Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7781      OF 2011 (Arising out of SLP (C) No. 27028/2008)

RAJENDRA SINGH VERMA (Dead) Through LRs   ... Petitioner(s)   

Versus

LT. GOVERNOR OF  NCT OF DELHI & ANR.   ..... Respondent(s)

WITH

CIVIL APPEAL NO.   7782     OF 2011 (Arising out of SLP (C) No. 27200/2008)

WITH

CIVIL APPEAL NO.    7783    OF 2011 (Arising out of SLP (C) No. 314/2009)

J U D G M E N T

J.M. Panchal, J.

Leave granted in each of the special leave petition.

2. These appeals, by the grant of special leave, are directed  

against common judgment dated May 2, 2008 rendered by the  

Division Bench of the High Court of Delhi in C.W.P. No. 2157  

of 2002, C.W.P. No.1965 of 2002 and C.W.P. No.2362 of 2002.  

The  appellants  were  the  Members  of  Delhi  Higher  Judicial  

Service  (‘D.H.J.S.’,  for  short).   Mr.  M.S.Rohilla  and  Mr.  

P.D.Gupta were compulsorily retired from service under Rule  

56 (j) of the Fundamental Rules, read with Rule 33 of the Delhi  

Judicial Service Rules 1970, whereas deceased Mr. R.S.Verma  

was compulsorily retired from service under Rule 16(3) of All  

India Service (Death-cum-Retirement Benefit) Rules 1958 read  

with Rule 27 of the Delhi Higher Judicial Service Rules 1970,  

on  different  dates.   They  had  challenged  orders  of  their  

compulsory  retirement  from  service  by  filing  Writ  Petitions  

under Article 226.  Though the result of each appeal would  

depend on its own facts, having regard to the commonality of  

submissions  on  legal  aspects,  this  Court  had  tagged  these  

cases together and heard them one after the other.  This Court  

proposes  to  dispose  of  the  three  appeals,  by  this  common  

Judgment  for  the  sake  of  avoiding  repetitiveness  of  legal  

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principles.  However, the Court proposes to consider each case  

on its own merits.   

With these observations, the Court proposes to deal with  

appeal arising out of Special Leave to Appeal (Civil) No.27028  

of 2008, filed by Mr. Rajendra Singh Verma against decision in  

C.W.P. No.2157 of 2002.  Mr. Verma was born on April 13,  

1950.  After enrolling himself as an advocate, he had started  

legal practice in the year 1980.  In the year 1994 applications  

were invited from practicing advocates for direct recruitment  

to the D.H.J.S.  Mr. Verma had also applied pursuant to the  

said  advertisement  and after  interview he  was selected and  

was offered appointment to D.H.J.S.  He joined the service on  

9.3.1995 and was aged about 45 years on the date of joining  

service.   He  worked  as  Additional  District  Judge  at  

Karkardooma Courts,  Shahdara,  Delhi.   For the year 1995-

1996 he was given a ‘B’ remark in the A.C.R., which means his  

performance was average.  From April 1, 1999 to December 7,  

2000, he functioned as Sessions Judge, Tis Hazari, Delhi.

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3. By the year 2000 he had rendered service of five years.  

It may be mentioned that a Screening Committee consisting of  

two Hon’ble Judges of Delhi High Court was constituted for  

screening the cases of those officers of the D.H.J.S. and Delhi  

Judicial  Service,  who  had  either  completed  thirty  years  of  

service  or  had  attained  the  age  of  50/55  years  and  for  

considering  the  question  whether  those  Judicial  Officers  

should  be  continued  in  service  or  should  be  prematurely  

retired  in  public  interest.   The  Screening  Committee  

considered the cases of several officers including that of Mr.  

Verma  under  Rule  56  (j)  of  the  Fundamental  Rules.   The  

learned  members  of  Screening  Committee  perused  service  

record including the ACR dossiers of the Judicial Officers but  

did  not  find,  for  the  time  being,  any  Officer  who  could  be  

retired prematurely in public interest as on July 17, 2000.  A  

copy of the abstracts from the Minutes of the Meeting of the  

Full Court of Delhi High Court held on July 22, 2000 indicates  

that the Full Court had accepted the report of the Screening  

Committee.   

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However, by an order dated December 7, 2000 which was  

served upon Mr. Verma on December 8, 2000, judicial work  

entrusted to him was withdrawn with immediate effect.  He  

was  made  in-charge  of  all  the  record  rooms  in  Tis  Hazari  

Courts, Delhi.  ACRs of four years i.e. from the year 1997 to  

the year 2000 were not communicated to him on due dates.  

From the record it is evident that ACRs of Mr. Verma for the  

years 1997, 1998 and 1999 were written in one go and he was  

awarded ‘C‘ remark, which means below average.  The ACRs  

for above mentioned three years were communicated to him on  

January  8,  2001  whereupon  he  had  made  representation  

against the same on February 16, 2001.   

4. In the A.C.R. for the year 2000, he was given ‘C-’ remark,  

which  means  his  integrity  was  doubtful.   While  

communicating  the  ACR for  the  year  2000,  he  was given a  

time of six weeks to make representation against the same.  

Such communication was received by him on September 25,  

2001.  On September 21, 2001 the Screening Committee of the  

High  Court  decided  to  retire  Mr.  Verma  compulsorily  from  

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service.  The Full Court of the Delhi High Court accepted the  

recommendation  made  by  the  Screening  Committee  in  its  

meeting  held  on  September  22,  2001.   After  acceptance  of  

recommendation  of  the  Screening  Committee  by  the  Full  

Court, entire work entrusted to him was withdrawn by a letter  

dated  September  24,  2001.   He  made  representation  dated  

September 25, 2001 against the proposed order retiring him  

compulsorily  from  service.   He  was  thereafter  served  with  

order  dated  September  27,  2001  retiring  him  compulsorily  

from service with effect from September 28, 2001.  The record  

shows that the representation dated 16.2.2001 made by Mr.  

Verma against ACRs for the years 1997, 1998 and 1999 was  

rejected on October 5, 2001.  Against the A.C.R. for the year  

2000, Mr.  Verma had made a representation dated October  

13, 2001, which was received by the High Court on September  

25,  2001.   This  was rejected  by the  High Court  vide  order  

dated November 25, 2001.   

5. Thereupon Mr. Verma had filed C.W.P. No. 2157 of 2002  

before  the  Delhi  High  Court  challenging  the  order  of  

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compulsory retirement dated September 27, 2001.  The reliefs  

claimed in the petition filed by him are enumerated in detail in  

paragraph 7 of the impugned judgment and, therefore, it is not  

necessary  to  reproduce  the  same  in  this  judgment.   The  

prayers  made  by  Mr.  Verma  in  his  Writ  Petition  were  

essentially based on the following grounds, namely, (1) ACRs  

for the years 1997, 1998 and 1999 were not recorded as and  

when they fell  due and, therefore,  he had reason to believe  

that  nothing  adverse  was  found  against  his  judicial  work  

and/or conduct whereas recording of ACRs for the three years  

at the same time on January 3, 2001, was illegal. (2) There  

was  no  inspection  by  the  Hon’ble  Inspecting  Judge  for  the  

years 1997,  1998,  1999 and 2000 as a result of  which the  

decision to retire him prematurely from service on the basis  

that his performance was below average and his integrity was  

doubtful, was bad in law. (3) In July, 2000 when the Screening  

Committee  had  reviewed  the  cases  of  various  Officers  of  

D.H.J.S.  for  premature  retirement  in  public  interest,  no  

recommendation  was  made  to  retire  anyone  including  him,  

compulsorily  from  service  and  thus  review  of  his  case  on  

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September 21, 2001 by the Screening Committee, on the same  

material,  was impermissible.   (4)  Adverse entry for  the year  

2000  was  served  upon him on September  25,  2001  vide  a  

letter dated September 21, 2001 from the Registrar (Vigilance),  

High  Court  whereas  the  recommendation  made  by  the  

Screening  Committee  on  September  21,  2001  to  retire  him  

compulsorily from service was accepted by the Full Court in its  

meeting held on September 22, 2001, on the basis of which  

the  Lt.  Governor  of  Delhi  passed  the  order  of  compulsory  

retirement on September 27, 2001 which was communicated  

to him on September 28, 2001 and as he was deprived of right  

to make meaningful  representation against  ACR of  the year  

2000,  the  order  retiring  him compulsorily  from service  was  

liable to be set aside. (5) His representation against the entries  

for  the  years  1997,  1998 and 1999 was rejected vide letter  

dated October 5, 2001, which was received by him on October  

8, 2001 whereas his representation dated October 13, 2001  

against the entry for the year 2000 was dismissed by order  

dated  April  5,  2002,  before  which  order  of  compulsory  

retirement from service was passed against him on September  

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28, 2001 and thus non-consideration of representation before  

passing order of compulsory retirement had vitiated order of  

his compulsory retirement.  (6)Before taking decision to retire  

him prematurely from service opportunity of being heard was  

not given to him.  (7) The circumstances of the case indicated  

that the Order of compulsorily retirement passed against him  

was  punitive,  arbitrary,  mala  fide  and  in  violation  of  the  

principles of natural justice.

