Holding

An order of premature retirement passed by the Governor without a prior recommendation of the High Court (or its Administrative Committee) is void and ineffective.

Summary

The appellant, an Additional District and Sessions Judge, was ordered to retire prematurely by the Governor of Uttar Pradesh based on the opinion of an Administrative Judge, without a prior recommendation from the High Court or its Administrative Committee as required by Article 235 of the Constitution. The appellant challenged the order, alleging violation of Article 235, as well as Articles 14, 16 and 311(2) of the Constitution, and the validity of Fundamental Rule 56. The Allahabad High Court dismissed the petition, holding that the Governor’s consultation with the High Court could be post‑factum and that the order was not void. The Supreme Court allowed the appeal, holding that the Governor cannot retire a subordinate judicial officer without a recommendation from the High Court (or its Administrative Committee), and that the subsequent approval by the Committee does not cure the defect. Consequently, the order of premature retirement was declared void, the appellant was deemed to have remained in service until his normal retirement date, and costs were awarded.

Issues considered

Whether a premature retirement order of a subordinate judicial officer issued by the Governor without a prior recommendation of the High Court under Article 235 is constitutionally valid.
Whether Fundamental Rule 56 (and its amendment) violates Articles 14, 16 and 311(2) of the Constitution.
Whether post‑factum approval by the High Court’s Administrative Committee can validate an already‑issued retirement order.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 235, s. Article 311(2)
Fundamental Rule 56 (Financial Handbook)
U.P. Act No. 5 of 1970

Subjects

Article 235premature retirementsubordinate judiciaryhigh court controladministrative committeeFundamental Rule 56constitutional validityjudicial independencevoid order

Judgment

A

TEJ PAL SINGH (DEAD) THROUGH LRS.
,..
v.
STATE OF U.P. &ANR.
B
AUGUST 5, 1986

[E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]
i
Constitution of India, Article 235: Subordinate Judiciary-High
c Court's control-Nature and scope of -Premature retirement of judi- }
cial officer-High Court alone competent to come to conclusion after ~

assessment ofperformance--Govemor thereafter to pass order.

Rules of Court (High Court of Allahabad), {952: Rules 3,4,5 &
12-Administrative Committee could act for and on behalf of the
D Court-Not Administrative Judge--Judicial Officer-Premature retire-
ment-Only Administrative Committee can recommend to Govern-
ment.

The appellant was working as an Additional District and Sessions
Judge in the State of Uttar Pradesh. The State Government moved the
E High Court in the year 1967 for his premature retirement. On July 8,
1968 the Administrative Judge agreed with the proposal to retire the ....
appellant after giving him three months notice. The Governor passed
the order of retirement on August 24, 1968. Three days thereafter, on
August 27, 1968 the Administrative Committee of the High Court gave
,,
F
its approval to the opinion of the Administrative Judge earlier com-
municated to the State Government. Thereafter, on August 30, 1968 the
Additional Registrar transmitted the order of retirement to the appel-
., \
lant. The order was purported to be made under para (i) of the first
proviso to cl. (a) of Fund~mental Rule 56. )(

Aggrieved by the said order the appellant filed a writ petition
G before the High Court alleging: (i) that the retirement had been ordered
without the recommendation of the High Court as required by Article
235 of the Constitution; (ii) that Fundamental Rule 56, under which the
order had been issued was violative of Articles 14 and 16, and (iii) that
the premature retirement was in violation of Article 311(2). ,.,
H As the question relating to the vires of Fundamental Rule 56 was
428
T.P. SINGH v. STATEOFU.P. 429

pending before the High Court in two other writ petitions, the three A
matters were referred to a Full Bench, which held that paragraph (i) of
the proviso to cl. (a) of Fundamental Rule 56 was violative of Articles 14
and 16.

