Full Judgment Text
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PETITIONER:
REGISTRAR. HIGH COURT OF MADRAS ETC.
Vs.
RESPONDENT:
R. RAJIAH AND K. RAJESWARAN
DATE OF JUDGMENT11/05/1988
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
PATHAK, R.S. (CJ)
SHARMA, L.M. (J)
CITATION:
1988 AIR 1388 1988 SCR Supl. (1) 332
1988 SCC (3) 211 JT 1988 (2) 567
1988 SCALE (1)1034
ACT:
Article 235-District Courts and Courts Subordinate
thereto-Control over vests in High Court-Power of Control
comprises Appointment, Promotion and Imposition of
Punishment in respect of Subordinate Judiciary-Decision to
be arrived at after due enquiry-Governor to take action on
recommendation of High Court.
Fundamental Rules-FR 56(d) read subject to and in
harmony with Article 235-Judicial officer-Compulsory
retirement of- Decision to be taken by High Court-Governor
to take action on recommendation of High Court.
Civil Services-Action against Government
servant.consists of two parts-First part is decision will
have to be taken whether action is to be taken-Second part
the decision to be carried out by a formal order.
HEADNOTE:
The two respondents, R. Rajiah and R. Rajeswaran, who
were members of the Tamil Nadu State Judicial Service, were
functioning as District Munsifs when orders of their
compulsory retirement from service were passed by the High
Court of Madras in its administrative jurisdiction under
Rule 56(d) of the Fundamental Rules. Both the respondents
moved the High Court under Article 226 of the Constitution
challenging the validity of the impugned orders on the
grounds:(1) that the High Court had no power to pass an
order of compulsory retirement of a member of the State
Judicial Service as such an order could be passed only by
the Appointing Authority i.e., the Governor; (2) that there
was no material on record which could justify their
premature retirement; and (3) that the Review Committees of
the High Court that passed the impugned orders were not
properly constituted.
Two Judges of the Division Bench of the High Court
delivered separate judgments and differed on the question of
the power of the High Court to pass the impugned orders. One
of the learned Judges took the view that though it was
within the jurisdiction of the High Court to take a decision
whether a member of the State Judicial service should be
compulsorily retired or not, the formal order of compulsory
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retirement was to be passed by the Governor acting on the
recommen-
333
dation of the High Court. According to the other learned
Judge, it was the High Court which was competent to pass an
order of compulsory retirement of a member of the State
Judicial Service without any formal order by the Governor
under rule 56(d) of the Fundamental Rules.
On merits, both the Judges came to the conclusion that
there was no material on record to justify the impugned
order. It was also held that in the case of Mr. Rajeswaran,
the irregular or illegal constitution of the Review
Committee vitiated the impugned order, while in the case of
Mr. Rajiah, the manner in which the Reivew Committee
considered the question of compulsory retirement was
illegal.
The High Court further pointed out that although Mr.
Rajeswaran was confirmed as a District Munsif on 1.1.1976,
in coming to a decision that Mr. Rajeswaran should be
compulsorily retired, the third Judge of the Review
Committee relied upon events that happened in 1954.
It was contended on behalf of the appellant that the
High Court alone has the power to pass an order of
compulsory retirement of a member of the State judicial
Service, and unless it is so held it would be in derogation
of High Court’s control over subordinate courts as conferred
on it by Article 235 of the Constitution. It was also urged
that rule 56(d) of the Fundamental Rules should be declared
ultra vires in so far as it confers power on the Governor to
compulsorily retire members of the Subordinate judicial
service. On merits, it was contended that the High Court was
not at all justified in considering the question of adequacy
or otherwise of the material on record in respect of the
impugned orders of compulsory retirement.
