RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. LT. GOVERNOR OF NCT OF DELHI & ANR.

A of sub-Rule (3) of Rule 16 and in consonance with the certain instructions, the State Government of U.P. in October 1969 had constituted a Review Committee to review the records of the members of the Service who were to attain or had attained the age of 50 years. The list of officers considered by this B Committee had included the respondent Mr. Nigam. The Committee had not recommended any of the Officers including Mr. Nigam for premature retirement and, on the other hand, had recommended that they should be continued in service. The State Government had accepted the report of the Review c Committee and communicated its decision to the Central Government. Qn December 20, 1969, the Secretary, Ministry of Home affairs of the Central Government had addressed a letter wherein a reference was made to the adverse remarks in the character roll of Mr. Nigam including suspension of Mr. D Nigam which was set aside on strictures being expunged by the High Court, and a view was expressed that his was a fit case in which proposal for his premature retirement under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 should have been considered: After noticing the fact that the State Government had not recommended the E compulsory retirement the letter proceeded to mention that the Central Government was not knowing if there were any particular reasons for taking a different view or whether it was a case of over-sight. By the said letter the Central Government had expressed opinion to have the considered views of the F State Government before any decision was taken by the Central Government. On January 29, 1970, the Chief Secretary to the State Government had replied that the Review Committee had considered the character roll and the merits of the case of Mr. Nigam and found that he was suitable for continuing in service, and that the decision of the Committee was accepted by the State Government. In the reply, it was mentioned that the State Government's decision in the matter was taken after thorough consideration and that the State Government did not consider it necessary to go into this question again. No adverse decision contrary to the recommendation of the State Government was

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 54 7 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] taken and communica,ted by the Central Government to the A State Government ln pursuance of the recommendation of the first Review Committee in October, 1969. However, the State Government, on its own motion, constituted a second Review Committee in May 197,0. Again before this Committee also the case of all the officers who had attained the age of 50 years 8_ including those whose cases had been reviewed earlier in October 1969 was C!lso placed for consideration. Thus Mr. Nigam's case was considered I again by the Second Review Committee. This time the Committee recommended that the two officers one of whom was Mr. Nigam should be prematurely retired. The State Government having accepted this recommendation forwarded the same to the Central Government. The Central Government asked the State Government to send the proceeding of the Review Committee and on receipt of the proceedings, the.Central Government agreed with the views of the State Government and passed the order of compulsory retirement of Mr. Nigam.

38Copy pinpoint38. It is in the light of these facts that this Court made _ following observations in paragraph 29 of the reported decision which read as under : E

"29. The correct position that emerges from Rule 16(3) read with the procedural instructions is that the Central Government, after consultation with the State ~overnment, may prematurely retire a civil servant with three months' F previous notice prior to his attaining 50 years or 55 years, as the case may be. The only exception is of those cases which had to be examined for the first time after amendment of the rule substituting 50 years for 55 years where even officers, who had crossed the age of 50 years, even before reaching 55, could be for the first time G reviewed. Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and, if he is again cleared at H

p. 548 Copy page pinpoint

A that point, he is free and untrammelled upto 58 which is his usual span of the service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason."

39Copy pinpoint39. So far as present case is concerned, no final decision was taken by the Screening Committee in case of any officer of Delhi Higher Judicial Service and Delhi Judicial Service, but a tentative decision was taken that at that stage no officer was found fit who could have been retired compulsorily from service. C This is not a case wherein a review had taken place and a positive final decision to continue the appellants in service, was taken by the Screening Committee. In the case of Chandra Mohan Nigam (Supra), the case of Mr. Nigam was considered positively for retirement but a specific recommendation was made to continue hirn in service, by the Review Committee which was accepted by the State Government and except expressing an opinion that having regard to certain adverse remarks in his character roll, this was a fit case in whic.h proposal for his premature retirement should have been considered, the Central Government, after receipt of reply from the State Government, had not taken any adverse decision contrary to the recommendation of the State Government, which was in turn based on the recommendation of the First Review Committee. Further, in Chandra Mohan Nigam's case itself this Court has in para 27 of the reported decision hastened to add that when integrity of an officer is in question, that will be an exceptional circumstance for which order may be passed in respect of such an officer under Rule 16(3), at any time, if other conditions of that rule are fulfilled apart from the choice of disciplinary action which will also be open to the Government. Thus an exception to the rule, that if there is consideration at the age of 50, next consideration can be only at the age of 55 is made in Chandra Mohan Nigam's case itself by holding that if material in regard to doubtful integrity of the officer comes to light, the authority need not wait till the officer attains the age

~JENDRA SINGH VERMA (DEAD) THROUGH LRS v. 549 T. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

55 years and action can be taken immediately. The integrity all the three Judicial Officers was found to be doubtful and, '3refore, their compulsory retirement from service cannot be ild to be illegal.

40Copy pinpoint40. At this stage, a reference may be made to the decision this Court in Haryana State Electricity Board vs. K. C. iambhir (1997) 7 SCC 85. Though the decision may n_ot be fotly applicable to the facts of the present cases, but certain 11servations made therein are relevant to understand the issue o>sed for consideration of this Court in the present appeals. c The respondent therein was an employee of Haryana State •ectricity Board. He was promoted as Executive Engineer on "3bruary 19, 1977. When he attained the age of 50 years, his 11se for compulsory retirement was reviewed on November 30, ~86. His integrity was reported doubtful in the year 1985-86, D et it was decided not to retire him compulsorily because his presentation against adverse remarks was pending. On ·taining 55 years of age, his case fo[,compulsory retirement as again reviewed on November 30, 1991. AT th~t time also, epartmental proceedings were pending against him for a E ~rious act of misconduct and, therefore, it was decided not retire him. The enquiry was over on August 4, 1993 and 0 ereafter, he was compulsorily retired on February 3, 1994 by ving him three months' notice. The retirement came nine ,onths before his date of superannuation. Thus, on two earlier F . ::casions, it was decided not to retire him compulsorily, but 1 third occasion, order of compulsory retirement was passed. he order of compulsory retirement was set aside by the High ourt of Punjab and Haryana in the writ petition filed by the espondent. This Court, while allowing the appeal filed by the G aryana Slate Electricity Board, observed that though the Jpellant could have taken the action of compulsorily retiring •e respondent from service earlier, it acted very fairly and lllowed him to remain in service till his representation against 1\e adverse remarks was considered on the first occasion and H

550 SUPREME COURT REPORTS [2011112 s.c.F·

A subsequently, till the departmental enquiry was completed. Tl" clear meaning of the above-mentioned observation is that eve= during the pendency of his representation against adver~ remarks and during the pendency of departmental enquir Haryana State Electricity Board could have taken action ~ compulsorily retiring the respondent from service earlier. Thl on the basis of service record, the three Judicial Officers cou1 have been retired compulsorily from service but a tentati' decision was taken not to retire them from service at that poi• of time. But this tentative decision would not preclude tt c authority concerned from passing orders of compulso retirement later on.

41Copy pinpoint41. In Government of T.N. vs. P.A. Manickam AIR 19S. SC 2250, what is ruled by this Court is that the rule permits tt appropriate authority to retire any Government servant after t D has attained the age of 50 years or after he has completed ~­ years of qualifying service and the rule prescribes a startir point, which is the attaining of the age of 50 years or tt completion of 25 years of service, but it does not prescribe terminus ad quam and it is, therefore, open to the appropria. E authority under the rule to consider the case of a Governme• servant for premature retirement at any time after th aforementioned starting points. Thus, after the so-called revie of the cases of the two appellants and the deceased officer · July, 2000, their cases were rightly reviewed again and orde1 F retiring them compulsorily from service were rightly passe against them.

42Copy pinpoint42. In Union of India Vs. M.E. Reddy (1980) 2 SCC H the respondent Mr. Reddy started his career in the Polic G Service as Deputy Superintendent of Police in the year 194~ In the year 1958 he was appointed to the Indian Police Servic. On July 31, 1958, he was promoted as Superintendent ,, Police in State of Andhra Pradesh and held charge of a numb$ of Districts from time to time. He was awarded the Preside1 H Police Medal on August 14, 1967 but the award of the sai

~IENDRA SINGH VERMA (DEAD) THROUGH LRS v. 551 . GOVERNOR OF NCT OF DELHI [J.M, PANCHAL, J.) :dal was withheld as he was placed under suspension by the A -vernment on August 11, 1967 pending departmental enquiry J a number of allegations made against him.