6. In support of these submissions, Mr. Verma had relied  

upon decisions in (a)  Baikunth Nath Das Vs.  Chief District  

Medical  Officer,  Baripada (1992)  2  SCC  299;  (b)  Madan  

Mohan Choudhary Vs. State of Bihar (1999) 3 SCC 396; (c)  

High Court of Punjab & Haryana Vs. I.C. Jain (1999) 4 SCC  

579; (d) High Court of Judicature at Allahabad Vs. Sarnam  

Singh & Another (2000) 2 SCC 339; (e) Bishwanath Prasad  

Singh Vs. State of Bihar (2001) 2 SCC 305; (f) State of U.P.  

Vs  Yamuna Shanker Mishra (1997) 4 SCC 7; (g)  Registrar,  

High Court of Madras Vs.  R. Rajiah (1988) 3 SCC 211; (h)  

M.S. Bindra Vs. Union of India & Others (1998) 7 SCC 310;  

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(i) Ram Ekbal Sharma Vs. State of Bihar & Another (1990) 3  

SCC 504; (j) Anoop Jaiswal Vs. Govt. of India (1984) 2 SCC  

369;  and  (k)  Padam Singh Vs.  Union of  India  &  Others,  

2000 (III) AD (Delhi) 430 (D.B.).  

7. On Service of notice, the respondent No.1, namely, the Lt.  

Governor, Administrator (Government of N.C.T. of Delhi) and  

the respondent No.2,  i.e.,  the High Court  of  Delhi  had filed  

their  separate  counter  affidavits  opposing  the  Writ  Petition.  

The  High  Court,  in  its  reply,  amongst  other  things  had  

explained that the date of birth of Mr. Verma was April  13,  

1950 and, therefore, review of his case on September 21, 2001  

when he had completed fifty  one years of  age was perfectly  

legal.  According to the High Court, his case was reviewed by  

the  Screening  Committee  on  September  21,  2001  and  the  

Committee had recommended that he should be compulsorily  

retired from service keeping in view his overall service record,  

ACRs and performance.  The High Court mentioned in its reply  

that the recommendation made by the Screening Committee  

was accepted by the Full Court on September 22, 2001.  What  

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was asserted by the High Court was that the decision of the  

Full Court was just and reasonable having regard to the ACRs  

of Mr. Verma.  

8. The Division Bench hearing the petition filed by Mr.  

Verma  had  summoned  the  entire  service  record  

relating  to  his  case.   After  hearing  the  learned  

counsel  for  the  parties  and  considering  the  

materials  on the record,  the  High Court  observed  

that a mere glance at the ACRs of Mr. Verma and  

other  records  was  enough  to  conclude  that  the  

decision to retire him compulsorily from service was  

well founded.  The High Court discussed principles  

laid down by this Court in   the case of  Baikunth  

Nath  Das (supra)  with  regard  to  compulsory  

retirement  under  Rule  56(j)  of  the  Fundamental  

Rules,  and  also  took  into  consideration  the  

principles of law as to when interference by a writ  

Court  with  the  decision  of  compulsory  retirement  

would be justified.  Having noticed the law, the High  

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Court  held  that  principles  of  natural  justice  were  

not attracted in case of compulsory retirement.  The  

High Court observed that in this case the ACRs for  

three years were recorded at the same time which  

according to High Court was not proper, but held  

that  there  is  no  absolute  proposition  of  law  that  

recording of  ACRs at  once would be  perse illegal.  

The  High  Court  expressed  the  view  that  if  good  

reasons were noted for which the ACRs could not be  

recorded  by  stipulated  dates  and  the  matter  of  

recording of ACRs had to be deferred, the recording  

of ACRs of few years at one point of time would not  

render the same illegal.  The High Court noticed the  

reasons as to why ACRs for the years 1997, 1998  

and 1999 were recorded in one go, and thereafter  

held  that  there  was  sufficient  explanation  for  

recording the ACRs of three years at one time.  The  

argument  that  there  was  no  material  justifying  

recording  such  ACRs  was  considered  to  be  

misconceived  in  view  of  settled  legal  position.  

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According  to  the  High  Court  the  entire  service  

record  of  Mr.  Verma from 1995 to  2000 revealed  

that  even for  one year  he  had not  earned “Above  

Average” remark and his performance and conduct  

as a judicial officer in fact had kept on deteriorating  

and  shown a  downward  trend.   After  taking  into  

consideration the law on the point, the High Court  

concluded  that  action  under  Fundamental  Rule  

56(j)  need  not  await  the  disposal  of  the  

representation  made  against  the  ACRs  and,  

therefore,  the  order  of  compulsory  retirement  

passed against him after taking into consideration  

the ACR for the year 2000 was not bad in law.   

9. In  view  of  the  above  conclusions  the  High  Court  

dismissed the petition which has given rise to the  

above numbered appeal.  

10. It  may be mentioned that during the pendency of  

the SLP the original petitioner that is Mr. Rajendra  

Singh Verma expired in October, 2009.  Therefore,  

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the  appeal  is  being  prosecuted  by  his  legal  

representatives.  

11. The facts giving rise to the appeal arising out of SLP  

(C) No. 314 of 2009, are as under:

The appellant Mr. Purshottam Das Gupta was born on  

24.12.1949.  He joined Delhi Judicial Service on 28.01.1978.  

He was granted selection grade on 03.06.1993 retrospectively  

with effect from 31.05.1991.  He joined as Additional Senior  

Civil Judge Delhi on 06.01.1996.  According to him his work  

and conduct  from 1978 to  1992 was graded as  “B”,  which  

means his performance was average.   In the year 1995 the  

Inspecting  Judge  reported  that  “I  have  not  inspected  his  

Court, but I have heard complaints about integrity”, and left  

column  nos.  6  and  7  to  be  filled  up  by  Full  Court.   On  

18.05.1996 the Full Court recorded ACR for the years 1994-95  

as “C-Integrity Doubtful” and on the basis of the same denied  

promotion to him to Delhi Higher Judicial Service.  Mr. Gupta  

filed a representation against adverse ACR for the year 1994-

95 on 10.07.1996.  The High Court rejected the same by an  

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order  dated  05.09.1997.   On  26.09.1997  the  Full  Court  

recorded his ACR for the year 1996 as “B”.  He filed W.P.(C)  

No. 4334 of 1997 against his non-promotion to Delhi Higher  

Judicial Services and also prayed to expunge adverse remark  

for the year 1994-95.  Pending the said petition, the Full Court  

on 22.05.1998 recorded  his  ACR for  the  year  1997 as  “B”.  

W.P.(C) No. 4334 of 1997 filed by Mr. Gupta was allowed by a  

Single  Judge  of  the  High  Court  vide  Judgment  dated  

28.05.1999 and the adverse remark for the year 1994-95 was  

quashed.  Thereupon, he was granted deemed promotion with  

seniority.  The High Court on its administrative side filed LPA  

No.  329  of  1999  against  Judgment  dated  28.05.1999.   On  

24.12.1999 he attained the age of 50 years.  In July 2000 the  

Screening  Committee  had  reviewed  the  cases  of  various  

officers of  DHJS including that of  Mr.  Gupta for  premature  

retirement in public interest.  The Screening Committee gave  

report dated July 17, 2000.  In the report it was mentioned  

that  the  Members  of  the  Screening  Committee  had  gone  

through the service record including the ACR dossiers of the  

officers  of  Delhi  Higher  Judicial  Service  and  Delhi  Judicial  

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Service who were within the zone of consideration for being  

considered for premature retirement in public interest at the  

age of 50/55 years, but they did not find, for the time being,  

any  Officer  who  could  be  retired  prematurely  in  public  

interest.  The Full Court considered the report of Screening  

Committee in its meeting held on 22.07.2000 and accepted the  

report.  However, on 29.07.2000 the Full Court recorded ACR  

of  the  appellant  for  the  year  1999  as  “C”.   On  ACR being  

communicated,  to  him,  he  filed  representation  dated  

08.09.2000.

12. The LPA No. 329 of 1997 filed by the High Court  

against Judgment dated 28.05.1999 rendered by a  

Single Judge in W.P.(C) No. 4334 of 1997 which was  

filed by the appellant, was accepted by the Division  

Bench  vide   Judgment   dated  09.02.2001.   The  

record  does  not  indicate  that  the  Judgment  

rendered by the Division Bench in LPA No. 329 of  

1997  was  subjected  to  challenge  by  Mr.  Gupta  

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before higher forum.  It may be mentioned that Mr.  

