Civil Appeal No 741 of 1987
From the Judgment and order dated 621987 of the Rajasthan High Court in DB Civil Writ Petition No 1632 1758 1826 340 1723 344 342 343 1755 1756 1757 1982 of 1986 17087 and SA No 341 of 1986 VM Tarkunde Mrs M Karanjawala and Ezaz Maqbool for the Appellant in CA No 74187 Dushyant Dava Ezaz Maqbool Mrs Manik Karanjawala for the Petitioners in WP No 28687
CM Lodha PP Rao Badri Das Sharma Raj Kumar Gupta and PC Kapur for the Respondents
PK Jain for the Intervener in WP No 2861987
The Judgment of the Court was delivered by VENKATACHALIAH J
These appeals by Special Leave arise out of the judgment dated February 6 1987 of the Division Bench of High Court of Rajasthan disposing of by a common judgment a batch of writ appeals and writ petitions in which was involved the question of the validity of certain provisions of the Recruitment Rules made and promulgated under the proviso to Article 309 of the Constitution by which in respect of the scheme of competitive examinations to be conducted by the Public Service Commission for recruitment to certain branches of the civil services under the state certain minimum qualifying marks in the viva voce test were prescribed
The Division Bench by its judgment under appeal declared as arbitrary and unconstitutional this prescription in the rules which required that the candidates for selection to Administrative Service the Police Service and the Forest Service of the State should secure a minimum of 33 of the marks prescribed for the viva voce examination
In these appeals the correctness of the High Court s view is questioned by the State of Rajasthan its Public Service Commission and the successful candidates whose selections were in consequence of invalidation of the rule quashed by the High Court
The Writ Petition No 286 of 1987 before us is by another batch of candidates selected by the Public Service Commission for issue of a writ of mandamus directing the State to effectuate the selection and 382 issue orders of appointment
By an inter locutory order dated 1331987 the operation of the judgment under appeal was stayed by this court
The result of this stay is that there was no impediment to effectuate the Select List dated 1771986
The Rajasthan State and Subordinate Services Direct Recruitment by Combined Competitive Examinations Rules 1962  1962 Rules for Short  the Rajasthan Administrative Service Rules 1954 the Rajasthan Police Service Rules 1954 the Rajasthan Forest Service Rules 1962 contain a provision special to the said three services and not applicable to other services that candidates other than those belonging to Scheduled Castes and Scheduled Tribes should secure a minimum of 33 of marks in the viva voce test
It is this Rule which is the centre of controversy
The Rules also stipulate that candidates for these three services must also secure 50 in the written examinations but that is not in the area of controversy
Proviso 1 to Rule 15 of the 1962 rules  which is the relevant Rule brings out the point
It provides 15
Recommendations of the Commission 1 The Commission shall prepare for each Service a list of the candidates arranged in order of merit of the candidates as disclosed by the aggregate marks finally awarded to each candidate
If two or more of such candidates obtain equal marks in the aggregate the Comission shall arrange their names in the order of merit on the basis of their general suitability for the service Provided that i the Commission shall not recommend any candidate for the RASRPS who has failed to obtain a minimum of 33 marks in the personality and viva voce examination and a minimum of 50 marks in the aggregate
It shall also not recommend any candidate for other services who has failed to obtain a minimum of 45 marks in the aggregate
ii 2 Notwithstanding anything contained in proviso i the Commission shall in case of candidates belonging to the Scheduled Castes or Scheduled Tribes recommend the names of such candidates upto the 383 number of vacancies reserved for them for amongst
those who have qualified for interview even if they fail to obtain the minimum marks in viva voce or the aggregate prescribed under proviso i above  emphasis supplied Similar is the purport of Proviso i to Rule 25 of the Rajasthan Administrative Service Rules 1954 the Rajasthan Police Service Rules 1954 the Rajasthan Forest Service Rules 1962 and the Rajasthan Forest Subordinate Service Rules 1963
The Rajasthan Public Service Commission conducts the competitive examination for selection for appointment to these and several other services under the State
The maximum marks for the written examination is 1400 and for the viva voce and personality test is 180 which constitutes 119 of the aggregate marks
Rules in relation to the Administrative Police and Forest Services require that candidates should secure 33 as minimum qualifying marks in the viva voce
The High Court has struck down these provisions stipulating the minimum cut off marks at the viva voce
In the year 1985 the Rajasthan Public Service Commission initiated proceedings for selection to 16 services including the said three services
The written examinations were conducted in october 1985 the results of which were published in April 1986
The viva voce examinations and personality test were conducted between June 11  July 11 1986
The final Select List was published on 1771986