Immediately thereafter the Governor issued an Ordinance
B
amending Fundamental Rule 56 and validating actions already taken
thereunder. The appellant thereupon sought amendment of his writ
petition questioning the validity of the Ordinance and the U.P. Act No.
5 of 1970 which replaced the Ordinance.

Dismissing the writ petition the High Court took the view that
whenever the Governor proposed to make an order of premature retire- c
ment in respect of a District Judge or a Subordinate Judicial Officer he
was only expected to consult the High Court on the question and that
this consultation with the High Court was permissible even after the
Governor had passed the order of compulsory retirement. It equated
the recommendation that should be made by the High Court under
D
Article 235 before a judicial officer can be prematurely retired to the
consultation contemplated under Article 320(3) (c) in respect of discipli-
nary matters affecting civil services and held that such consultation
with the High Court was uot mandatory and that failure to do so did not
afford a cause of action in a court of law.
E
On the question: whether the order of compulsory retirement
passed against the appellant satisfies the requirements of the Consti-
tution.

Allowing the appeal, the Court,
F
HELD: I. The impugned order of pr~mature retirement passed
by the Governor on the opinion of the Administrative Judge without
having before him the recommendation of the Administrative Commit-
tee or of the Full Court was void and ineffective. The High Court was in
error in not construing the applicability and scope of Article 235 of the
Constitution while deciding the case.
G
2.1 Without the recommendation of the High Court it is not open
to the Governor to issue an order retiring prematurely Judges of Dis-
trict Courts and the subordinate courts.

2.2 While it may be open to the Government to bring to the notice H
430 SUPREME COURT REPORTS [1986] 3 S.C.R.

A of the High Court all materials having a bearing on the conduct of a
District Judge or a subordinate judicial officer, which may be in its
possession, the Government cannot take the initiative to retire prema-
turely a District Judge or a subordinate judicial officer. Snch initiative
should rest with the High Court.
B
2.3 It is for the High Court, on the basis of asses.<iment of per-
formance and all other aspects germane to the matter to come to the
conclnsion whether any particnlar judicial officer under its control is to
be prematurely retired and once the High Court comes to the conclusion
that there should be such retirement, the Court recommends to the
Governor to do so. The conclusion is to be of the High Court since the
c control vests therein.

In the instant case, the Government had sought the opinion of the
High Court regarding the question whether the appellant could be pre-
maturely retired. Under the roles obtaining in the Allahabad High
D Court the Administrative Committee could act for and on behalf of the
Court but the Administrative Judge could not. Before giving his opinion
in snpport of the view expressed by the Government the Administrative
Jndge shonld have either circnlated the letter received from the
Government amongst the members of the Administrative Committee or
placed it before them at a meeting. He did not adopt either of the two
E courses but on his own forwarded his opinion to the Government stating
that the appellant could be prematurely retired. It was only after the
Governor had passed the order on the basis of such recommendation
that the matter was placed before the Administrative Connnittee.
Therefore, the Administrative Judge agreeing with the Government
proposal was of no consequence and did not amount to satisfaction of
F the requirement of Article 235 of the Constitution.

3. The deviation in this case is not a mere irregularity which can
be cured by the ex post facto approval given by the Administrative
Committee to the action of the Governor after the order of premature
retirement had been passed. The error committed in this case amounts
G
to an incurable defect amounting to an illegality.

State of Uttar Pradesh v. Batuk Dea Patil Tripathi & Anr., [1978]
(3) S.C.R. 131; State of Haryana v. Inder Prakash Anand H.C.S. &
Ors., [1976] (Supp) S.C.R. 603; High Court of Andhra Pradesh & Ors.
H v. V. V.S. Krishnamurthy and Ors., [1979] (I) S.C.R. 26 referred to.
T.P. SINGH v. STATE OF U.P. [VENKATARAM!AH.J.] 431

State of U.P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533, A
distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1243
of 1972
B
From the Judgment and Decree dated 23.2.1970 of the Allaha-
bad High Court in Writ Petition No. 3958 of 1968.