Justice  M.S.A.  Siddiqui  was  nominated  as  

Inspecting Judge of the court of Mr. Gupta for the  

year 2000.  The case of Mr. Gupta is that he had  

sent one copy each of his five Judgments delivered  

by him during the year 2001, on 18.05.2001 as was  

requisitioned by the learned Inspecting Judge.  The  

learned  Inspecting  Judge  retired  on  29.05.2001  

without giving his report in respect of Mr. Gupta for  

the  year  2000.   The  representation  made  against  

adverse ACR for the year 1999 was rejected by the  

High  Court  vide  order  dated  01.06.2001.   The  

record  does  not  show that  the  said  decision  was  

challenged by Mr. Gupta before higher authority or  

in court of law.  Thus the ACR for the year 1999  

had attained finality.  According to Mr. Gupta, Mr.  

Justice  K.S.Gupta  who  was  not  his  inspecting  

Judge for any year visited his Court on 07.09.2001  

and directed him to send copies of three Judgments  

delivered  by  him  during  2000,  which  requisition  

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was  complied  with  by  him.   The  record  would  

indicate that Mr. Justice K.S.Gupta submitted his  

inspection report for the year 2000 on 11.09.2001  

for consideration of the Full Court.  On 21.09.2001,  

the Full Court recorded ACR of Mr. Gupta for the  

year  2000  as  “C  (Integrity  Doubtful)”.   On  

21.09.2001  the  Screening  Committee  of  the  High  

Court  submitted  its  report  recommending  his  

premature retirement from service.  The Full Court  

in  its  Meeting  dated  22.09.2001  recommended  

premature  retirement  of  Mr.  Gupta  to  the  Lt.  

Governor  of  Delhi  (The  Administrator).   On  

21.09.2001 he was communicated ACR for the year  

2000  and  he  was  granted  six  weeks  time  to  file  

representation  against  the  same.   Meanwhile  the  

Administrator  (Lt.  Governor  of  Delhi)  passed  an  

order  dated  27.09.2001,  prematurely  retiring  him  

from service, under Fundamental Rule 56 (j) of the  

Fundamental  Rules  read  with  Rule  33  of  Delhi  

Judicial Service Rules, 1970.  The appellant made a  

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representation against adverse entry in the ACR for  

the year 2000, on 29.10.2001 i.e. after the appellant  

was  retired  compulsorily  from  service.   The  

appellant  also  addressed  a  representation  dated  

16.11.2001 to the Administrator against the order  

retiring him compulsorily from the service.  It was  

forwarded by the Administrator, to the High Court  

for necessary action. The High Court by order dated  

12.02.2002 rejected the representation made by the  

appellant on 16.11.2001 which was addressed to Lt.  

Governor.   The  representation  of  the  appellant  

against  adverse  ACR  for  the  year  2000  was  also  

rejected  by  the  High  Court  vide  order  dated  

16.03.2010.  Feeling aggrieved by the order retiring  

him  compulsorily  from service  the  appellant  filed  

W.P.(C) No. 2362 of 2002 in the High Court and also  

prayed to expunge adverse remarks in his ACR for  

the years 1999 and 2000.  

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13. On  service  of  notice  the  High  Court  filed  reply  

affidavit  controverting  the  averments  made  in  the  

petition.   It  was  explained  in  the  reply  that  the  

Screening Committee of the two learned Judges had  

considered  the  overall  service  record  of  the  

appellant  and  found  that  his  performance  and  

conduct  were  recorded  as  average  for  the  years  

1979-80, 1980-81, 1999, 1997 and 1998.  The High  

Court mentioned in the reply that in the report for  

the year 1995, the Inspecting Judge had recorded  

that he had heard complaints about the integrity of  

the appellant.  According to the High Court, again in  

the  inspection  report  for  the  year  1999-2000  the  

Inspecting Judge, in respect of judicial reputation of  

the appellant and in respect of his impartiality and  

integrity,  had recorded that  the  appellant  did  not  

enjoy good reputation.  As per the reply, the case of  

the  appellant  was  considered  for  promotion  

on18.05.1996 but he was not found fit at that time  

and even in the subsequent selections as a result of  

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which he was not promoted.  What was highlighted  

in  the  reply  was  that  for  the  year  1994-95  the  

appellant  was  granted  “C-Integrity  Doubtful”  

whereas for the year 1999 he was granted “C (Below  

Average)” and for the year 2000 he was granted “C-

Integrity Doubtful”, and keeping in view the over all  

assessment  of  service  record,  the  Screening  

Committee had recommended that the appellant be  

prematurely retired from service in public interest  

forthwith.   It  was explained in  the  reply  that  the  

report of the Screening Committee with respect to  

number of Judicial  Officers was placed before the  

Full  Court  of  the  High  Court  and the  Full  Court  

after  considering  the  report  of  the  Screening  

Committee and the work and conduct as reflected in  

service  record  and  general  reputation  of  the  

appellant as well as of other officers, had resolved  

that  it  be  recommended  to  the  Administrator,  

Government of NCT of Delhi to retire the appellant  

and others forthwith in public interest.   The High  

21

Court mentioned in the reply that the Lt. Governor  

had  accepted  the  recommendations  of  the  High  

Court  and  vide  order  dated  27.09.2001,  the  

appellant  was  compulsorily  retired  in  public  

interest.  It was further stated in the reply that the  

appellant had preferred  a representation before  the  

Lt.  Governor  who  after  going  through  his  service  

record  including  assessments  made  by  the  

Inspecting Judge along with the recommendations  

of  the  Screening Committee  and the resolution of  

the Full Court of the High Court had concluded that  

the appellant was not fit to be continued in service  

and his representation was rejected by order dated  

13.09.2001 which was communicated to him vide  

order dated 27.09.2002.

14. The High Court after hearing the learned Counsel  

for the parties concluded that so far as ACR for the  

year  1999-2000 was concerned,  there  was  hardly  

any reason to interfere with the same.  The High  

22

Court  noted  that  the  ACR  for  the  year  1994-95  

recording “C-Integrity Doubtful” was upheld by the  

High  Court,  on  judicial  side,  on  the  ground  that  

there was sufficient material to record the said ACR.  

According to the High Court  the Judgment of  the  

Division  Bench of  the  Delhi  High Court  in  L.P.A.  

was upheld by the Supreme Court which operated  

as  res-judicata  so  far  as  the  appellant  was  

concerned.   The High Court,  on the basis  of  said  

fact, came to the conclusion that the action of the  

High  Court  on  its  administrative  side,  to  

compulsorily retire the appellant from service would  

be sustainable as easing out a person with integrity  

doubtful.  The High Court noticed that so far as the  

ACR for the year 1999 was concerned the appellant  

was  given  “C”  grading  i.e.  below  average  and  

representation  made  by  him  was  rejected  by  the  

Full Court in its Meeting held on 19.05.2001.  High  

Court after looking into the over all career profile of  

the appellant held that it was totally untenable to  

23

allege that there was any bias or mala fide against  

him.

15. In  view  of  the  above  mentioned  conclusions  the  

High Court rejected the petition.

16. Thereupon,  the  petitioner  filed  Review  Petition  

before  the  High  Court.   However,  the  same  was  

withdrawn  with  a  view  to  filing  SLP  against  

Judgment  delivered by High Court  in  W.P.(C)  No.  

2362  of  2002.   After  withdrawing  the  review  

application,  the  appellant  filed  Special  Leave  

Petition  no.  314  of  2009  which  on  leave  being  

granted is treated as an appeal.

17. The facts of the appeal arising out of Special Leave  

to Appeal No.27200 of 2008 are as under :-

The appellant,  i.e.,  Mr.  M.S.  Rohilla  was appointed  as  

Civil/Sub. Judge, in the Subordinate Judicial Services under  

the Government of Delhi on May 05, 1972.   On June 17, 1975  

he was confirmed as an officer in the Delhi Judicial Services.  

24

He was granted benefit  of Selection Grade on June 3, 1980  

and  was  promoted  to  the  Higher  Judicial  Services  as  

Additional  District  & Sessions Judge on November 1,  1989.  

One anonymous complaint was received against him and, after  

looking into the same, he was reverted to Subordinate Judicial  

Services,  as  Civil/Sub.  Judge  by  order  dated  February  15,  

1995.  Feeling aggrieved, he had preferred W.P. No. 4589 of  

1995, challenging his reversion.  Meanwhile,  he was served  

with  a  communication  from the  High  Court  of  Delhi  dated  

October 23, 1997 wherein his A.C.R. for the year 1996 was  

graded  as  ‘C’.   Thereupon he  made  a  representation  dated  

December  3,  1997  against  the  said  grading.   The  

representation  made  by  him  was  rejected  on  December  2,  

1998.  The record does not show that any steps were taken by  

him to challenge order dated December 2, 1998 by which his  

representation against ACR for the year 1996 was rejected.

