judgement:
ition (Civil) No. 590 of (Under Article 32 of the Constitution of India) B.B. Sawhney for the Petitioners.
G.B. Pai, O.C. Mathur, Ms. Meera Mathur, Ms. Deepa Chhabra and N. Misra for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Under the Burmah Shell (Acquisition of Undertakings in India) Act 2 of 1976, (hereinafter referred to as the 'Act '), the Union of India acquired the right, title and interest of Burmah Shell oil Storage and Distributing Company of India Limited (hereinafter referred to as Burmah Shell) in relation to its undertakings in India.
Sections 3, 4, and 9 of the Act are relevant.
Under section 3 the right, title and interest of Burmah Shell in relation to its undertakings in India stood transferred and became vested in the Central Government.
In terms of section 4, the assets and liabilities were taken over by the Government of India.
Under section 9 persons employed under Burmah Shell came under the employment of the 314 Government company known as Bharat Petrolium Corporation A Limited (respondent No. I herein) Section 1()(1) provides thus: "Where a provident, superannuation, welfare or other fund has been established by Burmah Shell for the benefit of the persons employed by it in connection with its undertakings in India, the monies relatable to the employees (i) whose services are transferred by or under this Act to the Central Government or the Government company; or (ii) who are in receipt of pension or other pensionary benefits immediately before the appointed day, shall, out of the monies standing on that day to the credit of such provident, superranuation, welfare or other fund stand transferred to and vested in, the Central Government or the Government company, as the case may be, free from any trust that may have been constituted by Burmah Shell in respect thereof." The detailed provisions for administration of the fund are contained in that section.
This petition under Article 32 of the Constitution is by the erstwhile Burmah Shell Management Staff Pensioners who claim two reliefs: (1) Extension of the benefit of restoration of commuted pension after the period of 15 years from the date of commutation as decided by this Court in the case of Common Cause & Ors.
vs Union of lndia & Ors.
; , and (2) Adequate escalation in the pension keeping in view the loss of purchasing power of the rupee and the general rise in the cost of living.
In answer to the rule nisi, the respondent made its return by contending that the pension scheme of the first respondent is a funded scheme.
The decision of this Court in the case of Common Cause rendered in respect of Government servants, both of civil and defence services, cannot be extended to a public sector undertaking.
The pen 315 sion scheme of Burmah Shell was set up by Non Contributory Pension A Fund by a Trust Deed in December, 1950, but effective from 1st January, 1947, of which both the management staff as also the clerical staff were members.
This Court on 13th of November, 1987, referred two questions arising for determination for the opinion of Mr. D.K. Lodaya, Chief Actuary of the Life Insurance Corporation of India at Bombay, with the consent of parties and the two questions referred to are: ( 1) Is the pension fund actuarially solvent to bear the liability flowing from restoration of commuted portions of pensions after 13 or 15 years from the respective dates of commutation ? If not, the extent of additional funds necessary for the purpose may be indicated, and the tax relief which will be available for such contribution of additional funds may also be indicated.
(2) Is the pension fund actuarially solvent to bear (a) enhancement of pensions and (b) linking pensions with the cost of living index? If so, the extent by which the pensions can be enhanced by utilising the existing resources of the Fund may be indicated.
The report has been received and kept on record.
It indicates that the additional liability on account of restoration of the commuted value of the pension on the basis of 13 years would be more that Rs. 3 Crores and on the basis of 15 years would be more than Rs.2 1/2 Crores.
Counsel for the petitioners has, however, told us in course of the hearing that the question of restoration of the commuted value of the pension may not be adjudicated at present.
In view of such submission, we do not examine this issue.
The writ petition is, therefore, confined to the only question as to the escalation of pension.
Burmah Shell has a fund known as Burmah Shell India Pension Fund and it has its own rules.
When Government nationalised the Petroleum industry, another company known as Caltex India Ltd. was also acquired and came to be known as Hindustan Petroleum Corporation.
