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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: INDER PRAKASH ANAND H.C.S. & OTHERS

DATE OF JUDGMENT07/05/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) SARKARIA, RANJIT SINGH SHINGAL, P.N. SINGH, JASWANT

CITATION:  1976 AIR 1841            1976 SCR  603  1976 SCC  (2) 977  CITATOR INFO :  RF         1976 SC2490  (24,25)  RF         1977 SC2328  (14)  R          1979 SC 193  (39)  R          1979 SC 478  (152)  R          1986 SC1814  (8)  R          1988 SC1388  (16)

ACT:      Constitution  of   India  [950]   Art.   235-Power   to compulsorily retire-Whether  vests  in  the  High  Court  or Governor- Control, nature and scope of.

HEADNOTE:      The respondent was officiating as Additional District & Sessions Judge.  On a reference to the High Court whether he should be  retained in  service till the age of 58 or should be retired at the age of 55, the High Court recemmended that he should  be reverted  to his  substantive post  of  Senior Subordinate Judge  but that he should be allowed to continue in that  post till  the age  of  58.  The  State  Government reverted him  but retired  him from  service at  55 under r. 5.32(c) Punjab  Civil Service  Rules. The rule states that a retiring pension  is granted  to a Government servant who is retired by  the appointing  authority on or after he attains the age  of 55 by giving him 3 months notice. The High Court quashed the order of retirement.      Dismissing the appeal to this Court. ^      HELD: (1)  Article 235  vests in the High Court control over district  court   and courts  subordinate thereto.  The control  includes   both  disciplinary   and  administrative jurisdiction.  Disciplinary   control   means   not   merely jurisdiction award  punishment for  misconduct, but also the power to  determine whether  the record  of   member of  the service is  satisfactory or  not so  as to  entitle  him  to continue in  service for.  the full term till he attains the age   of   superannuation.   Administrative   judicial   and disciplinary control over members of the judicial service is vested solely  in the  High Court.  Premature retirement  is made in  the exercise  of  administrative  and  disciplinary

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jurisdiction. It  is administrative because it is decided in public  interest   to  retire  him  prematurely  and  it  is disciplinary, because,  the  decision  is  taken  in  public interest that  he does  not deserve  to continue  up to  the normal age  of superannuation.  The fixation  of the  age of superannuation is  the right  of the  State Government.  The curtailment  of   that  period  under  rules  governing  the conditions service  is a  matter pertaining  to disciplinary control as  well as  administrative control.  [605G-H: 606H- 607C]      State of  West Bengal v. Nripendra Nath Bagchi [1966] 1 S.C.R. 771  and High  Court of  Punjab and  Haryana etc.  v. State of  Haryana (Sub  nom Narerdra  Singh  Rao)  [1975]  3 S.C.R. 365, followed.      (2) The  control which  is vested  in the High Court is complete control  subject only  to the power of the Governor in  the   matter  of   appointment,  dismissal,  removal  or reduction in  rank and  the initial  posting of  and initial promotion  to  District  Judges.  The  vesting  of  complete control over  the subordinate  judiciary in  the High Court, leads to  this that  if the  High Court is of opinion that a particular officer is not fit to be retained in service, the High Court  will communicate  that opinion  to the Governor, because, the Governor is the authority to dismiss, remove or reduce in  rank or terminate the appointment. In such cases, the Governor,  as the head of the State, will act in harmony with the  recommendation of  the High Court as otherwise the consequence will be unfortunate. [605H 606A-G. H: 607E-F]      (3) But,  compulsory retirement  simpliciter  does  not amount to  dismissal or  removal or  reduction in rank under Article 311  or under  service rules.  When a case is not of removal or  dismissal or  reduction in  rank, any  order  in respect of exercise of control over the judicial officers is by the  High Court  and by no other authority; otherwise, it will affect the independence of the judiciary. [605F-G;] 604      Shyam Lal v. State of Uttar Pradesh [1955] 1 S.C.R. 26; Dalip Singh v.State of Punjab [1961] 1 S.C.R. 88; Tara Singh v. State  of Rajasthan [1975] 4 S.C.C.86; B. Venkateswararao Naidu v.  Union of  India [1973]  1. S.C.C. 361 and Shamsher Singh &  Anr. v.  State  of  Punjab  [1975]  1  S.C.R.  814, followed:      (4) It  is not correct to contend that the Governor and not the  High Court  has the  power  to  retire  a  judicial officer compulsorily under s. 14 Punjab General Clauses Act. The suggestion  that the High Court recommends and the State Government implements  the recommendation  in the  matter of compulsory retirement  is to destroy the control of the High Court. It is only the order terminating the appointment of a member of  the service  otherwise than upon his reaching the age of  superannuation that  will be  passed  by  the  State Government on  the recommendation of the High Court.[606C-D, G-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2454 of 1972.      From the  Judgment and  Order dated  the 18th December, 1971 of  the Punjab  and Haryana High Court at Chandigarh in Civil Writ Petition No. 2604 of 1971.      L.  N.  Sinha,  Solicitor  General,Naunit  Lal,  R.  N. Sachthey for the appellant.      Anand Swarup, Harbans Singh Marwah for Respondent No.2.

