Case: State of Uttar Pradesh Vs. Batuk Deo Patil Tripathi and Another

Respondent 1, Batuk Deo Pati Tripathi, joined the Judicial Service of the State of Uttar Pradesh as a Munsif in 1943 and after intervening promotions, he was appointed as a District Judge on April 13, 1969. Under Note (1) to Article 465-A of the Civil Service Regulations, as adopted for application in Uttar Pradesh, the State Government may at any time, without assigning any reason, require any officer to retire on three months notice or pay in lieu of whole or part thereof after he has attained the age of 50 years. Such decision is required to be taken by the Government in its Administrative Department and only if it appears to it to be in public interest to do so. Some time in 1969 the State Government requested the High Court of Allahabad, respondent 2 to this appeal, to screen cases of judicial officers in order to determine which of them should be retired compulsorily under the aforesaid provision. In one of the meetings of the Administrative Committee of the High Court which was held on January 9, 1974, it was resolved by the Committee that respondent 1 should be retired compulsorily from service. The Registrar of the High Court communicated the decision of the Administrative Committee to the State Government, appellant herein, and thereafter, he circulated to all the Judges of the High Court, for their intimation, the decision taken by the Administrative Committee. The Governor of U.P. accepted the recommendation of the Administrative Committee and retired respondent 1 compulsorily by an order dated February 27, 1975.Respondent 1 filed a writ petition under Article 226 of the Constitution against the State of Uttar Pradesh and the Allahabad High Court challenging the validity of the aforesaid order on the following) The order is illegal since no salary was paid to respondent 1 at the time when the order was passed;      (2) The order is really in the nature of punishment since it casts a stigma and is therefore contrary to Article 311 of the Constitution;      (3) Article 465-A of the Civil Service Regulations in so far it purports to empower the Government to consult the administrative head of t he Department before passing an order thereunder, contravenes Article 233 of the Constitution;      (4) The order was passed on irrelevant considerations since the High Court had taken into account the character roll entries of respondent 1 prior to the date when he was allowed to cross the efficiency bar;      (5) The order is arbitrary, capricious and perverse; and t he satisfaction that it was in public interest to retire respondent 1 compulsorily was based on no material;      (6) The order was passed by the Governor without any application of mind since it was passed in pursuance of a general policy agreed upon between the Governor and the Chief Justice of the High Court, that recommendations of the High Court for retirement of judicial officers should be accepted without scrutiny; and      (7) The order is illegal inasmuch as it was passed on the recommendation of the Administrative Committee, while Article 233 of the Constitution requires consultation by the Governor with the entire High Court and not with a committee consisting of a few Judges of the CourtA Division Benc h of the High Court consisting of Gulati and C. S. P. Singh, JJ. rejected the first six contentions by their judgment dated December 5, 1975. On the 7th contention they were inclined to the view that Article 233 of the Constitution postulates consultation with the entire High Court and therefore the High Court in the exercise of its rule-making power cannot delegate its function to a smaller body. But considering that such a view was likely to upset the settled practice of t he Court and that it was likely to be in conflict with the decision in Civil Misc. Writ No. 1254 of 1968 dated February 23, 1970, they directed that the papers of the case be placed before the learned Mel Justice for constituting a Full Bench to consider the question whether in view of Article 233 of the Constitution, consultation with the entire High Court is necessary before making an order of compulsory retirement against the District Judge.The Writ Petition was then placed for hearing before a Fun Bench of the High Court consisting of five learned Judges. The Division Bench and initially the Full Bench heard arguments on the supposition that the power to retire a District Judge compulsorily is an incident of the power of appointment contained in Article 233(1) of the Constitution which provides that appointments of persons to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. After the Full Bench reserved its judgment, this Court held in High Court of Punjab and Haryana v. State of Haryana &Ors.(A.I.R. 1975 S.C. 613 ; [1975] 3 S.C.R. 365.) that the initial appointment and initial promotion of District Judges rested with the Governor, but once they were appointed or promoted to be District Judges the entire control, over them was vested in the High Court. The power of the Governor in the matter of appointment included the power of dismissal, removal and reduction in rank but since compulsory retirement is neither dismissal, removal nor reduction in rank the power in that behalf vest, -, in the High Court and not in the Governor. In view of the judgment of this Court referred to above and certain other judgments, it is clear that compulsory retirement of a District Judge is not an incident of the powers of appointment conferred by Article 233 of the Constitution but is an incident of the control vested in the High Court by Article 235. Consequently, the Full Bench reframed the question referred to it as followsWhether a District Judge can be compulsorily retired from service on the opinion recorded by the Administrative Committee constituted under rule 1 of Chapter ITT of the Rules of the Court.The Full Bench also framed an additional question,      Whether circulation of a statement to all the Judges of the court showing what matters were laid before the Administrative Committee and the manner in which those matter.