S.M. Ashri, Ramesh Kumar Khanna, R.A. Mishra and N.N.
Sharma for the Appellant.

Gopal Subramaniam and Mrs. Shobha Dikshit for the Res- C
pondents.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The appellant was working as an Addi- D
tional District and Sessions Judge in the State of Uttar Pradesh in the year
1968. His date of birth was April 1, 1913. He would have retired from
service on the expiry of March 31, 1971 on completing 58 years of age.
But on September 3, 1968 the appellant was served with an order
dated August 24, 1968 issued by the Secretary to the Government of
Uttar Pradesh (Home Department) stating that the Governor of Uttar
E
Pradesh in exercise of the powers under para (i) of the first proviso to
clause (a) of Fundamental Rule 56 contained in the Financial Hand
Book, Volume II, Parts II to IV, as amended from time to time, had
• been pleased to order that the appellant should retire from service on
the expiry of three months from the date of service of the notice.
Aggrieved by the said notice of premature retirement, the appellant
F
filed Writ Petition No. 3958 of 1968 before the High Court of
Allahabad under Article 226 of the Constitution urging inter alia (i)
that the retirement of the appellant as per order dated August 24, 1968
had been ordered without the recommendation of the High Court as
required by Article 235 of the Constitution, (ii) that Fundamental
Rule 56 under which the impugned order had been issued was violative
G
of Articles 14 and 16 of the Constitution, and (iii) that the appellant's
premature retirement was in violation of Article 311 (2) of the
Constitution. The question relating to~ihe validity of Fundamental
Rule 56 was involved in two other cases which were pending before the
High Court. The Writ Petition filed by the appellant and the other two
writ petitions were heard together by a Division Bench of the High H
432 SUPREME COURT REPORTS [1986] 3 S.C.R.

A Court. The Division Bench referred all the three matters to a Full
Bench to consider two specific questions of law, namely (i) whether
under Fundamental Rule 56 the age of superannuation was 55 or 58
years and (ii) whether the proviso to clause (a) of Fundamental Rule
56 violated Articles 14 and 16 of the Constitution. Thereafter the Full
Bench heard all the three cases and answered the two questions as
B
follows: (i) Under clause (a) of Fundamental Rule 56 the age of
superannuation was 58 years and (ii) Paragraph (i) of the proviso to
clause (a) of the Fundamental Rule 56 violated Articles 14 and 16 of
the Constitution. The judgment of the Full Bench was pronounced on
September 26, 1969. Immediately thereafter the Governor of Uttar
Pradesh issued an Ordinance dated November 5, 1969 making amend-
c ments to Fundamental Rule 56 and validating actions already taken
thereunder. The Ordinance was replaced by U.P. Act No. 5 of 1970 on
April l, 1970. The appellant sought the amendment of the Writ Peti-
tion questioning the validity of the Ordinance and the Act. Thereafter
the Writ Petititon was heard by a Division Bench of the High Court
and it came to be dismissed on February 23, 1970. This appeal by
D certificate is filed against the judgment of the High Court.

In this case we are not concerned much with the validity of
Fundamental Rule 56 since it can be disposed of on the ground based
on Article 235 of the Constitution.
E The undisputed facts as can be gathered from the records in this
case which are relevant for purposes of this appeal are these. The State
Government moved the High Court in the year 1967 for the premature
retirement of the appellant. On July 8, 1968 the Administrative Judge
agreed with the proposal of the State Government to retire the appel-
lant prematurely after giving him three months' notice. The Governor
F passed the order of retirement on August 24, 1968. Three days there-
after, on August 27, 1968 the Administrative Committee of the High
Court gave its approval to the recommendation of the Administrative
Judge earlier communicated to the State Government. Thereafter on
August 30, 1968 the Additional Registrar transmitted the order of
retirement to the appellant. It was actually served on September 3,
G 1968. The question for consideration in this case is whether the order
of compulsory retirement passed against the appellant satisfies the
requirements of the Constitution.

