STATE OF HARYANA versus INDER PRAKASH ANAND H.C.S. & OTHERS

STATE OF HARYANA

INDER PRAKASH ANAND H.C.S. & OTHERS

May 7, 1976

fA. N. RAY, C.J., R. S. SARKARIA, P. N. SH!NGHAL AND

-JASWANT SINGH, JJ.]

Constitution of India, 1950, Art. 235-Power to compulsorily retire-Whether vests in the lligh Court or Governor-Control, nature and scope of.

The respondent was officiating as Additio.nal Distric! & ~ssions. Jud~e. On reference to the High Court whether he should be retained m service till the age of 58 or should be retired at the age of 55, the High Court recommended that he should be reverted to his substantive post of Senior Subordinatr Judge but that he should be allowed to continue in that post till the age of 58. The State Government reverted him but retired him fro.m service at 55 under r. 5.32(c) Punjab Civil Service Rules. The rule stat~s that retiring pension is granted to Governn1ent servant who is retired by the appointing authority on or after he attains the age of 55 by giving him 3 months notice. The High Court quashed the order of retirement.

Dismissing the appeal to this Court,

HELD: ( 1) Article 235 vests in the High Court control over district courts and courts '·subordinate thereto. The control includes both disciplinary and ad-ministrative iurisdiction. Disciplinary control means not merely jurisdiction to award punishment for misconduct, but also the power to determine wh_ether the record of member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial and disciplinary control over members of the judicial sevice is vested solely in the High Coll.rt. Premature retirement' is fil<!.de in the exercise of administrative and discipJinary jurisdiction. It is administrative be~ cause it is decided in public interest to retire him prematurely and it is discipli~ nary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation. The fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rules governing the conditions of service is matter pertaining to disciplinary control as well as administrative control. [605G-H; 606H-607C]

State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771 and High Court of Punjab and Haryana etc. v. State of Haryana (Sub nom Narendra Singh Rao) [1975] 3 S.C.R. 365, followed. ·

(2) The control which is vested in the High Court is complete control sub-ject only to the power of the Governor in the m_atter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to District Judges. The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that parti-cular officer is not fi~ to ~ retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment. In such cases, the Governor, as the head of the State, will act in harmony with the recommenda-tion of the High Court as otherwise the consequences will be unfortunate. [605H, 606A·G, H: 607E-F]

(3) But, compulsory retirement simpliciter does not amount to dismissal or ren1ova1 or rcdu,tion in rank under Article 311 or under service rules. When 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 by no other authority; otherwise, it will affect the independence of the judiciary. [605F-G; 60iC]

Shy?m Lal v. State of Uttar Pradesh [1955] I S.C.R. 26; Da/ip Singh v. State of Pun1ab [1961] I S.C.R. 88; Tara Si11gh v. State of Rajasthan [1975] 4 S.C.C. 86; B. Venkateswararao Naidu v. Union of India [1973] l S.C.C. 361 and Sham-sher Singh cl Anr. v. State of Punjab [1975] I S.C.R. 814, followed :

( 4) It is not co~rect ~o ~~ntend that the Governor and not the High Court has the power to retire 1ud1c1al officer compulsorily under s. 14 Punjab- General Clauses Act.. The suggestion that the High Court reCommends and the State Gover!1fllent implements the recommendation in the mattei- of cOinpulsorY-i-ffire-!Ilent 1s to d~stroy the control of the High Court. It is Only the order terminat-tpg the appointment of member of the service otherwise than upon his reach-ing the age of superanouation that will be passed by the State Government on the recommendation of the High Court. [606C-D, G-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2454 of 1972.

Fro~ the Judgment and Order dated the 1 Sth December, 1971 of the Pun)llb and Haryana High Court at Chandigarh in Civil Writ Peti-tion No. 2604 of 1971.

L. N. Sinha, Solicitor General, Naunit Lal, R. N. Sachthey for the .appellant.

Anand Swarup, Harbans Singh Marwah for Respondent No. 2. Ashok Grover; for Respondent No. 1. The Judgment of the Court was delivered by

RAY, C.J. This appeal is by certificate from the judgment dated 18 November, 1971 of the Punjab and Haryana High Court.

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 or about 1 May, 1965. On 15 November, 1968 he was promoted as officiating Additional District and Sessions Judge.

The respondent was due to attain the age of 55 years on 24 February, 1971. His case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.

The High Court was of opinion that the work of the respondent. as Additional District and Sessions Judge was not satisfactory. The High Court was not inclined to recommend the respi5ndent's continuance in Superior Judicial Service up to the age of 58 years. 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 cotinue in service till the age of 58 years.

The State Government agreed with the recommendation for revert-ing the respondent from the post of Additional District and Sessions Judge to the Senior Subordinate Judge/Chief Judicial Magistrate. With regard to the retention of the respondent in service up to the age of 58

years the Stiite iigain asked the High Court to c_onsider whether in view of th,e respondent's work ai; Additional District and Sessions Judge; Hissar, having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years. The State Govrmment suggested that it was in public interest to retire the respon-dent at the age of 55 years. The High Court did not agree with the suggestion. By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service up to the age of 58 years. The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5 .32 ( c) of the Punjab Civil Service Rules. notice was issued to the respondent on 20 August, 1971 giving him notice of three months on the expiry of which he would retire from service.