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    Ashok Grover; for Respondent No. 1.      The Judgment of the Court was delivered by.      RAY, C.J.  This  appeal  is  by  certificate  from  the judgment dated  18 November,  1971 of the Punjab and Haryana High Court.      The  respondent   joined  the   Punjab  Civil  Service, (Executive Branch)  in November,  1954. He  was selected for the Judicial  Branch of the Punjab Civil Service on or about 1  May,1965.  On  15  November,  1968  he  was  promoted  as officiating Additional District and Sessions Judge.      The respondent was due to attain the age of 55 years on 24 February,  1971. His  case was referred to the High Court for  their  recommendation  whether  the  respondent  should retire at  the age  of 55  years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.      The High  Court was  of opinion  that the  work of  the respondent as Additional District and Sessions Judge was not satisfactory. The  High Court  was not inclined to recommend the respondent’s continuance in Superior Judicial Service up to the  age of 58 years. The High Court recommended that the respondent should  be reverted  to his  substantive post  of Senior Subordinate  Judge/Chief Judicial Magistrate and that he might  be allowed  to continue in service till the age of 58 years.      The State Government agreed with the recommendation for reverting  the   respondent  from  the  post  of  Additional District  and  Sessions  Judge  to  the  Senior  Subordinate Judge/Chief  Judicial   Magistrate.  With   regard  to   the retention of the respondent in service up to the age of 58 605 years the  State again  asked the  High  Court  to  consider whether in  view of  the  respondent’s  work  as  Additional District and Sessions Judge, Hissar, having been found to be unsatisfactory, the  respondent should be retained at all in service beyond  the age  of 55  years. The  State Government suggested that  it was  in public  interest  to  retire  the respondent at  the age  of 55  years. The High Court did not agree with  the suggestion.  By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service  up to  the age of 58 years. The State Government did not  agree with the recommendation of the High Court and decided to  retire the respondent under Rule 5.32 (c) of the Punjab Civil  Service Rules.  A notice  was  issued  to  the respondent on  20 August,  1971 giving  him notice  of three months on the expiry of which he would retire from service.      The respondent  filed a writ petition in the High Court impeaching the  notice dated  20 August 1971. The matter was heard by a Bench of three learned Judges. The order retiring the respondent  from service  was quashed  by  the  majority opinion.      The question  is whether  the  State  Government  could compulsorily retire  a Senior  Subordinate Judge  cum  Chief Judicial Magistrate  under rule 5.32 (c) of the Punjab Civil Service Rules against the recommendation of the High Court.      This Court  in Shyam Lal v. State of Uttar Pradesh held that compulsory  retirement does  not involve  stigma or any implication of  mis-behaviour or  incapacity. In Dalip Singh v. State of Punjab this Court held that in order to find out whether an  order of  compulsory retirement  is or is not by way of  punishment, is  to find  out  whether  a  charge  of imputation against  the officer  is made  the basis  of  the exercise of power and second whether the officer is deprived of any benefit already earned.      In the  recent decision  in  Tara  Singh  v.  State  of