Dismissing the appeals, it was,
^
HELD: (Per M.M. Dutt, J.) (C.J.I. agreeing with him)
(1) Art. 235 vests in the High Court control over
Districts Courts and Courts subordinate thereto. The vesting
of such control is consistent with the idea of preservation
of the independence of the judiciary. If any authority other
than the High Court is conferred with the absolute right to
take action against a member of the subordinate judicial
service, such conferment of power will impinge upon the
power of control that is vested in the High Court under
Article 235 of the Constitution. [339C-D]
(2) Rule 56(d) of the Fundamental Rules under which a
member
334
of subordinate judicial service can be compulsorily retired
has to be A read subject to and in harmony with the power of
control vested in the High Court under Article 235 of the
Constitutioin. [339E]
(3) The test of control is not the passing of an order
against a member of the subordinate judicial service, but
the decision to take such action. Passing or signing of such
orders by the Governor will not necessarily take away the
control of the High Court vested in it under Article 235 of
the Constitution. [339G-H; 340A-B]
(4) An action against any Government servant consists
of two parts. Under the first part, a decision will have to
be made whether action will he taken against the Government
servant. Under the second part, the decision will be carried
out by a formal order. The power of control envisaged under
Article 235 of the Constitution relates to the power of
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making a decision by the High Court against a member of the
subordinate judicial service. [340B-C]
(5) The control of the High Court, as understood, will
be applicable in the case of compulsory retirement in that
the High Court will, upon an enquiry, come to a conclusion
whether a member of the subordinate judicial service should
be retired prematurely or not. If the High Court comes to
the conclusion that such a member should be prematurely
retired, it will make a recommendation in that regard to the
Governor inasmuch as the Governor is the appointing
authority. The Governor will make a formal order or
compulsory retirement in accordance with the recommendation
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. [342B-C]
(6) It may be that the power of the Governor under rule
56(d) of the Fundamental Rules is very formal in nature, for
the Governor merely acts on the recommendation of the High
Court. In the instant cases, as there is no formal order by
the Governor under rule 56(d), the impugned orders of the
High Court are ineffective. [343D-E]
(7) In that view of the matter, the contention made on
behalf of the High Court that rule 56(d) should be declared
ultra vires in so far as it confers power on the Governor to
compulsorily retire a member of. the subordinate judicial
service is without any substance whatsoever. [343E-F]
(8) When the High Court takes the view that an order of
com-
335
pulsory retirement should be made against a member of the
subordinate judicial service, the adequacy or sufficiency of
such materials cannot be questioned, unless the materials
are absolutely irrelevant. But such a conclusion must be
based on materials. If there be no material to justify the
conclusion, it will be an arbitrary exercise of power by the
High Court. As there is absence of any material to justify
the impugned orders of compulsory retirement, these must be
held to be illegal and invalid. [344C-E]
(9) It is true that the members of the Review Committee
should sit together, but simply because one of them did not
participate in the meeting, and subsequently agreed with the
view expressed by the other two Judges, it would not vitiate
the decision of the Committee. The third Judge might be
justified in correcting the date with effect from which Mr.
Rajiah would retire but that is a very minor issue and would
not make the decision invalid. [344H; 345A-B]
(10) This Court failed to understand why the Chief
Justice could not appoint a Review Committee. But the
decision of the Review Committee should have been placed
before a meeting of the Judges. In that sense, the
recommendation of the Riview Committee was not strictly
legal. [345C-D]
(11) The decision to compulsory retire Mr. Rajeswaran
is vitiated as the Review Committee had relied upon some
adverse incidents against him that took place in 1954,
although the respondent was appointed to the post of
District Munsif in 1976. [346E-F]
Per Sharma, J.:
Since there is no material on record in support of the
impugned orders of compulsory retirement of the two
respondents they were rightly quashed by the High Court. No
opinion is expressed on the other questions raised in these
cases. [347B]
State of West Bengal v. Nripendra Nath Bagchi, [1966] 1
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SCR 771; State of Haryana v. Inder Prakash Anand, [1976]
Suppl. SCR 603; State of Uttar Pradesh v. Batuk Deo Pati
Tripathi, [1978] 2 SCC 102; High Court of Punjab & Haryana
v. State of Haryana, [1975] 3 SCR 365; Shamsher Singh v.
State of Punjab, [1978] 1 SCR 814; B. Misra v. Orissa High
Court, [1976] 3 SCC 327; Baldev Raj Chadha v. Union of
India, [1981] 1 SCR 430 and Brij Bihari Lal Aggarwal v. High
Court of M.P., [1981] 2 SCR 297, referred to.
336
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 367 &
368 of 1984
From the Judgment and order dated 17.5.1983 of the
Madras High Court in W.P. No. 5008 of 1980 and 5304 of 1982
Rajendra Choudhary for the Appellant.
G.N. Rao and T. Sridharan for the respondents.