18. Thereafter  he  received  a  communication  from the  

High  Court  in  the  year  1999  whereby  he  was  

informed that in his A.C.R.  for the year 1997, he  

25

was  awarded  ‘B’  remark.   Again  by  a  

communication dated February 9, 2000 forwarded  

by the High Court he was informed that in his ACR  

for the year 1998 he was graded ‘B’.   He made a  

representation against his ACR for the year 1998 in  

the  year  2000.   In  July,  2000  the  Screening  

Committee consisting of Hon’ble Judges of the High  

Court  of  Delhi  reviewed the  case of  the  appellant  

with  that  of  several  other  judicial  officers.   As  

observed  earlier,  the  deliberations  made  by  the  

Screening Committee indicate that it did not find,  

for the time being, any officer who could be retired  

prematurely in public interest as on July 17, 2000.  

A  copy  of  the  abstracts  from  the  Minutes  of  the  

meeting  of  the  Full  Court  of  High  Court  of  Delhi  

held on July 22, 2000 produced on the record of the  

case,  indicates  that  Full  Court  had  accepted  the  

report of the Screening Committee.  In July, 2000  

he received a communication from the High Court  

mentioning  that  his  ACR  for  the  year  1999  was  

26

graded  as  ‘B’.   On  21.9.2001  he  received  a  

communication from the High Court with reference  

to  the  ACR  for  the  year  2000  whereby  he  was  

informed that he was given Grade ‘C’.  It was further  

mentioned  therein  that  his  integrity  was  found  

doubtful.  By the said communication, he was given  

six weeks time to make a representation against the  

said  grading.   According  to  Mr.  Rohilla,  when  he  

was  awaiting  the  response  to  his  previous  

representations made with reference to the ACRs for  

the years 1998 and 1999 and when he was yet to  

respond to the ACR for the year 2000, he received  

communication dated September 27, 2001 from the  

High  Court  prematurely  retiring  him from service  

under rule 56(j) of the fundamental Rules read with  

Rule 33 of the Delhi Subordinate Judicial Services.  

According  to  him  he  made  a  representation  

requesting the respondents to supply the material  

upon  which  decision  was  taken  to  prematurely  

retire him from service.  As he was called upon to  

27

make a representation against the ACR for the year  

2000  within  six  weeks  from  the  date  of  

communication  dated  21.9.2001,  he  filed  

representation dated November 3, 2001 against the  

same but of no avail.  Ultimately, in the month of  

March  2002  he  filed  W.P.  No.  1965  of  2002  

challenging order of his compulsory retirement from  

service.   Pending  the  said  Writ  Petition,  the  Full  

Bench of the High Court hearing W.P. No. 4589 of  

1995 which was directed against  the  order  of  his  

reversion  dated  February  15,  1995,  allowed  the  

same by judgment dated May 29, 2006.  The result  

was  that  he  stood  reinstated  to  his  post  of  

Additional  District  Judge  under  Higher  Judicial  

Services.   

19. As  is  evident  from  the  memorandum of  the  writ  

petition,  the  order  retiring  him compulsorily  from  

service  was  challenged  on  several  grounds.   On  

notice  being  served  the  respondents  namely  the  

28

Lieutenant Governor as well Delhi High Court had  

filed their separate counter affidavits controverting  

the  claims  advanced  by  Mr.  Rohilla  in  his  writ  

petition.  It was emphasized in the counter affidavit  

filed on behalf of the High Court that the petition  

filed  by  Mr.  Rohilla  proceeded  on  a  mistaken  

assumption and incorrect presumption that he was  

retired  compulsorily  from  service  only  upon  

consideration  of  adverse  remark  ‘C-’  recorded  

indicating  that  his  integrity  was  doubtful  for  the  

year 2000.  It was mentioned in the reply that the  

Full  Court  as  also  the  Screening  Committee  

consisting of  the two learned Judges of  the  Delhi  

High Court, had considered his entire service record  

which revealed that his  performance as a judicial  

officer was either average or below average and his  

integrity  was  found  doubtful  and  despite  the  

passage  of  time,  nothing  was  done  by  him  to  

improve his performance/image.  The reply affidavit  

proceeded to mention that in so far as the case of  

29

Mr.  Rohilla  was  concerned,  in  its  report  dated  

September 21, 2001 the Screening Committee had  

inter alia recorded as under :  

“The officer has earned throughout his career  ‘B’ (Average) or C (Below Average) or ‘C’ (Below  Average-Integrity  doubtful)  reports  except  for  three  years  i.e.  1979-80,  1981-82  and  1988  when he could earn only B+ (Good) and for the  years  1997,  1998  and  1999  when  he  could  earn ‘B’ reports.  In the inspection note dated  29th March  1973,  the  concerned  Hon’ble  Inspecting Judge observed that he needed to  be  watched  so  far  as  his  efficiency  as  a  Judicial Officer was concerned.  The District &  Sessions  Judge,  Delhi,  in  his  report  dated  31.5.1973  for  the  year  1972-73,  mentioned  that “a complaint was pending against him in  the High Court about the return of ornaments  in  a  theft  case  to  a  party  which  was  not  entitled”.   Further,  as  directed  by  a  Single  Bench  of  this  Court  by  its  order  dated  24.7.1973  passed  in  Criminal  Revision  No.  428/72 in re: Ramavtar Vs. State, the findings  of  the  District  &  Sessions  Judge,  Delhi,  regarding the conduct of Mr. M.S. Rohilla, then  working  as  Judicial  Magistrate,  First  Class,  were placed on his personal file.  It had been  noted in the aforesaid findings of the District &  Sessions Judge, that Mr. M.S. Rohilla should  not  have  shown  so  much  indecent  haste  in  passing  the  order  for  handing  over  the  ornaments to Jawahar Lal Gupta.  Though, the  District & Sessions Judge, Delhi, did not find  any malafide on the part of Mr. M.S. Rohilla,  still  according  to  him,  he  acted  in  a  most  

30

injudicious  manner  due  to  his  inexperience  and suppression of  the material  facts by the  S.H.O. while  sending the report in the above  noted case.  The Full Court recorded ‘C’ (Below  Average) remarks for the year 1972-73).  

In the Inspection Report dated 29.4.1978  for the year 1977-78, the District & Sessions  Judge,  Delhi,  observed  regarding  the  reputation for honesty and impartiality of the  officer that there were complaints of which the  High Court was seized then.  In the Inspection  Report dated 7.12.1985, for the year 1983-84,  his efficiency as Judicial Officer was termed as  a  mediocre.   As  regards  his  reputation  for  honesty  and  impartiality,  the  District  &  Sessions Judge observed that he must improve  his reputation which suffered a set back when  he  was  Additional  Rent  Controller.   In  Inspection  Report  for  the  same  year,  the  District & Sessions Judge, Delhi, reported that  he did not enjoy good reputation for honesty  among lawyers and general public and that he  was  in  the  habit  of  drinking  and  gambling  almost daily.  In the Inspection Report dated  7.12.1985 for the year 1984-85, the concerned  Hon’ble  Inspecting  Judge  had  observed  that  his  reputation  was under  cloud although no  specific instance of corruption had come to his  notice, but watch was called for.   

Following adverse remarks were recorded  on the work and conduct of Sh. M.S. Rohilla  for the years mentioned against each :-

Years Adverse Remarks 1972-73 ‘C’ (Below Average) 1993 ‘C’ (Below Average)

(Integrity doubtful)

31

1994 ‘C’ (Below Average) (Integrity doubtful)

1994 ‘C’ (Below Average) (Integrity doubtful)

1995 ‘C’ (Below Average) 1996 ‘C’ (Below Average) 2000 (Integrity doubtful)

Keeping in view the over all record of the  officer, we recommend that Mr. M.S. Rohilla be  prematurely  retired  in  public  interest  forthwith.”  

20. According to  the  High Court  it  was on this  basis  

that the case of Mr. Rohilla was recommended for  

premature  retirement  in  public  interest  which  

recommendation was accepted by the Full Court.  

