Judgment Case ID: 5744

Judgment:
Civil Appeal No. 367 & 368 of 1984 From the Judgment and order dated 17.5.1983 of the Madras High Court in W.P. No. 5008 of 1980 and 5304 of 1982 Rajendra Choudhary for the Appellant. G.N. Rao and T. Sridharan for the respondents. The Judgment of the Court was delivered by DUTT	 J. These two appeals are directed against a common judgment of the Division Bench of the Madras High Court whereby	 in exercise of its jurisdiction under Article 226 of the Constitution of India	 the High Court quashed the orders of compulsory retirement of the two respondents	 Mr. R. Rajiah and Mr K. Rajeswaran	 who were then the District Munsifs. The respondent	 R. Rajiah	 originally joined service as a Sub Magistrate on 3.3.1965. On 6.1.1973	 he was appointed a District Munsif in the Tamil Nadu State Judicial Service. While he was functioning as District Munsif	 on 3.3.1980 the Registrar of the High Court	 the appellant herein	 sent a communication to the respondent Rajiah stating therein that he was being compulsorily retired from service in public interest with effect from 3.3.1980 The other respondent	 K. Rajeswaran	 was also originally appointed a Sub Magistrate in 1953. On 29.11. 1971	 he was appointed a District Munsif having been selected by the Tamil Nadu Public Service Commission. On 22.2.1976	 the High Court passed an order confirming him as District Munsif with effect from 1.1.1976. On 27.10.1976	 the High Court passed an order compulsorily retiring him from service	 which was communicated to him by the Registrar. Both the respondents being aggrieved by the orders of compulsory retirement	 moved the High Court under Article 226 of the Constitution challenging the validity of the impugned ordes of compulsory retirement passed by the High Court in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules. The principal contention of the respondents before the High Court was that the High Court had no power to oompulsorily retire 337 members of the Tamil Nadu State Judicial Service. Such an order could be passed only by the State Governor	 who was the appointing authority. All that the High Court could do was to make a recommendation to the State Governor in that behalf. It was also contended on behalf of the respondents that there was no material on record which would justify the premature retirement of the respondents. The respondents also challenged the validity of the constitution of the Review Committees of the High Court that passed the impugned orders of compulsory retirement. Two learned Judges of the Division Bench delivered two separate judgments. One of the learned Judges of the Division Bench took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial Service should be compulsorily retired or not in public interest	 the formal order of compulsory retirement was to be passed by the Governor acting on the recommendation of the High Court. The other learned Judge	 however	 did not subscribe to the above view. According to him	 it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules. Both the learned Judges	 however	 came to the conclusion that there was no material on record to justify the impugned orders of compulsory retirement of the two respondents. The learned Judges also held against the validity of the constitution of the Review Committee of the High Court that considered the question of passing the order of compulsory retirement of the respondent	 Rajeswaran. According to the learned Judges	 the irregular or illegal constitution of the Review Committee vitiated the impugned order of compulsory retirement. In the case of respondent	 Rajiah	 it was held that the manner in which the Review Committee considered the question of compulsory retirement of Rajiah was illegal. The writ petitions filed by the respondents were accordingly	 allowed by the High Court and the impugned orders of compulsory retirement were quashed. Hence these two appeals. Mr. Datta	 learned Additional Solicitor General appearing on behalf of the High Court	 has strenuously urged that it is the High Court and the High Court alone that is competent to pass an order of compulsory retirement of a member of the subordinate judiciary under rule 56(d) of the Fundamental Rules. He has placed much reliance on the provision of Article 235 of the Constitution. It is submitted by him that unless it is held that the High Court is the only competent authority to pass an order of compulsory retirement	 it would be denuding 338 the High Court of its control over subordinate courts as conferred on it by Article 235 of the Constitution. On the merits of the case	 it is submitted by the learned Additional Solicitor General that the Division Bench of the High Court was not at all justified in considering the question as to the adequacy or otherwise of the materials on record in support of the impugned orders of compulsory retirement. Before considering the contention advanced on the basis of Article 235 of the Constitution	 we may	 at this stage	 refer to the provision of rule 56(d) of the Fundamental Rules	 the relevant portion of which is extracted below: "R. 56(d) Notwithstanding anything contained in this rule	 the appropriate authority shall if it is of the opinion that it is in the public interest so to do	 have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice	 after he has attained the age of fifty years or after he has completed twentyfive years of qualifying service. Any Government servant who has attained the age of fifty years or who has completed twentyfive years of qualifying service may likewise retire from service by giving notice of not less than three months in writing to the appropriate authority. Explanation I: Appropriate authority means the authority which has the power to make subst antive appointments to the post or service from which the Government servant is required to retire or wants to retire. [Explanations II to V are omitted as they are not relevant for our purpose.] Rule 56(d) of the Fundamental Rules confers absolute right on the appropriate authority to retire a Government servant in the public interest. Under Explanation	 I "appropriate authority" means the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire or wants to retire. In view of Explanation I	 it is manifestly clear that the absolute power to retire any Government servant has been conferred on the appropriate authority	 that is	 the authority which has the power to make substantive appointment to the post or service from 339 which the Government servant is required to retire. It is not disputed that the authority to make substantive appointment to the post of Munsif or District Munsif is the Governor. Therefore	 without anything else	 under rule 56(d) of the Fundamental Rules	 the State Government or the Governor being the appointing authority	 has the absolute power to retire a District Munsiff. It is not necessary to consider the provision of Article 235 of the Constitution and its impact on rule 56(d) of the Fundamental Rules as to the absolute right of the State Government to retire a member of the subordinate judicial service. Article 235 vests in the High Court the control over District Courts and Courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment	 promotion and imposition of punishment	 both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service	 such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution. Rule 56(d) of the Fundamental Rules under which a member of suboridnate judicial service can be compulsorily retired has to be read subject to and in harmony with the power of control vested in the High Court under Article 235 of the Constitution At this stage	 it is necessary to consider the extent of the power of control of the High Court under Article 235. In the instant cases	 it has been already noticed that the High Court had held the enquiry and made the impugned orders of compulsory retirement. According to one of the learned Judges of the Division Bench of the High Court	 as the impugned orders were not signed by the Governor	 but by the High Court	 they were illegal and should be struck down. The contention of the learned Additional Solicitor General is that if the Governor is required to sign the impugned orders	 it would take away the control of the High Court as conferred on it by Article 235. We are	 however	 unable to accept the contention. The test of control is not the passing of an order against a member of the suboridnate judicial service	 but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned	 it is the Governor	 who being the appointing authority	 has to pass an order of compulsory retirement or 340 any order of punishment against such a member. But passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part	 a decision will have to be made whether an action will be taken against the Government servant Under the second part	 the decision will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment	 as the case may be	 has to be taken against the member concerned	 the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without	 and contrary to	 the recommendation of the High Court. In the State of West Bengal vs Nripendra Nath Bagchi	 ; a question arose whether Article 311 takes away the control of the High Court vested in it under Article 235 of the Constitution. In that context	 Hidayatullah	 J. (as he then was) speaking for the Court observed as follows: "There is	 therefore	 nothing in article 311 which comples the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power in it. In our judgment	 the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court	 the High Court can hold enquiries	 impose punishments other than dismissal or removal	 subject however to the conditions of service	 to a right of appeal if granted by the conditions of service	 and to the giving of an opportunity of showing cause as required by cl. (2) of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry 341 in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction. " Thus	 it appears that this Court brought about a harmony between the power of the Governor and the power of control of the High Court. The question was again considered by this Court in State of Haryana vs Inder Prakash Anand	 In that case A.N. Ray	 C.J. Observed as follows: "The control vested in the High Court is that if the High Court is of opinion that a particular Judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss	 remove	 reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". " It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken	 it will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court. There can be no doubt and	 indeed	 it is well established that compulsory retirement of members of the subordinate judicial service comes within the purview of the power of control of the High Court 342 under Article 235 of the Constitution. See State of Uttar Pradesh vs Batuk Deo Pati Tripathi	 ; High Court of Punjab & Haryana vs State of Haryana	 ; ; Shamsher Singh vs State of Punjab	 ; ; State of Haryana vs Inder Prakash Anand (supra) and B. Misra vs Orissa High Court	 ; The control of the High Court	 as understood	 will also be applicable in the case of compulsory retirement is that the High Court will	 upon an enquiry	 come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not. If the High Court comes to the conclusion that such a member should be prematurely retired	 it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority. The Governor will make a formal order of compulsory retirement in accordance with the recommendation of the High Court. In the