The Judgment of the Court was delivered by
DUTT, J. These two appeals are directed against a
common judgment of the Division Bench of the Madras High
Court whereby, in exercise of its jurisdiction under Article
226 of the Constitution of India, the High Court quashed the
orders of compulsory retirement of the two respondents, Mr.
R. Rajiah and Mr K. Rajeswaran, who were then the District
Munsifs.
The respondent, R. Rajiah, originally joined service as
a Sub-Magistrate on 3.3.1965. On 6.1.1973, he was appointed
a District Munsif in the Tamil Nadu State Judicial Service.
While he was functioning as District Munsif, on 3.3.1980 the
Registrar of the High Court, the appellant herein, sent a
communication to the respondent Rajiah stating therein that
he was being compulsorily retired from service in public
interest with effect from 3.3.1980
The other respondent, K. Rajeswaran, was also
originally appointed a Sub-Magistrate in 1953. On 29.11.
1971, he was appointed a District Munsif having been
selected by the Tamil Nadu Public Service Commission. On
22.2.1976, the High Court passed an order confirming him as
District Munsif with effect from 1.1.1976. On 27.10.1976,
the High Court passed an order compulsorily retiring him
from service, which was communicated to him by the
Registrar.
Both the respondents being aggrieved by the orders of
compulsory retirement, moved the High Court under Article
226 of the Constitution challenging the validity of the
impugned ordes of compulsory retirement passed by the High
Court in its administrative jurisdiction under Rule 56(d) of
the Fundamental Rules.
The principal contention of the respondents before the
High Court was that the High Court had no power to
oompulsorily retire
337
members of the Tamil Nadu State Judicial Service. Such an
order could be passed only by the State Governor, who was
the appointing authority. All that the High Court could do
was to make a recommendation to the State Governor in that
behalf. It was also contended on behalf of the respondents
that there was no material on record which would justify the
premature retirement of the respondents. The respondents
also challenged the validity of the constitution of the
Review Committees of the High Court that passed the impugned
orders of compulsory retirement.
Two learned Judges of the Division Bench delivered two
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separate judgments. One of the learned Judges of the
Division Bench took the view that though it was within the
jurisdiction of the High Court to take a decision whether a
member of the State Judicial Service should be compulsorily
retired or not in public interest, the formal order of
compulsory retirement was to be passed by the Governor
acting on the recommendation of the High Court. The other
learned Judge, however, did not subscribe to the above view.
According to him, it was the High Court which was competent
to pass an order of compulsory retirement of a member of the
State Judicial Service without any formal order by the
Governor under rule 56(d) of the Fundamental Rules. Both the
learned Judges, however, came to the conclusion that there
was no material on record to justify the impugned orders of
compulsory retirement of the two respondents. The learned
Judges also held against the validity of the constitution of
the Review Committee of the High Court that considered the
question of passing the order of compulsory retirement of
the respondent, Rajeswaran. According to the learned Judges,
the irregular or illegal constitution of the Review
Committee vitiated the impugned order of compulsory
retirement. In the case of respondent, Rajiah, it was held
that the manner in which the Review Committee considered the
question of compulsory retirement of Rajiah was illegal. The
writ petitions filed by the respondents were accordingly,
allowed by the High Court and the impugned orders of
compulsory retirement were quashed. Hence these two appeals.
Mr. Datta, learned Additional Solicitor General
appearing on behalf of the High Court, has strenuously urged
that it is the High Court and the High Court alone that is
competent to pass an order of compulsory retirement of a
member of the subordinate judiciary under rule 56(d) of the
Fundamental Rules. He has placed much reliance on the
provision of Article 235 of the Constitution. It is
submitted by him that unless it is held that the High Court
is the only competent authority to pass an order of
compulsory retirement, it would be denuding
338
the High Court of its control over subordinate courts as
conferred on it by Article 235 of the Constitution. On the
merits of the case, it is submitted by the learned
Additional Solicitor General that the Division Bench of the
High Court was not at all justified in considering the
question as to the adequacy or otherwise of the materials on
record in support of the impugned orders of compulsory
retirement.
Before considering the contention advanced on the basis
of Article 235 of the Constitution, we may, at this stage,
refer to the provision of rule 56(d) of the Fundamental
Rules, the relevant portion of which is extracted below:-
"R. 56(d)-Notwithstanding anything contained in
this rule, the appropriate authority shall if it
is of the opinion that it is in the public
interest so to do, have the absolute right to
retire any Government servant by giving him notice
of not less than three months in writing or three
months pay and allowances in lieu of such notice,
after he has attained the age of fifty years or
after he has completed twentyfive years of
qualifying service. Any Government servant who has
attained the age of fifty years or who has
completed twentyfive years of qualifying service
may likewise retire from service by giving notice
of not less than three months in writing to the
appropriate authority.
