Holding

The High Court may only recommend compulsory retirement of subordinate judicial officers; the formal order must be passed by the State Governor, and the High Court’s recommendation is binding on the State Government.

Summary

The Supreme Court examined whether a High Court can itself order the compulsory retirement of subordinate judicial officers. The Orissa High Court had recommended premature retirement of three judges and, in a separate notification, attempted to effect the retirement without a formal order from the State Governor. The petitioners challenged this, arguing that only the Governor, acting on the High Court’s recommendation, may pass such an order. The Court held that Articles 233, 234, 235 and 311 of the Constitution limit the High Court to a recommending role; the Governor must issue the formal retirement order, and the High Court’s recommendation is binding on the State Government. Since the Governor had not acted, the officers were in a limbo, and the Court directed that the Governor be asked to pass the order effective from the date the recommendation was received and that arrears be paid. The appeals were disposed of accordingly.

Issues considered

The constitutional scope of the High Court's power under Articles 233, 234, 235 and 311 regarding compulsory retirement of subordinate judicial officers.
Whether the High Court can itself pass an order of compulsory retirement or only recommend it to the Governor.
Whether the recommendation of the High Court is binding on the State Government and Governor.
The appropriate remedy when the Governor fails to act on the High Court's recommendation.

Legislation cited

Constitution of Indias. Article 233, s. Article 234, s. Article 235, s. Article 311

Subjects

Constitutional lawJudicial independenceArticle 235Compulsory retirementSubordinate judiciaryHigh Court controlGovernor's orderService conditions

Judgment

THE REGIS'":'RAR (ADMN.), HIGH COURT OF A
ORISSA, CUTTACK
v.
SISIR KANTA SATAPATHY (DEAD) BY LRS.
AND ANR. ETC.

SEPTEMBER 16, 1999 B

[DR. A.S. ANAND, C.J., K. VENKATASWAMI, G.B. PATTANAIK,
S.P. KURDUKAR AND M. JAGANNADHA RAO, JJ.]

Constitution of India, 1950: Articles 233, 234 and 235 read with C
Article 311-Judicial Officers in State of Orissa-Campulsory retirement a/-
Authority competent to pass the order-Held, High Court retains the power
of disciplinary control over subordinate judiciary including the power to
initiate disciplinary proceedings against Judicial Officers, suspend them
pending inquiry and to impose punishment on them-But as regards order D
ofdismissal, removal, reduction in rank, termination ofservices or compulsory
retirement, High Court is only the recommending authority and cannot itself
pass the order-Such an order has to be passed by the State Governor-
However, the recommendation of the High Court would be binding on the
State Government-Subordinate Judiciary-Disciplinary control over.
E
First respondent in all the three appeals were Judicial Officers in the
State of Orissa. The Review Committee of the High Court recommended that
the respondents be retired prematurely in public interest. The said
recommendation was accepted in the Full Court Meeting of the High Court
held on 4.2.1987. Ultimately the respondents were retired prematurely as
per the Notification dated 5.2.1987 issued by the High Court. Writ petitions F
were filed inter alia, on the ground that the High Court was not empowered
to pass an order of compulsory retirement. The Division Bench allowed the
writ petitions. Consequently, the respondents were allowed to join their
duties.

After the judgment of the Division Bench, the High Court recommended
G
to the State Government for compulsory retirement of the respondents.
Meanwhile, the High Court filed appeals before this Court which stayed
operation of the impugned judgment and directed that respondents would not
work on the posts they had joined. On the other hand, the State Government
473 H
474 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A did not act on the recommendations of the High Court to retire prematurely
the respondents on the ground that the matter was pending in the Supreme
Court

Disposing of the appeals, the Court

B HELD: 1.1. In view of the plain language of Articles 233, 234 and 235,
and in -particular of Article 235 read with Article 311 of the Constitution,
the High Court could not itself have passed an order of compulsory retirement,
which amounts to termination of services. [478-B]

C State of Haryana v. Inder Prakash Anand H.C.S. & Ors., [1976) 2 SCC
977 and Registrar, High Court of Madras v. R. Rajiah, etc., (1988) 3 SCC
211, relied on.