-, were disposed of amounts to consultation with the Full CourtAsthana, C.J., who presided over the Full Bench, answered both the questions in the negative, K. N. Singh and C. S. P. Singh, JJ., agreed by a separate judgment with the learned Chief Justice. M. N. Shukla and H. N. Set h, JJ. took a contrary view and held that a District Judge can be compulsorily retired from service on the opinion recorded by the Administrative Committee. They did not consider it necessary to express any opinion on the second question.The Writ Petition then went back to a Division Bench for disposal which, in accordance with the majority view, set aside the order by which respondent 1 was compulsorily retired and all owed the petition. A consequential declaration was granted by the Bench that respondent 1 should be treated as continuing in service and was entitled to all the privileges, pay and allowances which were permissible and payable to him under the law. Being aggrieved by the judgment, the State of Uttar Pradesh has filed this appeal by special leave. Since the High Court of Allahabad which was impleaded as respondent 2 to the Writ Petition had no effective contentions to make in the matter, we will for the sake of convenience refer to respondent 1 as the respondent.

Reasoning: Having given our close and anxious consideration to that question, we regret that we are unable to share the view of the majority of the High Court Full Bench that by leaving the decision of the question of the respondents compulsory retirement to the Administrative Committee, the Court had abdicated its constitutional function. According to the view of the majority, the act of the Court in allowing the Administrative Committee to decide that question under Rule 1 of Chapter III of the 1952 Rules is an act of self-abnegations and therefore void. This approach betrays, with respect, a misunderstanding of the object of Article 235. The ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Court is that those wings of the judiciary should be independent of the executive. Tracing the history of that concept, Hidayatullah, J. in West Bengal v. Nripendra Nath Baghchi(A.I.R. 1966 S.C. 447.) has highlighted the meaning and purpose of Article 235. It is in order to effectuate, that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions should be deal t-with and decided upon by the High Courts in the exercise of the control vested in them. A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case. For, knowing that the object of Article 235 is to ensure the independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is in any manner calculated to interfere with or undermine that independence. Does that procedure involve self- abnegation, by conceding the right of control to any outside authority ? It is pertinent, while we, are on this question, to know the context in which the expression self- abnegation was used by this Court. In Shamsher Singh v. State of Punjab (supra) the action of the High Court in asking the State Government to depute the Director of Vigilance to hold an inquiry against a judicial officer was deprecated by this Court as an act of self-abnegation. The High Court abdicated its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting Judge, by surrendering that power to the executive That, truly, was an act of self-abnegation, There is no parallel between what the High Court did in Shamsher Singh and what has beer done in the instant case. Here, the decision to compulsory retire the respondent was taken by the Judges of the High Court itself, though not by all. If some but not all Judges of the High Court participate in a decision relating to a matter which falls within the High Courts controlling jurisdiction over subordinate courts, the High Court does not efface itself by surrendering its power to an extraneous authority The procedure adopted by the High Court under its Rules is not sub versive of the independence of the subordinate judiciary, which is wha Article 235 recognised and seeks to achieve. The true question then for decision is not the one by which the majority of the Full Bench fell oppressed but simply, whether the procedure prescribed by the High Court Rules is in any other manner inconsistent with the terms of Article 235 of the Constitution.Yet another misconception may now be cleared. It is urged o behalf of the respondent by his learned counsel Shri Misra that under Article 216, High Court means the entire body of Judges appointed to the Court and therefore, the control over the subordinate judiciary, which is vested by Article 235 in the High Court must be exercised by the whole body of Judges. The thrust of the argument is that the High Court cannot delegate its functions or power to a Judge or a smaller body of Judges of the court. This argument requires consideration the question whether any delegation as such is involved in the processes whereby a Judge or a Committee of Judges of the court, like the Administrative Committee in the instant case, is authorised by the whole court to act on behalf of the court. For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Court comprises such numerous matters, often involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of justice in the State. A construction which will frustrate the very object of the salient provisions contained in art. 235 ought, as far as possible, to be avoided. The control vested in the High Courts by that article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition Of minor penalties which do not fall within art. 311, decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within art. 31 1, entries in character rolls and so fort h. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Courts administrative affairs will pile into arrears like court arrears. I n fact, it is no exaggeration to say that the control will be better and more effective exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within the purview of art. 235. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterise as delegation the process whereby the entire High Court authorises a judge or some of the Judges of the Court to act on behalf of the whole court. Such an authorisation effectuates the purpose of art. 235 and findeed without it the control vested in the High Court over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Courts constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judges time. For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged, by some on behalf of all the judges. Judicial functions brooke no such sharing of responsibilities by any instrumentality.The High Court has not by its Rules authorised any extraneous authority as in Shamsher Singh (supra) to do what the Constitution enables and empowers to do. The Administrative Judge or the Administrative Committee is a mere instrumentality through which the entire Courts acts for the more convenient transaction of its business, the assumed basis of the arrangement being that such instrumentalities will only act in furtherance of the broad policies evolved from time to time by the High Court as a whole. Each Judge of the High Court is in integral limb of the Court. He is its alter ego. It is therefore inappropriate to say that a Judge or a Committee of Judges of the High Court authorised by the Court to act on its behalf is a delegate of the CourtSince a Judge of the High Court or an Administrative Committee consisting of High Court Judges is, for the purposes of matters falling within art. 235, not a delegate of the High Court, the principle enunciated by S.A. de Smith in his famous work on Judicial Review of Administrative Action (3rd edn, 1973, P. 263) that a discretionary power must, in general, be exercised only by the authority to which it has been committed has no application. The various ca ses discussed by the learned author have arisen, as stated by him at p. 265, in diverse, contexts and many of them turn upon unique points of statutory interpretation. The true position as stated by the author is:The maxim delegatus non-potest delegere does not enunciate a rule knows no exception; it is a rule of construction to the effect that a discretion conferred by statute is facie intended to be exercised by the authority on the statute has conferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scope or object of thee have pointed out above that the amplitude of the power conferred by aft. 235, the imperative need that the High Courts must be enabled to transact their administrative business more conveniently and on awareness of the realities of the situation , particularly of the practical difficulties involved in a consideration by the whole court, even by circulation, of every day-to-day matter pertaining to control over the District and subordinate Courts, lead to the conclusion that by rule s framed under art. 235 of the Constitution the High Court ought to be conceded the power to authorise on Administrative Judge or an Administrative Committee of Judges to act on behalf of the Court. Accordingly, we uphold the minority judgment of the Full Bench that rule 1 of Chapter III of the 1952 Rules framed by the Allahabad High Court is within the framework of art. 235. The recommendation made by the Administrative Committee that the respondent should be compulsorily retired cannot therefore be said to suffer from any legal or constitutional infirmityLearned counsel for the respondent also, argued on the other contentions involved in the remaining six issues which were decided against the respondent by the Division Bench prior to the reference made by it to the Full Bench. We see no substance in any of those contentions. There are no words in the order of the compulsory retirement casting any stigma on the respondent and therefore the grievance that the order is in the nature of punishment is unjustified. The, statement made on behalf of the Government on matters of public policy in which it was claimed that corrupt and undesirable officials were being weeded out cannot justify the conclusion t hat the respondent was retired compulsorily by reason of any stain attaching to his character. Nor are we impressed by the contention that the Administrative Committee had no material before it on the basis of which it could conclude that the respondent should be retired compulsorily. We do not think that this Court would be justified in interfering in such matters with the exercise of a discretionary power which, by the Constitution, is vested in the High Courts. it appears that the output of the respondent was substandard and even if the entries in his character roll prior to the time when he was allowed to cross the efficiency bar are ignored, there was enough material before the Administrative Committee to come to the conclusion to, which it did.Shri Mishra attempted to urge that art. 465-A of the Civil Service Regulations has no application to the case by reason of the fact that the respondent was not holding any of the posts mentioned in art. 349-A an d therefore. no action could be taken against him under Note 1 to art. 465-A for compulsorily retiring him. The argument does not appeal to us. But it is not necessary to consider it in any detail because a similar note is appended to art. 465 also and the application of that article is not restricted to officers mentioned in art. 349-A. Whether therefore the one or the other articles applies to the respondent, the power to compulsorily retire him could be exercised by the Government either under Note 1 of art. 465-A or Note 1 of article 465.