 1969.\t Immediately thereafter the Governor
\nof Uttar  Pradesh issued an ordinance dated November 5, 1969
\nmaking amendments  to Fundamental  Rule\t 56  and  validating
\nactions\t already   taken  there\t under.\t The  ordinance\t was
\nreplaced by  U.P. Act  No. 5  of 1970  on April 1, 1970. The
\nappellant  sought   the\t amendment   of\t the  Writ  Petition
\nquestioning the\t validity of  the  ordinance  and  the\tAct.
\nThereafter the\tWrit Petititon was heard by a Division Bench
\nof the\tHigh Court  and it  came to be dismissed on February
\n23, 1970.  This appeal\tby certificate\tis filed against the
\njudgment of the High Court.\n<\/p>\n
     In this  case  we\tare  not  concerned  much  with\t the
\nvalidity of  Fundamental Rule 56 since it can be disposed of
\non the ground based on Article 235 of the Constitution
\n     The undisputed  facts  as\tcan  be\t gathered  from\t the
\nrecords in this case which are relevant for purposes of this
\nappeal are  these. The State Government moved the High Court
\nin the\tyear  1967  for\t the  premature\t retirement  of\t the
\nappellant. On  July 8,\t1968 the Administrative Judge agreed
\nwith the  proposal of  the State  Government to\t retire\t the
\nappellant prematurely after giving him three months’ notice.
\nThe Governor  passed the  order of  retirement on August 24,
\n1968. Three  days  there  after,  on  August  27,  1968\t the
\nAdministrative Committee of the High Court gave its approval
\nto the\trecommendation of  the Administrative  Judge earlier
\ncommunicated to\t the State  Government. Thereafter on August
\n30, 1968  the Additional  Registrar transmitted the order of
\nretirement to  the appellant.  It  was\tactually  served  on
\nSeptember 3,  1968. The\t question for  consideration in this
\ncase is\t whether the  order of\tcompulsory retirement passed
\nagainst the  appellant satisfies  the  requirements  of\t the
\nConstitution.\n<\/p>\n
     Article 235  of  the  Constitution\t provides  that\t the
\ncontrol over  district courts and courts subordinate thereto
\nincluding the posting and
\n433<\/span>
\npromotion of  and the grant of leave to persons belonging to
\nthe judicial  service of  the State  and  holding  any\tpost
\ninferior to  the post  of District  Judge shall be vested in
\nthe High  Court. It  has been held in State of Uttar Pradesh
\nv. Batuk Deo Patil Tripathi & Anr,.<\/a> [1978] 3 S.C.R. 131 that
\npremature retirement  of Judges\t of District  Courts and  of
\nsubordinate courts  is a  matter which falls squarely within
\nthe power  of control  vested in  the High Courts by Article
\n235 of\tthe Constitution.  Without the recommendation of the
\nHigh Court  it is not open to the Governor to issue an order
\nretiring  prematurely  Judges  of  District  Courts  and  of
\nsubordinate courts.\n<\/p>\n
     Insofar as\t the High  Court of  Allahabad is  concerned
\nrules are  framed under\t Article 225 of the Constitution and
\nall other  powers enabling  it in  that behalf\tby the\tHigh
\nCourt regarding\t the manner in which the administrative work
\nof the\tHigh Court  should be carried out. They are known as
\nRules of  Court, 1952.\tThe  relevant  rules  are  found  in
\nChapter III  of the  Rules of Court, 1952. The material part
\nof Chapter III is set out below:-\n<\/p>\n
\t\t\t“CHAPTER III
\nExecutive and Administrative Business of the Court\n<\/p>\n
\t  1. Subject  to these\tRules, a Committee of Judges
\n\t  com posed  of the  Chief Justice, the Judge in the
\n\t  Administrative Department and five other Judges to
\n\t  be appointed\tby the Chief Justice, referred to in
\n\t  these Rules as the Administrative Committee, shall
\n\t  act for  the Court.  The Chief  Justice shall have
\n\t  the charge  of, and  may act\tfor the Court in the
\n\t  Administrative Department  and the  executive\t and