In 1969, he filed a writ petition in the Andhra Pradesh High urt praying that the order of suspension passed against him quashed as it was passed on false allegations and at the 8 -tance of Mr. K. Brahmanand Reddy who was then Chief iister of the State. The writ petition was admitted by the High -urt and an interim order staying all further proceedings in ipartmental enquiry was passed. When the writ came up for -aring, the State Government represented to the High Court C lit, it had decided to withdraw order of suspension and instate Mr. Reddy. The State Government withdrew the order suspension and directed that the period of suspension be -ated as on duty. Thereafter, on application being filed by Mr. :ddy, the writ petition was dismissed as withdrawn. Because D these developments the departmental proceedings against lf1 were dropped and he was given Selection Grade, which 1s withheld because of the suspension order. By an order •ted April 28, 1971, he was promoted to the rank of Deputy -3pector General of Police. During the course of the partmental enquiry an entry to the effect that "he had ncocted a case of attempt to rape against one Mr. mugopal Reddy to please the then Inspector General of ~lice Mr. Nambiar and there was a strong suspicion about his •egrity" was made in his A.C.R. He made a representation expunge the entry. The Government decided that as atements were factual, it would be sufficient if entry was made the effect that the suspension was subsequently lifted and e period was treated as on duty and that further action was •t necessary as there were no good grounds to hold him guity any of the charges leveled against him.

However, on August 7, 1975, a Review Committee nsisting of the Chief Secretary, Home Secretary and · spector General of Police considered various cases of police H

552 SUPREME COURT REPORTS [2011] 12 S.C.

A officers including that of Mr. Reddy and mac. recommendations. On September 11, 1975, the Governme- of India, after considering report of the Review Committe' ordered compulsory retirement of Mr. Reddy in public interes;

Thereupon Mr. Reddy filed writ petition in the Andhr- 8 Pradesh High Court. The Single Judge allowed the petition ar quashed order of compulsory retirement. That decision wo. upheld by the Division Bench of the High Court, in appeal file by State of Andhra Pradesh and Union of India. Therefore, th• two appeals by certificate were filed before this Court. c It was argued before this Court on behalf of Mr. Reddy th" the order impugned was passed on materials which were nc existent inasmuch as there were no adverse remarks again~ Mr. Reddy who had a spotless career throughout and if sue o remarks had been made in his confidential reports, they woul- have been communicated to him under the rules. Thi contention was negatived in following terms: -

"Here we might mention that the appellants were fair am candid enough to place the entire confidential personal m~ E of Reddy before us starting from the date he joined th~ Police Service and after perusing the same we are unablEi to agree with Mr. Krishnamurty Iyer that the officer had c. spotless career. The assessment made by his superio· officers from the very beginning of his service until the F impugned order was passed show that at the best Redd~ was merely an average officer and that the reports sholl" that he was found to be sometimes tactless, impolite impersonated, suffered from other infirmities, though no• all of them were of a very serious nature so as to amoun· G to an adverse entry which may be communicated to him We might also mention that before passing an order unde1 Rule 16(3) it is not an entry here or an entry there whicl" has to be taken into consideration by the Government bu~ the overall picture of the officer during the long years of his service that he puts in has to be considered from the point

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 553 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

of view of achieving higher standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service. Even in the · last entry which was sought to be expunged through a representation made by Reddy and other entries made before that it appears that the integrity of Reddy was not above board."

While allowing the appeals of the Union of India and State of Andhra Pradesh, this Court has emphasized the importance of adverse entry. After referring to observations made by this Court in para 27 of the decision in the case of Sate of U. P. vs. C Chandra Mohan Nigam (1977) 4 SCC 345, wherein the Court had hastened to add that when integrity of an officer is in question that will be an exceptional circumstance for which order may be passed in respect of such a person under Rule 16(3) at any time, if other conditions of the rule are fulfilled, apart from D the choice of disciplinary action which will also be open to Government, this Court M.E. Reddy's case, has held as under:

"Thus, even according to the decision rendered by this E Court in the aforesaid case the fact that an officer is of doubtful integrity stands on a separate footing and if he is compulsorily retired that neither involves any stigma nor any error in the order." F Further, in the process of interpreting the decision in Chandra Mohan Nigam's case, this Court in para 25 of the reported decision inter-alia observed that "we have already indicated above that this Court made it absolutely clear that when a person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court G would have no application."

43Copy pinpoint43. Apart from the poor judicial performance, the appellants were also retired compulsorily from service, on the ground that their integrity was doubtful. I-

554 SUPREME COURT REPORTS [2011] 12 S.C.R.

44Copy pinpoint44. The mandate of Article 235 of the Constitution is that the High Court has to maintain constant vigil on its subordinate judiciary as laid down by this Court in High Court of Judicature at Bombay through its Registrars Vs. Shirishkumar Rangrao Patil and Another (1997) 6 sec 339. In the said case, this s Court has explained that the lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery lies on the judiciary itself by its self- imposed or corrective measures or disciplinary action under the doctrine of control enshrined in c Articles 235, 124(6) of the Constitution, and therefore, it would be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self introspection.

45Copy pinpoint45. Judicial service is not a service in the sense of an employment as is commonly understood. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. There is no manner of doubt that the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. As explained by this Court in Chandra Singh and others Vs. State of Rajasthan & another (2003) 6 sec 545, the power of compulsory retirement can be exercised at any time and that the power under Article 235 in this regard is not in any manner circumscribed by any rule or order. What is explained in the said decision by this Court is that Article 235 of the Constitution o( India enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the deadwood, and this constitutional power of the High Court cannot be circumscribed by any rule or order. Moreover while upholding the orders of compulsory retirement of judicial officers who were working in the State of U.P., following weighty observations have been made by this Court in para 13 of decision in case

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 555 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

of Nawal Singh vs. State of U.P. and another (2003) 8 sec A 117: -

"13. It is to be reite(ated that for keeping the stream of justice unpolluted, repeated scrutiny of service records of judicial officers after a specified age/completion of 8 specified years of service provided under the Rules is a must by each and every High Court as the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the C justice delivery system."

46Copy pinpoint46. Under the circumstances this Court is of the firm opinion that the principle laid down in Chandra Mohan Nigam's case will not be applicable to the facts of the appellants who were Members of the Delhi Higher Judicial Service. D

47Copy pinpoint47. Even if it is assumed for the sake of argument that the principle laid down in Chandra Mohan Nigam's case would applywith all the vigour to the facts of the appelfants also, this Court finds that in respect of all the three officers, after the previous consideration in July, 2000, new material in the form of ACR for the year 2000 '"C' integrity doubtful" had come into existence and had become a part of their respective service records when the Full Court in its meeting held on 13.9.2001 recorded their ACRs for the year 2000. Thus the consideration by the Committee constituted for the purpose of evaluating the cases of the officers to ascertain whether they should be compulsorily retired, was subsequent in point of time, namely, on 21.09.2001 and as such it will be fully covered by the exception spelt out in Chandra Mohan Nigam's Case itself in regard to consideration of cases again before the age of 55 G years. The consideration of the cases of the three judicial officers on the basis of ACRs dated September 13, 2001 recorded by the Full Court of the Delhi High Court is not a review of the earlier decision of July, 2000. It is a fresh consideration. It is review of the record of service of the officers and not review H

556 SUPREME COURT REPORTS [2011) 12 S.C.R.

A of the earlier decision and such review is not only permissible but is perfectly legal and valid.

48Copy pinpoint48. The net result of the above discussion is that this Court does not find any substance in the first contention raised on behalf of the appellants and the same is hereby rejected. 8

49Copy pinpoint49. The next contention which was raised by the learned counsel for the appellants was that the order passed by the Lt. Governor compulsorily retiring the appellants from service, without seeking aid and advice of his Council of Ministers, as required by Article 239(AA)(4) of the Constitution is ultra vires as well as illegal and therefore, the same should not be sustained. Elaborating the said point, it was argued that the order retiring the appellants compulsorily from service was passed by the Lt. Governor on receiving the recommendation of the High Court of Delhi, pursuant to the resolution of the Full Court passed on September 22, 2001 acting under and in exercise of control over subordinate judiciary under Article 235 of the Constitution, but the powers of the Lt. Governor of N.C.T. of Delhi under Article 239(AA)(4) which are analogous to powers of a Governor under Article 163(1) of the Constitution can be exercised only on aid and advice of his Council of Ministers, and therefore, the order passed by the Lt. Governor retiring the appellants compulsorily from service are bad in law. In support of these submissions the learned counsel for the appellants placed reliance on: (a) Samsher Singh Vs. State of Punjab and Another, (1974) 2 SCC 831 =AIR 1974 SC 2192 and (b) M.M.Gupta and Others Vs. State of Jammu & Kashmir and Others, (1982) 3 SCC 412.