21. It may be stated that the entire service record of Mr.  

Rohilla was called for by the Division Bench.  After  

taking  holistic  view  of  the  matter  and  the  facts  

projected in the counter affidavit of the High Court,  

the  Division  Bench  of  the  High  Court  expressed  

irresistible  opinion  that  Mr.  Rohilla  was  rightly  

retired compulsorily from service under FR 56 (j) of  

Fundamental Rules.  According to the High Court, it  

was totally misconceived and untenable on the part  

32

of Mr. Rohilla to argue that the so-called material  

relied upon was only one sided view or it was not  

known  what  was  the  material  placed  before  the  

High  Court  before  decision  to  retire  him  

compulsorily  from  service  was  taken.   The  High  

Court  found  that  there  was  no  force  in  the  

contention that his case could have been considered  

for the purpose of compulsory retirement only in the  

year 2001 when he was about to attain the age of  

55 years in the year 2002.  The High Court further  

concluded that it was also a wrong premise adopted  

by Mr.  Rohilla  that the High Court  had based its  

decision solely on the basis of his ACR for the year  

2000 wherein it was recorded that his integrity was  

doubtful.  What was concluded by the High Court  

was  that  the  exercise  undertaken clearly  revealed  

that  his  entire  service  record  was  taken  into  

consideration.   In  view  of  the  above-mentioned  

conclusions  as  well  as  other  findings,  the  High  

Court  has  rejected  the  writ  petition  filed  by  Mr.  

33

Rohilla giving rise to the appeal by him.  

22. It is relevant to notice that though each appeal will  

have to be decided on its own facts, certain common  

points were raised in three appeals by the learned  

counsel for the appellants for consideration of this  

Court.  Therefore this Court proposes to deal with  

those common points raised by the learned counsel  

for the appellants for consideration.  

23. Normally,  an aggrieved civil  servant can challenge  

an  order  of  compulsory  retirement  on  any  of  the  

following  grounds,  namely,  (a)  that  the  requisite  

opinion  has  not  been  formed,  or  (b)  that  the  

decision is based on collateral grounds, or (c) that it  

is an arbitrary decision.  If the civil servant is able  

to establish that the order of compulsory retirement  

suffers from any of the above infirmities, the court  

has jurisdiction to quash the same.  In the light of  

the above stated position of law, the present appeals  

will have to be considered.

34

24. The first point which was argued was that once a  

review was conducted by the Screening Committee  

of the High Court on 17.7.2000 on the appellants’  

reaching the age of 50 years, which was accepted by  

the  Full  Court,  no  second  review  on  the  same  

material was permissible and the service record of  

the  appellants  for  compulsory  retirement,  could  

have been reviewed only upon their reaching the age  

of 55 years and not before reaching the said age.  

What  was  maintained  was  that  the  Screening  

Committee as well as the Full Court had considered  

the entire service record of the appellants and found  

that  there  was  no  material  to  recommend  

compulsory retirement of any of them as a result of  

which the previous record of each appellant before  

July, 2000 could not have been again considered for  

compulsory  retirement.   According  to  the  learned  

counsel for the appellants, the effect of decision of  

the  Full  Court  of  the  High Court  dated  July,  22,  

2000  reflected  in  its  resolution,  passed  on  the  

35

recommendation  of  the  report  of  the  Screening  

Committee  dated  July  17,  2000,  which  was  

submitted  after  considering  the  entire  service  

records and ACR Dossiers of each of the appellant,  

not  to  retire  any  of  them  prematurely,  was  that  

there was a bar to consider again the case of the  

appellants for premature retirement and, therefore,  

the order of compulsory retirement was liable to be  

set  aside.   In  support  of  this  plea,  reliance  was  

placed on the decision of this Court in State of U.P.  

Vs.  Chandra  Mohan  Nigam  &  Others (1977)  4  

SCC 345.  

25. In reply to the above mentioned argument, it  was  

pointed  out  by  the  learned  Counsel  for  the  High  

Court that the decision of the Committee dated July  

17, 2000 was purely tentative in nature and was not  

a final decision.  According to the learned counsel  

for the High Court,  the use of the expression “for  

the  time  being”  in  the  Minutes  of  the  Committee  

36

would show that it was not a final decision meaning  

thereby the matters were to be considered in detail  

on a later date and final decision was to be taken  

later  on.   What  was  maintained  was  that  the  

decision of the Committee dated July 17, 2000 was  

not  a  decision dealing  each officer  separately  but  

general in nature and, therefore the phrase “for the  

time being” should be construed to mean that it was  

not a final decision and the cases of the appellants  

were  deferred  for  being  considered  in  future.  

Elaborating this contention, it was submitted that  

the  Division  Bench  of  the  High  Court  has  

considered  the  question  as  to  whether  it  was  

consideration on merits or a case of deferment and  

rightly held that the exercise done in July 2000 was  

not  final  and  the  cases  of  the  appellants  were  

deferred.   According  to  the  learned  counsel,  the  

High  Court,  in  the  impugned  judgment,  was  

perfectly  justified  in  holding  that  there  was  no  

consideration  on  merits  of  the  cases  of  the  

37

appellants  before  21.9.2001,  and,  therefore,  the  

orders  passed  in  cases  of  the  appellants  retiring  

them compulsorily from service were not bad in law.  

Without prejudice to above mentioned contention, it  

was argued that even if it was assumed for the sake  

of  argument  that  there  was  consideration  of  the  

cases  of  the  appellants  in  July,  2000,  even  then  

there  was  no legal  bar  in  again  considering  their  

cases in next year particularly when it had come to  

the notice of the High Court that their integrity was  

doubtful.  The learned counsel for the High Court  

emphasized  that  in  State  of  U.P. Vs.  Chandra  

Mohan  Nigam  and  others (Supra)  there  was  

consideration of cases of the respondents therein for  

compulsory retirement at the age of 50 years and  

next consideration could have been only at the age  

of 55 years but in the said case an exception to this  

rule is carved out, namely, if material in regard to  

doubtful integrity of the officer comes to light, the  

authority  need not wait  till  the officer  attains the  

38

age  of  55  years  and  action  can  be  taken  

immediately.  Placing reliance on the decision of this  

Court in  Government of T.N. Vs.  P.A. Manickam  

(1996)  8  SCC  519, it  was  argued  that  the  

consideration  of  an  employee  for  compulsory  

retirement at the age of 50 years is only the starting  

point and not the end point, and, therefore, after 50  

years  at  any  time  case  of  an  officer  can  be  

considered for compulsory retirement.  The learned  

counsel  brought  to  the  notice  of  this  Court,  the  

observations  made  in  Nawal  Singh Vs.  State  of  

U.P. and another (2003) 8 SCC 117 to the effect  

that “the nature of judicial  service is such that it  

cannot  afford  to  suffer  continuance  in  service  of  

persons of doubtful integrity or who have lost their  

utility” and argued that it was always open to the  

High Court to consider the case of the appellants at  

any  point  of  time  though  earlier  a  decision  was  

taken  not  to  retire  any  of  the  appellants  

compulsorily  from  service  in  the  public  interest.  

39

According to the learned counsel for the High Court  

the consideration of the cases of the appellants in  

September,  2001  was  in  fact  not  a  review of  the  

earlier decision taken by the Screening Committee  

in July 2000 but it was a fresh consideration and  

on review of record of service of the appellants the  

High Court was justified in retiring the appellants  

compulsorily from service.  Placing reliance on the  

decision  in  Haryana State  Electricity  Board Vs.  

K.C. Gambhir (1997) 7 SCC 85, it was pointed out  

that therein the case of the officer was considered at  

the  age  of  50  years  and  he  was  permitted  to  

continue  in  service  and  again  his  case  was  

considered  at  the  age  of  55  years  and  he  was  

permitted  to  continue  in  service  but  he  was  

compulsorily retired at the age of 57 years and such  

a decision was upheld by this Court by rejecting the  

plea that his case could have been considered only  

again at the age of 60 years.   

40

26. This  Court  has  considered  the  rival  contentions  

raised by the learned counsel for the parties on the  

question  whether  the  cases  of  the  appellants  for  

compulsory retirement, could have been considered  

again before they had reached the age of 55 years,  

when  the  Screening  Committee  had  already  

considered their cases for compulsory retirement on  

their attaining the age of 50 years on July 17, 2000,  

and  had  not  recommended  their  compulsory  

retirement which recommendation was accepted by  

the Full Court of the High Court.   

27. In  this  connection  it  is  relevant  to  notice  certain  

facts emerging from the record of the case.  Rule 27  

of  the  Delhi  Higher  Judicial  Service  Rules,  1970  

provides  that  in  respect  of  matters  regarding  the  

conditions  of  service  for  which  no  provision  or  

insufficient provision has been made in those rules,  

the rules, directions or orders for the time being in  

force, and applicable to the officers of comparable  

41

status  in  the  Indian  Administrative  Service  and  

serving in connection with the affairs of the Union of  

India, shall regulate the conditions of such service.  

Thus  Rule  16(3)  of  the  All  India  Services  (Death-

cum-Retirement Benefits) Rules, 1958 (‘the Rules of  

1958’ for short) would be applicable to the officers of  

the Delhi Higher Judicial Service.  Clause (3) of Rule  

16 of  the  Rules  of  1958 was substituted in 1972  

specifying the age of premature retirement to be 50.  