1.2. While the High Court retains the power of disciplinary control
over the subordinate judiciary, including the power to initiate disciplinary
·D proceedings, suspend them pending enquiries and impose punishment on
them, but when it comes to the question of dismissal, removal, reduction in
rank or termination of services of the Judicial Officers on any count
whatsoever, the High Court becomes only the recommending authority arid
cannot itself pass such an order. The formal order to give effect to such a
E decision has to be passed by the State Governor. [486-E]

The State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771;
Chief Justice ofA.P. & Ors. v. L. V.A. Dixitulu & Ors. etc., [1979) 2 SCC 34;
State of UP. v. Batuk Dea Pati Tripathi & Anr., [1978) 2 SCC 102; Tej pal
Singh v. State of UP. & Anr.,, [1986) 3 SCC 604; High Court of Judicature
F for Rajasthan v. Ramesh Chand & Anr., [1998) 3 SCC 72; Shyam Lal v. State
of UP., [1955} 1SCR26; S.P. Gupta, etc. v. Union ofIndia & Anr. etc., [1981)
Supp. SCC 87 and All India Judges' Association & Ors. etc. v. Union ofIndia
& Ors., etc., [1993) 4 SCC 288, referred to.

G 1.3. In the instant case, the decision of the Orissa High Court dated
4.2.87 (on the Administrative Side) was required to be forwarded to the
Governor for passing an order of compulsory retirement. That was not done.
It was wrong for the High Court to have passed the order of compulsory
retirement itself. The judicial side of the High Court rightly decided the writ
petition in favour of the Judicial Officers and held the order dated 4.2.1987
H (as issued by notification dated 5.2.1987) to be bad. There is no error in the

J
REGISTRAR(ADM.)HIGHCOURTOFORISSA 1·.SK.SATAPATHY[K. VENKATASWAMI,J.] 475 {
orders under appeal. (486-GI A
2.1. When, in pursuance of the Full Court Me~ting held on 7.11.1991,
the High Court recommended for compulsory retirement of the respondents,
the Government could not have declined to act on the said recommendation.
The course open to the Government was to forward the recommendation of
the High Court to the Governor who would have passed an order in accordance B
with the recommendation made by the High Court because the recommendation
of the High Court was binding on the Government. [488-C-G)

State of Haryana v. Inder Prakash Anand H.C.S. & Ors., [1976] 2 SCC
977, relied on
c
2.2. By not making an order of compulsory retirement on the
recommendation of the High Court, a peculiar situation was created in the
sense that the respondent-Judicial Officers were neither in service nor were
they technically out of service. They, however, did not perform any work. In
the circumstances, the Governor of State would pass a formal order of D
compulsory retirement of Judicial Officers on the basis of the recommendation
made in the Full Court meeting of the High Court on 7.11.1991, with effect
from the date when the recommendation was received by the Government, i.e.
2.12.1991. The Judicial Officers (which would include legal representatives
of the deceased Judicial Officer) would, thus, be entitled to their salary,
allowances and all other consequential benefits till 2.12.1991. E
. [488-H; 489-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4751of1992
etc.

From the Judgment and Order dated 8.8.91 of the Orissa High Court in F
O.J.C. No. 1594of1988.

Ashok Kumar Panda, (Jayant Das) Advocate General for the State of
Orissa, M.N. Krishnamani, K.K. Patel, T.K. Pradhan, R.P. Wadhawani, Y.
Prabhakara Rao, Radha Shyam Jena, C.S. Bhardwaj and Debasis Misra for the
appearing paities. G
In-person (N.P.) for Respondent No. 1 in C.A. Nos. 4752-53/92.