\n\t  administrative business  pertaining to  the Court,
\n\t  except  that\t the  Judge  in\t the  Administrative
\n\t  Department shall  have charge\t of, and may act for
\n\t  the Court in the Administrative Department and the
\n\t  executive and\t administrative business  pertaining
\n\t  to the  Courts subordinate to the Court. As far as
\n\t  possible,  the   Judge   in\tthe   Administrative
\n\t  Department  shall   discharge\t  his\tduties\t and
\n\t  functions  in\t consultation  with  the  Inspection
\n\t  Judges concerned,  who shall\tbe appointed  by the
\n\t  Chief Justice from time to time.\n<\/p>\n
\t       The membership  of the Committee shall be for
\n\t  two years  except in the case of the Chief Justice
\n\t  and the Judge in the Administrative Department. H
\n434<\/span>\n<\/p>\n
\t  2. From  time to  time and  as occasion arises the
\n\t  Chief Justice\t shall nominate one of the Judges to
\n\t  act as the Judge in the Administrative Department,
\n\t  whose term  of office\t shall be three years unless
\n\t  renominated.\n<\/p>\n
\t  3. All  executive and\t administrative business and
\n\t  all  business\t in  the  Administrative  Department
\n\t  requiring orders  ….. shall\t be submitted by the
\n\t  Registrar to the Chief Justice or the Judge in the
\n\t  Administrative Department,  as the  case  may\t be,
\n\t  together with\t his comments  thereon, if  any, and
\n\t  may, subject\tto these  Rules, be  disposed of  by
\n\t  that Judge.\n<\/p>\n
\t  4. The  Judge\t in  the  Administrative  Department
\n\t  shall, be  fore passing  final orders\t cause to be
\n\t  circulated for  the information  of the  Judges of
\n\t  the  Administrative\tCommittee  then\t present  in
\n\t  Allahabad,   his   recommendations   as   to\t the
\n\t  appointment, promotion  or suspension\t of judicial
\n\t  officers.\n<\/p>\n
\t       Should\tany    Judge   dissent\t from\tsuch
\n\t  recommenda- tions,  he shall\tsignify his  dissent
\n\t  and his reasons therefor in writing.\n<\/p>\n
\t  5(1). In regard to the following matters the Judge
\n\t  in the Administrative Department shall consult the
\n\t  Administrative Committee either by circulating the
\n\t  papers connected with the matter together with his
\n\t  own  opinion\tor  recommendation  thereon  to\t the
\n\t  members of the Committee then present in Allahabad
\n\t  or  by   laying  it\tbefore\ta   meeting  of\t the
\n\t  Administrative Committee, namely:\n<\/p>\n
     (a) the issue of General Letters to subordinate courts;\n<\/p>\n
     (b) the  issue of\tdirections regarding the preparation
\n     of returns and statements:\n<\/p>\n
     (c) all matters of importance upon which the Government
\n     desires the opinion of the Court;\n<\/p>\n
     (d) appointment  of the  U.P. Higher  Judicial Service;
\n     and\n<\/p>\n
     (e) any  other matter  which the  Chief Justice  or the
\n     Judge in the
\n435<\/span>
\nAdministrative Department may consider fit to be laid before
\nit for A consideration.\n<\/p>\n
(2) Copies  of all  General Letters  issued  to\t subordinate
\ncourts shall  be circulated to all Judges for information as
\nsoon as may be after issue …………. B
\n(7) As\tsoon as the Administrative Committee has disposed of
\nany businees,  a statement  showing what  matters were\tlaid
\nbefore the  Committee and  the manner  in  which  they\twere
\ndisposed of  shall be  circulated  for\tinformation  to\t all
\nJudges except such Judges as may be on leave.”\n<\/p>\n
     In the  above decision-State  of Uttar Pradesh v. Batuk
\nDeo Patil  Tripathi &  Anr.<\/a> (supra) this Court has held that
\nthe power  of the  High\t Court\tunder  Article\t235  of\t the
\nconstitution to\t make recommendation  to the  Government  to
\nretire a  subordinate judicial\tofficer prematurely could be
\nexercised by the Administrative Committee of the High Court.