Article 235 of the Constitution provides that the control over
district courts and courts subordinate thereto including the posting and
H
T.P. SINGH v. STATE OF U.P. [VENKATARAMIAH,J.) 433

promotion of and the grant of leave to persons belonging to the judi- A
cial service of the State and holding any post inferior to the post of
District Judge shall be vested in the High Court. It has been held in
State of Uttar Pradesh v. Batuk Deo Patil Tripathi & Anr,. [1978] 3
S.C.R. 131 that premature retirement of Judges of District Courts and
of subordinate courts is a matter which falls squarely within the power
of control vested in the High Courts by Article 235 of the Constitution. B
Without the recommendation of the High Court it is not open to the
Governor to issue an order retiring prematurely Judges of District
Courts and of subordinate courts.

Insofar as the High Court of Allahabad is concerned rules are
framed under Article 225 of the Constitution and all other powers c
enabling it in that behalf by the High Court regarding the manner in
which the administrative work of the High Court should be carried
out. They are known as Rules of Court, 1952. The relevant rules are '
found in Chapter III of the Rules of Court, 1952. The material part of
Chapter III is set out below:-
D
"CHAPTER III

Executive and Administrative Business of the Court

1. Subject to these Rules, a Committee of Judges com-
posed of the Chief Justice, the Judge in the Administrative E
Department and five other Judges to be appointed by the
Chief Justice, referred to in these Rules a5 the Administra-
tive Committee, shall act for the Court. The Chief Justice
shall have the charge of, and may act for the Court in the
Administrative Department and the executive and
administrative business pertaining to the Court, except that F
the Judge in the Administrative Department shall have
charge of, and may act for the Court in the Administrative
Department and the executive and administrative business
pertaining to the Courts subordinate to the Court. As far as
possible, the Judge in the Administrative Oepartment shall
discharge his duties and functions in consultation with the G
Inspection Judges concerned, who shall be appointed by
the Chief Justice from time to time.
The membership of the Committee shall be for two
years except in the case of the Chief Justice and the Judge
in the Administrative Department. H
434 SUPREME COURT REPORTS [1986] 3 S.C.R.

A 2. From time to time and as occasion arises the Chief Jo..
Justice shall nominate one of the Judges to act as the Judge
in the Administrative Department, whose term of office
shall be three years unless renominated.
"
.; ' ..
3. All executive and administrative business and all busi-
B
ness in the Administrative Department requiring orders
..... shall be submitted by the Registrar to the Chief
Justice or the Judge in the Administrative Department, as t
the case may be, together with his comments thereon, if
any, and may, subject to these Rules, be disposed of by
,..
c
that Judge.
-
4. The Judge in the Administrative Department shall, be-
fore passing final orders cause to be circulated for the infor-
mation of the Judges of the Administrative Committee "i
then present in Allahabad, his recommendations as to the
appointment, promotion or suspension of judicial officers.
D
Should any Judge dissent from such recommenda-
tions, he shall signify his dissent and his reasons therefor in
writing.

5(1). In regard to the following matters the Judge in the ~
E Administrative Department shall consult the Administra- "'•"
tive Committee either by circulating the papers connected r·
with the matter together with his own opinion or recom-
mendation thereon to the members of the Committee then >-

'
present in Allahabad or by laying it before a meeting of the
Administrative Committee, namely:
F
(a) the issue of General Letters to subordinate courts; ~

(b) the issue of directions regarding the preparation of returns
and statements;
G (c) all matters of importance upon which the Government de-
sires the opinion of the Court; •
)..
(d) appointment of the U.P. HigherJudicialService; and
~.

(e) any other matter which the Chief Justice or the Judge in the
H
T.P. SINGH v. STATE OF U.P. [VENKATARAMIAH.J.] 435

~ Administrative Department may consider fit to be laid before it for A
consideration.