The Judgment of the Court was delivered by

K. VENKATASWAMI, J. An independent judiciary is one of the basic H
476 SUPREME COURT REPORTS ·[1999) SUPP. 2 S.C.R.

A features of the Constitution of the Republic. In this case, however, we are not
concerned with the various provisions of the Constitution guaranteeing
independence of judiciary but with a limited issue about the scope and extent
of control of the High Court over the subordinate judiciary to the exclusion
of the executive for maintenance of its independence. Our Constitution has
B zealously guarded the independence of judiciary. In S.P. Gupta, etc. v. Union
of India & Anr., etc., [ 1981] Supp. SCC 87, this Court held that independence
of judiciary is doubtless a basic structure of the Constitution but the said
concept of independence has to be confirmed within the four corners of the
Constitution and cannot go beyond the Constitution. This Court in All India
..
Judges' Association & Ors., etc. v. Union of India & Ors., etc., [1993] 4 SCC
C 288 held:

"In view of the separation of the powers under the Constitution, and
the need to maintain the independence of the judiciary to protect and
promote democracy and the rule of law, it would have been ideal ifthe
most dominant power of the executive and the legislature over the
.D judiciary, viz., that of determining its service conditions had been
subjected to some desirable checks and balances. This is so even if
ultimately, the service conditions of the judiciary have to be
incorporated in and declared by the legislative enactments. But the
mere fact that Article 309 gives power to the executive arid the
E legislature to prescribe the service conditions of the judiciary, does
not mean that the judiciary should have no say in the matter. It would
be against the spirit of the Constitution to deny any role to the
judiciary in that behalf, for theoretically it would not be impossible for
the executive or the legislature to tum and twist the tail of the judiciary
by using the said power. Such a consequence would be against one
F of the seminal mandates of the Constitution, namely, to maintain the
independence of the judiciary."

By way. of a note of caution we may add that the control vested in the
High Court over the subordinate judiciary though absolute and exclusive, it
G has to be exercised without usurping the power vested in the Executive under
the Constitution. This necessarily brings us to the consideration of Articles
233, 234 and 235 of the Constitution of India. Those Articles read thus :

"Article 233. Appointments of district judges.-{l) Appointments of
persons to be, and the posting and promotion of, district judges in
H any State shall be made by the Governor of the State in consultation
REGISTRAR(ADM.)HIGHCOURTOFORISSA ''· S.K. SATAPATHY[K. VENKATASWAMl,J.) 477
with the High Court exercising jurisdiction in relation to such State. A
... (2) A person not already in the service of the Union or of the State
shall only be eligible to be appointed a district judge if he has ·been
for not less than seven years an advocate or a pleader and is
recommended by the High Court for appointment.
B
Article 234. Recruitment of persons other than district judges to the

- judicial service.-Appointments of persons other than district judges
to the judicial service of a State shall be made by the Governor of the
State in accordance with rules made by him in that behalf a~et
consultation with the State Public Service Commission and witl(the C
High Court exercising jurisdiction in relation to such State.

Article 235. Control over subordinate courts.-The control over
district courts and courts subordinate thereto including the posting
and promotion of, and the grant of leave to, persons belonging to the
judicial service of a State and holding any post inferior to the post D

.. of district judge shall be vested in the High Court, but nothing in this
article shall be construed as talcing away from any such person any
right of appeal which he may under the law regulating the conditions
of his service or as authorising the High Courf' to deal with him
otherwise than in accordance with the conditions of his service E
prescribed under such law."

The backdrop in which the interpretation of the above Articles comes
into focus is given below.

The first respondent in Civil Appeal No. 4751192 at the relevant time F
was officiating as Chief Judicial Magistrale in the Orissa Superior Judicial
Service (Junior Branch). The first respondent in Civil Appeal Nos. 4752 and
4753 were officiating in Class-I of the Orissa Judicial Service. The Review
Committee constituted by the Full Court of the Orissa High Court met on
30.1.87 and decided to recommend to the Full Court that the first respondent G
in each of the appeals be retired prematurely in public interest. The
recommendation of the Review Committee was accepted by the Full Court,
which met on 4.2.87. Pursuant to that, the first respondent in each of the
appeals were retired prematurely as per the Notification issued by the High
Court on 5.2.87. That Notification was challenged in the High Court mainly
on the ground that the High Court was not vested with the power of making H
478 SUPREME COURT REPORTS (1999) SUPP. 2 S.C.R.

A an order of compulsory retirement. It was also challenged on the ground that
there were no materials against them to make the impugned order.

