Civil Appeal No 367  368 of 1984 From the Judgment and order dated 1751983 of the Madras High Court in WP No 5008 of 1980 and 5304 of 1982 Rajendra Choudhary for the Appellant
GN 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 331965
On 611973 he was appointed a District Munsif in the Tamil Nadu State Judicial Service
While he was functioning as District Munsif on 331980 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 331980 The other respondent K Rajeswaran was also originally appointed a Sub Magistrate in 1953
On 2911
1971 he was appointed a District Munsif having been selected by the Tamil Nadu Public Service Commission
On 2221976 the High Court passed an order confirming him as District Munsif with effect from 111976
On 27101976 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 56d 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 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 56d 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 56d 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 56d of the Fundamental Rules the relevant portion of which is extracted below R 56d 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
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 56d 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 56d 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 56d 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 56d 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 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 vs Nripendra Nath Bagchi  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 article 311 which comples the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 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 article 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 vs Inder Prakash Anand In that case AN Ray CJ 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 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 vs Batuk Deo Pati Tripathi  High Court of Punjab  Haryana vs State of Haryana   Shamsher Singh vs State of Punjab   State of Haryana vs Inder Prakash Anand supra and B Misra vs Orissa High Court  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 56d of the Fundamental Rules
It has been noticed that under rule 56d 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 to compulsorily retire a Government servant conferred on the Governor by rule 56d 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 56d 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 56d 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 56d 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 56d 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 56d 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 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 56d 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 345 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 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 29111971
His probation was declared by the order of the High Court dated 1571974 and on 111976 he was confirmed as a District Munsif
The Division Bench has rightly observed that it must be taken that when he was confirmed on 111976 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 346 relied upon events that had happened right from 3031954
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 vs Union of India  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 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 vs High Court of MP  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
347 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 MM 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
RSS Appeals dismissed


Summary:
In April 1986 the Selection Committee constituted by the Chief Justice of Allahabad High Court recommended the grant of super time scale to the appellant a member of the UP Higher Judicial Services under Rule 27A of the UP Higher Judicial Services Rules 1975
The Full Court of the High Court considered the recommendation on two occasions but no decision could be taken as each time the Administrative Judge made certain new allegations against the appellant
Finally on January 17 1987 the Full Court found the appellant unfit for a post in the super time scale
On the eve of the Full Court Meeting the Administrative Judge was stated to have written a secret letter to the Chief Justice
Aggrieved the appellant filed a writ petition before the Division Bench
Meanwhile the appellant made a representation to the High Court on its Administrative side for reconsideration of the resolution of the Full Court
While no decision was taken by the Full Court at its meeting held on May 16 1987 an adverse entry for the year 1986 87 was recorded by the Administrative Judge
The Chief Justice enquired into the allegations contained in the adverse entry and found that the allegations had no foundation whatsoever
He recorded in his minutes that he regarded the appellant as a very good able and competent administrator with an unblemished integrity
318 The Division Bench after noticing the remarks of the Chief Justice quashed the resolution of the Full Court and referred back the matter to the Full Court for reconsideration
It also directed that the appellant be given an opportunity of explaining the imputations made against him in the letter written by the Administrative Judge on the eve of the Full Court meeting of January 17 1988 Dissatisfied with the above decision the appellant filed an appeal by special leave in this Court
Meanwhile the Full Court at its meeting held on February 20 1988 again rejected the recommendation of the Selection Committee for the grant of super time scale to the appellant
Allowing the appeal by special leave  HELD 11 Whether a member of the Higher Judicial Service should be granted the selection grade or the super time scale is a matter exclusively within the administrative jurisdiction of the High Court
This Court will not ordinarily interfere with any decision of the High Court in such a matter
However if the High Court acts in violation of any rule framed by it or of the principles of natural justice or comes to any finding not supported by any reliable material this Court has to examine the matter for ends of justice
But interference does not mean granting of relief which the High Court is entrusted to grant in its administrative jurisdiction
The Court will ordinarily refer back the matter for reconsideration of the High Court
322F H However in the instant case ends of justice would require interference by disposing of the matter finally without referring it again to the High Court
323A 12 Proviso to Rule 4B of the UP Higher Judicial Service Rules requires that before an adverse remark is communicated to the concerned judicial officer it must be placed before the Chief Justice
By necessary implication therefore the rule requires concurrence of the Chief Justice for taking necessary action on the adverse remark by communicating to the judicial officer concerned
324A B In the instant case although the Chief Justice did not agree with the adverse remarks action was taken by communicating them to the appellant in utter violation of the proviso to Rule 4B and also in disregard of the minutes of enquiry of the Chief Justice
324B C 319 The appellant had denied the allegations contained in the letter of the Administrative Judge but no attempt was made by the Full Court to have the comments of the retired Judge who orally made the allegations
Further the allegations which were made from time to time against the appellant resulting in the postponement of consideration by the Full Court were all found to be untrue
324C D An enquiry was made by the Chief Justice and the allegations contained in the adverse entry for 1986 87 have been found to be without foundation
Indeed the Chief Justice recorded that he regarded the appellant as a very good able and competent administrator with an unblemished integrity
323E F Therefore in the absence of any material on record to form the foundation in support of the allegations and in view of the minutes of the Chief Justice the Full Court was not at all justified in acting on the allegations contained in the letter of the Administrative Judge and depriving the appellant of the grant of super time scale
323F The appellant was therefore entitled to a posting in the supertime scale
Since the appellant has already retired he shall be paid the monetary benefit with effect from January 1 1987 and his pension suitably altered
324F G