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Explanation I: Appropriate authority means
the authority which has the power to make subst
antive appointments to the post or service from
which the Government servant is required to retire
or wants to retire.
[Explanations II to V are omitted as they are not
relevant for our purpose.]
Rule 56(d) of the Fundamental Rules confers absolute
right on the appropriate authority to retire a Government
servant in the public interest. Under Explanation, I
"appropriate authority" means the authority which has the
power to make substantive appointment to the post or service
from which the Government servant is required to retire or
wants to retire. In view of Explanation I, it is manifestly
clear that the absolute power to retire any Government
servant has been conferred on the appropriate authority,
that is, the authority which has the power to make
substantive appointment to the post or service from
339
which the Government servant is required to retire. It is
not disputed that the authority to make substantive
appointment to the post of Munsif or District Munsif is the
Governor. Therefore, without anything else, under rule 56(d)
of the Fundamental Rules, the State Government or the
Governor being the appointing authority, has the absolute
power to retire a District Munsiff.
It is not necessary to consider the provision of
Article 235 of the Constitution and its impact on rule 56(d)
of the Fundamental Rules as to the absolute right of the
State Government to retire a member of the subordinate
judicial service. Article 235 vests in the High Court the
control over District Courts and Courts subordinate thereto.
The vesting of such control is consistent with the ideal of
preservation of the independence of the judiciary. The power
of control comprises within it various matters in respect of
subordinate judiciary including those relating to
appointment, promotion and imposition of punishment, both
major and minor. If any authority other than the High Court
is conferred with the absolute right to take action against
a member of the subordinate judicial service, such
conferment of power will impinge upon the power of control
that is vested in the High Court under Article 235 of the
Constitution.
Rule 56(d) of the Fundamental Rules under which a
member of suboridnate judicial service can be compulsorily
retired has to be read subject to and in harmony with the
power of control vested in the High Court under Article 235
of the Constitution At this stage, it is necessary to
consider the extent of the power of control of the High
Court under Article 235. In the instant cases, it has been
already noticed that the High Court had held the enquiry and
made the impugned orders of compulsory retirement. According
to one of the learned Judges of the Division Bench of the
High Court, as the impugned orders were not signed by the
Governor, but by the High Court, they were illegal and
should be struck down. The contention of the learned
Additional Solicitor General is that if the Governor is
required to sign the impugned orders, it would take away the
control of the High Court as conferred on it by Article 235.
We are, however, unable to accept the contention.
The test of control is not the passing of an order
against a member of the suboridnate judicial service, but
the decision to take such action. It may be that so far as
the members of the subordinate judicial service are
concerned, it is the Governor, who being the appointing
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authority, has to pass an order of compulsory retirement or
340
any order of punishment against such a member. But passing
or signing of such orders by the Governor will not
necessarily take away the control of the High Court vested
in it under Article 235 of the Constitution. An action
against any Government servant consists of two parts. Under
the first part, a decision will have to be made whether an
action will be taken against the Government servant Under
the second part, the decision will be carried out by a
formal order. 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.
In the State of West Bengal v. Nripendra Nath Bagchi,
[1966] 1 SCR 771 a question arose whether Article 311 takes
away the control of the High Court vested in it under
Article 235 of the Constitution. In that context,
Hidayatullah, J. (as he then was) speaking for the Court
observed as follows:
"There is, therefore, nothing in Art. 311 which
comples the conclusion that the High Court is
ousted of the jurisdiction to hold the enquiry if
Art. 235 vested such a power in it. In our
judgment, the control which is vested in the High
Court is a complete control subject only to the
power of the Governor in the matter of appointment
(including dismissal and removal) and posting and
promotion of District Judges. Within the exercise
of the control vested in the High Court, the High
Court can hold enquiries, impose punishments other
than dismissal or removal, subject however to the
conditions of service, to a right of appeal if
granted by the conditions of service, and to the
giving of an opportunity of showing cause as
required by cl. (2) of Art. 311 unless such
opportunity is dispensed with by the Governor
acting under the provisos (b) and (c) to that
clause. The High Court alone could have held the
enquiry
341
in this case. To hold otherwise will be to reverse
the policy which has moved determinedly in this
direction."
