REGISTRAR, HIGH COURT OF MADRAS ETC.versusR. RAJIAH AND K. RAJESWARAN

A          REGISTRAR, HIGH COURT OF MADRAS ETC.
                             v.
                R. RAJIAH AND K. RAJESWARAN

                                MAY 11, 1988
            [R.S. PATHAK, C.J., MURARI MOHON DUTT
B
                  AND LAUT MOHAN SHARMA, JJ.]
         'Article 235-District Courts and Courts Subordinate thereto--
    Control over vests in High Court-Power of Control comprises
    Appointment, Promotion and Imposition of Punishment in respect of
    Subordinate Judiciary-Decision to be arrived at after due enquiry-
    Governor to take action on recommendation of High Court.
c
         Fundamental Rules-FR 56(d) read subject to and in harmony
    with Article 235-Judicial Officer-Compulsory retirement a/-
    Decision to be taken by High Court-Governor to take action on
    recommendation of High Court.
D         Civil Services-Action against Government servant. consists of
    two parts-First part is decision will have to be taken whether action is
    to be taken-Second part the decision to be carried out by a formal
    order.
          The two respondents, R. Rajiah and R. Rajeswaran, who were
E   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 re-
    spondents moved the High Court under Article 226 of the Constitution
    chaDenging the validity of the impugned orders on the grounds:(l) that
    the High Court had no power to pass an order of compulsory retirement
F
    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.
G        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
rl retirement was to be passed by the Governor acting on the recommen-
                                      332
         REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH                 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                A
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           B
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. Rajeswa-
ran was confirmed as a District Munsif on 1.1.1976, in coming to a               c
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            D
alone has the power to pass an order of compidsory retirement of a           '
member of the State judicial Serivce, and unless it is so held it would be
in derogation of High Court's control over subordinate courts as con-
ferred on it hy Article 235 of the Constitution. It was also urged that
rule 56(d) of the Fundamental Rules should he declared ultra vires in so
far as it confers power on the Governor to compulsorily retire members           E
of the Subordinate judicial service. On merits, it was contended that the
High Court was not at all justified in considering the question of ade-
quacy or otherwise of the material on record in respect of the impugned
orders of compulsory retirement.

      Dismissing the appeals, it was,                                            F

      HELD: (Per M.M. Dutt, J.) (C.J.I. agreeing with him)

      (1) Art. 235 vests in the High Court control over Districts Courts
and Courts subordinate thereto. The vesting of such control is consis-
tent with the idea of preservation of the independence of the judiciary. G
If any authority other than the High Court is conferred with the abso-
lute 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]
                                                                         H
      (2) Rule 56(d) of the Fundamental Rules under which a member
    334         SUPREME COURT REPORTS               [1988] Supp. 1 S.C.R.

    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
B   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. l339G-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 be taken against the Government servant. Under the second
c   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]

D         (5) The control of the High Court, as understood, will be appli-
    cable in the case of compulsory retirement in that the High Court will,
    upon an enquiry, come to a conclusion whether a member of the subor-
    dinate judicial service should be retired prematurely or not. If the High
    Court comes to the conclusion that such a member should be prema-
    turely retired, it will make a recommendation in that regard to the
E   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]
F
          (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]
G
          (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]
H
          (8) When the High Court takes the view that an order of com-
        REGISTRAR, HIGH COURT OF MADRAS v. R. RAJJAH                 335

pulsory retirement should be made against a member of the subordinate
                                                                            A
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 ihere is absence of any material to justify the impugned
orders of compulsory retirement, these must be held io be illegal and       B
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 th~
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      c
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 undel'stand why the Chief Justice
could not appoint a Review Committee. But the decision of the Review        D
Committee should have been placed before a meeting of the Judges. In
that sense, the recommendation of the Review Committee was not
strictly legal. [345C-D I

     (11) The decision to compulsory retire Mr. Rajeswaran is vitiated
as the Review Committee had relied upon some adverse incidents              E
against him that took place in 1954, although the respondent was
appointed to the post of District Munsifin 1976. [346E-F]

      Per Sharma, J.:

      Since there is no material on record in support of the impugned       F
orders of compulsory· retirement of the twr respondents they were
rightly quashed by the High Court. No opinion is expressed on the other
questions raised in these cases. [347B I

      State of West Bengal v. Nripendra Nath Bagchi, [1966] I SCR
771; State of Haryana v. Jnder Prakash Anand, [1976] Suppl. SCR 603;        G
State of Uttar Pradesh v. Batuk Dea Pati Tripathi, [1978] 2 SCC 102;
High Court of Punjab & Haryana v. State of Haryana, [1975] 3 SCR
365; Shamsher Singh v. State of Punjab, [1975] 1SCR814; B. Misra v.
Orissa High Court, [1976] 3 SCC 327; Baldev Raj Chadha v. Union of
India, [1981] 1SCR430 and Brij Bihari Lal Aggarwal v. High Court of
M.P., [1981]2SCR297,referredto.                                             H
    336        SUPREME COURT REPORTS               [1988) Supp. 1 S.C.R.