That the High Court could not itself have passed an order of compulsorily
retirement as above, which amounts to termination of service is borne out.
-
B p-om the plain language of the above Articles and in particular of Article 235'
read with Article 311. This question has been debated and answered by this
Court in a number of cases.

In The State of West Bengal v. Nripendra Nath Bagchi, (1966] I SCR
771, a Constitution Bench of this Court while setting aside an order of
C dismissal of an officiating District and Sessions Judge passed after consulting
the State Public Service Commission but without consulting the High Court,
elaborately considered the scope of Article 235. Hidayatullah, J., (as His
Lordship then was) speaking for the Bench observed thatthere is nothing in
Article 311 which compels the conclusion that the High Court is ousted of
_the jurisdiction to hold the inquiry if Article 235 vested some power in it. The
D control which is vested in the High Court is a complete control subject only
to the power of the Governor into the matter of appointment (including
dismissal and removal) and posting and promotion of District Judges. Within
the exercise of the control vested in the High Court, the High Court can hold
enquiries, impose punishments other than dismissal or removal subject however
E 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 clause (2) of Article 311, unless such an opportunity is dispensed with by
the Governor acting under the provisos (b) and (c) to that clause.

In State of Haryana v. Inder Prakash Anand HC.S. & Ors., (1976] 2
F SCC977, a four-Judge Bench of this Court had an occasion to consider the
scope and width of Article 235 of the Constitution. That was a case in which
the State Government compulsorily retired a senior Subordinate Judge though
the High Court recommended only for his reversion. This Court held :

Para 15-This Court in Bagchi's case said that control vested in
G 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
H Court in Bagchi 's case said that the word "deal" points to disciplinary
REGISTRAR(ADM.)HIGHCOURTOFORISSA v. S.K. SATAPATHY[K. VENKATASWAMI,J.) 479

and not merely administrative jurisdiction. The order terminating the A
appointment of a member of the service otherwise than upon his
reaching the age fvced for superannuation will be passed by the
State Government on the recommendation of the High Court. This is
because the High Court is not the authority for appointing, removing,
reducing the rank or terminating the service.
B
Para 16 - 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 governing the conditions of service is a matter pertaining·
to disciplinary control as well as administrative control. Disciplinary
control means not merely jurisdiction to award punishment for C
misconduct. It also embraces the power to determine whether the
record of a 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 Service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and D
disciplinary jurisdiction. It is administrative because it is decided in
public interest to retire him prematurely. It is disciplinary because the
decision was taken that he does not deserve to continue in service
up to the normal age of superannuation and that it is in the public
interest to do so. . E

Para 18 - The control vested in the High Court is that if the High F
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 G
the State· will act in harmony with the recommendation of the High
Court. If the recommendation of the High Court is not held to be
binding on the State consequences will be unfortunate. It is in public ·
interest that the State will accept the recommendation of the High
Court. The vesting of complete control over the subordinate judiciary
in the High Court leads to this that the decision of the High Court H
480 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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".

In State of U.P. v. Batuk Deo Pati Tripathi & Anr., [1978] 2 SCC 102,
a Constitution Bench of this Court again· had an occasion to consider the
B validity of an order of compulsory retirement passed by the State Governor
on the recommendation of the Administrative Committee of the High Court.
The High Court set aside the order compulsorily retiring the D_istrict Munsiff
on the ground that the recommendation by the Administrative Committee
cannot be construed as the recommendation of the High Court (Full Court).
C Reversing the judgment of the High Court and approving the procedure of
the recommendation through the Administrative Committee, this Court
observed:

"Here, the decision to compulsory retire the respondent was taken
by the Judges of the High Court itself, though not by all. If some but
D not all Judges of the High Court participate in a decision relating to
a matter which falls within the High Court's controlling jurisdiction
over subordinate courts, the High Court does not efface itself by
surrendering its poet to an extraneous authority. The procedure
adopted by the High Court under its Rules is not subversive of the ·
independence of the subordinate judiciary, which is what Article 235
E recognises and seeks to achieve.