(2) Copies of all General Letters issued to subordinate courts shall be
circulated to all Judges for information as soon as may be after issue
............. B
(7) As soon as the Administrative Committee has disposed of any
~\
businees, a statement showing what matters were laid before the Com-

- • mittee and the manner in which they were disposed of shall be circu-
lated for information to all Judges except such Judges as may be on
leave."

In the above decision-State of Uttar Pradesh v. Batuk Deo Patil
c
Tripathi & Anr. (supra) this Court has held that the power of the High
1- Court under Article 235 of the constitution to make recommendation to
the Government to retire a subordinate judicial officer prematurely
could be exercised by the Administrative Committee of the High
D
Court. In the instant case it is seen that the Administrative Committee
of the High Court came into the picture only after the State Govern-
ment had passed the order of retirement. It was no doubt true that the
Administrative Judge had agreed with the proposal of the State
Government to retire the appellant prematurely on July 8, 1968 and
~ that on the basis of the opinion expressed by the Administrative Judge
the Governor had passed the order on August 24, 1968. It was only on E

-
August 27, 1968 the order of the Governor was placed before the
Administrative Committee of the High Court when it gave its approval
to the opinion of the Administrative Judge earlier communicated to
...
'
the State Government. After the Administrative Committee had ex-
pressed its opinion the matter was not again referred to the Governor
at all. After the Administrative Committee had approved the opinion F
of the Administrative Judge the order of retirement was served on the
"" appellant on September 3, 1968. It is thus seen that the Governor had
not acted in the instant case on the basis of the recommendation of
either the Full Court or of the Administrative Committee of the High
Court but only on the opinion of the Administrative Judge.
G
The two learned Judges who finally heard the Writ Petition of
;:ii the appellant dealt with the question uf compliance with Article 235 of
the Constitution in the two separate judgments delivered by them. Both
the learned Judges, we regret to say, missed the essence of the ques-
tion agitated before them. They have referred to Article 233 of the
H
436 SUPRE~F. COURT REPORTS 11986] 3 S.C.R.

A Constitution in the course of their judgments while the proper Article
which arose for consideration before them was Article 235 of the Con-
stitution. Both the learned Judges have taken the view that the Gover-
.
nor is only expected to consult the High Court on the question when he
proposes to make an order of premature retirement in respect of a
B District Judge or a subordinate judicial officer. They have overlooked
that the Governor can pass such an order only on a recommendation
made by the High Court or the Administrative Committee. The sec-
f

c
ond error commited by both of them is that they have held that such
consultation with the High Court is permissible even after the Gover-
nor has passed the order of compulsory retirement. Thirdly, they have
equated the recommendation that should be made by the High Court
before a judicial officer can be prematureiy retired to the consultation
.-
contemplated under Article 320(3)(c) of the Constitution, which pro-
vides that the Ur.ion Public Service Commission or the State Public
Service Commission as the case may be, shall be consulted on all ~
disciplinary matters .1ffecting a person serving under the Government
D of India or the Government of a State in a civil capacity, including
memorials or petitions relating to such matters, and have held relying
upon a decision of this Court in State of V.P. v. Manbodhan Lal
Srivastava, 11958] S.C.R. 533 that such consultation was not mandatory
and that failure to do so did not afford a cause of action to the appcl-.
!ant in a court of law.
E
In State of Haryana v. Inder Prakash Anand H. C.S. & Ors., ---

-
11976] (Supp) S.C.R. 603 this Court has held that Article 235 of the
Constitution vests in the High Court control over district courts and
courts subordinate thereto. This "control" includes both disciplinary