Thus, it appears that this Court brought about a
harmony between the power of the Governor and the power of
control of the High Court.
The question was again considered by this Court in
State of Haryana v. Inder Prakash Anand, [1976] Suppl. SCR
603. In that case A.N. Ray, C.J. Observed as follows:
"The control vested in the High Court is that if
the High Court is of opinion that a particular
Judicial officer is not fit to be retained in
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service the High Court will communicate that to
the Governor because the Governor is the authority
to dismiss, remove, reduce in rank or terminate
the appointment. In such cases it is the
contemplation in the Constitution that the
Governor as the head of the State will act in
harmony with the recommendation of the High Court.
If the recommendation of the High Court is not
held to be binding on the State consequences will
be unfortunate. It is in public interest that the
State will accept the recommendation of the High
Court. The vesting of complete control over the
Subordinate Judiciary in the High Court leads to
this that the decision of the High Court in
matters within its jurisdiction will bind the
State. "The Government will act on the
recommendation of the High Court. That is the
broad basis of Article 235"."
It is apparent from the observation extracted above
that this Court also understood the power of control of the
High Court as the power of taking a decision against a
member of the subordinate judicial service. The High Court
is the only authority that can take such a decision. The
High Court will hold an enquiry and decide on the result of
such enquiry whether any action will be taken against a
member of the subordinate judicial service. If it comes to
the conclusion that such an action is required to be taken,
it will make a recommendation in that regard to the State
Governor who will make an order in accordance with the
recommendation of the High Court.
There can be no doubt and, indeed, it is well
established that compulsory retirement of members of the
subordinate judicial service comes within the purview of the
power of control of the High Court
342
under Article 235 of the Constitution. See State of Uttar
Pradesh v. Batuk Deo Pati Tripathi, [1978] 2 SCC 102; High
Court of Punjab & Haryana v. State of Haryana, [1975] 3 SCR
365; Shamsher Singh v. State of Punjab, [1975] 1 SCR 814;
State of Haryana v. Inder Prakash Anand (supra) and B. Misra
v. Orissa High Court, [1976] 3 SCC 327.
The control of the High Court, as understood, will also
be applicable in the case of compulsory retirement is that
the High Court will, upon an enquiry, come to a conclusion
whether a member of the subordinate judicial service should
be retired prematurely or not. If the High Court comes to
the conclusion that such a member should be prematurely
retired, it will make a recommendation in that regard to the
Governor inasmuch as the Governor is the appointing
authority. The Governor will make a formal order of
compulsory retirement in accordance with the recommendation
of the High Court.
In the instant cases, admittedly, the impugned orders
of compulsory retirement have been passed by the High Court
under rule 56(d) of the Fundamental Rules. It has been
noticed that under rule 56(d) of the Fundamental Rules right
of compulsory retirement has been conferred on the
appropriate authority which, under Explanation I, means the
appointing authority, that is, the Governor. While the High
Court decided to compulsorily retire the respondents. it did
not communicate the recommendations to the State Governor
for passing formal orders of compulsory retirement. Instead,
the High Court passed the orders of compulsory retirement
itself. As Article 235 vests the power of control of
subordinate judiciary in the High Court, the absolute right
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to compulsorily retire a Government servant conferred on the
Governor by rule 56(d) of the Fundamental Rules must be
subject to the power of control of the High Court, so far as
the members of the subordinate judicial service are
concerned. In other words, if the High Court considers that
a member of the subordinate judicial service should be
compulsorily retired, the High Court will make a
recommendation in that regard to the Governor, who will make
an order of compulsory retirement in accordance with the
recommendation of the High Court. The Governor will only act
on the basis of the recommendation and pass a formal order.