The learned Judges further held that the recommendation made by the
Administrative Committee cannot be said to suffer from any legal or
constitutional infirmity.
F
In Chief Justice of A.P. & Ors. v. L. V.A. Dixitulu & Ors. etc., [1979] 2
SCC 34, a Constitution Bench of this Court again considered the validity of
an order of compulsory retirement passed by the State Governor on the
recommendation of the High Court. That order was challenged before the
G State Administrative Tribunal and this Court while holding that the State
Administrative Tribunal had no jurisdiction to entertain the appeal, observed
as follows :

"Respondent I, Shri V.V.S. Krishnamurthy, in that appeal was, at the
material time, a member of the Andhra Pradesh S~ate Judicial Service.
H He attained the age of 50 years on November 24, 1974. He was
REGISTRAR(ADM.)HIGHCOURTOFORISSAv.S.K.SATAPATHY[K.VENKATASWAMI,J.) 481
prematurely retired, in public interest, by an order dated September 29, A
1975 of the State Government on the recommendation of the High
Court. Before the Government passed this order, a Committee of Judges
appointed by the High Court, considered the entire service record of
respondent 1 and records of other Judicial Officers and decided to
prematurely retire the first respondent in public interest.
B

The interpretation and scope of Article 235 has been the subject
of several decisions of this Court. The position crystalised by these C
decisions is that the control over the subordinate judiciary vested in
the High Court under Article 235 is exclusive in nature, comprehensive
in extent and effective in operation. It comprehends a wide variety of
matters. Among others, it includes :

(a) ·························································· D
(b) ··························································
(c) ......................................................... .

(d) ......................................................... .
E
(e) ......................................................... .

(f)

(g) Premature or compulsory retirement of Judges of the District
· Courts and of Subordinate Courts.
F

In the last-mentioned case (Inder Prakash Anand) the Government
... . servant was officiating in the cadre of District Judges. The High Court G
recommended that he should be reverted to his substantive post of
senior Subordinate Judge/Chief Judicial Magistrate and, as such,

- allowed to continue in service till the age of 58 years. Contrary to the
recommendation of the High Court, the State Government passed an
order under Rule 5.32(c) of the Punjab Civil Service Rules, compulsorily
retiring him from service at the age of 55 years. Holding that the order H
482 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A of compulsory retirement was invalid, this Court stressed that the
power of deciding whether a judicial officer should be retained in
service after attaining the age of 55 years upto the age of 58 years,
vests in the High Court, and to hold otherwise "will seriously affect
the independence of the judiciary and take away the control vested
in the High Court". The fonnal order of retirement, however, is passed
B by the Governor acting on the recommendation of the High Court, that
being "the broad basis of Article 235". It was explained that "in such
cases it is the contemplation in the Constitution, that the Governor as
the Head of the State will act in hannony with the recommendation of
the High Court". Jt was concluded that "the vesting of complete
c 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". In other words, while inform, the High Court's
decision to compulsorily retire a subordinate judicial officer in the
exercise of its administrative or disciplinary jurisdiction under Article
235 is advisory, in substance and effect, it is well-nigh peremptory."
D
In Tej Pal Singh v. State of U.P. & Anr., [1986] 3 SCC 604, a Division y

Bench of this Court had occasion to consider a question whether the impugned
order of premature retirement passed by the Governor without having before
him the recommendation of the Administrative Committee or of the Full Court
E was void and ineffective. The learned Judges, after referring to earlier judgments
of this Court, held as follows :

"Para 4 - Article 235 of the Constitution provides that the control
over district courts and courts subordinate thereto including the
posting and promotion of and the grant of leave to persons belonging
to the judicial service of the State and holding any post inferior to the
F
post of District Judge shall be vested in the High Court. It has been
held in State of U.P. v. Batuk Deo Pati Tripathi that premature
retirement 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. Without the recommendation of the High Court it is not
G open to the Governor to _issue an order retiring prematurely Judges
of District Courts and of subordinate courts.