\nIn the\tinstant case  it is  seen  that\t the  Administrative
\nCommittee of the High Court came into the picture only after
\nthe State  Government had passed the order of retirement. It
\nwas no\tdoubt true  that the Administrative Judge had agreed
\nwith the  proposal of  the State  Government to\t retire\t the
\nappellant prematurely  on July 8, 1968 and that on the basis
\nof the\topinion expressed  by the  Administrative Judge\t the
\nGovernor had  passed the  order on  August 24,\t1968. It was
\nonly on August 27, 1968 the order of the Governor was placed
\nbefore the  Administrative Committee  of the High Court when
\nit gave\t its approval  to the  opinion of the Administrative
\nJudge earlier  communicated to\tthe State  Government. After
\nthe Administrative  Committee had  expressed its opinion the
\nmatter was  not again referred to the Governor at all. After
\nthe Administrative Committee had approved the opinion of the
\nAdministrative Judge  the order\t of retirement was served on
\nthe appellant on September 3, 1968. It is thus seen that the
\nGovernor had  not acted\t in the instant case on the basis of
\nthe recommendation  of either  the  Full  Court\t or  of\t the
\nAdministrative Committee  of the  High Court but only on the
\nopinion of the Administrative Judge. G
\n     The two  learned Judges  who  finally  heard  the\tWrit
\nPetition  of  the  appellant  dealt  with  the\tquestion  of
\ncompliance with\t Article 235  of the Constitution in the two
\nseparate judgments  delivered  by  them.  Both\tthe  learned
\nJudges, we regret to say, missed the essence of the question
\nagitated before\t them. They  have referred to Article 233 of
\nthe
\n436<\/span>
\nConstitution in\t the course  of their  judgments  while\t the
\nproper Article which arose for consideration before them was
\nArticle 235 of the Constitution Both the learned Judges have
\ntaken the view that the Governor is only expected to consult
\nthe High  Court on  the question when he proposes to make an
\norder of premature retirement in respect of a District Judge
\nor a subordinate judicial officer. They have overlooked that
\nthe Governor can pass such an order only on a recommendation
\nmade by\t the High Court or the Administrative Committee. The
\nsecond error  committed by  both of  them is  that they have
\nheld  that   such  consultation\t  with\tthe  High  Court  is
\npermissible even  after the Governor has passed the order of
\ncompulsory  retirement.\t  Thirdly,  they  have\tequated\t the
\nrecommendation that  should be made by the High Court before
\na  judicial  officer  can  be  prematurely  retired  to\t the
\nconsultation contemplated  under Article  320(3)(c)  of\t the
\nConstitution, which  provides that  the Union Public Service
\nCommission or  the State  Public Service  commission as\t the
\ncase may  be, shall be consulted on all disciplinary matters
\naffecting a  person serving under the Government of India or
\nthe Government\tof a  State in\ta civil\t capacity, including
\nmemorials or  petitions relating  to such  matters, and have
\nheld relying  upon a decision of this Court in State of U.P.
\nv. Manbodhan  Lal Srivastava,<\/a>  [1958] S.C.R.  533 that\tsuch
\nconsultation was not mandatory and that failure to do so did
\nnot afford  a cause of action to the appellant in a court of
\nlaw
\n     In Stale  of Haryana  v. Inder  Prakash Anand  H.C.S. &
\nors.<\/a>, [1976]  (Supp) S.C.R.  603, this\tCourt has  held that
\nArticle 235  of the  Constitution vests\t in the\t High  Court
\ncontrol over district courts and courts subordinate thereto.