It is thus a sister concern owned by the Central Government.
Petitioners relied upon the increase in the pension granted by the Hindustan Petroleum Corporation to its employees in support of their claim for the increase in the pension.
While Burmah Shell had a pension fund which has been taken over by the Government company, Caltex did not have such a fund The allegation made by the petitioners that the Hindustan Petroleum Corporation 316 Where there is no such fund has granted a steep escalation in the pension has not been disputed before us.
Admittedly Burmah Shell is a bigger company than Hindustan Petroleum Corporation.
We have been told that the total Burmah Shell management staff presently in the employment of the respondent No. 1 would be around a thousand.
Nothing acceptable has been placed before us from where support can be received for the argument of Mr. Pai, learned counsel for respondent No. 1, that if the escalation admitted by Messrs Hindustan Petroleum Corporation is accepted as the basis for escalation in Burmah Shell there would be injustice or a burden would arise which the respondent Company cannot discharge.
The respondent Company has an obligation to pay from its earnings into the Fund and merely because the existing fund is not adequate to bear the additional liability the claim which is otherwise justified cannot be rejected.
As we have already pointed out, the Company 's current funds are available to supplement the pension fund.
Judicial notice can be taken of the fact that the rupee has lost its value to a considerable extent.
Pension is no longer considered as a bounty and is has been held to be property.
In a welfare State as ours, rise in the pension of the retired personnel who are otherwise entitled to it is accepted by the State and the State has taken the liability.
If the similarly situated sister concern like Hindustan Petroleum Corporation can admit appropriate rise in the pension, we see no justification as to why the respondent Company should not do so.
We, therefore, hold that the petitioners being the management staff of the Burmah Shell would be entitled to a hike in the pension admissible at the same rate as is being given by Hindustan Petroleum Corporation.
We accordingly direct respondent No. 1 to give the necessary hike in the pension effective from 1st May, 1988 If the amount available from the pension fund is not adequate, it would obviously mean that the Government company would allocate appropriate funds to meet the demand.
The additional pension should be disbursed latest by 31st of July, 1988.
No costs.
P.S.S. Petition allowed.

summary/full:
Burmah Shell oil Storage and Distributing Company of India Limited had a non contributory pension fund.
Consequent upon nationalisation of the petroleum industry, this fund was taken over by the Government company, respondent No. 1, under section 10(1) of the Burmah Shell Acquisition of Undertakings in India) Act 2 of 1976.
In this writ petition under article 32 of the Constitution the erstwhile Burmah Shell Management Staff Pensioners claimed adequate escalation in their pension keeping in view the loss of purchasing power of the rupee and the general rise in the cost of living.
In support of their claim they relied upon the steep escalation in the pension granted by the Hindustan Petroleum Corporation, a sister concern, to its employees.
The latter has no such fund.
It was contended for the respondent Company that if the escalation admitted by the Hindustan Petroleum Corporation is accepted as the basis for escalation in the respondent company there would be injustice or a burden would arise which they cannot discharge.
Allowing the writ petition, ^ HELD: 1.
The petitioners being the management staff of the Burmah Shell are entitled to a hike in the pension.
[316E F] 2.
Judicial notice can be taken of the fact that the rupee has lost its value to a considerable extent.
Pension is no longer considered as a bounty and it has been held to be property.
In a welfare state, as ours, 313 rise in the pension of the retired personnel, who are otherwise entitled to it, is accepted by the State and the State has taken the liability.
In the instant case, if the similarly situated sister concern like Hindustan Petroleum Corporation can admit appropriate rise in the pension, there is no justification as to why the respondent company should not do so.
[316D E] 3.
The respondent company has an obligation to pay from its earnings into the fund and merely because the existing fund is not adequate to bear the additional liability the claim which is otherwise justified cannot be rejected.
The company 's current funds are available to supplement the pension fund.
[316C] 4.
Respondent No. 1 to give to the petitioners hike in the pension effective from 1st May, 1988 at the same rate as is being given by Hindustan Petroleum Corporation.