H Para 13 - ............... .In the instant case the Government had sought
REGISTRAR (ADM.) HIGH COURTOFORISSA r. S.K. SATAPATHY (K. VENKATASWAMl,J.] 483
the opinion of the High Court regarding the question whether the A
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 received from the government amongst the
B
members of the Administrative Committee or placed it before them at
a meeting. He did not adopt either of the two courses. But he on his
own forwarded his opinion 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 c
any particular 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 control
vests therein. Under the Rules obtaining in the Allahabad High Court, D
the Administrative Committee could act for and on behalf of the
government proposal was of no consequence and did not amount to
satisfaction of the requirement of Article 235 of the Co?stitution. 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 was actually served on the
appellant. The Administrative Committee not have dissented from the
E

order of Governor or the opinion expressed by the Administrative
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 premature retirement. In any event F
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 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
G
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 prematurely a District
Judge or a subordinate judicial officer. Such initiative should rest with
the High Court." H
484 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A In Registrar, High Court of Madras v. R. Rajiah, etc., [ 1988] 3 SCC 211,
this Court had an occasion to consider the validity of an order of compulsory
retirement passed by the High Court. The learned Judges held that the proper
procedure for the High Court was to recommend the case for compulsory
retirement and it was for the Governor on whom the recommendation of the
High Court was binding, to pass the formal order. This Court in the said case
1
B observed as follow :

"The test of control is not the passing of an order against a member
of the subordinate judicial service, but the decision to take such
action. It may be that so far as the members of the subordinate judicial
service are concerned, it is the Governor, who being the appointing
c authority, has to pass an order of compulsory retirement or 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
D the first part, a decision will have to be made whether an action will
be taken against the government servant. Under the second part, the
decision will be carried out by a formal order. The power of control
envisaged under Article 235 of the Constitution relates to the power
making a decision by the High Court against a member of the

E
subordinate judicial service. Such a decision is arrived at by holding
an enquiry by the High Court against the member concerned. After
...
the High Court comes to the conclusion that some action either in the
nature of compulsory retirement or by the imposition of a punishment,
as the case may be, has to be taken against the member concerned,
the High Court will make a recommendation in that regard to the
F Governor and the Governor will act in accordance with such
recommendation of the High Court by passing an order in accordance
with the decision of the High Court. The Governor cannot take any
action against any member of a subordinate judicial service without,
and contrary to, the recommendation of the High Court.

G

It is apparent from the observation extracted above that this Court
also understood the power of control of the High Court as the power
H of taking a decision against a member of the subordinate judicial
REGISTRAR(ADM.)HIGHCOURTOFORJSSA "· S.K. SATAPATHY [K. VENKATASWAMl,J.] 485
service. The High Court is the only authority that can take such a A
decision. The High Court will hold an enquiry and decide on the result
..
of such enquiry whether any action will be taken against a member
of the subordinate judicial service. If it comes to the conclusion that
such an action is required to be taken, it will make a recommendation
in that regard to the State Governor who will make an order in
accordance with the recommendation of the High Court.
B

···············································································
The control of the High Court, as understood, will also be applicable
in the case of compulsory retirement in that the High Court will, upon

•
an enquiry, come to a conclusion whether a member of the subordinate c
judicial service should be retired prematurely or not. If the High Court
comes to the conclusion that such a member should be prematurely
retired, it will make a recommendation in that regard to the Governor
inasmuch as the Governor is the appointing authority. The Governor
will make a formal order of compulsory retirement in accordance with
the recommendation of the High Court." D
No doubt, the learned Judges also found that there was no sufficient
material warranting an order of compulsory retirement in that case.

In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal
& Anr., [1998] 3 SCC 72, a two-Judge Bench of the Court while construing E
the scope and extent of Articles 233 to 235 of the Constitution, held as
follows:

"This article shows that the High Court has to exercise 'its
administrative, judicial and disciplinary control over the members ~f
the Judicial Service of the State. The word "control", referred to in this F
article, is used in ~ comprehensive sense to include general
superintendence of the working of the subordinate courts, disciplinary
control over the Presiding Officers of the subordinate courts and to
recommend the imposition of punishment of dismissal, removal and
reduction in rank or compulsory retirement. "Control" would also
include suspension of a member of the Judicial Service for purposes
G
of holding a disciplinary enquiry, transfer, confirmation and promotion.
(See State of Haryana v. Jnder Prakash Anand and State of UP. v.
Batuk Deo Pati Tripathi). In State of Gujarat v. Ramesh Chandra
Mashruwala it was held that "control" in Article 235 means exclusive
and not dual control. (See also ChiefJustice ofA.P. v. L. V.A. Dixitulu; H
486 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A State of W.B. v. Nriendra Nath Bagchi)."