But however formal it is, the compulsory retirement of
the member concerned will take effect after the order is
passed by the Governor. The High Court, in the present
cases, sought to derive its power to compulsorily retire the
respondents from rule 56(d) of the Fundamental Rules and in
exercise of its power of control it decided to
343
compulsorily retire the respondents, but ignored the power
of the Governor under rule 56(d) of the Fundamental Rules to
make the order of compulsory retirement in accordance with
the recommendation of the High Court. It may be that the
power of the Governor under rule 56(d) of the Fundamental
Rules is very formal in nature, for the Governor merely acts
on the recommendation of the High Court by signing an order
in that regard. But however formal it may be, yet the
procedure has to be complied with. So long as there is no
formal order by the Governor, the compulsory retirement, as
directed by the High Court, could not take effect. We are
unable to accept the contention of the learned Additional
Solicitor General that to send the recommendation to the
Governor for the purpose of making a formal order of
compulsory retirement would be in derogation of the power of
control of the High Court as vested in it under Article 235
of the Constitution. As has been discussed above, the power
of control is a power to make the decision as to whether any
action would be taken against a member of the subordinate
judicial service and if so, what would be the nature of the
action. In the case of compulsory retirement, when the High
Court comes to a decision that the member should be
compulsorily retired from service, its decision or
recommendation has to be communicated to the Governor so
that he may pass a formal order of compulsory retirement. In
the instant cases, as there is no formal order by the
Governor under rule 56(d) of the Fundamental Rules, the
impugned orders of the High Court are ineffective. The view
expressed by one of the learned Judges of the Division Bench
that it was not the High Court but the Governor who had to
pass formal orders of compulsory retirement, is correct. The
contention made on behalf of the High Court that as rule
56(d) of the Fundamental Rules impinges upon the power of
control of the High Court, as vested in it under Article 235
of the Constitution, it should be declared ultra vires in so
far as it confers power on the Governor to compulsorily
retire Government servants, who, in the instant cases, are
members of the subordinate judicial service, is without any
substance whatsoever and is rejected.
We may now come to the merits of the case. It has been
upheld by both the learned Judges of the Division Bench of
the High Court that the impugned orders were not supported
by any material. Further, it has been held that no material
has been placed before the High Court to show that the
impugned orders have been passed in public interest. This
finding has not been challenged by the learned Additional
Solicitor General appearing on behalf of the High Court. All
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that has been submitted by him is that the High Court was
not
344
justified in considering the adequacy or otherwise of the
materials in support of the orders of compulsory retirement.
There can be no doubt that when the High Court takes the
view that an order of compulsory retirement should be made
against a member of the subordinate judicial service, the
adequacy or sufficiency of such materials cannot be
questioned, unless the materials are absolutely irrelevant
for the purpose of compulsory retirement. But, in the
instant case, there is no question of adequacy or
sufficiency of the materials in support of the impugned
orders of compulsory retirement. According to the High
Court, no material has been placed in justification of the
impugned orders of compulsory retirement of the respondents.
It is true that the High Court in its administrative
jurisdiction has power to compulsorily retire a member of
the judicial service in accordance with any rule framed in
that regard, but in coming to the conclusion that a member
of the subordinate judicial service should be compulsorily
retired, such conclusion must be based on materials. If
there be no material to justify the conclusion, in that
case, it will be an arbitrary exercise of power by the High
Court. Indeed, Article 235 of the Constitution does not
contemplate the exercise by the High Court of the power of
control over subordinate courts arbitrarily, but on the
basis of some materials. As there is absence of any material
to justify the impugned orders of compulsory retirement,
those must be held to be illegal and invalid.
In Rajiah’s case, a Review Committee consisting of
three Judges was appointed by a resolution of the High
Court. In the meeting of the Review Committee held on June
25, 1979 to consider the case of the respondent Rajiah, only
two Judges of the High Court were present. The two Judges
came to the conclusion that the respondent, Rajiah, should
be compulsorily retired with effect from April 2, 1980. The
Division Bench found that the third Judge had no notice of
the meeting held on June 25, 1979, but he agreed with the
view expressed by the two Judges with a slight modification
that the respondent would retire with effect from March 3,
1980 under rule 56(d) of the Fundamental Rules. The Division
Bench of the High Court took the view that as all the three
Judges had not sat together and considered the question of
compulsory retirement of respondent Rajiah, and that,
further, the third Judge having also modified the decision
of the two Judges, namely, that the respondent would be
compulsorily retired with effect from March 3, 1980, the
impugned order of compulsory retirement of the respondent,
Rajiah, was vitiated. It is true that the members of the
Review Committee should sit together and consider
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the question of compulsory retirement, but simply because
one of them did not participate in the meeting, and
subsequently agreed with the view expressed by the other two
Judges, it would not vitiate the decision of the Committee
to compulsorily retire the respondent. The third Judge might
be justified in correcting the date with effect from which
the respondent would compulsorily retire, but that is a very
minor issue and would not, in our opinion, make the decision
invalid.
In regard to the case of the other respondent, namely,
K. Rajeswaran, the High Court took the view that the
constitution of the Review Committee by the Chief Justice
and not by the Full Court was illegal. We are unable to
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accept the view cf the High Court. We fail to understand why
the Chief Justice cannot appoint a Review Committee or an
Administrative Committee. But in one respect the High Court
is, in our opinion, correct, namely, that the decision of
the Review Committee should have been placed before a
meeting of the Judges. In the case of the respondent, K.
Rajeswaran, the decision and recommendation of the Review
Committee was not placed before the Full Court meeting. Nor
is there any material to show that the same was circulated
to the Judges. In that sense, the recommendation of the
Review Committee was not strictly legal.
Another fact which has been pointed out by the High
Court is that although the Review Committee was constituted
with two Judges, another Judge also participated in the
meeting of the Review Committee and, indeed, he recorded a
very elaborate minute. The Division Bench has looked into
the record and found that the learned Chief Justice had
appointed only two Judges to constitute the Review Committee
and observed that the participation of the third Judge was
improper. It is, however, not known whether he participated
in the meeting of the Review Committee under the direction
of the Chief Justice. We had not the opportunity of looking
into the record and, as such, we do not make any final
pronouncement about the same.
Another infirmity that has been pointed out by the
Division Bench is of some substance. The respondent, K.
Rajeswaran, was selected a District Munsif by the Public
Service Commission on 29.11.1971. His probation was declared
by the order of the High Court dated 15.7.1974 and on
1.1.1976 he was confirmed as a District Munsif. The Division
Bench has rightly observed that it must be taken that when
he was confirmed on 1.1.1976, there was nothing seriously
wrong against him. In coming to a decision that the
respondent should be compulsorily retired, the third Judge
of the Review Committee
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relied upon events that had happened right from 30.3.1954.
It is curious that the past events that happened in 1954
were not considered to be of any significance in appointing
the respondent to the post of District Munsif, but for the
purpose of compulsory retirement those events were
considered to be of importance. In Baldev Raj Chadha v.
Union of India, [1981] 1 SCR 430 this Court observed as
follows:
"One wonders how an officer whose continuous
service for 14 years crossing the efficiency bar
and reaching the maximum salary in the scale and
with no adverse entries at least for five years
immediately before the compulsory retirement,
could be cashiered on the score that long years
ago, his performance had been poor, although his
superiors had allowed him to cross the efficiency
bar without qualms. A short cut may often be a
wrong cut. The order of compulsory retirement
fails because vital material, relevant to the
decision, has been ignored and obsolete material,
less relevant to the decision has influenced the
decision. Any order which materially suffers from
the blemish of overlooking or ignoring, wilfully
or otherwise, vital facts bearing on the decision
is bad in law. Likewise, any action which
irrationally digs up obsolete circumstances and
obsessively reaches a decision based thereon,
cannot be sustained."
The above decision has been relied upon by the
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Division Bench and that rightly. The decision to compulsory
retire the respondent, in our opinion, is vitiated as the
High Court had relied upon some adverse incidents against
the respondent that took place in 1954, although the
respondent was appointed to the post of District Munsif in
1976. In this regard, we may also refer to an observation by
this Court in Brij Bihari Lal Agarwal v. High Court of M.P.,
[1981] 2 SCR 297:
"It is possible that a Government servant may
possess a somewhat erratic record in the early
years of service, but with the passage of time he
may have so greatly improved that it would be of
advantage to continue him in service up to the
statutory age of superannuation."
For the reasons aforesaid, we are of the view that the
Division Bench of the High Court was perfectly justified in
quashing the impugned orders of compulsory retirement.
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In the result, the appeals are dismissed. There will,
however, be no order as to costs.
SHARMA, J. I have gone through the Judgment just now
delivered by Mr. Justice M.M. Dutt, and I agree that since
there is no material on the records of the cases in support
of the impugned orders of compulsory retirement of the two
respondents-Mr. R. Rajiah and Mr. K. Rajeswaran, they were
rightly quashed by the High Court. The appeals are
accordingly dismissed. I am not expressing any opinion on
the other questions raised in these cases.
R.S.S. Appeals dismissed.
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