         CIVIL APPELLATE JURISDICT'ION: Civil Appeal No. 367
A
    & 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

B         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
c   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.
D
          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 func-
    tioning as District Munsif, on 3.3.1980 the Registrar of the High
    Court, the appellant herein, sent a communication to the respondent
E   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           f.,,,
    appointed a Sub-Magistrate in 1953. On 29.11.1971, he was appointed      ~ ,,
    a District Munsif having been selected by the Tamil Nadu Public
F   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 compul-
G sory retirement, moved the High Court under Article 226 of the Con-
    stitution 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
H Court was that the High Court had no power to compulwrily retire
REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH [DUTT, J.]             337

members of the Tamil Nadu State Judicial Service. Such an order
                                                                           A
could be passed only by the State Governor, who was the appointing
authority. All that the High Court could do was to make a recommen-
dation 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        B
Review Committees of the High Court that passed the impugned
orders of compulsory retirement.

      Two learned Judges of the Division Bench delivered two sepa-
rate judgments. One of the learned Judges of the Division Bench took
the view that though it was within the jurisdiction of the High Courtto
take a decision whether a member of the State Judicial Service should
                                                                           c
be compulsorily <etired or not in public interest, the formal order of
compulsory retirement was to be passed by the Governo.r acting on the
recommendation of the High Court. The other learned Judge, how-
ever, did not subscribe to the above view. According to him, it was the
High Court which was competent to pass an order of compulsory re-          D
tirement 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 compul-
sory retirement of the two respondents. The learned Judges also held
against the validity of the constitution of the Review Committee of the    E
High Court that considered the question of passing the order of com-
pulsory retirement of the respondent, Rajeswaran. According to the
learned Judges, the irregular or illegal constitution of the Review Com-
mittee 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          F
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 G
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 comp.etent autho-
rity to pass an order of compulsory retirement, it would be denuding H
    338         SUPREME COURT REPORTS                 [1988] Supp. 1 S.C.R.

A   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 Divi-
    sion 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.
B
           Before considering the contention advanced on the basis of Arti-
    cle 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
c               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
D               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 Jess than three months
                in writing to the appropriate authority.
E
                      Explanation I: Appropriate authority means the
                authority which has the power to make substantive
                appointments to the post or service from which the
                Government servant is required to retire or wants to
                retire."
F
                [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
G   interest. Under Explanation, I "appropriate authority" means the
    authority which has the power to make substantive appointment to the
I   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
H   the power to make substantive appointment to the post or service from
REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH [DUTT, J.]              339

which the Government servant is required to retire. It is not disputed
                                                                            A
that the authority to make substantive appointment to the post of
Munsif or District Munsif is the Governor. Therefore, without any-
thing 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.
                                                                            B
      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
                                                                            c
within it various matters in respect of subordinate judiciary including
those relating to appointment, promotion .and imposition of punish-
ment, 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        D
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      E
Court under Article 235 of the Constitution. At this stage, it is neces-
sary 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 retirell}ent. According to one of the learned Judges of the
Division Bench of the High Court, as the impugned orders were not           F
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.                                                                 G

      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      H
    340        SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

A 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.
B Under the second part, the decision will be carried out by a formal
  order. The power of control envisaged under Article 235 of the Con-
  stitution 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
C action either in the nature of compulsory retirement or by the imposi-
  tion 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
D 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 v. Nripendra Nath Bagchi, [1966] 1
  SCR 771 a question arose whether Article 311 takes away the control
  of the High Court vested in it under Article 235 of the Constitution. In
E that context, Hidayatullah, J. (as he then was) speaking for the Court
  observed as follows:

                'There is, therefore, nothing in Art. 311 which comples the
                conclusion that the High Court is ousted of the jurisdiction
                to hold the enquiry if Art. 235 vested such a power in it. In
F               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 dis-
              . missal 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
G               punishments other than dismissal or removal, subject how-
                ever 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 Art.
                311 unless such opportunity is dispensed with by the
                Governor acting under the provisos (b) and (c) to that
H               clause. The High Court alone could have held the enquiry
             REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH [DUTT, J.]             341

                        in this case. To hold otherwise will be to reverse the policy
                                                                                        A
                        which has moved determinedly in this direction."
 ""'!:',
                  Thus, it appears that this Court brought about a harmony bet-
             ween the power of the Governor and the power of control of the High
             Court.
                                                                                        B
                  The question was again considered by ,this Court in State of
             Haryana v. Jnder Prakash Anand, [1976] Suppl. SCR 603. 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 communi-      c
                        cate 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         D
                        Court. If the recommendation of the High Court is not held
                        to be binding on the State consequences will be unfortu-
                        nate. It is in public interest that the State will accept the
..;.;.                  recommendation of the High Court. The vesting of comp-
                        lete control over the Subordinate Judiciary in the High
                        Court leads to this that the decision of the High Court in      E
                        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 F
             power of taking a decision against a member of the subordinate judi-
             cial 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 G
             that regard to the State Governor who will make an order in accor-
             dance 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 H


'I
    342        SUPREME COURT REPORTS              [1988] Supp. 1 S.C.R.

A under Article 235 of the Constitution. See State of Uttar Pradesh v.
  Batuk Deo Pati Tripathi, I1978] 2 SCC 102; High Court of Punjab &
  Haryana v. State of Haryana, [1975) 3 SCR 365; Shamsher Singh v.
  State of Punjab, [1975] 1 SCR 814; State of Haryana v. Jnder Prakash
  Anand (supra) and B. Misra v. Orissa High Court, [1976) 3 SCC 327.

B       The control of the High Court, as understood, will also be appli-
  cable in the case of compulsory retirement is that the High Court will,
  upon an enquiry, come t.o 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
C 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
D 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 Expla-
  nation 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 pas-
E sing 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 mem-
F bers 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 fo. accordance with the recommenda-
  tion of the High Court. The Governor will only act on the basis of the
G 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
H Fundamental Rules and in exercise of '.ts power of control it decided to
      REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH [DUTT, J.[            343

       compulsorily retire the respondents, but ignored the power of the
                                                                                A
       Governor under rule 56( d) of the Fundamental Rules to make the
       order of compulsory retirement in accordance with the recommenda-
 '     tion 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 B
       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 conten-
       tion 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 !he High Court as vested in it under Article 235 of the c
       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 retire-
       men!, when the High Court comes to a decision that the member D
       should be compulsorily retired from service, its decision or recommen-
       dation 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 E
       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 F
      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 G
      that ·1ihe impugned orders were not supported by any material. ·
      Further, it has been heid that no material has been placed before the

..    High Court to show that the impugned orders have been passed in
      public interest. ~is 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 H


!~
    344         SUPREME COURT REPORTS                11988] Supp. 1 S.C.R.

A 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 judi-
  cial service, the adequacy or sufficiency of such materials cannot be
  questioned, unless the materials are absolutely irrelevant for the
B 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.

c powerIt tois true that the High Court in its administrative jurisdiction has
                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
D 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.
E
        Jn 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,
F should be compulsorily retired with effect from April 2, 1980. The
  Division Bench found that the third Judge had no notice of the meet-
  ing 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 Funda-
  mental Rules. The Division Bench of the High Court took tl_ie view
G 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
H members of the Review Committee should sit together and consider
                                                                                 -
       RtGISTMR, HIGH COl,IRT OF MADRA.S v. R. RAJjAl;I [DUTT, J.]         345'

       the question of comp.ulsory retirement, b.l!t simply because one of
       them did not pa.rticipate in the meeting, an.ct subsequently agreed with
:_;,   the view expressed by the other two Judges, it would· not vitiate the
       decision of t.he 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.      B

             In regard to the case of the other responct'ent, 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,
                                                                                  c
       in our opinion, correct, namely, that the decision of the Review Com-
       mittee should have been placed before a meeting of the Judges. In the
       case ofthe respondent, K. Rajeswaran, the decision and recoil))llenda-
       tion of the Review Committee was not placed before the Full Court,
       meeting. Nor is there any material to show that the same was circu-
       lated 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 Com,t ~
       that although the Review Committee was constituted with two Judges,
       another Judge also participated in the meeting of the Review Commit- E
       tee 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 qitly two Judges to con.stitute the Review
       CQl)J.11)cjttee. and observed that the participation of the third Judge was
       improper. It is, however, not known whether he participate.ct in the.
       meeting of the Review Committee under the direction of the Chief p:
       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 G
       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 l;u~ was confirmed on 1.1.1976, there was nothing seriously
       W~Oi)cg·. against him. In coming· to a decision thatthe respondent should
       be. compulsorily retired, the third Judge of. the Review Committee H
    346        SUPREME COURT REPORTS               [1988] Supp. 1 S.C.R.

    relied upon events that had happened right from 30.3.1954. It is curi-
A
    ous 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 impo,tance. In Baldev Raj Chadha v.
    Union of India, [1981] 1SCR430 this Court observed as follows:
B
               "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 re-
               tirement, could be cashiered on the score that long years
               ago, his performance had been poor, although his superiors
c              had allowed him to cross the efficiency bar withoµt 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.
D              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.''
E
         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
F   in 1976. In this regard, we may also refer to an observation by this
    Court in Brij Bihari Lal Agarwalv. High Court of M.P., [1981) 2 SCR
    297:

               "It is possible that a Government servant may possess a
               somewhat erratic record in the early years of service, but
G              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
H   impugned orders of compulsory retirement.
REGISTRAR, HIGH COURT OF MADRAS v. R. RAJIAH ISHARMA;J .]          347

     In the result, the appeals are dismissed. There will, however, be    A
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
                                                                          B
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.