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 GeneralNaunit Lal R N Sachthey for the appellant
Anand Swarup Harbans Singh Marwah for Respondent No2
Ashok Grover for Respondent No 1
RAY CJ
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 May1965
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 JudgeChief 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 JudgeChief 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 532 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 532 c of the Punjab Civil Service Rules against the recommendation of the High Court
This Court in Shyam Lal vs State of Uttar Pradesh held that compulsory retirement does not involve stigma or any implication of mis behaviour or incapacity
In Dalip Singh vs 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 vs State of 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 vs 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 vs Nripendra Nath Bagchi and High Court of Punjab and Haryana etc
vs 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 3113
This Court in Shamsher Singh  Anr
vs 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 326a deals with compulsory retirement at the age of 58
Rule 532c deals with retirement at the age of 55
Two relevant rules in the Punjab Civil Service Rules in the present case are these
Rule 326a 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 532c 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 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 vs 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
The appeal is therefore dismissed with costs
VPS Appeal dismissed


Summary:
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 532c 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 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 vs Nripendra Nath Bagchi  and High Court of Punjab and Haryana etc
vs State of Haryana Sub nom Narerdra Singh Rao   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 vs State of Uttar Pradesh   Dalip Singh vs
State of Punjab  Tara Singh vs State of Rajasthan 1975 4 SCC86 B Venkateswararao Naidu vs Union of India  and Shamsher Singh  Anr
vs State of Punjab   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 section 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 Court606C D G H