On going through the judgments of this Court right from Shyam Lal v.
State of UP., [1955] I SCR 26 down to High Court ofJudicature/or Rajasthan
v. Ramesh Chand Paliwal & Anr., [1998] 3 SCC 72, one cannot but reach one
conclusion regarding the power of the High Court in the matter of ordering
B compulsory retirement. That conclusion is that the High Courts are vested
with the disciplinary control as well as administrative control over the Members
of the Judicial Service exclusively, but that does not mean that they can also
pass orders of dismissal, removal, reduction in rank or termination from
service while exercising administrative and disciplinary control over the
C Members of Judicial Service. Undoubtedly, the High Courts alone are entitled
to initiate, to hold enquiry and to take a decision in respect of dismissal, •
removal, reduction in rank or termination from service, but the formal order
to give effect to such a decision has to be passed only by the State Governor
on the recommendation of the High Court. It is well settled again by a catena
of decisions of this Court that the recommendation of the High Court is
D binding on the State Government/Governor [vide para 18 in lnder Prakash
Anand's case (supra)].

We are clearly of the view that while the High Court retains the power
of disciplinary control over the subordinate judiciary, including the power to
initiate disciplinary proceedings, suspend them pending enquiries and impose
E punishment on them but when it comes to the question of dismissal, removal,
reduction in rank or termination of the services of the judicial officer, on any
count whatsoever, the High Court becomes only the recommending authority
and cannot itself pass such an order [vide Inder Prakash Anand's case and
Rajiah 's case (supra)].
F In the instant case, the decision of the Orissa High Court dated 4.2.87
(on the Administrative Side) was required to be forwarded to the Governor
for passing an order of compulsorily retirement. That was not done. It was
wrong for the High Court to have passed the order of compulsory retirement
itself. The judicial side of the High Court rightly decided the Writ Petition in
G favour of the judicial officers and held the order dated 5.2.87 to be bad. In
the words of the Division Bern;:h of the High Court :

"There is a stronger constitutional objection to accept the submission
of Shri Nayak for regarding the, High Court as the appointing authority
of the Chief Judicial Magistrate on the basis of what has been provided
H in rule 10 of the Orissa Superior Judicial Service Rules, 1963, inasmuch
REGIS1RAR(ADM.)HIGHCOURTOFORISSA1•.S.K.SATAPATHY[K. VENKATASWAMI,J.) 487
as it has been laid down in Article 234 of the Constitution that A
appointments of persons other than District Judges to the judicial
service of a State shall be made by the Governor of the State in
accordance with the rules made by him in that behalf. The aforesaid
rules are one set of such rules. So, no provision in the rules could
have altered the constitutional position that the Governor of the State B
is the appointing authority of persons other than District Judges also.
Conferment of this power on the High Court by virtue of what is
stated in rule I 0 of the Orissa Superior Judicial Service Rules would
have clashed with the constitutional mandate. We would therefore,
not accept because of what is stated in rule I 0 that the High Court
is the appointing authority of a Chief Judicial Magistrate." C

In view of all that is stated above, we would hold that the High D
Court is not the appointing authority of Chief Judicial Magistrates to
clothe it with the power of compulsory retirement conferred by the
First proviso to rule 71 (a) of the Orissa Service Code. In this
connection, may we also point out that it would be really incongruous
where, though the High Court cannot retire a Munsif, or for that
matter a District Judge, as fairly conceded by Shri Nayak it would be E
in a position to retire a Chief Judicial Magistrate. We do not think if
the concerned provisions permit us to take this view.