50Copy pinpoint50. The learned counsel for the respondent High Court G pleaded that the contention that Lt. Governor while passing the Order of compulsory retirement ought to have been advised by his Council of Ministers was not advanced before the High Court and therefore was not considered by the High Court and this plea should not be permitted to be raised for the first time in the appeals arising by grant of special leave. It was pointed

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 557 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] out that in the appeal arising out of StP No. 314 of 2009 in the list of dates filed by Mr. P.O. Gupta it was pleaded that this I plea was urged before the High Court but the same was not considered before the High Court and if that be so the remedy of the appellant is to go back to the High Court and file the review petition. What was emphasized was that Mr. Gupta had in fact filed a review petition but later on withdrawn the same without seeking any liberty to agitate this point in the Special Leave Petition or in any other proceedings and therefore, he is not entitled to urge this plea. It was emphatically pointed out by the learned counsel for the High Court that in other appeals, c it is not stated by the appellants that such a plea was urged before the High Court and they having not urged such a plea in the memorandum of Special Leave Petitions, the plea raised at the delayed and belated stage should not be considered by this Court. In support of this argument, the learned counsel for 0 the respondent relied upon decisions in (a) Daman Singh and Others Vs. State of Punjab and Others, (1985) 2 SCC 670, (b) State of Punjab and Another Vs. H.B. Malhotra, (2006) 11 SCC 169, (c) Mohd. Akram Ansari Vs. Chief Election Officer -· and Others, (2008) 2 SCC 95 and (d) Ex-Constable Ramvir E Singh Vs. Union of India and Others, (2009) 3 SCC 97.

51Copy pinpoint51. Without prejudice to the above stated contention, it was argued by the learned counsel for the respondent that under Article 235, it is High Court which has to exercise supervision and control over the subordinate judiciary and not the State F Government and therefore, recommendations of the High Court in regard to compulsory retirement were/are binding on the State Government/the Governor. The learned counsel pleaded that the Lt. Governor has to act on the recommendation of the High Court and there is no illegality, if the Governor on the G recommendations of the High Court had passed order retiring the appellants compulsorily from service. To buttress this submission, the learned counsel for the respondent placed reliance on (a) Samsher Singh Vs. State of Punjab and Another, (1974) 2 SCC;831 =AIR 1974 SC 2192, (b) State H,

558 SUPREME COURT REPORTS [2011] 12 S.C.R.

A of Haryana Vs. lnder Prakash Anand H.C.S. & Others, (1976) 2 SCC 977, (c) Baldev Raj Gu/iani Vs. The Punjab and Haryana High Court & Others, (1976) 4 SCC 201, (d) Registrar, High Court of Madras Vs. R. Rajaiah, (1988) 3 SCC 211, (e) Registrar (Admn.), High Court of Orissa, Cuttack Vs. s Sisir Kanta Satapathy (Dead) by LRs. & Another, (1999) 7 SCC 725, (f) Tej Pal Singh Vs. State of U.P. & Another, (1986) 3 SCC 604 and (g) T. Lakshmi Narasimha Chari Vs. High Court of A.P. and Another, (1996) 5 SCC 90.

This Court has heard the learned counsel for the parties C at great length on the question whether the order passed by the Lt. Governor compulsorily retiring the appellants from service without seeking aid and advice of his Council of Ministers as required under Article 239 (AA)(4) of the Constitution is ultravires and illegal. D

52Copy pinpoint52. It is true that the appellant Mr. Gupta has stated in the Memorandum of Special Leave Petition that the point that Lt. Governor could not have passed order retiring him compulsorily _ from service on the recommendation of the High Court and- E without seeking aid and advice of his Council of Ministers, was urged before the High Court, but the said point was not considered by the High Court. It is rightly argued by the learned counsel for the respondent that even in such an eventuality, the only course/remedy available to the said appellant was to approach the High Court seeking review of the Judgment. The record shows that the appellant Mr. Gupta had filed review application before the High Court, but the same was unconditionally withdrawn. At the time of withdrawal of review application, the appellant had not sought any liberty to agitate this point in Special Leave Petition before this Court. So far as two other appellants are concerned they have not stated that such a point was argued on their behalf before the High Court and was not dealt with by the High Court. Under the circumstances a question arises whether the learned counsel

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 559 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

for the appellants should be permitted to raise such a plea A before this Court at the stage of final disposal of the matters.

53Copy pinpoint53. Ordinarily the Supreme Court would not entertain a new prayer at the hearing of the appeal under Article 136 when it is not raised in the High Court or in the petition seeking leave to 8 appeal. Point not raised before the High Court but taken in Special Leave Petition will not ordinarily be allowed to be agitated before this Court. The consistent practice of this Court is that the Court does not permit a party to raise a new point which has not been argued before the High Court. However, there are exceptional cases iri which this Court may permit a C party to raise a new plea before this Court for the first time, for example, where the plea raised does not require investigation of new facts or where the question raised is a pure question of law or where the point is likely to be raised in future affecting such cases or where the respondent has dealt with the point raised for the first time, in the reply filed before this Court and the learned counsel for the parties are heard at length and in great detail. This Court having gone thro_ugh the decisions relied upon by the learned counsel for the respondent, finds that no absolute proposition of law is laid down in any of the decisions that in no circumstances a new plea can ever be permitted to be raised before this Court if the same was not raised before the High Court. The question sought to be raised is a pure question of law for which factual foundation is already laid. The learned counsel for the parties have been heard at great length on the new point sought to be raised first time before this Court. The authorities cited at the Bar have been read and re-read to emphasize respective view points. Therefore, having regard to the facts of the case, this Court has permitted the learned counsel for the appellants to raise the point and heard the learned counsel for the parties in detail.

54Copy pinpoint54. In order to answer the question posed for the consideration of the Court, it will be useful to notice the contents of Articles 163(1) and 239(AA) (4) of the Constitution.

560 SUPREME COURT REPORTS [2011) 12 S.C.R.

55Copy pinpoint55. Article 163 makes provision that Council of Ministers has to aid and advice Governor. It inter alia provides that there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution 8 required to exercise his functions or any of them in his discretion. The said Article further provides that if any question arises whether any matter is or is not a matter in respect of which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his C discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. Sub Article (3) of Article 163 stipulates that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. D

56Copy pinpoint56. Article 239AA inserted by the Constitution (Sixty-ninth Amendment) Act, 1991 enacts special provisions with respect to Delhi. Clause (1) of said Article states that as from the date of commencement of the Constitution (Sixty-ninth Amendment) E Act, 1991 which is February 1, 1992 the Union Territory of Delhi shall be called the National Capital Territory of the Delhi and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. Sub-clause (2) deals with the constitution of Legislative Assembly for the National F Capital Territory and total number of seats of the assembly etc. Sub-clause (3) of the Article confers power on the Legislative Assembly to make laws for the whole or any part of the National Capital Territory. Sub-clause (4) with which the court is concerned, inter alia provides that there shall be a Council of G Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, H except in so far as he is, by or under any law, required to act

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. S61 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

in his discretion. A

57Copy pinpoint57. A meaningful and conjoint reading of Article 163 of the Constitution makes it clear that the Governor has to act on aid and advice of the Council of Ministers with the Chief Ministers as the head except in so far as he is by or under this 8 Constitution required to exercise his functions or any of them in his discretion. In view of the provisions of sub Article (4) of Article 239AA of the Constitution, the Lt. Governor has to take aid and advice of the Council of Ministers in the exercise of his functions in relation to matters with respect to which the C Legislative Assembly has power to make laws. Article 235 provides that the control over the subordinate courts is vested in High Court of a State. The expression "control" has been elucidated in several reported decisions of this Court, the leading case being Shamsher vs. State of Punjab (1974) 2 D SCC 831. The "control" vested in the High Court is a mechanism to ensure independence of the subordinate judiciary. Under Article 235 of the Constitution, the control over the subordin"ate.judiciary, vested in the High Court, is exclusive in nature, comprehensive in extent and effective in operation and it is to subserve a basic feature of the Constitution, i.e., E independence of judiciary. Among others things, it includes - (a) (i) disciplinary jurisdiction and a complete control subject only to the power of Governor in the matter of appointment, dismissal, removal and reduction in rank of District Judges and initial posting and promotion to the cadre of District Judges, F (ii) in Article 235 the word 'Control' is accompanied by the word 'vest' which shows that the High Court alone is made the sole custodian of the control over the judiciary, and (iii) Suspension from service of a member of judiciary with a view to hold disciplinary enquiry; (b) transfers, promotion and confirmation G of such promotions, of persons holding posts in judicial service, inferior to that of District Judge; (c) transfer of District Judges; (d) recall of District Judges posted on ex-cadre posts or on deputation on administrative posts; (e) award of selection grade to the members of the judicial service, including District Judges H

562 SUPREME COURT REPORTS [2011] 12 S.C.R.

A and grant of further promotion after their initial appointment to the cadre; (f) confirmation of the District Judges who have been on probation or are officiating after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233; and (g) premature or compulsory retirement of B Judges of the District Courts and of Subordinate Courts.