If the amount available from the pension fund is not adequate the Government company would allocate appropriate funds to meet the demand.
The additional pension to be disbursed latest by 31st of July, 1988.
[316F G]


judgement:
Civil Appeal No. 1875 of 1988.
From the Judgment and order dated l0.12.1987 of the Allahabad High Court in Civil Misc.
Writ No. 4434 of 1987.
S N. Kacker, Gobind Dass, E.C. Agarwala, Ms. Purnima Bhatt and V.K. Pandita for the Appellant.
K. Parasaran, Attorney General (Not Present) Gopal Subramanium and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by DUTT J.
After hearing the learned Counsel for the parties, we grant special leave and, as full and complete submissions have been made, we proceed to dispose of the appeal on merits.
The only question that is involved in this appeal is whether the 320 appellant D.K. Agarwal, who was a member of the Higher Judicial Service under the State of U.P., to be precise, the District and Sessions Judge, Gonda, and since retired on February 29, 1985, was entitled to the super time scale.
The appellant was appointed to the post of District and Sessions Judge on October 31, 1983.
In or about December.
1985, the Selection Committee constituted by the Chief Justice of the Allahabad High Court and consisting of three Judges of that Court recommended the grant of selection grade to the appellant on the basis of merit as required under Rule 27 of the U.P. Higher Judicial Service rules, 1975, hereinafter referred to as 'the Rules '.
The Full Court approved the recommendation for the grant of the selection grade to the appellant and granted the same to him with retrospective effect from November 1, 1983.
In April, 1986 the Selection Committee recommended for the grant of super time scale to the appellant under Rule 27A of the Rules It appears that the said recommendation of the Selection Committee came up for consideration before the Full Court on two occasions, but the Full Court could not take any decision as each time K.N. Misra, J., who was then the Administrative Judge, made certain new allegations against the appellant.
On January 17, 1987, again the recommendation of the Selection Committee came up for consideration before the Full Court for the third time.
On that day, the Full Court found the appellant unfit for a post in the super time scale as recommended by the Selection Committee.
It, however, transpired that just on the eve of the Full Court Meeting held on January 17, 1987, S.K. Dhaon, J., who was then the Administrative Judge, wrote a secret letter to the Chief Justice which will be referred to presently.
Being aggrieved by the decision of the Full Court turning down the recommendation of the Selection Committee, the appellant filed a writ petition before a Division Bench of the High Court During the pendency of the writ petition, the appellant made a representation to the High Court on its Administrative Side on April 13, 1987 praying for reconsideration of the resolution of the Full Court dated January 17, 1987.
While no decision was taken by the Full Court at the meeting held on May 16.
1987, an adverse entry for the year 1986 87 was recorded by S.K. Dhaon, J. On July, 9 1987 as follows: "He creates trouble.
He fomented a conflict between the members of the Bar and the subordinate staff of the courts 321 in Kanpur Nagar which ultimately resulted in the transfer of Sri Arjan Dev Mahajan, the then District Judge, Kanpur Nagar.
This was done with an ulterior motive.
He also instigated the subordinate staff of the courts in Kanpur Dehat to make agitations from time to time on the question of bifurcation of the staff between the courts at Kanpur Nagar and Kanpur Dehat.
His integrity too is highly doubtful, hence not certified.
His work and conduct should be kept under constant gaze .
It so happened that the Chief Justice enquired into the allegations contained in the adverse entry.
After such enquiry, the Chief Justice, as would appear from his minutes dated July 14, 1987, found that the allegations had no foundation whatsoever and observed as follows: "I find from the Character Roll entries that Sri Agarwal had been given remarks and praise, as District Judge, Gonda, in the years 1983 84 and 1984 85 and of course not much expression has been given in the entry of 1985 86 as the Hon 'ble Administrative Judge had no occasion to see his work.