The respondent filed writ petition in the High Court impeachin~ the notice dated 20 August 1971. The matter was heard by Bench of three learned Judges. The order retiring the respondent from ser-vice WM quashed by the majority opinion.

The question is whether the State Government could compulsorily retire Senior Subordinate Judge cum Chief Judicial Magistrate under rule 5.32 (c) of the Punjab Civil Service Rules against the recommen-dation of the High Court.

This Court in Shyam Lal v. State of Uttar Pradesh(') held that compulsory reitrement does not involve stigma or any implication of mis-behaviour or incapacity. In Dalip Singh v. State of Punjab(') this Court held that in order to find out whether an order of compulsory retirement is or is not by way of punishment, is to find out whether charge of imputation against the officer is made the basis of the exer-cise of power iind second whether the officer is deprived of any benefit already earned.

In the recent decision in Tara Singh v. State of Rajasthan(') this Court, held that compulsory retirement is not punishment because the officer does not lose the terminal benefits already earned by him. In B. Venk{lfesivararao Naidu v. Union of lndia(') this Court held that compulsory r.etire!llllnt does, not involve civil consequences.

It, therefore, follows that compulsory retirement simp/iciter does not amount to dismissal or removal or reduction in rank under Article 311 or under the Service Rules. It is in fact com.Pulsory retirement in accordance with the terms and conditions of service.

The decision~ of this.Court'irt State of West Bengal v. Nripendra Nath Bagchi(}') and High Court of Punjab ant! Haryana etc. v. State o/Haryana (S1'b.nom Narendra Singh Rao).([6 ]) are that Article 23 5 ve$ in- t~ High Court.• control over District Courts" arid courts suborpi@te,th!lreto. The·Governor· ·appoints ai!d dismisses' and removes Judicial Officers. Control which ]s• vested in tfil)• H~li' Court is complete control subj~t only to the po\\'.ef.p~,the.0<1vernpr. in the

__ ._.:. _____ ._' . i" '· ' .·\ ,; (l)[l955Jf S.C'.R.2•. (4) [1973} 1S.c.c.361 (2) [19611IS.C.R.88. (5) [1966] 1 S.C.R. 771. (3) [197514 S.C.C. 86. (6) [1975]3 S.C.R. 365.

matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges. There is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner.·Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311 ( 3) .

This Court in Shamsher Singh & Anr. v. State of Pun1ab(') held that when 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 no other authority. There cannot be dual control. If State Government is. to have the power of deciding whether Judi-cial 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 indepen-dence of the judiciary and take away the control vested in the High Court. Compulsory retirement is neither suspension nor dismissal nor removal nor reduction in rank. It is unsound to contend that the Governor and not the High Court has the power to retire Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of com-pulsory retirement is to destroy the control of the High Court.

held

The Punjab Civil Service Rules in Rule 3.26(a) deals with com-pulsory retirement at the age of 58. Rule S.32(c) deals with retire-ment at the age of 55.

Two relevant rules in the Punjab Civil Service Rules in the present case are these. Rule 3.26(a) states that the date of compulsory retire-ment of Government servant other than Class IV Government servant is the date on which be attains the age of 58. Rule 5.32(c) states that retiring pension is granted to Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months' notice. This Court in Bagchi's case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service. Orders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service. The High Court further deals with members of the judicial service in accordance with the rules and conditions of service. This Court in Bagchi's case (supra) said that the word "deal" points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of member of the service otherwise than upon his reach-ing the age fixed for superannuation will be passed by the State Govern-ment on the recommendation of the High· Court. This is becanse the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.

It is true that the fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rule

(I) !19751IS.C.R.814.

governing the conditions of service is matter pertaining to disciplinary control as well as administrative control. Disciplinary control means not merely jurisdiction to award punishment for misconduct. It also embraces the power to determine whether the record of member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Admi-nistrative, judicial and disciplinary control over members of the Judi-cial Service is vested solely in the High Court: Premature retirement is made in the exercise of administrative and disciplinary jurisdiction. It is administrative because it is decided in public interest to retire him pre-maturely. It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superan-nuation and that it is in the public interest to do so.

This Court held in State of Assam v. Ranga Mahammad and Ors.(') that the Governor under Article 233 is concerned wiili the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. This Court has held in the Punjab and Haryana case (supra) that the confirmation of District Judges is to be done by the High Court because it falls within the control vested in the High Court. The High Court is acquainted with the capacity of work of the mem-D bers of the Service. In the Punjab & Haryana case (supra) this Court pointed out that if after the appointment of District Judge till he is confirmed the State is allowed to control the District Judge there will be dual control. This is not the meaning of "control" in our Constitution. The control vested in the High Court is that if the High Court is of opinion that 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 recom-mendation 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". See Shamsher Singh's case (supra) at page 841.

. In the present case, the order of the State retiring the respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court. The High Court did not make any recommendation to that effect .

. The appeal is, therefore, dismissed' with costs.

V.P.S. -----------(1) (1967) I S.C.R. 454:

Appeal dismissed.

(1) (1967) I S.C.R. 454: