Civil Appeal No 1243 of 1972 From the Judgment and Decree dated 2321970 of the Allahabad High Court in Writ Petition No 3958 of 1968
SM Ashri Ramesh Kumar Khanna RA Mishra and NNSharma for the Appellant
Gopal Subramaniam and Mrs Shobha Dikshit for the Res pondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The appellant was working as an Addi tional District and Sessions Judge in the State of Uttar Pradesh in the year 1968
His date of birth was April 1 1913
He would have retired from service on the expiry of March 31 1971 on completing 58 years of age
But on September 3 1968 the appellant was served with an order dated August 24 1968 issued by the Secretary to the Government of Uttar Pradesh Home Department stating that the Governor of Uttar Pradesh in exercise of the powers under para i of the first proviso to clause a of Fundamental Rule 56 contained in the Financial Hand Book Volume II Parts II to IV as amended from time to time had been pleased to order that the appellant should retire from service on the expiry of three months from the date of service of the notice
Aggrieved by the said notice of premature retirement the appellant filed Writ Petition No 3958 of 1968 before the High Court of Allahabad under Article 226 of the Constitution urging inter alia i that the retirement of the appellant as per order dated August 24 1968 had been ordered without the recommendation of the High Court as required by Article 235 of the Constitution ii that Fundamental Rule 56 under which the impugned order had been issued was violative of Articles 14 and 16 of the Constitution and iii that the appellant s premature retirement was in violation of Article 311 2 of the Constitution
The question relating to the validity of Fundamental Rule 56 was involved in two other cases which were pending before the High Court The Writ Petition filed by the appellant and the other two writ petitions were heard together by a Division Bench of the High 432 Court
The Division Bench referred all the three matters to a Full Bench to consider two specific questions of law namely i whether under Fundamental Rule 56 the age of superannuation was 55 or 58 years and ii whether the proviso to clause a of Fundamental Rule 56 violated Articles 14 and 16 of the Constitution
Thereafter the Full Bench heard all the three cases and answered the two questions as follows i Under clause a of Fundamental Rule 56 the age of superannuation was 58 years and ii Paragraph i of the proviso to clause a of the Fundamental Rule 56 violated Articles 14 and 16 of the Constitution
The judgment of the Full Bench was pronounced on September 26 1969
Immediately thereafter the Governor of Uttar Pradesh issued an ordinance dated November 5 1969 making amendments to Fundamental Rule 56 and validating actions already taken there under
The ordinance was replaced by UP Act No 5 of 1970 on April 1 1970
The appellant sought the amendment of the Writ Petition questioning the validity of the ordinance and the Act
Thereafter the Writ Petititon was heard by a Division Bench of the High Court and it came to be dismissed on February 23 1970
This appeal by certificate is filed against the judgment of the High Court
In this case we are not concerned much with the validity of Fundamental Rule 56 since it can be disposed of on the ground based on Article 235 of the Constitution The undisputed facts as can be gathered from the records in this case which are relevant for purposes of this appeal are these
The State Government moved the High Court in the year 1967 for the premature retirement of the appellant
On July 8 1968 the Administrative Judge agreed with the proposal of the State Government to retire the appellant prematurely after giving him three months  notice
The Governor passed the order of retirement on August 24 1968
Three days there after on August 27 1968 the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government
Thereafter on August 30 1968 the Additional Registrar transmitted the order of retirement to the appellant
It was actually served on September 3 1968
The question for consideration in this case is whether the order of compulsory retirement passed against the appellant satisfies the requirements of the Constitution
Article 235 of the Constitution provides that the control over district courts and courts subordinate thereto including the posting and 433 promotion of and the grant of leave to persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court
It has been held in State of Uttar Pradesh vs Batuk Deo Patil Tripathi  Anr
that premature retirement of Judges of District Courts and of subordinate courts is a matter which falls squarely within the power of control vested in the High Courts by Article 235 of the Constitution
Without the recommendation of the High Court it is not open to the Governor to issue an order retiring prematurely Judges of District Courts and of subordinate courts
Insofar as the High Court of Allahabad is concerned rules are framed under Article 225 of the Constitution and all other powers enabling it in that behalf by the High Court regarding the manner in which the administrative work of the High Court should be carried out
They are known as Rules of Court 1952
The relevant rules are found in Chapter III of the Rules of Court 1952
The material part of Chapter III is set out below CHAPTER III Executive and Administrative Business of the Court 1
Subject to these Rules a Committee of Judges com posed of the Chief Justice the Judge in the Administrative Department and five other Judges to be appointed by the Chief Justice referred to in these Rules as the Administrative Committee shall act for the Court
The Chief Justice shall have the charge of and may act for the Court in the Administrative Department and the executive and administrative business pertaining to the Court except that the Judge in the Administrative Department shall have charge of and may act for the Court in the Administrative Department and the executive and administrative business pertaining to the Courts subordinate to the Court
As far as possible the Judge in the Administrative Department shall discharge his duties and functions in consultation with the Inspection Judges concerned who shall be appointed by the Chief Justice from time to time
The membership of the Committee shall be for two years except in the case of the Chief Justice and the Judge in the Administrative Department
H 434 2
From time to time and as occasion arises the Chief Justice shall nominate one of the Judges to act as the Judge in the Administrative Department whose term of office shall be three years unless renominated
All executive and administrative business and all business in the Administrative Department requiring orders   shall be submitted by the Registrar to the Chief Justice or the Judge in the Administrative Department as the case may be together with his comments thereon if any and may subject to these Rules be disposed of by that Judge
The Judge in the Administrative Department shall be fore passing final orders cause to be circulated for the information of the Judges of the Administrative Committee then present in Allahabad his recommendations as to the appointment promotion or suspension of judicial officers
Should any Judge dissent from such recommenda tions he shall signify his dissent and his reasons therefor in writing
In regard to the following matters the Judge in the Administrative Department shall consult the Administrative Committee either by circulating the papers connected with the matter together with his own opinion or recommendation thereon to the members of the Committee then present in Allahabad or by laying it before a meeting of the Administrative Committee namely a the issue of General Letters to subordinate courts b the issue of directions regarding the preparation of returns and statements c all matters of importance upon which the Government desires the opinion of the Court d appointment of the UP Higher Judicial Service and e any other matter which the Chief Justice or the Judge in the 435 Administrative Department may consider fit to be laid before it for A consideration
2 Copies of all General Letters issued to subordinate courts shall be circulated to all Judges for information as soon as may be after issue   
B 7 As soon as the Administrative Committee has disposed of any businees a statement showing what matters were laid before the Committee and the manner in which they were disposed of shall be circulated for information to all Judges except such Judges as may be on leave
 In the above decision State of Uttar Pradesh vs Batuk Deo Patil Tripathi  Anr
supra this Court has held that the power of the High Court under Article 235 of the constitution to make recommendation to the Government to retire a subordinate judicial officer prematurely could be exercised by the Administrative Committee of the High Court
In the instant case it is seen that the Administrative Committee of the High Court came into the picture only after the State Government had passed the order of retirement
It was no doubt true that the Administrative Judge had agreed with the proposal of the State Government to retire the appellant prematurely on July 8 1968 and that on the basis of the opinion expressed by the Administrative Judge the Governor had passed the order on August 24 1968
It was only on August 27 1968 the order of the Governor was placed before the Administrative Committee of the High Court when it gave its approval to the opinion of the Administrative Judge earlier communicated to the State Government
After the Administrative Committee had expressed its opinion the matter was not again referred to the Governor at all
After the Administrative Committee had approved the opinion of the Administrative Judge the order of retirement was served on the appellant on September 3 1968
It is thus seen that the Governor had not acted in the instant case on the basis of the recommendation of either the Full Court or of the Administrative Committee of the High Court but only on the opinion of the Administrative Judge
G The two learned Judges who finally heard the Writ Petition of the appellant dealt with the question of compliance with Article 235 of the Constitution in the two separate judgments delivered by them
Both the learned Judges we regret to say missed the essence of the question agitated before them
They have referred to Article 233 of the 436 Constitution in the course of their judgments while the proper Article which arose for consideration before them was Article 235 of the Constitution Both the learned Judges have taken the view that the Governor is only expected to consult the High Court on the question when he proposes to make an order of premature retirement in respect of a District Judge or a subordinate judicial officer
They have overlooked that the Governor can pass such an order only on a recommendation made by the High Court or the Administrative Committee
The second error committed by both of them is that they have held that such consultation with the High Court is permissible even after the Governor has passed the order of compulsory retirement
Thirdly they have equated the recommendation that should be made by the High Court before a judicial officer can be prematurely retired to the consultation contemplated under Article 3203c of the Constitution which provides that the Union Public Service Commission or the State Public Service commission as the case may be shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity including memorials or petitions relating to such matters and have held relying upon a decision of this Court in State of UP vs Manbodhan Lal Srivastava  that such consultation was not mandatory and that failure to do so did not afford a cause of action to the appellant in a court of law In Stale of Haryana vs Inder Prakash Anand HCS  ors 1976 Supp SCR 603 this Court has held that Article 235 of the Constitution vests in the High Court control over district courts and courts subordinate thereto
This control includes both disciplinary and administrative jurisdiction
Disciplinary control means not merely jurisdiction to award punishment for misconduct but also 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 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 of service is a matter pertaining to disciplinary as well as 437 administrative control
The control which is vested in the High Court A 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 the rank of District Judge
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 consequences will be unfortunate
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 or control over the judicial officers is by the High Court and by no other authority otherwise it will affect the independence of the judiciary
It is in order to effectuate that high purpose that Article 235 of the Constitution as construed by this Court in various decisions requires that all matters relating to the subordinate judiciary including premature retirement and disciplinary proceedings but excluding the imposition of punishment falling within the scope of Article 311 of the Constitution and the first appointment on promotion should be dealt with and decided upon by the High Courts in exercise of the control vested in them 
In High Court of Andhra Pradesh and ors
vs VVS Krishnamurity and ors
 this Court has again observed that Article 235 of the Constitution is the pivot around which the entire scheme of the Chapter VI of Part VI of the Constitution revolves
Under it the control of district courts and courts subordinate thereto including the posting and promotions of and the grant of leave to persons belonging to the judicial service of a State is vested in the High Court
After considering a number of decisions the Court in that case has set out the true legal position crystalized by the said decisions as regards the scope of the control of the High Court over the subordinate judiciary vested in it under Article 235 of the Constitution
The Court proceeded to observe that the said power under Article 235 of the constitution was exclusive in nature comprehensive in extent and effective in operation
Amongst the several matters which fell within its scope this Court was of the view that premature retirement of Judges of the district courts and of the subordinate courts was one
H 438 It is thus clear that the High Court was in error in not construing the applicability and the scope of Article 235 of the Constitution while deciding the case before it
It assumed that the Governor after consulting the High Court could pass an order of premature retirement in respect of a District Judge or a subordinate judicial officer and that even if he did not consult in that regard the order of premature retirement passed by the Governor would not be vitiated and that in any event it was an irregularity which could be cured by rule 21 of the Court Rules 1952
The relevant passages in the judgments of the two learned Judges who decided the case in the High Court are given below Per DS Mathur J In the case of premature retirement consultation if made subsequently but before the officer actually retires that is hands over charge cannot in each and every case be said to be illusory and not genuine
It is only when it appears that after the passing of the order of compulsory retirement the High Court did not consider the matter on merits but accepted the fait accompli it can be said that there had been no consultation as contemplated by Article 2331 but where the High Court did consider the matter on merits and agreed with the order passed by the Governor directing the compulsory retirement of a judicial officer there would be no defect considering that the order of retirement shall take effect from the date of communication or from the date the government servant is to retire from service
In the instant case three months  notice was given that is the officer was to retire from service on the expiry of three months from the date of comunication of the order of retirement
Within this period the matter could be considered on merits by the High Court on its own or on a representation made by the officer
We are therefore of opinion that the consultation of the High Court cannot be declared invalid simply because there was no proper and full consultation before the passing of the order of premature retirement provided that the facts and circumstances of the case made it evident that the High Court had not been unduly influenced by the decision of the Governor and the High Court had on its own and independently considered the matter on merits
439 Reference may now be made to rule 21 of Chapter Ill A of the Rules of Court which clearly provides that no irregularity in or omission to follow the procedure laid down in this Chapter shall effect the validity of any order passed or anything done under these rules
This rule cannot cover a case where any order was passed in complete disregard of the rules contained in Chapter III but an irregularity committed in good faith shall not invalidate the order
The principles governing the provisions like section 5 of the Limitation Act can easily be made applicable to a case of the present nature
Where two opinions are possible the irregularity if any cannot be deemed to have been committed in bad faith and such irregularities shall be covered by the above rule 21 Per Satish Chandra J Under Chapter III rule 5 the Administrative Judge had to consult the Administrative Committee
Even if the consultation takes place subsequently if the committee approves of the action of the Administrative Judge then the original action would be valid and effective with effect from its own date
In this view the communication of the Court s opinion on the 8th July 1968 would be valid
E Even if it be assumed that the communication of 8th July 1968 did not satisfy the requirements of law still the petitioners have not made out a case for interference
It has been seen that the Administrative Committee took the decision on the 28th August 1968
By then the Governor had considered the opinion of the Court as sent to it on the 8th July 1968
The Governor sent the order of compulsory retirement to the High Court
The High Court transmitted it for service on the petitioners on or about the 2nd September 1968 much after the Administrative Committee had approved the proposal
The order was served on the petitioners on 3rd September 1968