F
and administrative jurisdiction. Disciplinary control means not merely
jurisdiction to award punishment for misconduct, but also the power 1
to determine whether the record of a member of the service is satis-
factory 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 service is vested
solely in the High Court. Premature retirement is made in the exercise
of administrative and disciplinary jurisdiction. It is administrative be-
G
cause it is decided in public interest to retire him prematurely and it is
disciplinary, 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
H conditions of service is a matter pertaining to disciplinary as well as
T.P. SINGH v. STATE OF U.P. [VENKATARAMIAH,J.l 437

administrative control. The control which is vested in the High Court A
is complete control subject only to the power of the Governor in the
matter of appointment, dismissal, removal or reduction in rank and
the initial posting of and initial promotion to the rank of .District
Judge. The vesting of complete control over the subsordinate judiciary
in the High Court, leads to this that if the High Court is of opinion that
B
a particular officer is not fit to be retained in service, the High Court
will communicate that opinion to the Governor, bec.ause, the Gover-
nor 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 recommendation of the High Court
as otherwise the consequences will be unfortunate. But, compulsory
retirement simpliciter does not amount to dismissal or removal or c
reduction in rank under Article 311 or under service rules. When a
case is not of removal or dismissal or reduction in rank, any order in
respect of exercise or control over the judicial officers is by the High
Court and by no other authority otherwise, it will affect the independ-
ence of the judiciary. It is in order to effectuate that high purpose that
D
Article 235 of the Constitution, as construed by this Court in various
decisions, requires that all matters relating to the subsordinate
judiciary including premature retirement and disciplinary proceedings
but excluding the imposition of punishment falling within the scope of
Article 311 of the Constitution and the first appeintment on promotion
should be dealt with and decided upon by the High Courts in exercise
E
of the control vested in them.

In High Court of Andhra Pradesh and Ors. v. V. V.S. Krishna-
murity and Ors., [1979] 1 S.C.R. 26 this Court has again observed
that Article 235 of the Constitution is the pivot around which the
entire scheme of the Chapter VI of Part VI of the Constitution re-

r volves. Under it the control of district courts and courts subordinate
thereto including the posting and promotions of and the grant of leave
to persons belonging to the judicial service of a State is vested in the
F

High Court. After considering a number of decisions, the Court in that
case has set out the true legal position crystalized by the said decisions
as regards the scope of the control of the High Court over the subordi-
G
nate judiciary vested in it under Article 235 of the Constitution. The
Court proceeded to observe that the said power under Article 235 of
the Constitution was exclusive in nature, comprehensive in extent and
effective in operation. Amongst the several matters which fell within
its scope, this Court was of the view that premature retirement of
Judges of the district courts and of the subordinate courts was one. H
438 SUPREME COURT REPORTS [1986] 3 S.C.R.

A It is thus clear that the High Court was in error in not construing
the applicability, and the scope, of Article 235 of the Constitution
while deciding the case before it. It assumed that the Governor after -
consulting the High Court could pass an order of premature retirement
in respect of a District Judge or a subordinate judicial officer and that
even if he did not consult in that regard the order of premature retire-
B ment passed by the Governor would not be vitiated and that in any

~
event it was an irregularity which could be cured by rule 21 of the Court
Rules, 1952.

The relevant passages in tbe judgments of the two learned Judges
who decided the case in the High Court are given below:
c
"(Per D.S. Mathur, J.)

In the case of premature retirement, consultation, if made
subsequently, but before the officer actually retires, that is, ~
hands over charge, cannot in each and every case be said to
D be illusory and not genuine. It is only when it appears that
after the passing of the order of compulsory retirement, the
High Court did not consider the matter on merits but
accepted the fait accompli, it can be said that there had
been no consultation as contemplated by Article 233(1);
but where the High Court did consider the matter on merits
E and agreed with the order passed by the Governor directing
the compulsory retirement of a judicial officer, there would
be no defect, considering that the order of retirement shall
take effect from the date of communication or from the
date the government servant is to retire from service. In the
instant case, three months' notice was given, that is, the
F officer was to retire from service on the expiry of three
months from the date of comunication of the order of re-
tirement. Within this period the matter could be consi-
dered on merits by the High Court on its own or on a
1
representation made by the Officer. We are, therefore, of
opinion that the consultation of the High Court cannot be
G declared invalid simply because there was no proper and
full consultation before the passing of the order of prema-
ture retirement, provided that the facts and circumstances
of the case made it evident that the High Court had not
been unduly influenced by the decision of the Governor
and the High Court had on its own and independently con-
H sidered the matter on merits.
T.P. SINGH v. STATE OF U.P. [VENKATARAMIAH.J.[ 439

Reference may now be made to rule 21 of Chapter III A
of the Rules of Court, which clearly provides that no irre-
gularity in, or omission to follow, the procedure laid down
in this Chapter shall effect the validity of any order passed
or anything done under these rules. This rule cannot cover
a case where any order was passed in complete disregard of
B
the rules contained in Chapter III: but an irregularity com-
mitted in good faith shall not invalidate the order. The
~ principles governing the provisions like section 5 of the
Limitation Act can easily be made applicable to a case of
~
-
the present nature. Where two opinions are possible, the
irregularity, if any, cannot be deemed to have been com-
mitted in bad faith and such irregularities shall be covered c
by the above rule 21.

"(Per Salish Chandra, J.)

Under Chapter III rule 5 the Administrative Judge had to
D
consult the Administrative Committee. Even if the consul-
tation takes place subse4uently, if the committee approves
of the action of the Administrative Judge, then the original
action would be valid and effective with effect from its own
date. In this view, the communication of the Court's opi-
nion on the 8th July, 1968 would be valid.
E

-
Even if it be assumed that the communication of 8th
July, 1968 did not satisfy the requirements of law, still the
petitioners have not made out a case for interference. It has
r been seen that the Administrative Committee took the de-
cision on the 28th August, 1968. By then the Governor had
F
considered the opinion of the Court as sent to it on the 8th
July, 1968. The Governor sent the order of compulsory
"" retirement to the High Court. The High Court transmitted
it for service on the petitioners on or about the 2nd Sep-
tember, 1968, much after the Administrative Committee
had approved the proposal. The order was served on the
G
petitioners on 3rd September, 1968. Thus before the order
of compulsory retirement came into force on 3. 9 .1968, all
the requisite requirements of Article 233 of the Constitu-
tion had been completed. In this situation. rule ~ 1 would
come into play and would cure whatever irregularity took
place in following the procedure laid down in Chapter III H
440 SUPREME COURT REPORTS [1986] 3 S.C.R.

A of the Rules of the Court. The impugned order cannot be
held to have violated Article 233 of the Constitution."

We do not approve of the above opinions of the teamed Judges
of the High Court.
B
Now, it is settled by the decision of this Court in State of Uttar
Pradesh v. Batuk Deo Patil Tripathi & Anr. (supra) that on a true
construction of the rules of business of the Allahabad High Court it
was open to the Administrative Committee to recommend to the
Governor to pass an order of compulsory retirement in respect of a

c
District Judge or a subordinate judicial officer. We need not, there-
fore, go into the question whether the Full Court alone should have
-
considered the case of the appellant before such recommendation was
made. In the instant case as we have already stated above, the
Administrative Committee came to know of the ordtr of premature
retirement already passed by the Governor only after it had been
D passed on the basis of the opinion expressed previously by the
Administrative Judge. The Rules of Business in Chapter III of the
Rules of Court, 1952, referred to above, show the powers which are
exercisable by the Full Court, the Chief Justice, Judge in the
Administrative Department (Administrative Judge) and the Adminis-
trative Committee of the High Court. Rule 3 of Chapter III of the Rules
E lays down that all executive and administrative business and all business
in the Administrative Department requiring orders shall be submitted
by the Registrar to the Chief Justice or the Judge in the Administrative
Department, as the case may be, together with his comments thereon, if
.J--
any and may be subject to these Rules disposed of by that Judge. Rule 4
p1ovides that the Judge in the Administrative Department shall before i C
, \
F passing final order, cause to be circulated for the information of the
Judges of the Administrative Committee then present in Allahabad, his
recommendations as to the appointment, promotion or suspension of
)((\ ..,