Rule 16(3), after its substitution, reads as under: -

“16 (3) The  Central  Government  may,  in  consultation  with  the  State  Government  concerned  and after  giving  a  member  of  the  Service at least three months, previous notice  in writing, or three months pay and allowance  in lieu of such notice, require that member to  retire  in  public  interest  from  service  on  the  date on which such member completes thirty  years of qualifying service or attains fifty years  of age or on any date thereafter to be specified  in the notice.”

Therefore,  the  matter  regarding  pre-mature  retirement  of  

officers  of  the  Delhi  Higher  Judicial  Service  who  have  

completed 30 years of qualifying service or attained 50 years of  

42

age, has to be reviewed in the light of Rule 16(3) of the Rules of  

1958 quoted above.   

28. Similarly, in case of officer of Delhi Judicial Service,  

Rule  33  of  Delhi  Judicial  Service  Rules,  1970  

provides  that  in  respect  of  all  such  matters  

regarding  the  conditions  of  service  for  which  no  

provision or insufficient provision has been made in  

the Rules, the Rules or orders for the time being in  

force,  and  applicable  to  Government  servants  

holding corresponding posts in connection with the  

affairs  of  the  Union  of  India,  shall  regulate  the  

conditions of such service.

29. In Delhi Judicial Service Rules, 1970, no provision  

for  compulsory  retirement  has  been  made.  

Therefore, Fundamental Rule 56(j), which is, for the  

time being in force and applicable to Government  

servants  holding  corresponding  posts  envisaged  

under the Delhi Judicial Service Rules, 1970, shall  

regulate  the  matter  of  compulsory  retirement  of  

43

officers of Delhi Judicial Service.  Fundamental Rule  

56(j), which is applicable to officers of Delhi Judicial  

Service, reads as under:-

“(j) Notwithstanding anything contained in this  rule, the appropriate authority shall, if it is of  the opinion that it is in the public interest so  to  do,  have  the  absolute  right  to  retire  any  Government  servant  by  giving  him  notice  of  not less than three months in writing or three  months  pay  and  allowances  in  lieu  of  such  notice:

(i) if he is in Group ‘A’ or Group ‘B’ service  or post in a substantive, quasi permanent  or  temporary  capacity  and  had  entered  Government  service  before  attaining  the  age of 35 years, after he has attained the  age of 50 years;

(ii) in any other case after  he  has attained  the age of fifty-five years.

Provided  that  nothing  in  this  clause  shall  apply to a Government servant referred to in  clause (e), who entered Government service on  or before the 23rd July, 1966.”

It  would  be  seen that  FR 56(j)  gives  absolute  rights  to  the  

appropriate  authority  to  retire  any government  servant  who  

entered the service before attaining the age of 35 years, after  

he has attained the age of 50 years.   

44

30. The  cases  of  the  officers  of  Delhi  Higher  Judicial  

Service and Delhi Judicial Service were laid before  

the  Screening  Committee  constituted  by  the  

Administrative Committee vide its resolution dated  

December  15,  1992 and also for  laying down the  

guidelines  before  reviewing  the  cases  of  direct  

recruits.   The  Screening  Committee  decided  as  

under :-

“Government Rules be applied.”

31. It may be stated that after reviewing the cases of the  

officers of Delhi Higher Judicial Service and Delhi  

Judicial Service upto 31.12.1994, the Full Court in  

its meeting held on February 7, 1996 had taken the  

following decision :-

“It was decided that for screening of the cases  of  the  officers  of  the  Delhi  Higher  Judicial  Service and Delhi Judicial Services, now falling  within the zone of consideration for retirement  in  public  interest,  a  Screening  Committee  consisting of Hon’ble Mr. Justice Jaspal Singh  and  Hon’ble  Mr.  Justice  J.K.  Mehra  be  constituted and the report of the Committee be  laid before the Full Court for consideration.”

45

Consequent upon the retirement of Hon’ble Mr. Justice J.K.  

Mehra, it was decided to reconstitute the composition of the  

Screening  Committee  by  Full  Court  in  its  meeting  held  on  

January  17,  1998.   The  aforesaid  reconstituted  Screening  

Committee reviewed the cases of several judicial officers in its  

meeting held on July 17, 2000 and gave its report which reads  

as under: -

“We  have  gone  through  the  service  record  including  the  ACR dossiers  of  the  officers  of  Delhi  Higher  Judicial  Service  and  Delhi  Judicial  Service  who  are  within  the  zone  of  consideration  for  being  considered  for  premature retirement in public interest at the  age of 50/55 years.

We do not find, for the time being, any officer  who  can  be  retired  prematurely  in  public  interest.”

32. As ordered by the then Hon’ble the Chief Justice of  

the Delhi  High Court,  the report of  the Screening  

Committee was to be laid before the Full Court for  

consideration and orders.  

46

33. In the meeting of the Full Court held on July 22,  

2000  the  report  of  the  Screening  Committee  was  

considered.   The  true  copy  of  extracts  from  the  

Minutes of  the Meeting of  the Full  Court  held on  

Saturday, the July 22, 2000 at 11.00 A.M. in the  

Judge Court reads as under :-

“Agenda : 6. To review the case of the officers  of DHJS and DJS who are within the zone of  consideration  for  being  considered  for  premature  retirement  in  public  interest  –  Report  dated  17.7.2000  of  the  Screening  Committee  consisting  of  Hon’ble  Mr.  Justice  Arun  Kumar  and  Hon’ble  Mr.  Justice  S.K.  Mahajan  constituted  pursuant  to  Full  Court  decision dated 17.01.1998.

Minutes  :  “The  report  of  the  Committee  was  accepted.”

34. On  a  fair  reading  of  the  report  of  the  Screening  

Committee  quoted  above  read with  the  resolution  

adopted by the Full Court in its meeting dated July  

22, 2000, it becomes evident that the cases of the  

appellants alone for premature retirement were not  

considered  but  cases  of  all  the  officers  of  Delhi  

Higher  Judicial  Service  as  well  as  that  of  officers  

47

belonging to Delhi Judicial Service who were within  

the zone of  consideration for  being considered for  

premature retirement in public interest at the age of  

50/55 years were also considered.   The record of  

the  case  would  indicate  that  cases  of  number  of  

officers belonging to Delhi  Higher  Judicial  Service  

and Delhi Judicial Service were considered on one  

day, and that too, in the Meeting of the Screening  

Committee  held  on  July  17,  2000.   The  record  

indicates  that  case  of  each  officer  was  not  

considered  individually.   No  reasons  could  be  

recorded  by  the  Screening  Committee  as  to  how  

earlier entries adversely reflecting on the integrity of  

the appellants,  were dealt  with or viewed.  Under  

the circumstances, the observation that “We do not  

find,  for  the  time  being,  any  officer  who  can  be  

retired prematurely in public interest” will have to  

be  regarded  as  tentative  and  not  final  in  nature.  

When the  Screening Committee  stated  that  it  did  

not find for the time being any officer who could be  

48

retired prematurely in public interest, it meant that  

the  cases  of  all  the  officers  were  deferred  to  be  

considered in near future.  It would be seen that FR  

56(j)  gives  absolute  right  to  the  appropriate  

authority to retire any Government servant who has  

entered the service  before attaining the  age of  35  

years, after he has attained the age of 50 years and  

in other cases after he has attained the age of 55  

years.  There is no rule prohibiting consideration of  

case of an officer for compulsory retirement before  

he attains the age of 55 years, even if his case is  

earlier considered at the age of 50 years.  There is  

nothing in the Delhi Judicial Service Rules or Delhi  

Higher  Judicial  Service  Rules  or  the  Indian  

Administrative  Service  Rules  laying  down  a  

prohibition  that  if  the  case  of  an  officer  for  

compulsory retirement is considered at the age of  

50  years,  his  case  cannot  be  reconsidered till  he  

attains the age of 55 years.  As held by this Court in  

Government of T.N. (Supra), 50 years is only the  

49

starting point and not the end point which means  

that after 50 years at any time case of an officer can  

be considered for compulsory retirement.  

35. In  State of U.P. Vs.  Chandra Mohan Nigam and  

Others (1977) 4 SCC 345, the facts were that the  

respondent,  i.e.,  Mr.  Chandra  Mohan  Nigam  was  

recruited  in  the  Indian  Administrative  Service  in  

Uttar Pradesh Cadre.  He joined service on March  

23, 1947.  He was appointed as Judicial Member of  

the Board of Revenue in 1969 and had attained the  

age of 50 years on December 29, 1967.  By an order  

dated  August  22,  1970 the  President  of  India,  in  

consultation with the Government of Uttar Pradesh,  

in pursuance of the power conferred by sub-rule (3)  

of  Rule  16  of  the  All  India  Services  (Death-cum-

Retirement  Benefits)  Rules  1958  had  passed  the  

order of compulsory retirement of the respondent in  

the  public  interest  on the expiry  of  three months  

from the  date  of  service  of  the  order.   That  was  

50

challenged by Mr. Chandra Mohan Nigam by a writ  

petition  before  the  Allahabad  High  Court.   The  

learned Single Judge had allowed the same on the  

grounds  of  contravention  of  the  justiciable  and  

binding rules and because the order was based on  

consideration  of  irrelevant  matters  and  was  also  

vitiated by bias.   