The five appellants in CA 741 of 1987 secured respectively 19th 23rd 20th 12th and 11th places
The 5 petitioners in WP 286 of 1987 secured 10th 13th 14th 17th and 18th places respectively in the Select List
Some of the candidates who failed to secure 
the requisite minimum of 60 marks out of the 180 marks prescribed for the viva voce and could not therefore make the grade in the said three services challenged before the High Court
The Select List on the ground of the unconstitutionality of the provision in the Rules stipulating such minimum cut off marks
They filed Writ Petitions 1632 of 1986 1723 of 1986 1826 of 1986 1842 of 1986 1982 of 1986 and 170 of 1987 in the High Court
The petitions were referred to and came before a Division Bench and were heard along with the special Appeals 340 to 344 of 1986 which had been preferred against an earlier decision on the same question by a single judge of the High Court
We have heard Sri CM Lodha Sri Tarkunde and Sri Shanti Bhushan learned Senior Advocates respectively for the State of 384 Rajasthan the Public Service Commission and the selected candidates and Shri PP Rao Learned Senior Advocate for the unsuccessful candidates at whose instance the Select List was quashed by the High Court
It was contended for the appellants that the High Court in reaching such conclusions as it did on the constitutionality of Proviso i to Rule 15 of the  1962 rules and of the corresponding Provisions in the Rules pertaining to the other services wholly misconceived the thrust and emphasis of the pronouncements of this court in Ajay Hasia vs Khalid Mujib Sehravardi  Ors etc
   Lila Dhar vs State of Rajasthan  Ors 1982 1 SCR 320 and Ashok Kumar Yadav vs State of Haryana and Ors
 1985 Suppl
1 SCR 657
It was urged that the High Court fell into a serious error in importing into the present case principles laid down in a wholly different context and that in the said three decisions the question whether a minimum qualifying marks could be prescribed for a viva voce examination or not did not fall for consideration much less decided by this court
What was considered in those cases counsel say pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for the viva voce in comparison with the marks of the written examination would be arbitrary
Learned Counsel further submitted that reliance by the High Court on the Report of the Kothari Commission on the basis of which the prescription of minimum qualifying marks for the viva voce was done away with in the Competitive Examinations for the Indian Administrative Service Police Service and other central services was erroneous as that report was merely an indication of a policy trend
It was submitted that even the Kothari Commission had itself advised further evaluation of the matter
It was further submitted for the appellants that the prescription of minimum qualifying marks for the written examination or the viva voce or for both is a well recognised aspect of recruitment procedures and that a prescription of a maximum of 119 of the total marks for the viva voce examination with a condition that the candidate must get at least 33 out of these marks for selection to the three key services would not violate any constitutional principle or limitation but on the contrary would indeed be a salutary and desirable prescription particularly having regard to the nature of the services to which recruitment is envisaged
It was submitted that personnel recruited to the high echelons of Administrative Police and Forest services with the prospect with the passage of time of having to assume higher responsibilities of administration in these three vital departments of Government should be tried men with dynamism and special attain 385 ments of personality
It was pointed out that though the pay scale of the Accounts Service and Insurance Service are the same as that of the Administrative Service such a prescription is not attracted to the selection to these other services
Shri PP Rao learned Senior Advocate appearing for the candidates who had failed to secure the minimum at the viva voce and whose challenge to the selection had been accepted by the High Court submitted that the principles which the High Court had accepted were sound and that the decision under appeal would require to be upheld
Sri Rao submitted that the principles enunciated in the Ajay Hasia Lila Dhar and Ashok Kumar Yadav acquire an added dimension in the context of the increasingly denuded standards of probity and rectitude in the discharge of public offices and that attempts to vest a wide discretion in the selectors should not be too readily approved
According to Sri Rao the real thrust of the principle laid down in these cases is that any marking procedure that make the oral test determinative of the fate of a candidate is in itself arbitrary
Shri Rao relied upon the following passage in Ashok Kumar Yadav s case 1985 Suppl
1 SCR 657 at 697 98 
The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination the viva voce test tended to become a determining factor in the selection process because even if a candidate secured the highest marks in the written examination he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test