The entry doubting the integrity and involvement of Sri Agarwal in the Kanpur dispute that had arisen in 1986 obviously does not find support, more so, because it was given on 9.7.1987 on the eve of Full Court Meeting scheduled to be held on 10.7.1987.
I do not agree with the assessment as I regard Sri Agarwal as a very good, able and competent administrator with an unblemished integrity.
" In the earlier part of his minutes, the learned Chief Justice stated as follows: "The members of the Bar informed that their view about the integrity and conduct of Sri Agarwal had already been expressed by the President, Kanpur Bar Association, . .
A copy of the annual Magazine "Kanpur Bar Association, Kanpur" was given to him wherein I find the following observations: "I will be failing in my pious obligation if I do not extend my heartfelt gratitude and thanks to Mr. K.K. 322 Chaubey, our most affectionate friend, philosopher and guide, and to Mr. D.K. Agarwal, a most compe tent and efficient administrator, who has helped us a lot to create cordial atmosphere between Bar and Bench." The Division Bench of the High Court in its judgment dated December l0, 1987, noticed the remarks of the Chief Justice about the appellant as made by him in his said minutes dated July 14, 1987.
The Division Bench quashed the resolution dated January 17, 1987, of the Full Court and directed that an opportunity should be given by the Court to the appellant of explaining the imputations made against him by the Administrative Judge in his letter sent to the Chief Justice just on the eve of the Full Court Meeting held on January 17, 1987.
Further, it was directed that the case of the appellant for appointment to a post in super time scale should be reconsidered by the Court at a very early date keeping in view the fact that the appellant was to retire from service in February, 1988.
As the Division Bench did not grant the super time scale to the appellant, but referred the matter back to the Full Court for reconsideration of the same, the appellant filed the present appeal.
During the pendency of the appeal in this Court, the Full Court at its meeting held on February 20, 1988, again rejected the recommendation of the Selection Committee for the grant of super time scale to the appellant.
The question that arises for our consideration is whether the appellant, who has since retired from service, was entitled to the super time scale.
There can be no doubt that whether a member of the Higher Judicial Service should be granted the selection grade or the super time scale is a matter exclusively within the administrative jurisdiction of the High Court.
This Court will not ordinarily interfere with any decision of the High Court in such a matter.
This is, however, subject to the exception that if in considering whether a member of the Higher Judicial Service should be granted the super time scale or not, the High Court acts in violation of any rule framed by it or of the principles of natural justice or comes to any finding not supported by any reliable material, this Court has to examine the matter for ends of justice.
But, interference does not mean granting of the relief which the High Court is entrusted to grant in its administrative jurisdiction.
All that the Court will ordinarily do is to refer back the matter for 323 reconsideration of the High Court.
In the instant case, however, we consider that for ends of justice we should interfere by disposing of the matter finally, that is to say, without referring it again to the High Court for the reasons stated hereafter.
The letter of Dhaon, J. referred to above was handed over to the Chief Justice by Dhaon, J. just on the eve of the Full Court Meeting held on January 17, 1987.
In that letter, certain serious allegations were made by Dhaon, J. against the appellant solely on the basis of what a retired Judge of the High Court had orally reported to Misra, J. The allegations contained in the said letter were not communicated to the appellant before the Full Court Meeting on January 17, 1987, but the same were communicated to him before the Full Court reconsidered the matter in the meeting held on February 20, 1988 pursuant to the judgment of the Division Bench.
The appellant had denied the allegations made in the said letter against him.
Upon such denial, no attempt was made by the Full Court to have the comments of the retired Judge, who had orally made the allegations against the appellant.
There is, therefore, no material on record to form the foundation in support of the allegations and the Full Court, in our opinion, was not at all justified in acting on the allegations contained in the letter of Dhaon, J. We may now deal with the adverse entry of 1986 87 made by the Administrative Judge on July 9, 1987 against the appellant.
It has been already noticed that an enquiry was made by the learned Chief Justice and the allegations contained in the adverse entry have been found to be without foundation.