Thus before the order of compulsory retirement came into force on 391968 all the requisite requirements of Article 233 of the Constitution had been completed
In this situation
rule 21 would come into play and would cure whatever irregularity took place in following the procedure laid down in Chapter III 440 of the Rules of the Court
The impugned order cannot be held to have violated Article 233 of the Constitution
 We do not approve of the above opinions of the learned Judges of the High Court
Now it is settled by the decision of this Court in State of Uttar Pradesh vs Batuk Deo Patil Tripathi  Anr
supra that on a true construction of the rules of business of the Allahabad High Court it was open to the Administrative Committee to recommend to the Governor to pass an order of compulsory retirement in respect of a District Judge or a subordinate judicial officer
We need not therefore go into the question whether the Full Court alone should have considered the case of the appellant before such recommendation was made
In the instant case as we have already stated above the Administrative Committee came to know of the order of premature retirement already passed by the Governor only after it had been passed on the basis of the opinion expressed previously by the Administrative Judge
The Rules of Business in Chapter III of the Rules of Court 1952 referred to above show the powers which are exercisable by the Full Court the Chief Justice Judge in the Administrative Department Administrative Judge and the Administrative Committee of the High Court
Rule 3 of Chapter III of the Rules lays down that all executive and administrative business and all business in the Administrative Department requiring orders shall be submitted by the Registrar to the Chief Justice or the Judge in the Administrative Department as the case may be together with his comments thereon if any and may be subject to these Rules disposed of by that Judge
Rule 4 provides that the Judge m the Administrative Department shall before passing final order cause to be circulated for the information of the Judges of the Admimstrative Committee then present in Allahabad his recommendations as to the appointment promotion or suspension of judicial officers and that should any Judge dissent from such recommendations he shall signify his dissent and his reasons therefore in writing
Rule 5 provides that in regard to the matters set out thereunder the Judge in the Administrative Department shall consult the Administrative Committee either by circulating the papers connected with the matter together with his own opinion or recommendation thereon to the members of the Committee then present in Allahabad or by laying it before a meeting of the Administrative Committee and one of the items mentioned in clause c of rule 51 of the Rules is all matters of importance upon which the Government desires the opinion of the 441 Court  In the instant case the Government had sought the opinion of A the High Court regarding the question whether the appellant could be prematurely retired and that question was certainly a very important matter from the point of view of the subordinate judicial service
The Administrative Judge before giving his opinion in support of the view expressed by the Government should have either circulated the letter received from the Government amongst the members of the Administrative Committee or placed it before them at a meeting
He did not adopt either of the two courses
But he on his own forwarded his opinion to the Government stating that the appellant could be prematurely retired
That he could not do
Ordinarily it is for the High Court on the basis of assessment of performance and all other aspects germane to the matter to come to the conclusion whether any particular judicial officer under its control is to be prematurely retired and once the High Court comes to the conclusion that there should be such retirement the Court recommends to the Governor to do so
The conclusion is to be of the High Court since the control vests therein
Under the Rules obtaining in the Allahabad High Court the Administrative Committee could act for and on behalf of the Court but the Administrative Judge could not have
Therefore his agreeing with the Government proposal was of in consequence and did not amount to satisfaction of the requirement of Article 235 of the Constitution
It was only after the Governor passed the order on the basis of such recommendation the matter was placed before the Administrative Committee before the order of retirement was actually served on the appellant
The Administrative Committee may not have dissented from the order of the Governor or the opinion expressed by the Administrative Judge earlier
But it is not known what the Administrative Committee would have done if the matter had come up before it before the Governor had passed the order of premature retirement
In any event the deviation in this case is not a mere irregularity which can be cured by the ex post facto approval given by the Administrative Committee to the action of the Governor after the order of premature retirement had been passed
The error committed in this case amounts to an incurable defect amounting to an illegality
We may add that while it may be open to the Government to bring to the notice of the High Court all materials having a bearing on the conduct of a District Judge or a subordinate judicial officer which may be in its possession the Government cannot take the initiative to retire prematurely a District Judge or a subordinate judicial officer
Such initiative should rest with the High Court
Under the circumstances it has to be held that the impugned 442 order of premature retirement passed by the Governor without having before him the recommendation of the Administrative Committee or of the Full Court is void and ineffective
We therefore set aside the judgment of the High Court and quash the order of premature retirement passed in respect of the appellant
He shall be treated as having been in service until the expiry of 3131971 when he would have retired from service on attaining 58 years of age