It is therefore obvious that the allocation of such a high percentage of marks as 333 per cent opens the door wide for arbitrariness and in order to diminish if not eliminate the risk of arbitrariness this percentage need to be reduced  emphasis supplied Shri Rao submitted that the correct test flowing from the earlier decisions is to ask whether the viva voce tended to become the determing factor in the selection process
If so it would be bad
If this test is applied to the present case Sri Rao says the requirement of minimum cut off marks in the viva voce makes that viva voce a de 386 termining factor in the selection process and falls within the dictum of the earlier cases and the decision reached by the High Court accordingly is unexceptionable
Sri Rao sought to demonstrate how the Rule operated in practice and as to how candidates at the top of the results in written examination had failed even to secure the minimum in the viva voce particularly in the Interview Board presided over by a certain Sri Khan
He showed with reference to several instances how the performance in the written examination and the viva voce bear almost an inverse proportion
The High Court accepted those grounds urged in invalidation of the impugned rule and held  
The question before us is slightly different and relates to the essential requirement of obtaining the prescribed minimum qualifying one third marks out of those allotted for the viva voce test since the percentage of marks allot ted for the viva voce test as compared to the written test is within the permissible limit
The test of arbitrariness even in such a case is however indicated by the ratio decidendi of Ashok Kumar Yadav case supra
It was clearly held by the Supreme Court in Ashok Kumar Yadav s case supra that any method which makes the viva voce test a determining factor in the selection process resulting in a candidate securing high marks in the written examination being easily knocked out in the race by awarding him low marks in the viva voce test and vice versa is arbitrary and is liable to be struck down on that ground 
We may now examine the merits of the rival contentions
The modern state has moved far away from its concept as the Leviathan  with its traditional role symbolised by the two swords it wielded one of war and the other of justice
The modern pluralist social welfare state with its ever expanding social and economic roles as wide ranging as that of an Economic Regulator Industrial Producer and Manager Arbitrator Educationist Provider of Health and Social Welfare services etc has become a colossal service corporation
The bureaucracy through which the executive organ of the state gives itself expression cannot escape both the excitement and the responsibility of this immense social commitment of the Welfare State
Today the bureaucracy in this country carries with it in a measure never before dreamt 387 Of the privilege and the burden of participation in a great social and economic transformation in tune with the ethos and promise of the constitution for the emergence of a new egalitarian and eclectic social and economic order a national commitment which a sensitive devoted and professionally competent administrative set up alone can undertake
A cadre comprised of men inducted through patronage nepotism and corruption cannot morally be higher than the methods that produced it and be free from the sins of its own origin
Wrong methods have never produced right results
What therefore should impart an added dimension and urgency to the Recruitment to the services is the awareness of the extraordinary vitality and durability of wrong selections
With the constitutional guarantee of security the machinery for removal of a Government Servant on grounds of in efficiency and lack of devotion remains mostly unused
The authors of a work on Britain s Ruling Class say ONE OF THE MAIN ATTRACTIONS of working for the Civil Service is job security
Once they let you in you have to do something spectacularly improper to get kicked out
In 1978 out of 567000 non industrial civil servants just 55 were sacked for disciplinary reasons 57 were retired early on grounds of inefficiency or limited efficiency  123 were retired early on grounds of redundancy 
In practice a modest dose of common sense and propriety allows you to stay a civil servant until you retire
In the middle and senior administration grades many do just that
82 per cent of permanent Secretaries have been in the Civil Service for 25 years or more so have 79 per cent of Deputy Secretaries 62 per cent of Under Secretaries and 70 per cent of Senior Executive officers 
Recruiting civil servants means picking as many potential high flyers as possible and at the same time as few potential albatrosses
It is a task carried out by the Civil Service Commission with scrupulous honesty but questionable efficiency
 The history of the evolution of the civil services in some countries is in itself study in contrasts as fascinating as it is disquieting
 The Civil Servants An Inquiry into Britain s Ruling Class Peter Kellnor and Lord Crowther Hunt at 388 In France until the Revolution almost every office central or local excepting the dozen or so of the highest offices were attainable only by private purchase gift or inheritance
All Public officer were treated as a species of private property and voluminous jurisprudence governed their transmission
Of this spectacle a learned authority on Public Administration says Prices rose but there was a frantic buying
Ministers made the most of their financial discovery