\nThis “control” includes both disciplinary and administrative
\njurisdiction.  Disciplinary   control\tmeans\tnot   merely
\njurisdiction to\t award punishment  for misconduct,  but also
\nthe power to determine whether the record of a member of the
\nservice is  satisfactory or  not so  as to  entitle  him  to
\ncontinue in  service for  the full  term till he attains the
\nage  of\t  superannuation.   Administrative,   judicial\t and
\ndisciplinary control over members of the judicial service is
\nvested solely  in the  High Court.  Premature retirement  is
\nmade in\t the exercise  of  administrative  and\tdisciplinary
\njurisdiction. It  is administrative because it is decided in
\npublic\tinterest   to  retire  him  prematurely\t and  it  is
\ndisciplinary, because,\tthe  decision  is  taken  in  public
\ninterest that  he does\tnot deserve  to continue  up to\t the
\nnormal age  of superannuation.\tThe fixation  of the  age of
\nsuperannuation is  the right  of the  State Government.\t The
\ncurtailment  of\t  that\tperiod\tunder  rules  governing\t the
\nconditions of service is a matter pertaining to disciplinary
\nas well as
\n437<\/span>
\nadministrative control.\t The control  which is vested in the
\nHigh Court  A is  complete control subject only to the power
\nof the\tGovernor in  the matter\t of appointment,  dismissal,
\nremoval or  reduction in rank and the initial posting of and
\ninitial promotion to the rank of District Judge. The vesting
\nof complete  control over  the subordinate  judiciary in the
\nHigh Court,  leads to  this that  if the  High Court  is  of
\nopinion that  a particular officer is not fit to be retained
\nin service,  the High Court will communicate that opinion to
\nthe Governor,  because, the  Governor is  the  authority  to
\ndismiss,  remove   or  reduce\tin  rank  or  terminate\t the
\nappointment. In such cases, the Governor, as the head of the
\nState, will  act in  harmony with  the recommendation of the
\nHigh  Court   as  otherwise   the   consequences   will\t  be
\nunfortunate. But, compulsory retirement simpliciter does not
\namount to  dismissal or\t removal or  reduction in rank under
\nArticle 311  or under  service rules.  When a case is not of
\nremoval or  dismissal or  reduction in\trank, any  order  in
\nrespect of exercise or control over the judicial officers is
\nby the\tHigh Court  and by  no other authority otherwise, it
\nwill affect  the independence  of the  judiciary. It  is  in
\norder to  effectuate that  high purpose\t that Article 235 of
\nthe Constitution,  as construed\t by this  Court\t in  various
\ndecisions,  requires   that  all  matters  relating  to\t the
\nsubordinate judiciary  including  premature  retirement\t and
\ndisciplinary proceedings  but excluding\t the  imposition  of
\npunishment falling  within the\tscope of  Article 311 of the
\nConstitution and  the first  appointment on promotion should
\nbe dealt  with and  decided  upon  by  the  High  Courts  in
\nexercise of the control vested in them .\n<\/p>\n
     In High  Court of\tAndhra Pradesh\tand ors.  v.  V.V.S.
\nKrishnamurity and  ors.<\/a>, [1979]\t 1 S.C.R.  26 this Court has
\nagain observed\tthat Article  235 of the Constitution is the
\npivot around  which the\t entire scheme\tof the Chapter VI of
\nPart VI\t of the\t Constitution revolves. Under it the control
\nof district  courts and courts subordinate thereto including
\nthe posting  and promotions  of and  the grant\tof leave  to
\npersons belonging  to the  judicial service  of a  State  is
\nvested in  the High  Court. After  considering a  number  of
\ndecisions, the Court in that case has set out the true legal
\nposition crystalized  by the  said decisions  as regards the
\nscope of  the control of the High Court over the subordinate
\njudiciary  vested   in\tit   under  Article   235   of\t the
\nConstitution. The  Court proceeded  to observe that the said
\npower under Article 235 of the constitution was exclusive in
\nnature, comprehensive  in extent and effective in operation.
\nAmongst the  several matters  which fell  within its  scope,
\nthis Court  was of  the view  that premature  retirement  of
\nJudges of  the district courts and of the subordinate courts
\nwas one. H
\n438<\/span>
\n     It is  thus clear\tthat the  High Court was in error in
\nnot construing\tthe applicability, and the scope, of Article
\n235 of\tthe Constitution  while deciding the case before it.
\nIt assumed that the Governor after consulting the High Court
\ncould pass  an order of premature retirement in respect of a
\nDistrict Judge\tor a  subordinate judicial  officer and that
\neven if\t he did\t not consult  in that  regard the  order  of
\npremature retirement  passed by\t the Governor  would not  be
\nvitiated and  that in any event it was an irregularity which
\ncould be cured by rule 21 of the Court Rules, 1952.\n<\/p>\n
     The relevant  passages in\tthe  judgments\tof  the\t two
\nlearned Judges\twho decided  the case  in the High Court are
\ngiven below:\n<\/p>\n
\t  “(Per D.S. Mathur, J.)