Before closing this aspect of the discussion, we may say that we
are conscious of the legal position that passing of an order of
compuls~ry retirement by the Governor is a formal matter as stated in F
Rajiah 's case (supra) because, according to this decision, the Governor
in such cases merely acts on the recommendation of the High Court
by signing an order in that regard; but the procedure of the Governor
formally passing an order of retirement has to be complied with. So
long as there is no formal order of the Governor, the compulsory G
retirement as directed by the High Court cannot take effect, as opined·
in Rajiah 's case itself.

Having come to the aforesaid conclusion, it is not necessary to
deal with the second submission of Shri Ray that there were no
materials in the present case to order for the compulsory retirement H
488 SUPREME COURT REPORTS (1999) SUPP. 2 S.C.R.

A of the petitioner........

The judgment of the Division Bench of the High Court is strictly in
accord with the catena of judgments referred to above and in particular with
the judgment in Rajiah 's case (supra). We, therefore, see no error in the orders
under appeal.
B
Had the matters rested here, there would have been no problem but the ~-

subsequent developments have given a new tum and twist to the case.

After the judgment of the Division Bench of the High Court, it appears,

-
the Full Court on the Administrative Side on 7.11.91 decided to rriake a
c recommendation to the Government for compulsory retirement of the concerned
Judicial Officers . ..'.fhat recommendation was forwarded to the Government on
26.11.91. In the meanwhile, the High Court had also put in issue the judgment
of the Division Bench through the Special Leave Petitions out of which the
present appeals have arisen and an interim order dated 19.12.91 made at the
D notice stage was as follows:-

"Issue notice on the S.L.P. and I.A. No. 1/91 and tag on to S.L.P.
(C) No. 18266/91. In the meantime, the operation of the impugned
judgment shall remain stayed.

It .is stated by the Learned counsel for the respondent No. l that
E he was permitted to join. In view of our present order he will not now
work in the post he has joined.

Once month's time is allowed to the respondent No. l for filing

F
his Counter Affidavit and two weeks thereafter to the petitioner for
rejoinder." •
After the recommendation of the Full Court was received, the Government
on 2.12.91 chose not to proceed further on the plea that the matter was
pending in the Supreme Court. They declined to act further on the
recommendation. This, the Government could not have done. The course
G open to the Government was to forward the recommendation of the High
Court to the Governor. who would have passed an order in accordance. with
the recommendation made by the High Court as has been held in Inder
Prakash Anand's case (supra) because the recommendation of the High Court
was binding on the Government.

H By not making an order of compulsory retirement on the recommendation
REGISTRAR(ADM.)HIGHCOURTOFORISSA r. S.K. SATAPATHY (K. VENKATASW AMI,J.] 489
of the High Court, a peculiar situation was created in the sense that the A
Judicial Officers were neither in service nor we_re they technically out of
service. They, however, did not perform any work. The question, therefore,
now arises as to what is the manner in which relief can be moulded to balance
equities between the parties by this Court, so that the litigation itself is given
a quietous.
B
The first respondent in Civil Appeal No. 4751192 has died pending
appeal. His legal representatives had been qrought on record. The first
respondent in other two appeals have since retired.

Mr. Jayant Das, learned Advocate General, appearing for the State C
Government, as well as learned counsel appearing for the High Court rightly
agreed with the suggestion made on behalf of the Judicial Officers that on
the basis of the recommendation made by the Full Court of the High Court
on 7.11.91, the Governor of State be requested to pass a formal order of
compulsory retirement of Judicial Officers with effect from the date when the
recommendation was received by the Government, i.e. 2.12.91. The Judicial D
Officers (which would include legal representatives in the case of deceased
1st respondent in C.A. No. 4751192) would, thus, be entitled to their salary,
allowances and all other consequential benefits till 2.12.91. This suggestion
appeals to us also as it will balance the equities between the parties and set
at naught a controversy which has unnecessarily remained pending for so
long. The arrears as per the above terms shall be paid to the Judicial Officers E
within three months from the date of receipt of this judgment.

The appeals stand disposed of accordingly. There will be no order as
to costs.

RP. Appeals disposed of. F

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