instant cases	 admittedly	 the impugned orders of compulsory retirement have been passed by the High Court under rule 56(d) of the Fundamental Rules. It has been noticed that under rule 56(d) of the Fundamental Rules right of compulsory retirement has been conferred on the appropriate authority which	 under Explanation I	 means the appointing authority	 that is	 the Governor. While the High Court decided to compulsorily retire the respondents. it did not communicate the recommendations to the State Governor for passing formal orders of compulsory retirement. Instead	 the High Court passed the orders of compulsory retirement itself. As Article 235 vests the power of control of subordinate judiciary in the High Court	 the absolute right to compulsorily retire a Government servant conferred on the Governor by rule 56(d) of the Fundamental Rules must be subject to the power of control of the High Court	 so far as the members of the subordinate judicial service are concerned. In other words	 if the High Court considers that a member of the subordinate judicial service should be compulsorily retired	 the High Court will make a recommendation in that regard to the Governor	 who will make an order of compulsory retirement in accordance with the recommendation of the High Court. The Governor will only act on the basis of the recommendation and pass a formal order. But however formal it is	 the compulsory retirement of the member concerned will take effect after the order is passed by the Governor. The High Court	 in the present cases	 sought to derive its power to compulsorily retire the respondents from rule 56(d) of the Fundamental Rules and in exercise of its power of control it decided to 343 compulsorily retire the respondents	 but ignored the power of the Governor under rule 56(d) of the Fundamental Rules to make the order of compulsory retirement in accordance with the recommendation of the High Court. It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature	 for the Governor merely acts on the recommendation of the High Court by signing an order in that regard. But however formal it may be	 yet the procedure has to be complied with. So long as there is no formal order by the Governor	 the compulsory retirement	 as directed by the High Court	 could not take effect. We are unable to accept the contention of the learned Additional Solicitor General that to send the recommendation to the Governor for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the High Court as vested in it under Article 235 of the Constitution. As has been discussed above	 the power of control is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so	 what would be the nature of the action. In the case of compulsory retirement	 when the High Court comes to a decision that the member should be compulsorily retired from service	 its decision or recommendation has to be communicated to the Governor so that he may pass a formal order of compulsory retirement. In the instant cases	 as there is no formal order by the Governor under rule 56(d) of the Fundamental Rules	 the impugned orders of the High Court are ineffective. The view expressed by one of the learned Judges of the Division Bench that it was not the High Court but the Governor who had to pass formal orders of compulsory retirement	 is correct. The contention made on behalf of the High Court that as rule 56(d) of the Fundamental Rules impinges upon the power of control of the High Court	 as vested in it under Article 235 of the Constitution	 it should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire Government servants	 who	 in the instant cases	 are members of the subordinate judicial service	 is without any substance whatsoever and is rejected. We may now come to the merits of the case. It has been upheld by both the learned Judges of the Division Bench of the High Court that the impugned orders were not supported by any material. Further	 it has been held that no material has been placed before the High Court to show that the impugned orders have been passed in public interest. This finding has not been challenged by the learned Additional Solicitor General appearing on behalf of the High Court. All that has been submitted by him is that the High Court was not 344 justified in considering the adequacy or otherwise of the materials in support of the orders of compulsory retirement. There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service	 the adequacy or sufficiency of such materials cannot be questioned	 unless the materials are absolutely irrelevant for the purpose of compulsory retirement. But	 in the instant case	 there is no question of adequacy or sufficiency of the materials in support of the impugned orders of compulsory retirement. According to the High Court	 no material has been placed in justification of the impugned orders of compulsory retirement of the respondents. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard	 but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired	 such conclusion must be based on materials. If there be no material to justify the conclusion	 in that case	 it will be an arbitrary exercise of power by the High Court. Indeed	 Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily	 but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement	 those must be held to be illegal and invalid. In Rajiah 's case	 a Review Committee consisting of three Judges was appointed by a resolution of the High Court. In the meeting of the Review Committee held on June 25	 1979 to consider the case of the respondent Rajiah	 only two Judges of the High Court were present. The two Judges came to the conclusion that the respondent	 Rajiah	 should be compulsorily retired with effect from April 2	 1980. The Division Bench found that the third Judge had no notice of