58Copy pinpoint58. The scheme envisaged by the Constitution does not permit the State to encroach upon the area reserved by Articles 233, 234 and first part of Article 235 either by legislation or rules or executive instructions. c

59Copy pinpoint59. Article 235 has no concern with the conferring of jurisdiction and powers on the Court but it only relates to administrative and disciplinary jurisdiction over the subordinate Courts. Therefore, the conferment of power of the prescribed authority by the State Legislature on the Judicial Officers cannot be construed to mean that the power of the High Court under Article 235 is inoperative or inchoate as High Court alone is the sole auth9Jity competent to initiate disciplinary proc~~dings against Subordinate Judicial Officers or to impose various punishments including passing of order of compulsory retirement on verification of the service record. The State is least competent to aid and advise Governor on such subjects. While the High Court retains the power of disciplinary control over the subordinate judiciary including power to initiate disciplinary proceedings, suspend them during enquiries and impose punishment on them, but when it comes to the question of dismissal, removal or reduction in rank or termination of services of judicial officers on any count whatsoever, the High Court becomes the recommending authority and cannot itself pass the orders. The formal order to give effect to such a decision has to be passed by the State Governor on the recommendations of the High Court. In disciplinary proceedings if an action is taken by the High Court against the judicial officer the recommendations made by the High Court H bind the Governor and he is left with no discretion except to

RAJENDRA SINGH VERMA (DEAD) THROUG!-1 LRS v. 563 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL; J.] act according to the recommendations. The Governor, under A the scheme of Articles 233, 234 and 235 of the Constitution cannot refuse to act in terms of the recommendations made by the High Court on the ground that he is not aided and advised by the Council of Ministers and this is the true import of total control of the High Court over the Subordinate Judiciary. B

60Copy pinpoint60. In the light of the above mentioned principles the decisions sited at the bar will have to be considered.

61Copy pinpoint61. In Shamsher Singh (Supra), there were two appellants, namely, Shamsher Singh and lshwar Chand Agarwal. The two C · appellants were members of the Punjab Civil Services (Judicial Branch) and were appointed on probation. The services of appellant Shamsher Singh were terminated by an order dated April 27, 1967, by the Governor of Punjab under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, D with immediate effect. By an order dated December 15, 1969, the services of the appellant lshwar Chand Agarwal were terminated under Rule 7(3) in_Part 'D' of the Punjab Civil Services (Judicial Branch) Rufes, 1951, by the Governor of Punjab, on the recommendation of the High Court of Punjab E and Haryana. Both of them had filed writ petitions in the Punjab and Haryana High Court against the termination of their services. The writ petitions were dismissed and, thereafter, they had filed appeals to the Supreme Court.

62Copy pinpoint62. The first contention raised by appellant lshwar Chand F Agarwal that he completed his initial period of probation of two years on November 11, 1968 and by reason of the fact that he continued in service after the maximum period of probation, he became confirmed by necessary implication, was negatived by this Court on the ground that notice dated October 4, 1968 was G given· at the end of the probation and the period of probation got extended till the inquiry proceedings commenced by the notice under Rule 9 came to an end.

63Copy pinpoint63. The second contention on behalf of lshwar Chand H

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A Agarwal that termination of his service was by way of punishment on the basis of charges of gross misconduct by ex- parte enquiry conducted by the Vigilance Department found favour with this Court.

64Copy pinpoint64. This Court accepted the plea that the termination of 8 his services was based on the findings of misco-nduct contained in about eight complaints, which were never communicated to him and High Court had abdicated the c~ntrol vested in it under Article 235 by not having an enquiry through judicial offi~rs subordinate to the control of the Hinh Court, but c ii' asking the Government to enquire through the Vigilance Department.

65Copy pinpoint65. The abdication of the control over the subordinate judiciary by the High Court under Article 235 in favour of the D Government and the stand of the State that the High Court wanted the Government to be satisfied about the suitability of Mr. Agarwal was found to be something obnoxious and had annoyed and shocked this Court. Thf'refore, this Court, without mincing the words, authoritatively, clearly and for future E guidance of one and all, expressed itself in the following strong words in para 78 of the reported decision. a

"78. The High Court for reasons which are not stated requested the Government to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the F High Court which had control over the subordinate judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. G The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters H worse. The Governor will act on the recommendation of the

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 565 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

High Court. That is the broad basis of Article 235. The High A Court should have conducted the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance."

Having laid down, abovementioned proposition of law, this Court deprecated the abdication of control by the High Court by observing that the High Court denied itself the dignified control over the Subordinate Judiciary and after holding that the order of termination of the services of lshwar Chand Agarwal was clearly by way of punishment, set aside the same.

66Copy pinpoint66. In view of what. is categorically, clearly and authoritatively held in paragraph 78 of the reported decision there is no manner of doubt that it is ruled by Seven Judge Bench of this Court in case of Shamsher Singh (supra), that the Goyernor has to act on the recommendation of the High Court and that is the broad basis of Article 235. - E The appellant Shamsher Singh was appointed on May 1, 1964 as Subordinate Judge. He was on probation. On March 22, 1967, the Chief Secretary issued a notice to him substantially repeating the same charges which had been communicated to him by the Registrar on December 15, 1966, and asked the appellant to show cause as to why his services F should not be terminated as he was found unsuitable for the job. The appellant gave an answer. On April 29, 1967, the services of the appellant were terminated.

Shamsher Singh, in the context of the Rules of Business, G contended that the removal of a Subordinate Judge from service was a personal power of the Governor and was incapable of being delegated or dealt with under the Rules of Business. H

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A This Court held that the Governor can allocate the business of the Government to the Ministers and such allocation is no delegation and it is an exercise of executive power by the Governor through the Council or officers under the Rules of Business. Therefore, the contention of the appellant that the order was passed by the Chief Minister without the formal approval of the Governor was found to be untenable and it was held that the order was of the Governor.

Thereafter, this Court noted the contents of the show-cause notice, reply given to the said notice by the appellant, protection granted by Rule 9, etc. and held that it was clear that the order of termination of services of Shamsher Singh was one of punishment and set it aside.

In the light of the contention raised on behalf of Shamsher D Singh in the context of the Rules of Business, this Court, in para 88 of the said decision, held that the President and the Governor act on the aid and advice of Council of Ministers in executive action and the appointm£ nt as well asJemoval of the members of the Subordinate Judicial Service ls an executive E action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution.

67Copy pinpoint67. Thus what is observed by the Supreme Court, in para F 88 of the reported decision, will have to be read in the light of the submission made on behalf of the appellant Shamsher Singh and subject to clear, unambiguous and manifest proposition of law laid down in para 78 of the reported decision. Therefore, it is wrong to contend that in Shamsher Singh's case (supra), it is ruled by this Court that the Governor is bound to G act as per the aid and advice tendered by the Council of Ministers and not on the recommendations of the High Court in the matter of termination of services of the judicial officers on any count whatsoever.