\n\t  In the case of premature retirement, consultation,
\n\t  if  made  subsequently,  but\tbefore\tthe  officer
\n\t  actually retires,  that  is,\thands  over  charge,
\n\t  cannot in  each and  every  case  be\tsaid  to  be
\n\t  illusory and\tnot genuine.  It  is  only  when  it
\n\t  appears that\tafter the  passing of  the order  of
\n\t  compulsory retirement,  the  High  Court  did\t not
\n\t  consider the\tmatter on  merits but  accepted\t the
\n\t  fait accompli,  it can be said that there had been
\n\t  no consultation as contemplated by Article 233(1);
\n\t  but where  the High  Court did consider the matter
\n\t  on merits  and agreed with the order passed by the
\n\t  Governor directing  the compulsory retirement of a
\n\t  judicial  officer,   there  would  be\t no  defect,
\n\t  considering that  the order  of  retirement  shall
\n\t  take effect from the date of communication or from
\n\t  the date  the government servant is to retire from
\n\t  service. In the instant case, three months’ notice
\n\t  was given, that is, the officer was to retire from
\n\t  service on  the expiry  of three  months from\t the
\n\t  date of  comunication of  the order of retirement.
\n\t  Within this  period the matter could be considered
\n\t  on merits  by the  High Court\t on its\t own or on a
\n\t  representation  made\t by  the  officer.  We\tare,
\n\t  therefore, of opinion that the consultation of the
\n\t  High\tCourt  cannot  be  declared  invalid  simply
\n\t  because there\t was no proper and full consultation
\n\t  before the  passing  of  the\torder  of  premature
\n\t  retirement,\tprovided    that   the\t facts\t and
\n\t  circumstances of the case made it evident that the
\n\t  High Court  had not  been unduly influenced by the
\n\t  decision of the Governor and the High Court had on
\n\t  its own and independently considered the matter on
\n\t  merits.\n<\/p><\/blockquote>\n
439<\/span><\/p>\n
\t       Reference may  now be  made  to\trule  21  of
\n\t  Chapter Ill A of the Rules of Court, which clearly
\n\t  provides that\t no irregularity  in, or omission to
\n\t  follow, the  procedure laid  down in\tthis Chapter
\n\t  shall effect\tthe validity  of any order passed or
\n\t  anything done\t under these rules. This rule cannot
\n\t  cover\t a  case  where\t any  order  was  passed  in
\n\t  complete  disregard  of  the\trules  contained  in
\n\t  Chapter III: but an irregularity committed in good
\n\t  faith\t shall\t not  invalidate   the\torder.\t The
\n\t  principles governing the provisions like section 5
\n\t  of  the   Limitation\tAct   can  easily   be\tmade
\n\t  applicable to\t a case of the present nature. Where
\n\t  two opinions\tare possible,  the irregularity,  if
\n\t  any, cannot  be deemed  to have  been committed in
\n\t  bad faith and such irregularities shall be covered
\n\t  by the above rule 21.\n<\/p><\/blockquote>\n
\t  “(Per Satish Chandra, J.)