Indeed, the learned Chief Justice recorded that he regarded Sri Agarwal as a very good, able and competent administrator with an unblemished integrity.
In view of the minutes of the learned Chief Justice, the Full Court was not justified in depriving the appellant of the grant of super time scale.
Apart from that, the adverse entry should not have been communicated to the appellant for his explanation on the face of the minutes of the Chief Justice.
In this connection, we may refer to the proviso to Rule 4(B) of the Rules which inter alia.
reads as follows: ". . . . . . . .
Provided that adverse remarks or strictures made by Administrative Judges about the judicial work and conduct of any officer of subordinate judiciary will be placed before the Chief Justice before issue.
324 The rule requires that before an adverse remark is communicated to the concerned judicial officer, it must be placed before the Chief Justice and, in our opinion, by necessary implication, the rule requires concurrence of the Chief Justice for taking action on the adverse remark by communicating the same to the judicial officer concerned.
In the instant case, the adverse entry was communicated to the appellant even on the face of the minutes of the learned Chief Justice.
In other words, although the learned Chief Justice did not agree with the adverse remarks, yet action was taken on the same by communicating the same to the appellant.
This was done in utter violation of the proviso to Rule 4B and also in disregard of the minutes of enquiry of the learned Chief Justice.
In this connection, it may be mentioned that the allegations which were made from time to time against the appellant resulting in the postponement of consideration by the Full Court of the recommendation of the Selection Committee for the grant of super time scale to the appellant, were all found to be untrue.
We may mention about one instance when the Full Court could not consider the case of the appellant for the grant of super time scale at its meeting held on May 17, 1986 because an oral accusation was made by the learned Administrative Judge that the appellant and his son were involved in smuggling activity while posted as the District Judge, Gonda, in the year 1985.
The matter was referred to the District Magistrate, Gonda, who by his letter dated May 31, 1986, informed the High Court that no such incident, as referred to him, had come to his notice wherein Sri Agarwal or his son might have been apprehended while carrying smuggled goods.
Further, it was stated by him that he had verified from the concerned records of different Police Stations which also showed that there was no mention of any incident involving Sri Agarwal or his son in such a matter.
Thus, the allegations made against the appellant or his son were baseless.
After considering the above facts and circumstances, we are satisfied that the appellant was entitled to a posting in the super time scale.
We modify the judgment of the Division Bench and direct that as the appellant has already retired, he shall be paid the monetary benefit of the super time scale with effect from January 1, 1987.
His pension shall be suitably altered on that basis.
The payment shall be made within two months from today.
The appeal is allowed.
There will, however, be no order as to costs.
N.P.V. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In April, 1986, the Selection Committee constituted by the Chief Justice of Allahabad High Court recommended the grant of super time scale to the appellant, a member of the U.P. Higher Judicial Services, under Rule 27A of the U.P. Higher Judicial Services Rules, 1975.
The Full Court of the High Court considered the recommendation on two occasions, but no decision could be taken as each time the Administrative Judge made certain new allegations against the appellant.
Finally, on January 17, 1987, the Full Court found the appellant unfit for a post in the super time scale.
On the eve of the Full Court Meeting the Administrative Judge was stated to have written a secret letter to the Chief Justice.
Aggrieved, the appellant filed a writ petition before the Division Bench.
Meanwhile, the appellant made a representation to the High Court on its Administrative side for reconsideration of the resolution of the Full Court.
While no decision was taken by the Full Court at its meeting held on May 16, 1987, an adverse entry for the year 1986 87 was recorded by the Administrative Judge.
The Chief Justice enquired into the allegations contained in the adverse entry and found that the allegations had no foundation whatsoever.
He recorded in his minutes that he regarded the appellant as a very good, able and competent administrator with an unblemished integrity.
318 The Division Bench, after noticing the remarks of the Chief Justice, quashed the resolution of the Full Court, and referred back the matter to the Full Court for reconsideration.