Feeling aggrieved both the Union of India and the State of  

U.P. had appealed to the Division Bench of the High Court.  

The Division Bench of the High Court by an order dated April  

13, 1973, dismissed both the appeals by a common judgment.  

The Division Bench had not agreed with all the reasons given  

by the learned Single  Judge  and had quashed the order  of  

compulsory retirement holding that the decision of the Central  

Government to retire Mr. Nigam was passed on collateral facts  

and was, therefore, invalid.   

36. In  appeals  by  certificates,  this  Court  had noticed  

the service career of the respondent.  It was noticed  

that the respondent during his service career, had  

51

the following adverse entries in his character role –  

(1) A warning was administered to him on December  

6, 1953, for taking undue interest in the ejectment  

of tenants from a house owned by him at Lucknow,  

(2) another warning was issued to him on August  

31, 1962, for having acquired a car from Varanasi  

Corporation while working as the Administrator of  

the said Corporation, (3) he was once warned for not  

observing proper  rules and procedure for  utilizing  

the fund earmarked for lower-income group housing  

scheme towards the construction of a market (1956-

1957) and (4) he was placed under suspension in  

1964 in connection with some strictures passed on  

him by the Election Tribunal in a case relating to  

the  Gorakhpur  Parliamentary  Constituency  

elections.

37. With regard to the last entry,  he had filed appeal  

before High Court and the strictures were expunged  

upon which the order of suspension was set aside  

52

and  he  was  reinstated  in  service.   However,  the  

aforesaid entry continued to be part of his character  

roll at least till December 20, 1969.  In pursuance of  

sub-Rule (3) of Rule 16 and in consonance with the  

certain instructions, the State Government of U.P.  

in  October  1969  had  constituted  a  Review  

Committee to review the records of the members of  

the Service who were to attain or had attained the  

age of 50 years.  The list of officers considered by  

this  Committee  had  included  the  respondent  Mr.  

Nigam.  The Committee had not recommended any  

of the Officers including Mr. Nigam for premature  

retirement  and,  on  the  other  hand,  had  

recommended  that  they  should  be  continued  in  

service.   The State  Government  had accepted the  

report of the Review Committee and communicated  

its  decision  to  the  Central  Government.   On  

December  20,  1969,  the  Secretary,  Ministry  of  

Home  affairs  of  the  Central  Government  had  

addressed a letter wherein a reference was made to  

53

the  adverse  remarks  in  the  character  roll  of  Mr.  

Nigam  including  suspension  of  Mr.  Nigam  which  

was set aside on strictures being expunged by the  

High Court, and a view was expressed that his was  

a  fit  case  in  which  proposal  for  his  premature  

retirement under Rule 16(3) of the All India Services  

(Death-cum-Retirement  Benefits)  Rules,  1958  

should  have  been  considered.   After  noticing  the  

fact  that  the  State  Government  had  not  

recommended the compulsory retirement the letter  

proceeded to mention that the Central Government  

was  not  knowing  if  there  were  any  particular  

reasons for taking a different view or whether it was  

a case of over-sight.  By the said letter the Central  

Government  had  expressed  opinion  to  have  the  

considered  views  of  the  State  Government  before  

any decision was taken by the Central Government.  

On January  29,  1970,  the  Chief  Secretary  to  the  

State  Government  had  replied  that  the  Review  

Committee  had  considered  the  character  roll  and  

54

the merits of the case of Mr. Nigam and found that  

he was suitable for continuing in service, and that  

the decision of the Committee was accepted by the  

State Government.  In the reply, it was mentioned  

that the State Government’s decision in the matter  

was taken after thorough consideration and that the  

State Government did not consider it necessary to  

go  into  this  question  again.   No adverse  decision  

contrary  to  the  recommendation  of  the  State  

Government was taken and communicated by the  

Central  Government  to  the  State  Government  in  

pursuance  of  the  recommendation  of  the  first  

Review Committee in October, 1969.  However, the  

State Government, on its own motion, constituted a  

second  Review  Committee  in  May  1970.   Again  

before  this  Committee  also  the  case  of  all  the  

officers  who  had  attained  the  age  of  50  years  

including  those  whose  cases  had  been  reviewed  

earlier  in  October  1969  was  also  placed  for  

consideration.   Thus  Mr.  Nigam’s  case  was  

55

considered again by the Second Review Committee.  

This time the Committee recommended that the two  

officers  one  of  whom  was  Mr.  Nigam  should  be  

prematurely retired.  The State Government having  

accepted this recommendation forwarded the same  

to  the  Central  Government.   The  Central  

Government  asked the  State  Government  to  send  

the  proceeding  of  the  Review  Committee  and  on  

receipt of the proceedings, the Central Government  

agreed with the views of the State Government and  

passed the  order  of  compulsory  retirement of  Mr.  

Nigam.  

38. It is in the light of these facts that this Court made  

following  observations  in  paragraph  29  of  the  

reported decision which read as under :  

“29.  The correct  position that  emerges from Rule  16(3) read with the procedural instructions is that  the Central Government, after consultation with the  State  Government,  may  prematurely  retire  a  civil  servant with three months’ previous notice prior to  his attaining 50 years or 55 years, as the case may  be. The only exception is of those cases which had  to be examined for the first time after amendment of  

56

the rule  substituting 50 years for  55 years where  even officers, who had crossed the age of 50 years,  even before reaching 55, could be for the first time  reviewed.  Once  a  review  has  taken  place  and  no  decision to retire on that review has been ordered by  the Central Government, the officer gets a lease in  the case of 50 years upto the next barrier at 55 and,  if he is again cleared at that point, he is free and  untrammelled upto 58 which is his usual span of  the service career. This is the normal rule subject  always  to  exceptional  circumstances  such  as  disclosure  of  fresh  objectionable  grounds  with  regard to integrity or some other reasonably weighty  reason.”

39. So  far  as  present  case  is  concerned,  no  final  

decision was taken by the Screening Committee in  

case of any officer of Delhi Higher Judicial Service  

and Delhi Judicial Service, but a tentative decision  

was taken that at that stage no officer was found fit  

who  could  have  been  retired  compulsorily  from  

service.   This is not a case wherein a review had  

taken place and a positive final decision to continue  

the  appellants  in  service,  was  taken  by  the  

Screening  Committee.   In  the  case  of  Chandra  

Mohan Nigam (Supra), the case of Mr. Nigam was  

considered  positively  for  retirement  but  a  specific  

57

recommendation  was  made  to  continue  him  in  

service,  by  the  Review  Committee  which  was  

accepted  by  the  State  Government  and  except  

expressing an opinion that having regard to certain  

adverse remarks in his character roll, this was a fit  

case in which proposal for his premature retirement  

should  have  been  considered,  the  Central  

Government,  after  receipt  of  reply  from the  State  

Government,  had  not  taken  any  adverse  decision  

contrary  to  the  recommendation  of  the  State  

Government,  which  was  in  turn  based  on  the  

recommendation  of  the  First  Review  Committee.  

Further, in Chandra Mohan Nigam’s case itself this  

Court  has  in  para  27  of  the  reported  decision  

hastened to add that when integrity of an officer is  

in  question,  that  will  be  an  exceptional  

circumstance  for  which  order  may  be  passed  in  

respect of such an officer under Rule 16(3), at any  

time,  if  other  conditions  of  that  rule  are  fulfilled  

apart from the choice of disciplinary action which  

58

will  also  be  open  to  the  Government.   Thus  an  

exception to the rule, that if there is consideration  

at the age of 50, next consideration can be only at  

the age of 55 is made in Chandra Mohan Nigam’s  

case itself  by holding that if  material  in regard to  

doubtful integrity of the officer comes to light, the  

authority  need not wait  till  the officer  attains the  

age  of  55  years  and  action  can  be  taken  

immediately.  The integrity of all the three Judicial  

Officers  was  found to  be  doubtful  and,  therefore,  

their compulsory retirement from service cannot be  

held to be illegal.

40. At  this  stage,  a  reference  may  be  made  to  the  

decision of this Court in Haryana State Electricity  

Board vs. K.C. Gambhir (1997) 7 SCC 85.  Though  

the decision may not  be strictly  applicable  to  the  

facts of the present cases, but certain observations  

made therein are relevant to understand the issue  

59

posed for consideration of this Court in the present  

appeals.