\n\t  Under Chapter\t III rule 5 the Administrative Judge
\n\t  had to  consult the Administrative Committee. Even
\n\t  if the  consultation takes  place subsequently, if
\n\t  the  committee  approves  of\tthe  action  of\t the
\n\t  Administrative Judge,\t then  the  original  action
\n\t  would be  valid and effective with effect from its
\n\t  own date.  In this  view, the communication of the
\n\t  Court’s opinion  on the  8th July,  1968 would  be
\n\t  valid. E
\n\t       Even if\tit be assumed that the communication
\n\t  of 8th July, 1968 did not satisfy the requirements
\n\t  of law,  still the petitioners have not made out a
\n\t  case for  interference. It  has been seen that the
\n\t  Administrative Committee  took the decision on the
\n\t  28th\tAugust,\t 1968.\tBy  then  the  Governor\t had
\n\t  considered the  opinion of the Court as sent to it
\n\t  on the 8th July, 1968. The Governor sent the order
\n\t  of compulsory\t retirement to\tthe High  Court. The
\n\t  High Court  transmitted  it  for  service  on\t the
\n\t  petitioners on  or about  the 2nd September, 1968,
\n\t  much\tafter\tthe  Administrative   Committee\t had
\n\t  approved the proposal. The order was served on the
\n\t  petitioners on  3rd September,  1968. Thus  before
\n\t  the order of compulsory retirement came into force
\n\t  on 3.9.1968,\tall the\t requisite  requirements  of
\n\t  Article  233\t of  the   Constitution\t  had\tbeen
\n\t  completed. In\t this situation.  rule 21 would come
\n\t  into play  and would\tcure  whatever\tirregularity
\n\t  took place in following the procedure laid down in
\n\t  Chapter III
\n440<\/span>
\n\t  of the  Rules of  the Court.\tThe  impugned  order
\n\t  cannot be held to have violated Article 233 of the
\n\t  Constitution.”<\/p><\/blockquote>\n
     We do  not approve of the above opinions of the learned
\nJudges of the High Court.\n<\/p>\n
     Now, it  is settled  by the  decision of  this Court in
\nState of  Uttar Pradesh\t v. Batuk  Deo Patil Tripathi & Anr.<\/a>
\n(supra) that on a true construction of the rules of business
\nof  the\t  Allahabad  High   Court  it\twas  open   to\t the
\nAdministrative Committee  to recommend\tto the\tGovernor  to
\npass an\t order of  compulsory retirement  in  respect  of  a
\nDistrict Judge\tor a  subordinate judicial  officer. We need
\nnot, therefore,\t go into the question whether the Full Court
\nalone should  have considered  the  case  of  the  appellant
\nbefore such  recommendation was made. In the instant case as
\nwe have\t already stated\t above, the Administrative Committee
\ncame to\t know of  the order  of premature retirement already
\npassed by  the Governor only after it had been passed on the
\nbasis  of   the\t opinion   expressed   previously   by\t the
\nAdministrative Judge.  The Rules  of Business in Chapter III
\nof the\tRules of  Court, 1952,\treferred to  above, show the
\npowers which  are exercisable  by the  Full Court, the Chief
\nJustice,   Judge    in\t the\tAdministrative\t  Department
\n(Administrative Judge)\tand the\t Administrative Committee of
\nthe High Court. Rule 3 of Chapter III of the Rules lays down
\nthat all  executive  and  administrative  business  and\t all
\nbusiness in  the Administrative\t Department requiring orders
\nshall be  submitted by the Registrar to the Chief Justice or
\nthe Judge  in the Administrative Department, as the case may
\nbe, together  with his\tcomments thereon,  if any and may be
\nsubject to  these Rules\t disposed of  by that  Judge. Rule 4
\nprovides that  the Judge  m  the  Administrative  Department
\nshall before passing final order, cause to be circulated for
\nthe information of the Judges of the Admimstrative Committee
\nthen present  in Allahabad,  his recommendations  as to\t the
\nappointment, promotion\tor suspension  of judicial officers,
\nand that should any Judge dissent from such recommendations,
\nhe shall  signify his  dissent and  his reasons therefore in
\nwriting. Rule  5 provides  that in regard to the matters set
\nout thereunder\tthe Judge  in the  Administrative Department
\nshall  consult\t the  Administrative   Committee  either  by
\ncirculating the\t papers connected  with the  matter together
\nwith his  own  opinion\tor  recommendation  thereon  to\t the
\nmembers of  the Committee  then present\t in Allahabad  or by
\nlaying it  before a  meeting of the Administrative Committee
\nand one of the items mentioned in clause (c) of rule 5(1) of
\nthe Rules  is ‘all  matters of\timportance  upon  which\t the
\nGovernment desires the opinion of the
\n441<\/span>
\nCourt.’ In  the instant\t case the  Government had sought the
\nopinion of  A the  High Court regarding the question whether
\nthe appellant could be prematurely retired and that question
\nwas certainly a very important matter from the point of view
\nof the\tsubordinate  judicial  service.\t The  Administrative
\nJudge before  giving his  opinion in  support  of  the\tview
\nexpressed by  the Government  should have  either circulated
\nthe letter  received from the Government amongst the members
\nof the\tAdministrative Committee or placed it before them at
\na meeting.  He did  not adopt either of the two courses. But
\nhe on  his own\tforwarded  his\topinion\t to  the  Government
\nstating that  the appellant  could be  prematurely  retired.