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Rajasthan this  Court held that compulsory retirement is not a punishment  because the officer does not lose the terminal benefits already  earned by him. In B. Venkateswararao Naidu v. Union of India this Court held that compulsory retirement does not involve civil consequences.      It,  therefore,   follows  that  compulsory  retirement simpliciter does  not amount  to  dismissal  or  removal  or reduction in  rank under  Article 311  or under  the Service Rules. It  is in  fact compulsory  retirement in  accordance with the terms and conditions of service.      The decisions  of this Court in State of West Bengal v. Nripendra Nath  Bagchi and  High Court of Punjab and Haryana etc. v.  State of  Haryana (Sub  nom Narendra Singh Rao) are that Article  235 vests  in  the  High  Court  control  over District Courts and courts subordinate thereto. The Governor appoints  and   dismisses  and  removes  Judicial  Officers. Control which  is vested  in  the  High  Court  is  complete control subject only to the power of the Governor in the 606 matter  of   appointment   including   dismissal,   removal, reduction in rank and the initial posting and of the initial promotion to  District Judges.  There is  nothing in Article 235 to  restrict the control of the High Court in respect of Judges other than District Judges in any manner. Article 311 has  taken  away  the  power  of  dismissal  or  removal  or reduction in  rank from  the High Court and the Governor has been given that special power referred to in Article 311(3).      This Court  in Shamsher Singh & Anr. v. State of Punjab held that  when a  case is  not of  removal or  dismissal or reduction in  rank any  order  in  respect  of  exercise  of control over  the Judicial Officers is by the High Court and no other  authority. There  cannot be dual control. If State Government is  to have  the  power  of  deciding  whether  a Judicial  Officer   should  be  retained  in  service  after attaining the age of 55 years up to the age of 58 years that will seriously  affect the independence of the judiciary and take away  the control  vested in the High Court. Compulsory retirement is  neither suspension  nor removal nor reduction in rank.  It is unsound to contend that the Governor and not the High  Court has  the power  to retire a Judicial Officer compulsorily under  section 14 of the Punjab General Clauses Act. The  suggestion that  the High Court recommends and the State Government  is to  implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.      The Punjab  Civil Service  Rules in  Rule 3.26(a) deals with compulsory  retirement at  the age  of 58. Rule 5.32(c) deals with retirement at the age of 55.      Two relevant rules in the Punjab Civil Service Rules in the present  case are  these. Rule  3.26(a) states  that the date of  compulsory retirement of a Government servant other than a  Class IV  Government servant is the date on which he attains the  age of  58. Rule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing  authority on  or after he attains the age of 55 years by giving him not less than three months’ notice.      This Court  in Bagchi’s  case (supra) said that control vested in  the High Court is over the conduct and discipline of the  members of  the Judicial  Service. Orders  passed in disciplinary jurisdiction  by the  High Court are subject to an appeal as provided in the conditions of service. The High Court further  deals with members of the judicial service in accordance with  the rules  and conditions  of service. This Court in  Bagchi’s case  (supra) said  that the  word "deal" points  to   disciplinary  and   not  merely  administrative

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jurisdiction. The  order terminating  the appointment  of  a member of  the service  otherwise than upon his reaching the age fixed  for superannuation  will be  passed by  the State Government on  the recommendation of the High Court. This is because the  High Court is not the authority for appointing, removing, reducing the rank or terminating the service.      It  is   true  that   the  fixation   of  the   age  of superannuation is  the right  of the  State Government.  The curtailment of that period under rule 607 governing the  conditions of  service is a matter pertaining to disciplinary   control as well as administrative control. Disciplinary control  means not merely jurisdiction to award punishment for  misconduct. It  also embraces  the power  to determine whether  the record  of a member of the service is satisfactory or  not so  as to  entitle him  to continue  in service for  the full  term  till  he  attains  the  age  of superannuation. Administrative,  judicial  and  disciplinary control over  members of  the  Judicial  Service  is  vested solely in  the High  Court. Premature  retirement is made in the   exercise    of   administrative    and    disciplinary jurisdiction. It  is administrative because it is decided in public  interest   to  retire   him  pre-maturely.   It   is disciplinary because  the decision  was taken  that he  does deserve to  continue in  service up  to the  normal  age  of superannuation and  that it  is in the public interest to do so.      This Court held in State of Assam v. Ranga Mahammad and Ors. that  the Governor  under Article 233 is concerned with the appointment,  promotion and  posting  to  the  cadre  of District Judges but not with the transfer of District Judges already appointed  or promoted and posted to the cadre. This Court has  held in  the Punjab and Haryana case (supra) that the confirmation  of District  Judges is  to be  done by the High Court because it falls within the control vested in the High Court.  The High  Court is acquainted with the capacity of work  of the  members of  the Service.  In the  Punjab  & Haryana case  (supra) this  Court pointed  out that if after the appointment  of District  Judge till he is confirmed the State is allowed to control the District Judge there will be dual control.  This is  not the  meaning of "control" in our Constitution.      The control  vested in  the High  Court is  that if the High Court  is of opinion that a particular Judicial Officer is not  fit to  be retained  in service  the High Court will communicate that to the Governor because the Governor is the authority to  dismiss, remove,  reduce in  rank or terminate the appointment.  In such  cases it  is the contemplation in the Constitution  that the Governor as the head of the State will act  in harmony  with the  recommendation of  the  High Court. If  the recommendation  of the High Court is not held to be binding on the State consequences will be unfortunate. It is  in public  interest that  the State  will accept  the recommendation of  the High  Court. The  vesting of complete control over  the Subordinate  Judiciary in  the High  Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act  on the  recommendation of  the High Court. That is the broad  basis of  Article 235". See Shamsher Singh’s case (supra) at page 841.      In the  present case,  the order  of the State retiring the respondent from service after the expiry of three months from the  date of the order 20 August, 1971 has been rightly quashed by  the High  Court. The High Court did not make any recommendation to that effect.

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    The appeal is, therefore, dismissed with costs. V.P.S.                                     Appeal dismissed. 608