As it soon be came too difficult to invent new offices the old ones were doubled or trebled that is divided up among several holders who exercise their functions in rotation or who did what the seventeenth and eighteenth centuries were too fond of doing employed a humble subordinate to carry them out offices were sought then with a frenzied energy and they were created with synicism Desmarets one of Louis XIV s Comptroller Generals had proposed to the King the establishment of some quite futile offices and the latter asked who would ever consent to buy such situation Your Majesty  replied Desmarets is forgetting one of the most splendid of the prerogatives of the Kings of France that when the King creates a job God immediately creates an idiot to buy it See Theory and Practice of Modern Government Herman Finer page 751 The much desired transformation from patronage to open competition is later development to which now all civilised governments profess commitment
However though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts however as to the methods of assessment of efficiency promise and aptitude ideas and policies widely vary though it has now come to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made
The interview  is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates
Macaulay had earlier clearly declared that a youngmen who in competition with his fellowmen of the same age had shown superiority in studies might well be regarded as having shown character also since he could not have pre 389 pared himself for the success attained without showing character eschewing sensual pleasures
But the interview came to be recognised A as an essential part of the process of selection on the belief that some qualities necessary and useful to public servants which cannot be found out in a written test would be revealed in a viva voce examination
In justification of the value and utility of the viva voce the committee on Class I examinations in Britain said B  
It is sometimes urged that a candidate otherwise well qualified may be prevented by nervousness from doing himself justice viva voce
We are not sure that such lack of nervous control is not in itself a serious defect nor that the presence of mind and nervous equipoise which enables a candidate to marshall all of his resources in such conditions is not a valuable quality
Further there are undoubtedly some candidates who can never do themselves justice in written examinations just as there are others who under the excitement of written competition do better than on ordinary occasions 
We consider that the viva voce can be made a test of the candidate s alertness intelligence and intellectual outlook and as such is better than any other   As to the promise as well as the limitations of the viva voce Herman Finer says E If we really care about the efficiency of the civil service as an instrument of government rather than as a heaven sent opportunity to find careers for our brilliant students these principles should be adopted
The interview should last at least half an hour on each of two separate occasions
It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus and a short verbal report could be required on such a subject the scope of which would be announced at the interview
As now the interview should be a supplementary test and not a decisive selective test
The interviewing board should include a business administrator and a university administrator
The interview should come after and not before the written examination and if this means some inconvenience to candidates and examiners then they must remember that they are helping to select the government of a great state and a little inconvenience H 390 is not to be weighed against such a public duty  See Theory and Practice of Modern Government Herman Finer at page 779 The problems of assessment of personality are indeed complicated
On the promise as well as dangers of the purely personal interview  method Pfiffner Presthus in his Public Administration  at page 305 says Pencil and paper tests that measure some aspects of personality are now available
Notable among these are the so called temperament or personality inventories
These consist of questions in which the applicant is asked to evaluate himself relative to certain aspects of psychiatry and abnormal psychology
Such tests are subject to a great deal of controversy however and there is a school of experimental psychologists which condemns them mainly on two grounds
First individuals will not give honest answers in a competitive test that asks them to describe their abnormal and intimate behaviour or beliefs
Second it is maintained that the value of these tests lies in their use as the repeutic or clinical aids rather than as vehicles for com petition  
Appointing officers are afraid that examining procedures will fail to give proper attention to such qualifications
The result is that they often feel they could do a better job of selection using only the personal interview
There are at least two reasons why this cannot be allowed
The first relates to the protective tendency of civil service appointing officers may appoint brothers in law or personal favourites
In addition psychological research has shown that the interview is of questionable validity even in the hands of an experienced executive