68Copy pinpoint68. In another decision relied upon by the learned counsel

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 567 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.)

for the appellants, i.e., in M.M. Gupta and Others (Supra), this A Court held that in the appointment of Judicial Officers or removal of Judicial Officer by the Government, there has to be effective consultation between the ·Government and the High Court. This decision basically interprets Section 109 of the Constitution of Jammu and Kashmir. In the State of Jammu and B Kashmir certain vacancies for the post of District and Sessions Judge occurred for being filled up out of the eligible Judicial Officers. The High Court at a meeting of all the Judges considered the merits and suitability of all the eligible candidates and by a resolution recommended to the c Government the name of some officers in supersession of others. The Government then called for a copy of the High Court's resolution and Annual Confidential Reports of the candidates. In response, the high Court sent its detailed comments justifying its recommendation as also reasons for the 0 supersession of seniors along with the resolution and confidential reports as desired by the Government. Thereafter, a Cabinet sub-committee considered the matter. But the government neither communicated the recommendation of the Committee to the High Court, nor sought the High Court's views thereon and thereafter without any further intimation or discussions made the appointments in accordance with seniority. Those officers whose names were recommended by the High Court filed a writ petition under Article 226 challenging validity of the appointments. The Court granted a stay of operation of the appointment order pending disposal of the matter regarding admissibility of the petition. But ultimately in . view of the agreement between the parties, the High Court declined to hea[Jhe petition on the ground of judicial propriety ancfvacatedthe order of stay and granted a certificate of fitness to the petitioners to file an appeal in the Supreme Court, holding · G that the point involved in the writ petition relating to the interpretation of Section 109 of the Constitution of Jammu and Kashmir, raised a substantial question of law of general public importance and the case was a fit one in which a certificate of fitness should be granted. Against this order the State filed a H

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A special leave to appeal in this Court. The petitioners also filed a writ petition under Article 32 substantially for the same reliefs claimed in their earlier writ petition under Article 226. Allowing the aggrieved officers appeal with costs against the State Government, this Court held that the power to make B appointment of District Judges vested in the Governor is conditioned by the mandatory duty on the part of the Governor to consult the High Court, and the High Court has to decide whether a person is fit for promotion and make recommendations accordingly. This Court further held that the c consultation has to be made with the High Court alone and not with any other authority, because the High Court by virtue of its control over the officers must be considered to be the best judge of the ability and suitability of any officer as it has in its possession all the relevant materials regarding the performance of the officers. Therefore, this Court in the said 0 case ruled that it should generally be left to the High Court to decide as to which of the officers will best serve the requirements in furtherance of the cause of justice. In this decision in no uncertain terms this Court after considering previous judgments on the point held that the High Court should judge the suitability for promotion in a detached manner taking into consideration all material facts and relevant factors and normally, as a matter of rule, the recommendations made by the High Court should be accepted by the State Government and the Governor should act on the same. If the decision is construed in a pragmatic manner there is no manner of doubt that this decision also takes a view that Governor has to act on the recommendations made by the High Court. Ultimately, this Court found that the appointments of respondent Nos. 3, 4, 5, 6 therein made by the State Government were in violation of the Constitutional provisions and were therefore, set aside.

69Copy pinpoint69. In State of Haryana Vs. lnder Prakash Anand H.C.S. and Others (Supra}, 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

RAJEN'f5RA SINGH VERMA (DEAD) THROUGH LRS v. 569 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

May 1, 1965. On November 15, 1968 he was promoted as officiating Additional District and Sessions Judge. He was due to attain the age of 55 years on February 24, 1971. The State refe.rred his case to the High Court for its recommendation whether he should be retired at the age of 55 years or he should be retained in service till the age of 58 years, i.e., the age of superannuation. The High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to continue in service till the age of 58 years. The State a._galn- sought recommendation about his retirement. The c High Court recommended against compulsory retirement. The State Government did not agree and retired the respondent compulsorily. The High Court in a Writ Petition filed by the respondent quashed the order. In appeal this Court examined the ·scope of Article 235 of the Constitution and held that control 0 which is vested in the High Court is complete control subject. only to the power of the Governor in the matter of appointment including dismissal, removal, reduction in rank and the initial . posting and of the initial promotion tb District Judges. According to this Court 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 cannot be by any other authority. What is explained by this Court is that ther-e cannot be dual control and if the 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 independenqe of the Judiciary and take away the control vested in the High Court. What is ruled by this Court in the said decision -is thafit is unsound to contend that the Governor and not the Higl'i Court.has the power to retire a judicial officer compulsorily under Sectibn 14 of the Punjab General Clauses Act.

70Copy pinpoint70. In paragraph 18 of the reported judgment this Court has-held that the control vested in the high Court is that if the HitJh Court is of the opinion that a piarticular judicial officer is H

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A 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, but 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. According to this Court, if the recommendation of the High Court is not held to be binding on the State, the consequences will be unfortunate. What is highlighted by this Court in the said decision is that it is in public interest that the State will accept the c recommendation of the High Court. As a principle, it is stated in the said decision that 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.

71Copy pinpoint71. In Baldev Raj Guliani (1976) 4 SCC 201, this Court had occasion to consider and interpret the provisions of Articles 235, 311 and 234 read with Article 309 of the Constitution. In the said case adverse reports having been received against the appellant while he was acting as Subordinate Judge, E disciplinary proceedings were initiated against him by the High Court. After preliminary enquiry, he was suspended and on the findings of the departmental enquiry and on consideration of his explanation in reply to show-cause notice under Article 311 (2), the High Court recommended to the Government that F ·the officer should be removed from service. The State Government although on its own showing was inclined to agree with the views of the High Court and with the recommendations made by it, however referred the case to the Haryana Public Service Commission for advice purporting to act under Article G 320(3) of the Constitution. The Commission advised that no case had been made out against the appellant and that he should be exonerated. The Governor accepted the advice of the Commission and passed the order for reinstatement. The High Court, however, did not issue any posting order as It H regarded the order of reinstatement by the Governor illegal. It

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 571 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

even requested the Government to review its order. A

72Copy pinpoint72. Thereupon the appellant filed a writ petition praying for a writ of mandamus directing the high Court to issue an appropriate order of posting and also for a mandamus directing the Government to disburse full salary to him and other 8 consequential reliefs. While the writ petition was pending the Governor compulsorily retired him. Subsequently a Full Bench of the High Court delivered its judgment holding the order of reinstatement violative of Article 235, for the Governor was bound to accept the recommendation of the High Court as regards the subordinate judiciary. Therefore, the appellant preferred an appeal before this Court. Three questions were considered by this Court in the said case - (1) whether the Government is bound under the Constitution to a~cept the recommendation of the High Court and to pass an order of removal of the judicial officer, (2) whether consultation with the . · D Public Service Commission in the matter of a disciplinary proceeding relating to the judicial officer under the control of the High Court· is unconstitutional. Was the order,-of reinstatement passed by the Government constitutionally valid, and (3) if not what will be position of the officer on the date of the officer's compulsory retirement? Was an order of removal possible after that date?

73Copy pinpoint73. After considering the scheme envisaged by different provisions of the Constitution this Court held that the appointing authority of a Subordinate Judge under Article 235 as well as under the Appointment Rules, is the Governor because under Article 235 itself the Subordinate Judge will be governed by the Appointment Rules made under Article 234 read with Article

309. This Court then considered the submission of the appellant that the Governor being the appointing authority, both under Article 235 and the Appointment Rules read with the Punishment Rules, is the final authority to pass the order of removal of the officer and is not under any constitutional obligation to be bound by the recommendation of the High H

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A Court and also the assertion made on behalf of the High Court that Article 235 leaves no option to the Governor to refuse to accept its recommendation in a disciplinary matter in respect of a judicial officer. This Court found that the High Court in making its recommendation to the Governor for passing the B order of removal, had rightly conceded the authority of the Governor to pass the same. Thereafter the Court considered the question : Is the recommendation of the High Court binding on the Governor, and answered that since the Governor is the ultimate authority to pass the order for removal it will not be c correct always to insist that he has no authority even under certain extraordinary circumstances to decline to accept, forthwith, the particular recommendation, but ordinarily and as a matter of graceful routine, recommendations of the High Court are and should be always accepted by the Governor, because that is ordinarily so and should be in practice the rule as a 0 matter of healthy convention.