It also directed that the appellant be given an opportunity of explaining the imputations made against him in the letter written by the Administrative Judge on the eve of the Full Court meeting! of January 17, 1988. Dissatisfied with the above decision, the appellant filed an appeal by special leave in this Court.
Meanwhile, the Full Court at its meeting held on February 20, 1988, again rejected the recommendation of the Selection Committee for the grant of super time scale to the appellant.
Allowing the appeal by special leave, ^ HELD: 1.1 Whether a member of the Higher Judicial Service should be granted the selection grade or the super time scale is a matter exclusively within the administrative jurisdiction of the High Court.
This Court will not ordinarily interfere with any decision of the High Court in such a matter.
However, if the High Court acts in violation of any rule framed by it or of the principles of natural justice or comes to any finding not supported by any reliable material, this Court has to examine the matter for ends of justice.
But, interference does not mean granting of relief which the High Court is entrusted to grant in its administrative jurisdiction.
The Court will ordinarily refer back the matter for reconsideration of the High Court.
[322F H] However, in the instant case ends of justice would require interference by disposing of the matter finally, without referring it again to the High Court.
[323A] 1.2 Proviso to Rule 4(B) of the U.P. Higher Judicial Service Rules requires that before an adverse remark is communicated to the concerned judicial officer; it must be placed before the Chief Justice.
By necessary implication, therefore, the rule requires concurrence of the Chief Justice for taking necessary action on the adverse remark by communicating to the judicial officer concerned.
[324A B] In the instant case, although the Chief Justice did not agree with the adverse remarks, action was taken by communicating them to the appellant in utter violation of the proviso to Rule 4B and also in disregard of the minutes of enquiry of the Chief Justice.
[324B C] 319 The appellant had denied the allegations contained in the letter of the Administrative Judge but no attempt was made by the Full Court to have the comments of the retired Judge who orally made the allegations.
Further, the allegations which were made from time to time against the appellant resulting in the postponement of consideration by the Full Court were all found to be untrue.
[324C D] An enquiry was made by the Chief Justice and the allegations contained in the adverse entry for 1986 87 have been found to be without foundation.
Indeed, the Chief Justice recorded that he regarded the appellant as a very good, able and competent administrator with an unblemished integrity.
[323E F] Therefore, in the absence of any material on record to form the foundation in support of the allegations and in view of the minutes of the Chief Justice, the Full Court was not at all justified in acting on the allegations contained in the letter of the Administrative Judge and depriving the appellant of the grant of super time scale.
[323F] The appellant was, therefore, entitled to a posting in the supertime scale.
Since the appellant has already retired he shall be paid the monetary benefit with effect from January 1, 1987 and his pension suitably altered.
[324F G]


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

summary/full:
The two respondents, R. Rajiah and R. Rajeswaran, who were members of the Tamil Nadu State Judicial Service, were functioning as District Munsifs when orders of their compulsory retirement from service were passed by the High Court of Madras in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules.
Both the respondents moved the High Court under Article 226 of the Constitution challenging the validity of the impugned orders on the grounds:(1) that the High Court had no power to pass an order of compulsory retirement of a member of the State Judicial Service as such an order could be passed only by the Appointing Authority i.e., the Governor; (2) that there was no material on record which could justify their premature retirement; and (3) that the Review Committees of the High Court that passed the impugned orders were not properly constituted.
Two Judges of the Division Bench of the High Court delivered separate judgments and differed on the question of the power of the High Court to pass the impugned orders.
One of the learned Judges took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial service should be compulsorily retired or not, the formal order of compulsory retirement was to be passed by the Governor acting on the recommen 333 dation of the High Court.
According to the other learned Judge, it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules.
On merits, both the Judges came to the conclusion that there was no material on record to justify the impugned order.
It was also held that in the case of Mr. Rajeswaran, the irregular or illegal constitution of the Review Committee vitiated the impugned order, while in the case of Mr. Rajiah, the manner in which the Reivew Committee considered the question of compulsory retirement was illegal.