We are informed that the appellant has died on 27111983 and his legal representatives have been brought on record
The arrears of salary pension etc
payable to the appellant on the above basis till 27111983 shall therefore be paid to the legal representatives of the appellant within four months from today
This appeal is accordingly allowed
The legal representatives of the appellant are also entitled to the costs in both the Courts
PSS Appeal allowed


Summary:
The appellant was working as an Additional District and Sessions Judge in the State of Uttar Pradesh
The State Government moved the High Court in the year 1967 for his premature retirement
On July 8 1968 the Administrative Judge agreed with the proposal to retire the appellant after giving him three months notice
The Governor passed the order of retirement on August 24 1968
Three days thereafter on August 27 1968 the Administrative Committee of the High Court gave its approval to the opinion of the Administrative Judge earlier communicated to the State Government
Thereafter on August 30 1968 the additional Registrar transmitted the order of retirement to the appellant
The order was purported to be made under para i of the first proviso to cl
a of Fundamental Rule 56
Aggrieved by the said order the appellant filed a writ petition before the High Court alleging i that the retirement bad been ordered without the recommendation of the High Court as required by Article 235 of the Constitution ii that Fundamental Rule 56 under which the order had been issued was violative of Articles 14 and 16 and iii that the premature retirement was in violation of Article 3112
As the question relating to the vires of Fundamental Rule 56 was 429 pending before the High Court in two other writ petitions the three A matters were referred to a Full Bench
which held that paragraph i of the proviso to cl
a of Fundamental Rule 56 was violative of Articles 14 and 16
Immediately thereafter the Governor issued an ordinance amending Fundamental Rule 56 and validating actions already taken Ihereunder
The appellant thereupon sought amendment of his writ petition questioning the validity of the ordinance and the UP Act No 5 of 1970 which replaced the ordinance
Dismissing the writ petition the High Court took the view that whenever the Governor proposed to make an order of premature retirement in respect of a District Judge or a Subordinate Judicial officer he was only expected to consult the High Court on the question and that this consultation with the High Court was permissible even after the Governor had passed the order of compulsory retirement
It equated the recommendation that should be made by the High Court under Article 235 before a judicial officer can be prematurely retired to the consultation contemplated under Article 3203 c in respect of disciplinary matters affecting civil services and held that such consultation with the High Court was not mandatory and that failure to do so did not afford a cause of action in a court of law
On the question whether the order of compulsory retirement passed against the appellant satisfies the requirements of the Constitution
Allowing the appeal the Court  HELD l
The impugned order of premature retirement passed by the Governor on the opinion of the Administrative Judge without having before him the recommendation of the Administrative Committee or of the Full Court was void and ineffective
The High Court was in error in not construing the applicability and scope of Article 235 of the Constitution while deciding the case
21 Without the recommendation of the High Court it is not open to the Governor to issue an order retiring prematurely Judges of District Courts and the subordinate courts
22 While it may be open to the Government to bring to the notice H 430 of the High Court all materials having a bearing on the conduct of a District Judge or a subordinate judicial officer which may be in its possession the Government cannot take the initiative to retire prematurely a District Judge or a subordinate judicial officer
Such initiative should rest with the High Court
23 It is for the High Court on the basis of assessment of performance and all other aspects germane to the matter to come to the conclusion whether any particular judicial officer under its control is to be prematurely retired and once the High Court comes to the conclusion that there should be such retirement the Court recommends to the Governor to do so
The conclusion is to be of the High Court since the control vests therein
In the instant case the Government had sought the opinion of the High Court regarding the question whether the appellant could be pre maturely retired
Under the rules obtaining in the Allahabad High Court the Administrative Committee could act for and on behalf of the Court but the Administrative Judge could not
Before giving his opinion in support of the view expressed by the Government the Administrative Judge should have either circulated the letter received from the Government amongst the members of the Administrative Committee or placed it before them at a meeting
He did not adapt either of the two courses but on his own forwarded his opinion to the Government stating that the appellant could be prematurely retired
It was only after the Governor had passed the order on the basis of such recommendation that the matter was placed before the Administrative Committee
Therefore the Administrative Judge agreeing with the Government proposal was of no consequence and did not amount to satisfaction of the requirement of Article 235 of the Constitution
The deviation in this case is not a mere irregularity which can be cured by the ex post facto approval given by the Administrative Committee to the action of the Governor after the order of premature retirement had been passed
The error committed in this case amounts to an incurable defect amounting to an illegality
State of Uttar Pradesh vs Batuk Deo Patil Tripathi  Anr  State of Haryana vs Inder Prakash Anand HCS  Ors 1976 Supp SCR 603 High Court of Andhra Pradesh  ors
vs V VS Krishnamurthy and Ors referred to
431 State of UP vs Manbodhan Lal Srivastava   distinguished