jud.icial officers, and that should any Judge dissent from such recom-
mendations, he shall signify his dissent and his reasons therefor in writ-
ing. Rule 5 provides that in regard to·the matters set outthereuader the
l
Judge in the Administrative Department shall consult the Administra-
G
tive Committee either by circulating the papers connected with the mat-
ter together with his own opinion or recommendation thereon to the
members of the Committee then present in Allahabad or by laying it
before a meeting of the Administrative Committee and one of the items
mentioned in clause (c) of rule 5(1) of the Rules is 'all matters of
H importance upon which the Government desires the opinion of the
T.P. SINGH v. STATE OF U.P. [VENKATARAMIAH.J.l 441

Court.' In the instant case the Government had sought the opinion of A
the High Court regarding the question whether the appellant could be
prematurely. retired and that question was certainly a very important
matter from the point of view of the subordinate judicial service. The
Administrative Judge before giving his opinion in support of the view
expressed by the Government should have either circulated the letter
B
received from the Government among; t the members of the Adminis-
trative Committee or placed it before them at a meeting. He did not
1 adopt either of the two courses. But he on his own forwarded his opi-
nion to the Government stating that the appellant could be prematurely
~ retired. That he could not do. Ordinarily, it is for the High Court, on the

- basis of assessment of performance and all other aspects germane to the
matter to come to the conclusion whether any particular judicial officer
under its control is to be prematurely retired and once the High Court
c
comes to the conclusion that there should be such retirement, the Court
recommends to the Governor to do so. The conclusion is to be of the
High Court since the control vests therein. Under the Rules obtaining in
the Allahabad High Court, the Administrative Committee could act for
D
and on behalf of the Court but the Administrative Judge could not
have. Therefore, his agreeing with the Government proposal was of no
consequence and did not amount to satisfaction of the requirement of
Article 235 of the Constitution. It was only after the Governor passed
the order on the basis of such recommendation, the matter was placed
before the Administrative Committee before the order of retirement
E
was actually served on the appellant. The Administrative Committee
may not have dissented from the order of the Governor or the opinion
expressed by the A'.dministrative Judge earlier. But it is not known what
the Administrative Committee would have done if the matter had
'"' come up before it before the Governor had passed the order of prema-
~·
lure retirement. In any event the deviation in this case is not a mere

,. irregularity which can be cured by the ex post facto approval given by
the Admini•trative Committee to the action of the Governor after the
order of premature retirement had been passed. The error committed
F

in this case amounts to an incurable defect amounting to an illegality.
We may add that while it may be open to the Government to bring to
the notice of the High Court all materials having a bearing on the
G
conduct of a District Judge or a_ subordinate judicial officer, which may
be in its possession, the Government cannot take the initiative to retire
prematurely a District Judge or a subsordinate judicial officer. Such
initiative should rest with the High Court.

Under the circumstances, it has to be held that the impugned
H
442 SUPREME COURT REPORTS [1986) 3 S.C.R.

A order of premature retirement passed by the Governor without having
before him the recommendation of the Administrative Committee or
of the Full Court is void and ineffective. We, therefore, set aside the
judgment of the High Court and quash the order of premature retire-
ment passed in respect of the appellant. He shall be treated as having
been in service until the expiry of 31.3.1971 when he would have
B
retired from service on attaining 58 years of age.

We are informed that the appellant has died on 27 .11.1983 and
his legal representatives have been brought on record. The arrears of

c
salary, pension etc. payable to the appellant on the above basis till
27.11.1983 shall, therefore, be paid to the legal representatives of the
appellant within four months from today. This appeal is accordingly
allowed. The legal representatives of the appellant are also entitled to
-
the costs in both the Courts.

P.S.S. Appeal allowed.