\nThat he\t could not do. Ordinarily, it is for the High Court,
\non the\tbasis of  assessment of\t performance and  all  other
\naspects germane\t to the\t matter to  come to  the  conclusion
\nwhether any particular judicial officer under its control is
\nto be  prematurely retired  and once the High Court comes to
\nthe conclusion\tthat there  should be  such retirement,\t the
\nCourt recommends to the Governor to do so. The conclusion is
\nto be  of the  High Court  since the  control vests therein.
\nUnder the  Rules obtaining  in the Allahabad High Court, the
\nAdministrative Committee  could act for and on behalf of the
\nCourt  but   the  Administrative   Judge  could\t  not  have.
\nTherefore, his\tagreeing with the Government proposal was of
\nin consequence\tand did\t not amount  to satisfaction  of the
\nrequirement of\tArticle 235 of the Constitution. It was only
\nafter the  Governor passed  the order  on the  basis of such
\nrecommendation,\t  the\tmatter\t was   placed\tbefore\t the
\nAdministrative Committee  before the order of retirement was
\nactually  served   on  the   appellant.\t The  Administrative
\nCommittee may  not have\t dissented from\t the  order  of\t the
\nGovernor or  the opinion  expressed  by\t the  Administrative
\nJudge earlier.\tBut it\tis not known what the Administrative
\nCommittee would\t have done  if the matter had come up before
\nit before  the Governor\t had passed  the order\tof premature
\nretirement. In any event the deviation in this case is not a
\nmere irregularity  which can  be cured\tby the ex post facto
\napproval given by the Administrative Committee to the action
\nof the\tGovernor after the order of premature retirement had
\nbeen passed.  The error committed in this case amounts to an
\nincurable defect amounting to an illegality. We may add that
\nwhile it  may be  open to  the Government  to bring  to\t the
\nnotice of  the High  Court all materials having a bearing on
\nthe conduct  of a  District Judge  or a subordinate judicial
\nofficer? which\tmay be\tin its\tpossession,  the  Government
\ncannot take  the initiative to retire prematurely a District
\nJudge or  a subordinate\t judicial officer.  Such  initiative
\nshould rest with the High Court.\n<\/p>\n
     Under the\tcircumstances, it  has to  be held  that the
\nimpugned
\n442<\/span>
\norder of premature retirement passed by the Governor without
\nhaving before  him the\trecommendation of the Administrative
\nCommittee or  of the Full Court is void and ineffective. We,
\ntherefore, set\taside the  judgment of\tthe High  Court\t and
\nquash the order of premature retirement passed in respect of
\nthe appellant. He shall be treated as having been in service
\nuntil the  expiry of  31.3.1971 when  he would\thave retired
\nfrom service on attaining 58 years of age.\n<\/p>\n
     We\t are   informed\t that  the  appellant  has  died  on
\n27.11.1983 and\this legal  representatives have been brought
\non record.  The arrears\t of salary,  pension etc. payable to
\nthe appellant  on the  above basis  till  27.11.1983  shall,
\ntherefore, be  paid to\tthe  legal  representatives  of\t the
\nappellant within  four months  from today.  This  appeal  is
\naccordingly  allowed.\tThe  legal  representatives  of\t the
\nappellant are also entitled to the costs in both the Courts.\n<\/p>\n
P.S.S.\t\t\t\t\t     Appeal allowed.\n443<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tej Pal Singh (Dead) Through Lrs vs State Of U.P. & Anr on 5 August, 1986 Equivalent citations: 1986 AIR 1815, 1986 SCR (3) 428 Author: E Venkataramiah Bench: Venkataramiah, E.S. (J) PETITIONER: TEJ PAL SINGH (DEAD) THROUGH LRS. Vs. RESPONDENT: STATE OF U.P. & ANR. DATE OF JUDGMENT05\/08\/1986 BENCH: VENKATARAMIAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-193031","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTej Pal Singh (Dead) Through Lrs vs State Of U.P. & Anr on 5 August, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tej-pal-singh-dead-through-lrs-vs-state-of-u-p-anr-on-5-august-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tej Pal Singh (Dead) Through Lrs vs State Of U.P. & Anr on 5 August, 1986 - 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