the meeting held on June 25	 1979	 but he agreed with the view expressed by the two Judges with a slight modification that the respondent would retire with effect from March 3	 1980 under rule 56(d) of the Fundamental Rules. The Division Bench of the High Court took the view that as all the three Judges had not sat together and considered the question of compulsory retirement of respondent Rajiah	 and that	 further	 the third Judge having also modified the decision of the two Judges	 namely	 that the respondent would be compulsorily retired with effect from March 3	 1980	 the impugned order of compulsory retirement of the respondent	 Rajiah	 was vitiated. It is true that the members of the Review Committee should sit together and consider 345 the question of compulsory retirement	 but simply because one of them did not participate in the meeting	 and subsequently agreed with the view expressed by the other two Judges	 it would not vitiate the decision of the Committee to compulsorily retire the respondent. The third Judge might be justified in correcting the date with effect from which the respondent would compulsorily retire	 but that is a very minor issue and would not	 in our opinion	 make the decision invalid. In regard to the case of the other respondent	 namely	 K. Rajeswaran	 the High Court took the view that the constitution of the Review Committee by the Chief Justice and not by the Full Court was illegal. We are unable to accept the view cf the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is	 in our opinion	 correct	 namely	 that the decision of the Review Committee should have been placed before a meeting of the Judges. In the case of the respondent	 K. Rajeswaran	 the decision and recommendation of the Review Committee was not placed before the Full Court meeting. Nor is there any material to show that the same was circulated to the Judges. In that sense	 the recommendation of the Review Committee was not strictly legal. Another fact which has been pointed out by the High Court is that although the Review Committee was constituted with two Judges	 another Judge also participated in the meeting of the Review Committee and	 indeed	 he recorded a very elaborate minute. The Division Bench has looked into the record and found that the learned Chief Justice had appointed only two Judges to constitute the Review Committee and observed that the participation of the third Judge was improper. It is	 however	 not known whether he participated in the meeting of the Review Committee under the direction of the Chief Justice. We had not the opportunity of looking into the record and	 as such	 we do not make any final pronouncement about the same. Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent	 K. Rajeswaran	 was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976	 there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired	 the third Judge of the Review Committee 346 relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif	 but for the purpose of compulsory retirement those events were considered to be of importance. In Baldev Raj Chadha vs Union of India; 	 this Court observed as follows: "One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement	 could be cashiered on the score that long years ago	 his performance had been poor	 although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material	 relevant to the decision	 has been ignored and obsolete material	 less relevant to the decision has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring	 wilfully or otherwise	 vital facts bearing on the decision is bad in law. Likewise	 any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon	 cannot be sustained. " The above decision has been relied upon by the Division Bench and that rightly. The decision to compulsory retire the respondent	 in our opinion	 is vitiated as the High Court had relied upon some adverse incidents against the respondent that took place in 1954	 although the respondent was appointed to the post of District Munsif in 1976. In this regard	 we may also refer to an observation by this Court in Brij Bihari Lal Agarwal vs High Court of M.P.	 ; "It is possible that a Government servant may possess a somewhat erratic record in the early years of service	 but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation. " For the reasons aforesaid	 we are of the view that the Division Bench of the High Court was perfectly justified in quashing the impugned orders of compulsory retirement. 347 In the result	 the appeals are dismissed. There will	 however	 be no order as to costs. SHARMA	 J. I have gone through the Judgment just now delivered by Mr. Justice M.M. Dutt	 and I agree that since there is no material on the records of the cases in support of the impugned orders of compulsory retirement of the two respondents Mr. R. Rajiah and Mr. K. Rajeswaran	 they were rightly quashed by the High Court. The appeals are accordingly dismissed. I am not expressing any opinion on the other questions raised in these cases. R.S.S. Appeals dismissed.

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 56(d) 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 grounds:(1) 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 i.e.	 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 56(d) 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 1.1.1976	 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 56(d) 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 M.M. Dutt	 J.) (C.J.I. 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 56(d) 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 56(d) 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 56(d)	 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 56(d) 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 M.P.	 ; 	 referred to. 336