The arguments in the case on the legality of the prescription of minimum qualifying marks in the viva voce turned more on the undesirability of such a condition in the background of the increasing public suspicion of abuse of such situations by the repositories of the power
The standards of conduct in public life over the years have unfortunately not helped to lessen these suspicions
Tests of this kind owing to be repeated on sloughts on the sensibilities of the public in the 391 past tend themselves too readily to the speculation that on such occasions considerations other than those that are relevant prevail
On a careful consideration of the matter we are persuaded to the view that the prescription of minimum qualifying marks of 60 33 out of the maximum marks of 180 set apart for the viva voce examination does not by itself incur any constitutional infirmity
The principles laid down in the cases of Ajay Hasia Lila Dhar Ashok Kumar Yadav do not militate against or render impermissible such a prescription
There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are with the passage of time expected to man increasingly responsible position in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services
There are features that distinguish for instance Accounts Service from the Police Service a distinction that draws upon and is accentuated by the personal qualities of the officer
Academic excellence is one thing
Ability to deal with the public with tact and imagination is another
Both are necessary for an officer
Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation
Indeed in Lila Dhar vs State of Rajasthan 1982 1 SCR 320 this Court observed Thus the written examination assessees the man s intellect and the interview test the man himself and the twain shall meet  for a proper selection
If both written examination and interview test are to be essential feature of proper selection the question may arise as to the weight to be attached respectively to them
In the case of admission to a college for instance where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life greater weight has per force to be given to performance in the written examination
The importance to be attached to the interview test must be minimal
That was what was decided by this Court in Periakaruppan vs State of Tamil Nadu Ajay Hasia etc
vs Khalid Mujib Sehravardi   The dose that is demanded may vary according to the nature of the service 
392 Ors
and other cases
On the other hand in the case of A service to which recruitment has necessarily to be made from persons of mature personality interview test may be the only way subject to basic and essential academic and professional requirements being satisfied   emphasis supplied  
There are of course many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise and the discerning may in an interview test catch a glimpse of the future personality in the case of such services where sound selection must combine academic ability with personality promise some weight has to be given though not much too great weight to the interview test
There cannot be any rule of thumb regarding the precise weight to be given
It must vary from service to service according to the requirement of the service the minimum qualifications prescribed the age group from which the selection is to be made the body to which the task of holding the interview test is proposed to be entrusted and host of other factors
It is a matter for determination by experts
It is a matter for research
It is not for courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives
The Kothari Committee also suggested that in view of the obvious importance of the subject it may be examined in detail by the Research Unit of the Union Public Service Commission emphasis supplied This Court indicated that in matters such as these which reflect matters of policy judicial wisdom is judicial restraint
Generally matters of policy have little adjudicative disposition
Indeed the point raised in the appeals admits of the answer found in the pronouncement of this court in State of UP vs Rafiquddin  Ors Judgments Today where this Court considered the permissibility of the prescription of minimum qualifying or cut off marks in viva voce examination while dealing with clause ii of the proviso to Rule 19 as it stood prior to the 1972 amendment of the UP Civil Service Judicial Branch Rules 1951
The provision required the selection committee inter alia to ensure that persons who did not secure sufficiently high marks in the interview were not 393 recommended for the posts
Pursuant to the power thus reserved to it the selection committee prescribed certain minimum cut off marks for the interview
This court upholding the validity of the prescription observed at page 264 and 265  
Aggregate marks obtained by a candidate determined his position in the list but the proviso of the rule required the Commission to satisfy itself that the candidate had obtained such aggregate marks in the written test as to qualify him for appointment to service and further he had obtained such sufficiently high marks in viva voce which would show his suitability for the service
The scheme underlying Rule 19 and the proviso made it apparent that obtaining of the minimum aggregate marks in the written test and also the minimum in the viva voce was the sine qua non before the Commission could proceed to make its recommendation in favour of a candidate for appointment to the service