74Copy pinpoint74. In paragraph 28, of the reported decision this Court has held that the quality of exclusive control of the High Court does not appear to be whittled down by the constitutional device of all orders issued in the name of the Governor as the head of the State administration and, therefore, when the High Court exercising disciplinary control over the subordinate judiciary finds, after a proper enquiry, that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and, therefore, recommends to the Governor his removal or dismissal, it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice of the Council of Ministers or, as is usually the case, of one of the ministers. G It is explained by this Court in the said decision that in this context more than once the Supreme Court has observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor, and this is the inner significance of the constitutional provisions relating H to the subordinate judiciary. This Court further noted that

RAJENDRA SINGH VERMA {DEAD) THROUGH LRS v. 573 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] .

whenever in an,extraordinary case, rare in itself, the Governor A feels, for certain reasons that he is unable to accept the High Court'.s recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter, but it is, however, inconceivable that without reference to the High Court, the Governor would pass an order which had not been earlier B recommended by the High Court. This Court further explained that such a course will be contrary to the contemplation in the Constitution and should not take place. In para 36 of the · reported decision , this Court has explained the power and/or role of Governor in such matters and laid down the law c authoritatively as under : -

"36. The Governor could not have passed any order on the advice of the Public Service Commission in this case. The advice should be of no other authority than the High Court in the matter of judicial officers. This is the plain implication of Article 235. Article 320(3)(c) is clearly out of place so far as the High Court is concerned dealin.~ with judicial officers. To give any other interpretation to article 320{3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for the protection of the judicial officers and neces~arily the independence of the subordinate judiciary. It is absolutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court."

It may be noted that in the case of Baldev Raj Guliani (supra), this Court had considered the case of Shamsher Singh and thereafter has laid down above mentioned proposition of law. G In the deci~ion delivered in case of Baldev Raj Guliani, this Court has not ruled that the Governor has to act in aid and on advice ~f the Council of Ministers. What is ruled is that the recommendation made by the High Court is binding on the Governor. H

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75Copy pinpoint75. Again in the case of Registrar, High Court of Madras Vs. R. Rajaiah, (1988) 3 SCC 211, the High Court had decided to compulsorily retire the respondents but had not communicated the recommendations to the Governor for passing formal orders of compulsory retirement. Instead the B High Court had passed the orders of compulsory retirement under FR 56 (d). As there was no formal order by the Government under FR 56 (d), this Court held that the impugned orders of the High Court were ineffective. Ultimately, this Court did not interfere with the view expressed by the Division Bench c of the High Court on merits of the matter and held that the High Court was perfectly justified in quashing orders of compulsory retirement. However, this Court considered the scope of Article 235 of the Constitution and held that the test of control is not the passing of an order against a member of the subordinate judicial service, but the power to take such decision and action. 0 The Court explained that so far as the members of the subordinate judicial service are concF>rned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any ordet of punishment against such a member, but passing or signing of such orders by the E Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. This Court further explained that 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 and in the second part, the decision would be carried out by a formal order. Having explained this, this Court proceeded to hold that 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 and such a decision is arrived at by holding an enquiry by the High Court against the member concerned, and 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

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 575 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

make a recommendation in that regard to the Governor and the A 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. What is ruled by this Court is that the Governor cannot take any action against any member of a subordinate judicial service without and contrary to the recommendation of the High Court. After review of the law on the subject matter till then, this Court has made following pertinent observations, in para 18 of the reported decision: -

"18. The control of the High Court, as understood, will also 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 a 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 D Governor inasmuch as the Governor is the appointing authority. The Governor will make formal order of compulsory retirement in accordance with the recommendation of the High Court." E Again, in para 20 of the reported decision, this Court, while holding that so long as there is no formal order by the Governor, the compulsory retirement, as directed by the High Court would not take place, has, inter-alia observed that "It may be that the power of the Governor under Rule 56(d) of the Fundamental F 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". The proposition of law laid down in this case also supports the contention of the respondents that in the matter of disciplinary action against a member of the Subordinate G Judicial Service, the Governor has no option, but to pass final order on the basis of the recommendation of the High Court.

76Copy pinpoint76. It may be mentioned that in this case, i.e., Registrar, High Court of Madras (supra), this Court has referred to the decision of Shamsher Singh (supra), and has thereafter ruled H

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A that Governor has to act in accordance with the recommendation of the High Court by passing an order in accordance with the decision of the High Court and the Governor cannot take any action against any member of the judicial service without and contrary to the recommendation of B the High Court.

77Copy pinpoint77. This Court further finds that in Registrar (Admn.) High Court of Orissa, Cuttack (Supra), decision of Orissa High Court on administrative side was required to be forwarded to the C Governor for passing an order of the compulsory retirement but this was not done, and an order of compulsory retirement was passed by the High Court itself. This decision was challenged before the high Court on judicial side. The writ petition was decided in favour of judicial officers holding that the order dated February 5, 1987 compulsorily retiring them was bad in law. In D appeal, this Court considered the scope of Articles 233 to 235 of the Constitution as well as Articles 55 and 368 in the light of basic feature of the Constitution namely independence of the judiciary, After noticing several previous decisions:on the point, this Court considered the powers of the High Court and held E that the Governor is bound by the recommendation of the High Court but the constitutional propriety requires that the recommendation would be sent by the High Court to the Governor and formal order would be passed by the Governor. Explaining the scope of Articles 234, 235 and 311 of the F Constitution, a five-Judge Constitution Bench of this Court has held that while the High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes G to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order. What is ruled

H -- . by the Constitution Bench is that the formal order to give effect

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 577 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] to such a decision has to be passed only by the State Governor A on the recommendation of the High Court.

78Copy pinpoint78. In the said case, this Court found that by not making an order of compulsory retirement on the recommendation of the High Court, a peculiar situation was created in the sense 8 that the judicial officers were neither in service nor were they technically out of service nor had they performed any work and, therefore, in order to balance the equities between the parties and in order to give litigation a quietous, this Court had requested the Governor of the State to pass a formal order of compulsory retirement of judicial officers.

79Copy pinpoint79. On review of law, what is ruled by the Constitution Bench of this Court is that undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the Higti Court, and it is well settled again by a catena of decisions ofthis Court tliat the recommendation of the High Court is binding on the State Government/Governor. E

80Copy pinpoint80. In Tej Pal Singh Vs. State of UP. and Another, (1986) 3 SCC 604, the State Government moved the High Court in the year 1967 with proposal of premature retirement of the appellant, an Additional District and Sessions Judge. On July F 8, 1968 the Administrative Judge agreed with the proposal of premature retirement after giving 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 recommendation of the Administrative Judge earlier G 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 the appellant on September 3, 1968. The question for consideration in this case before this Court was whether the H

578 SUPREME COURT REPORTS [2011] 12 S.C.R.

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 579 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

Constitution, the Governor is bound, in each case, to act in accordance with the recommendation of the High Court. This decision also takes the firm view that the recommendation made by the High Court is binding on the Governor.

81Copy pinpoint81. Thus, it is fairly well settled by catena of decisions of 8 this Court that in the matter of compulsory retirement of a Judicial Officer the Governor cannot act on the aid and the advice of Council of Ministers but has to act only on the recommendation of the High Court. Though the Lt. Governor is a party to these appeals, he has not raised any plea that the C recommendation made by the Delhi High Court was not binding on him and he could have acted in the matter only on the aid and advice of his Council of Ministers. Thus the order of the Lt. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers is neither ultra vires nor illegal and is rightly sustained by the High Court. D The Governor could not have passed any order on the aid and advice of Council of Ministers in this case. The advice should be::-0f no other authority except that of the tligh Court in the matter of judicial officers. This is the plain-implication of Article

235. Reliance on Article 239AA(4) is entirely out of place so far as the High Court is concerned, dealing with the judicial officers. To give any other interpretation to Article 239AA(4) will be to defeat the supreme object underlying Article 235 of the Constitution, specially intended for protection of the judicial officers and necessarily independ~nce of the subordinate judiciary. It is absolutely clear that the Governor cannot take the aid and advice of his Council of Ministers in the case of judicial officers and accept its advice and act according to it. There is no room for any outside body between the Governor and the High Court. Therefore, this Court does not find any substance in this contention also and the same is rejected.

82Copy pinpoint82. The next point which was argued on behalf of the appellants was that the appellants were made to retire compulsorily from service without affording them an opportunity H

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A to make representation against the ACR of the year 2000 wherein they were graded as '"C' doubtful integrity", which was the basis for their compulsorily retirement, and, therefore, the orders retiring them compulsorily from service are liable to the set aside. It was vehemently contended that in such s circumstances when ACR of 2000 wherein the appellants were graded as "'C' doubtful integrity" which was the sole basis of passing the order of compulsory retirement, the respondents were under legal obligation to look into the representation of the appellants against those adverse remarks but before the c appellants could made the representation against the said ACR, orders retiring them compulsorily from service were passed, and, therefore, the orders impugned should be regarded as arbitrary, unfair and unreasonable.