The High Court further pointed out that although Mr. Rajeswaran was confirmed as a District Munsif on 1.1.1976, in coming to a decision that Mr. Rajeswaran should be compulsorily retired, the third Judge of the Review Committee relied upon events that happened in 1954.
It was contended on behalf of the appellant that the High Court alone has the power to pass an order of compulsory retirement of a member of the State judicial Service, and unless it is so held it would be in derogation of High Court 's control over subordinate courts as conferred on it by Article 235 of the Constitution.
It was also urged that rule 56(d) of the Fundamental Rules should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire members of the Subordinate judicial service.
On merits, it was contended that the High Court was not at all justified in considering the question of adequacy or otherwise of the material on record in respect of the impugned orders of compulsory retirement.
Dismissing the appeals, it was, ^ HELD: (Per M.M. Dutt, J.) (C.J.I. agreeing with him) (1) article 235 vests in the High Court control over Districts Courts and Courts subordinate thereto.
The vesting of such control is consistent with the idea of preservation of the independence of the judiciary.
If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution.
[339C D] (2) Rule 56(d) of the Fundamental Rules under which a member 334 of subordinate judicial service can be compulsorily retired has to be A read subject to and in harmony with the power of control vested in the High Court under Article 235 of the Constitutioin.
[339E] (3) The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action.
Passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution.
[339G H; 340A B] (4) An action against any Government servant consists of two parts.
Under the first part, a decision will have to be made whether action will he taken against the Government servant.
Under the second part, the decision will be carried out by a formal order.
The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service.
[340B C] (5) The control of the High Court, as understood, will be applicable in the case of compulsory retirement in that the High Court will, upon an enquiry, come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not.
If the High Court comes to the conclusion that such a member should be prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority.
The Governor will make a formal order or compulsory retirement in accordance with the recommendation of the High Court.
The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court.
[342B C] (6) It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court.
In the instant cases, as there is no formal order by the Governor under rule 56(d), the impugned orders of the High Court are ineffective.
[343D E] (7) In that view of the matter, the contention made on behalf of the High Court that rule 56(d) should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire a member of.
the subordinate judicial service is without any substance whatsoever.
[343E F] (8) When the High Court takes the view that an order of com 335 pulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant.
But such a conclusion must be based on materials.
If there be no material to justify the conclusion, it will be an arbitrary exercise of power by the High Court.
As there is absence of any material to justify the impugned orders of compulsory retirement, these must be held to be illegal and invalid.
[344C E] (9) It is true that the members of the Review Committee should sit together, but simply because one of them did not participate in the meeting, and subsequently agreed with the view expressed by the other two Judges, it would not vitiate the decision of the Committee.
The third Judge might be justified in correcting the date with effect from which Mr. Rajiah would retire but that is a very minor issue and would not make the decision invalid.
[344H; 345A B] (10) This Court failed to understand why the Chief Justice could not appoint a Review Committee.
But the decision of the Review Committee should have been placed before a meeting of the Judges.
In that sense, the recommendation of the Riview Committee was not strictly legal.
[345C D] (11) The decision to compulsory retire Mr. Rajeswaran is vitiated as the Review Committee had relied upon some adverse incidents against him that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976.
[346E F] Per Sharma, J.: Since there is no material on record in support of the impugned orders of compulsory retirement of the two respondents they were rightly quashed by the High Court.
No opinion is expressed on the other questions raised in these cases.
[347B] State of West Bengal vs Nripendra Nath Bagchi, ; ; State of Haryana vs Inder Prakash Anand, ; State of Uttar Pradesh vs Batuk Deo Pati Tripathi, ; High Court of Punjab & Haryana vs State of Haryana, ; ; Shamsher Singh vs State of Punjab, ; B. Misra vs Orissa High Court, ; ; Baldev Raj Chadha vs Union of India, ; and Brij Bihari Lal Aggarwal vs High Court of M.P., ; , referred to. 336