The Commission in view of clause ii of the proviso had power to fix the minimum marks for viva voce for judging the suitability of a candidate for service
Thus a candidate who had merely secured the minimum of the aggregate marks or above was not entitled to be included in the list of successful candidates unless he had also secured the minimum marks which had been prescribed for the viva voce test 
The Commission had therefore power to fix the norm and in the instant case it had fixed 35 per cent minimum marks for viva voce test
The viva voce test is a well recognised method of judging the suitability of a candidate for appointment to public services and this method had almost universally been followed in making selection for appointment to public services
Where selection is made on the basis of written as well as viva voce test the final result is determined on the basis of the aggregate marks
If any minimum marks either in the written test or in viva voce test are fixed to determine the suitability of a candidate the same has to be respected
Clause ii of the proviso to Rule 19 clearly confers power on the Commission to fix minimum marks for viva voce test for judging the suitability of a candidate for the service
We do not find any constitutional legal infirmity in the provision emphasis supplied 394 This should in your opinion conclude the present controversy in favour of the appellants
Shri Rao s reference to and reliance upon the observations in Yadav s case is somewhat out of context
The context in which the observations were made was that the spread of marks for the viva voce was so enormous compared with spread of marks for the written examination that the viva voce test tender to become the determining factor 
The reference was to the possibility of a candidate underservedly being allotted high marks at the interview
That is a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva voce
The distinction in the two sets of situations is brought out in the words of an administrator Sir Ross Barket My experience which has been chiefly confined to cases in which the number of candidates was not so large is that the whole process is dangerous and infinitely hazardous
I think most selection committees on which I have served have been very doubtful about the results of what they had done
They have done their best on insufficient materials
The process is I think fairly successful in weeding out the worst candidates   emphasis supplied See Union Public Service Commission MA Muttalib page 135 11
It is important to keep in mind that in his case the results of the viva voce examination are not assailed on grounds of mala fides or bias etc
The challenge to the results of the viva voce is purely as a consequence and incident of the challenge to the vires of the rule
It is also necessary to reiterate that a mere possibility of abuse of a provision does not by itself justify its invalidation
The validity of a provision must be tested with reference to its operation and efficacy in the generality of cases and not by the freeks or exceptions that its application might in some rare cases possibly produce
The affairs of Government cannot be conducted on principles of distrust
If the selectors had acted mala fide or with oblique motives there are administrative law remedies to secure reliefs against such abuse of powers
Abuse vitiates any power
We think that on a consideration of the matter the High Court was in error in striking down the impugned rules
Accordingly these 395 appeals are allowed and the judgement dated 621987 of the Division A Bench of the High Court is set aside and the writ petitions filed before it challenging the validity of the impugned rules are dismissed
It is not necessary to issue express directions in WP 286 of 1987 in view of the fact that pursuant to the orders of stay dated 1331987 the select list dated 1771986 became amenable to be acted upon
With the setting aside of the Judgment of the High Court under appeal the impediment in the effectuation of select list dated 1771986 stands removed
In the circumstances of these cases there will be no order as to costs
RSS Appeals allowed


Summary:
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 56d 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 grounds1 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 ie 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 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 56d 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 111976 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 56d 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 MM Dutt J CJI agreeing with him 1 article 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 56d 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 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 56d 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 56d 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 56d 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 vs Nripendra Nath Bagchi   State of Haryana vs Inder Prakash Anand  State of Uttar Pradesh vs Batuk Deo Pati Tripathi  High Court of Punjab  Haryana vs State of Haryana   Shamsher Singh vs State of Punjab  B Misra vs Orissa High Court   Baldev Raj Chadha vs Union of India  and Brij Bihari Lal Aggarwal vs High Court of MP   referred to 336