83Copy pinpoint83. In the appeal arising from SLP No. 27028 of 2008 D deceased Mr. R.S. Verma had stated that adverse remark for the year 2000 was communicated to him vide letter dated September 21, 200~ by the Registrar, Vigilance, Delhi High Court which was received by t im on September 25, 2001, whereas on the same date i.e. on September 21, 2001 the E Screening Committee had taken decision to retire him prematurely from service which was accepted by the Full Court in its meeting held on September 22, 2001 and though in the letter communicating ACR it was mentioned that he was entitled to made representation within six weeks, the order of F compulsory retirement against him was passed on September 27, 2001 which was communicated to him on September 28, 2001 and as he was deprived of making any representation against the ACR for the year 2000, the order retiring him from service compulsorily was bad in law. G

84Copy pinpoint84. In the Appeal arising from Special Leave Petition No.27200 of 2008 it was contended by M.S. Rohilla that in the ACR for the year 2000, recorded by the Full Court on May 24, 2001, he was graded 'C-lntegrity doubtful' and he was communicated the said ACR and was asked to submit hi&, H

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 581 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.] representation within six weeks, but within three days thereafter A i.e. on September 27, 2001 decision was taken to retire him compulsorily from service and, therefore, the order retiring him compulsorily from service was illegal.

85Copy pinpoint85. In Appeal arising out of Special Leave Petition No. 314 8 of 2009 it was contended on behalf of P.O. Gupta that the Full Court had recorded remarks 'C-lntegrity Doubtful' for the year 2000, in his case, which was communicated to him vide letter dated September 22, 2001 and he was asked to, file his representation against the remarks within six weeks, but without C waiting for the representation to be filed by him, the High court upon the adverse remarks of 2000 had recommended his premature retirement to the Lt. Governor under F.R. 560) read with Rule 33 of the DJS Rules, and therefore the order retiring him from service should have been set aside by the High Court. D

86Copy pinpoint86. As against this it was emphasized on behalf of the respondents that this Court not only has taken the view that a single adverse entry r,,eflecting on the integrity of the officer is -~ sufficient because there has to be constant vigil by the High - Court over subordinate judiciary but this Court has further taken E the view that it is not necessary that such an entry should have been communicated or that the officer concerned should have an opportunity to represent against the said adverse entry or that before it could be taken into consideration and acted upon, the representation should have been considered or rejected. F

87Copy pinpoint87. The High Court in the impugned judgment, while considering this plea raised on behalf of the appellants, has inter alia held that action under FR 560) need not await the final disposal of such representation. It may be mentioned that in support of their respective contentions, the learned counsel G 1ave cited several decisions for the guidance of the Court but his Court proposes to refer to only those judgments which are elevant for deciding the issue.

88Copy pinpoint88. Compulsory retirement from service is not considered H

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A to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a Government servant when it is found that he has been guilty of misconduct or the like. It is penal in character because it involves loss of pension which under the Rules have accrued in respect of the service already B put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. A compulsory retirement is neither dismissal nor c removal and differs from both of them, in that it is not a form of punishment prescribed by the rules and involves no penal consequences, in as much as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.

89Copy pinpoint89. As explained by a Bench of three Hon'ble Judges of this Court in State of UP. vs. Shyam Lal Sharma AIR 1971 SC 2151, in ascertaining, whether the order of compulsory retirement is one _of punishmE nt, it has to be ascertained; whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order of compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, as order of compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. H So far as the present cases are concerned, this Court finds that

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 583 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

there are no words in the orders of compulsory retirement, which throw any stigma against the two appellants and the deceased officer. Therefore, it is not necessary for this Court to make inquiry into the Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement, which alone is for examination. If the order itself does not contain any imputation or charge against the two appellants and the deceased officer, the fact that considerations of misconduct or misbehaviour weighed with the High Court in coming to its conclusion to retire them compulsorily does not amount to any c imputation or charge against them. It is not established from the order of compulsory retirement itself that the charge or imputation against the appellants was made a condition for exercise of the power. Therefore, the orders of retirement cannot be considered to be one for dismissal or removal in the nature of penalty or punishment.

90Copy pinpoint90. Now, the policy underlying Article 311 (2) of the Constitution is that when it is proposed to take action against the servant by way of punishment and that will entail forfeiture of benefits already earned by him, he should be heard and given an opportunity to show cause against the order. The confidential reports provide the basic and vital inputs for assessing the performance of an officer and his advancement in his career as also to serve the data for judging his comparative merits when the questions arise for his confirmation, promotion, grant of selection grade, crossing E.B., retention in service beyond the age of 50 years etc. Maintenance of such records is ordinarily regulated by administrative rules or instructions. Writing the confidential report is primarily and essentially an administrative function. G Normally tribunals/Courts are loath to interfere in cases of complaints against adverse remarks and to substitute their own.· judgment for that of the reporting or reviewing officers. It is because these officers alone are best suited to judge the qualities of officials working under them and about their H

584 SUPREME COURT REPORTS [2011] 12 S.C.R.

A competence in the performance of official duties entrusted to them. Despite fear of abuse of power by prejudiced superior officers in certain cases, the service record contained in the confidential reports, by and large, reflects the real personality of the officer. The object of writing confidential reports and B making entries therein is to give an opportunity to the public servant to improve excellence. Article 51 AO) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the c duty to write C.R. has a public responsibility and trust to write the C.R. objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. Opportunity of hearing is not necessary before adverse D remarks because adverse remarks by themselves do not constitute a penalty. However, when the order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the officer concerned which would include non-communicated adverse remarks also. E Thus it is settled by several reported decisions of this Court that un-communicated adverse remarks can be taken into consideration while deciding the question whether an official should be made to retire compulsorily or not.

91Copy pinpoint91. In State of U.P. and Another Vs. Bihari Lal (1994) F Supp (3) sec 593, this Court has taken the view that even an adverse entry which has been set aside in appeal on technical grounds could also be taken into consideration. The plea that since the last entry, i.e., 'C-lntegrity Doubtful' for the year 2000 was communicated almost around the same time when the order of compulsory retirement was communicated and as the appellants had no opportunity to represent against the same, it ought not to have been taken into consideration and that the consideration of the said last adverse entry vitiates the order of compulsory retirement has no merits. This Court has consistently taken the view that an order of compulsory

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 585 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

retirement is not a punishment and does not have adverse consequence and, therefore, the principles of natural justice are not attracted. What is relevant to notice is that this Court has held that an un-communicated adverse A.C.R. on record can be taken into consideration and an order of compulsory retirement cannot be set aside only for the reason that such un- B communicated adverse entry was taken into consideration. If that be so, the fact that the adverse A.C.R. was communicated but none of the appellants had an opportunity tO represent against the same, before the same was taken into consideration for passing order of compulsory retirement, c cannot at all vitiate the order of compulsory retirement.

92Copy pinpoint92. In State of UP. and another vs. Bihari/a/ (supra), this Court has ruled that before exercise of the power to retire an employee compulsorily from service, the authority has to take into consideration the overall record, even including some of the adverse remarks, though for technical reasons, might have been expunged on appeal or revision. What is emphasised in the said decision is that in the absence of any ma la. fide exercise of power or arbitrary exercise of power, a possible different conclusion would not be a ground for interference by the Court/Tribunal in exercise of its power of judicial review. According to this Court, what is needed to be looked into is whether a bona fide decision is taken in the public interest to augment efficiency in the public service. Again, a three Judge Bench of this Court in Union of India vs. V.P. Seth and another F 1994 SCC (L&S) 1052, has held that uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. The bench in the said case made reference to Baikuntha Nath Oas vs. Chief District Medical Officer, Baripada (1992) 2 sec 299, as well as Posts G and Telegraphs Board vs. C.S.N. Murthy (1992) 2 SCC 317, and after reiterating, with approval, the principles stated therein, has laid down firm proposition of law that an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it, uncommunicated adverse H

586 SUPREME COURT REPORTS [2011] 12 S.C.R.

A remarks were also taken into consideration. Applying the ratio laid down in the above-mentioned two cases to the facts of the present cases, this Court finds that the authorities concerned were justified in relying upon the adverse entry made against the two appellants and the deceased officer in the year 2000 B indicating that their integrity was doubtful alongwith other materials. Here in these cases, the ACRs for the year 2000 were communicated to the three officers but before they could exercise the option given to them to make representation against the same, the orders of compulsory retirement were c passed. When an uncommunicated adverse entry can be taken into consideration, while passing order of compulsory retirement, there is no reason to hold that adverse entry communicated, against which opportunity of making representation is denied, cannot be taken into consideration at the time of passing order of compulsory retirement. Merely 0 because the two appellants and the deceased officer had no opportunity to make representation against the said entry or that the representation made against the same was pending, would not render consideration of the said entry illegal: in any manner, whatsoever.

93Copy pinpoint93. In Baidyanath Mahapatra Vs. State of Orissa and Another(1989) 4 SCC 664, the Review Committee constituted by the Government of Orissa in October 1983 to determine the appellant's suitability for retention in service after his completing the age of 50 years, recommended the appellant to be compulsorily retired under Rule 71 (1 )(a) of the Orissa Service Code. The Committee took into account for formulating its opinion, the entries awarded to him for the years 1981-82 and 1982-83 which had been communicated to the appellant on G July 5, 1983 and August 9, 1983 respectively. The appellant made representations against entries on November 1, 1983 but without disposing them of, the Government made an order on November 10, 1983 compulsorily retiring the appellant from service, which was upheld by the State Administrative Tribunal. H Allowing the appeal this Court held that the appellant had right

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 587 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

to make representation against the adverse entries within six A months, and, therefore, the adverse entries awarded to him in the years 1981-82 and 1982-83 could not have been taken into account either by the Review Committee or by the State Government in forming the requisite opinion as contemplated by Rule 71 (1 )(a) of the Orissa Service Code, before the expiry s of the period of six months. According to the Court, the proper course for the Review Committee should have been not to consider those entries or in the alternative, the Review Committee should have waited for the decision of the Government on the appellant's representation. This Court in the c said decision emphasized the purpose of communicating adverse entries and held that delay in communication of adverse entries should be avoided. This Court finds that the said case did not deal with entry which had adverse reflection on the integrity of the official concerned. D

94Copy pinpoint94. In S. Maheswar Rao Vs. State of Orissa and Another 1989 Supp (2) SCC 248 the appellant was a Superintending Engineer. His case was considered under the first proviso to Rule 71 (a) of the Orissa Service Code and on the basis of · adverse remarks awarded to him for the last three yei\trs, i.e., E for the years 1980-81, 1981-82 and 1982-83, the Review Committee had made recommendation for his premature retirement. At that time his representation against the adverse remarks relating to the first year was pending. Against the remarks for the other years, he made representations subsequently and the State Government had without disposing of these representations compulsorily retired him. The Bhubaneswar Administrative Tribunal disapproved the taking into consideration of the remarks for the first year but sustained the impugned order of compulsory retirement on the basis of remarks for the subsequent years. While allowing the appeal this Court observed that adverse entries for the years 1981- 82 and 1982-83 could not have been taken into consideration for the premature retirement of the appellant, and the Review Committee should have deferred the consideration of his case H

588 SUPREME COURT REPORTS [2011) 12 S.C.R.

A till his representation against the aforesaid adverse entries was disposed of or in the alternative the State Government itself should have considered and disposed of the representation before issuing the order for premature retirement. However, in this case also, this Court finds that this was not a case of B consideration of adverse entry relating to the integrity of the officer concerned.

95Copy pinpoint95. Though the learned counsel for the appellants have relied upon decision in V.K. Jain Vs. High Court of Delhi through Registrar General and Others, (2008) 17 SCC 538, C this Court finds that basically the said decision deals with expunction of adverse remarks made by the High Court against a judicial officer while setting aside his judicial order granting bail to an accused. It emphasizes, the judicial restraints to be exercised by the High Courts in judicial functions. It does not D deal with compulsory retirement of a judicial officer or how to write his ACR. Therefore, detailed ref~rence to the same is avoided.

96Copy pinpoint96. However, this Court finds that in Union of India Vs. Col. E J.N. Sinha and Another, 1970 (2) SCC 458, the respondent was compulsorily retired by the Government of India under Fundamental Rule 560). The said order was challenged by the respondent amongst other things on the ground that the lack of opportunity to show cause amounted to denial of natural justice. The said plea was accepted by the High Court and High Court had issued a writ of certiorari quashing the said order. In appeal this Court held that a Government Servant serving under the Union of India holds his office at the pleasure of the President, but this 'pleasure' doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. This Court firmly held that rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights, and the Court cannot ignore the mandate of the Legislature or a statutory authority. After holding that the compulsory retirement involves H

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 589 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

no civil consequences and that a Government servant does not lose any of the rights acquired by him before retirement, it was held that Fundamental Rule 56 0) holds the balance between the rights of the individual Government servant and the interests of the public. According to this Court, while a minimum service is guaranteed to the Government servant, the government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Thus the plea of breach of principles of natural justice was not accepted by this Court in the said case. c

97Copy pinpoint97. In Baikuntha Nath Das and Another Vs. Chief District Medical Officer, Baripada and Another, (1992) 2 SCC 299, the three Judge Bench of this Court had occasion to consider the question of effect of uncommunicated adverse remarks taken into consideration while passing order of compulsory D retirement against the appellants of that case and. scope of judicial review of the order retiring an employee compulsorily from service. The appellants in the appeals were compulsorily retired by the Government of Orissa in exercise of the power conferred upon it by the first Proviso to sub-rule (a) of Rule 71 E of the Orissa Service Code. The appellant Mr. Baikuntha Nath Das was appointed as a Pharmacist by the Civil Surgeon, Mayurbhanj on March 15, 1951. By an order dated February 13 1976 the Government of Orissa had retired him compulsorily. The said Order was challenged by him in the High F Court of Orissa by way of a Writ Petition. His case was that the order was based on no material and that it was the result of ill-will and malice, the Chief District Medical Officer bore towards him. According to him he was transferred by the said officer from place to place and was also placed under G suspension at one stage, but his entire service had been spotless and that at no time were any adverse entries in his confidential character rolls communicated to him. In the counter affidavit filed on behalf of the Government it was submitted that the decision to retire him compulsorily was taken by the Review H

590 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Committee and not by the Chief Medical Officer and it was stated that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee and that it had arrived at its decision bona fide and in public interest which decision was accepted B and approved by the Government. In the Counter the allegation of mala fide was denied. The High Court had looked into the proceedings of the Review Committee and the confidential character rolls of the appellant and dismissed the writ petition holding that an order of compulsory retirement after putting in c the prescribed qualifying period of service does not amount to punishment. The High Court had observed that the order in question was passed by the State Government and not by the Chief Medical Officer and did not suffer from vice of malice. It was further held by the High Court that it was true that the confidential character roll of the appellant contained several 0 remarks adverse to him which were, no doubt, not - communicated to him. On behalf of the: appellants who were compulsorily retired reliance was placed upon the decisions of this Ceiurt in Brij Mohan Singh Chopra Vs. State of Punjab, (1987) 2 SCC 188 and Baidyanath Mahapatra (Supra) in E support of the contention that it was not permissible to the respondent Government to order compulsory retirement on the basis of material which included uncommunicated adverse remarks, whereas on behalf of the respondent Government reliance was placed upon the decision in Union of India Vs. F M.E. Reddy, (1980) 2 SCC 15, to contend that it was permissible to the Government to take into consideration uncommunicated adverse remarks also while taking a decision to retire a Government servant compulsorily. A study of the decision rendered by the three Judge Bench of this Court G makes it evident that not less than twenty reported decisions of this Court were taken into consideration and thereafter the Court has overruled the decision in Baidyanath Mahapatra Vs. State of Orissa (1989) 4 SCC 664, which took the view that uncommunicated adverse remarks cannot be taken into H consideration while passing an order of compulsory retirement

RAJENDRA SINGH VERMA (DEAD) THROUGH LRS v. 591 LT. GOVERNOR OF NCT OF DELHI [J.M. PANCHAL, J.]

against a Government servant. A

98Copy pinpoint98. In Baikuntha Nath Das case, after referring to decision of this Court in Brij Mohan Singh Chopra Vs. State of Punjab (1987) 2 SCC 188, where a three Judge Bench of this Court has specifically affirmed the decision rendered in Union of India 8 Vs. M.E. Reddy (1980) 2 SCC 15, this Court has laid down following firm proposition of law stated in paragraph 34 of the reported decision:

"34: The following principles emerge from the above discussion: C

(1) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by th.e government on D forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. E (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the H