The  respondent  therein  was  an  employee  of  Haryana  

State  Electricity  Board.   He  was  promoted  as  Executive  

Engineer on February 19, 1977.  When he attained the age of  

50 years, his case for compulsory retirement was reviewed on  

November 30, 1986.  His integrity was reported doubtful in the  

year 1985-86, yet it was decided not to retire him compulsorily  

because  his  representation  against  adverse  remarks  was  

pending.   On  attaining  55  years  of  age,  his  case  for  

compulsory retirement was again reviewed on November 30,  

1991.   AT  that  time  also,  departmental  proceedings  were  

pending  against  him  for  a  serious  act  of  misconduct  and,  

therefore, it was decided not to retire him.  The enquiry was  

over on August 4, 1993 and thereafter, he was compulsorily  

retired  on  February  3,  1994  by  giving  him  three  months’  

notice.  The retirement came nine months before his date of  

superannuation.   Thus,  on  two  earlier  occasions,  it  was  

decided not to retire him compulsorily, but on third occasion,  

60

order  of  compulsory  retirement  was  passed.   The  order  of  

compulsory  retirement  was  set  aside  by  the  High  Court  of  

Punjab  and  Haryana  in  the  writ  petition  filed  by  the  

respondent.  This Court, while allowing the appeal filed by the  

Haryana  State  Electricity  Board,  observed  that  though  the  

appellant could have taken the action of compulsorily retiring  

the  respondent  from service  earlier,  it  acted very fairly  and  

allowed him to remain in service till his representation against  

the adverse remarks was considered on the first occasion and  

subsequently,  till  the  departmental  enquiry  was  completed.  

The clear meaning of the above-mentioned observation is that  

even  during  the  pendency  of  his  representation  against  

adverse  remarks  and  during  the  pendency  of  departmental  

enquiry,  Haryana  State  Electricity  Board  could  have  taken  

action  of  compulsorily  retiring  the  respondent  from  service  

earlier.  Thus on the basis of service record, the three Judicial  

Officers could have been retired compulsorily from service but  

a tentative decision was taken not to retire them from service  

at that point of time.  But this tentative decision would not  

preclude  the  authority  concerned  from  passing  orders  of  

61

compulsory retirement later on.

41. In  Government  of  T.N. vs.  P.A.  Manickam AIR  

1996 SC 2250, what is ruled by this Court is that  

the rule permits the appropriate authority to retire  

any Government servant after he has attained the  

age of 50 years or after he has completed 25 years  

of  qualifying  service  and  the  rule  prescribes  a  

starting point, which is the attaining of the age of  

50 years or the completion of 25 years of service,  

but it does not prescribe a terminus ad quam and it  

is,  therefore,  open  to  the  appropriate  authority  

under the rule to consider the case of a Government  

servant for premature retirement at any time after  

the aforementioned starting points.  Thus, after the  

so-called review of the cases of the two appellants  

and the deceased officer in July, 2000, their cases  

were rightly reviewed again and orders retiring them  

compulsorily  from  service  were  rightly  passed  

against them.

62

42. In  Union of India Vs.  M.E. Reddy (1980) 2 SCC  

15, the respondent Mr. Reddy started his career in  

the  Police  Service  as  Deputy  Superintendent  of  

Police in the year 1948.  In the year 1958 he was  

appointed to the Indian Police Service.  On July 31,  

1958, he was promoted as Superintendent of Police  

in  State  of  Andhra Pradesh and held charge of  a  

number  of  Districts  from  time  to  time.   He  was  

awarded the President Police Medal on August 14,  

1967 but the award of the said medal was withheld  

as  he  was  placed  under  suspension  by  the  

Government  on  August  11,  1967  pending  

departmental enquiry into a number of allegations  

made against him.

In 1969, he filed a writ petition in the Andhra Pradesh  

High  Court  praying  that  the  order  of  suspension  passed  

against him be quashed as it was passed on false allegations  

and at the instance of  Mr.  K. Brahmanand Reddy who was  

then  Chief  Minister  of  the  State.   The  writ  petition  was  

63

admitted by the High Court and an interim order staying all  

further  proceedings  in  departmental  enquiry  was  passed.  

When the  writ  came up for  hearing,  the  State  Government  

represented to the High Court that, it had decided to withdraw  

order  of  suspension  and  reinstate  Mr.  Reddy.   The  State  

Government  withdrew the order  of  suspension and directed  

that  the  period  of  suspension  be  treated  as  on  duty.  

Thereafter, on application being filed by Mr. Reddy, the writ  

petition  was  dismissed  as  withdrawn.   Because  of  these  

developments the departmental proceedings against him were  

dropped  and  he  was  given  Selection  Grade,  which  was  

withheld because of the suspension order.  By an order dated  

April  28,  1971,  he  was  promoted  to  the  rank  of  Deputy  

Inspector  General  of  Police.   During  the  course  of  the  

departmental  enquiry  an  entry  to  the  effect  that  “he  had  

concocted a case of attempt to rape against one Mr. Venugopal  

Reddy  to  please  the  then  Inspector  General  of  Police  Mr.  

Nambiar and there was a strong suspicion about his integrity”  

was made in his A.C.R.  He made a representation to expunge  

the entry.  The Government decided that as statements were  

64

factual, it would be sufficient if entry was made to the effect  

that the suspension was subsequently  lifted and the period  

was  treated  as  on  duty  and  that  further  action  was  not  

necessary as there were no good grounds to hold him guity of  

any of the charges leveled against him.

However,  on  August  7,  1975,  a  Review  Committee  

consisting  of  the  Chief  Secretary,  Home  Secretary  and  

Inspector General of Police considered various cases of police  

officers  including  that  of  Mr.  Reddy  and  made  

recommendations.  On September 11, 1975, the Government  

of  India,  after  considering  report  of  the  Review  Committee,  

ordered compulsory retirement of Mr. Reddy in public interest.

Thereupon Mr.  Reddy filed writ  petition in the Andhra  

Pradesh High Court.   The Single Judge allowed the petition  

and quashed order of compulsory retirement.  That decision  

was upheld by the Division Bench of the High Court, in appeal  

filed  by  State  of  Andhra  Pradesh  and  Union  of  India.  

Therefore, the two appeals by certificate were filed before this  

Court.

65

It was argued before this Court on behalf of Mr. Reddy  

that the order impugned was passed on materials which were  

not  existent  inasmuch  as  there  were  no  adverse  remarks  

against Mr. Reddy who had a spotless career throughout and  

if  such remarks had been made in his confidential  reports,  

they would have been communicated to him under the rules.  

This contention was negatived in following terms: -

“Here  we might  mention that  the  appellants  were  fair  and  candid  enough  to  place  the  entire  confidential personal file of Reddy before us starting  from the date he joined the Police Service and after  perusing the same we are unable to agree with Mr.  Krishnamurty  Iyer  that  the  officer  had a  spotless  career.   The  assessment  made  by  his  superior  officers from the very beginning of his service until  the impugned order was passed show that at the  best Reddy was merely an average officer and that  the reports show that he was found to be sometimes  tactless, impolite, impersonated, suffered from other  infirmities,  though not all  of  them were of  a  very  serious nature so as to amount to an adverse entry  which may be communicated to him.  We might also  mention that  before  passing an order  under  Rule  16(3) it is not an entry here or an entry there which  has  to  be  taken  into  consideration  by  the  Government  but  the  overall  picture  of  the  officer  during the long years of his service that he puts in  has  to  be  considered  from  the  point  of  view  of  achieving  higher  standard  of  efficiency  and  dedication so as to be retained even after the officer  has put in the requisite number of years of service.  

66

Even  in  the  last  entry  which  was  sought  to  be  expunged through a representation made by Reddy  and other entries made before that it appears that  the integrity of Reddy was not above board.”

While allowing the appeals of the Union of India and State of  

Andhra Pradesh, this Court has emphasized the importance of  

adverse entry.   After  referring to observations made by this  

Court in para 27 of the decision in the case of Sate of U.P. vs.  

Chandra Mohan Nigam (1977) 4 SCC 345, wherein the Court  

had hastened to add that  when integrity  of  an officer  is  in  

question that will  be an exceptional circumstance for which  

order may be passed in respect of such a person under Rule  

16(3) at any time, if other conditions of the rule are fulfilled,  

apart from the choice of disciplinary action which will also be  

open to Government, this Court M.E. Reddy’s case, has held  

as under: -

“Thus, even according to the decision rendered by  this  Court  in  the  aforesaid  case  the  fact  that  an  officer is of doubtful integrity stands on a separate  footing and if he is compulsorily retired that neither  involves any stigma nor any error in the order.”

67

Further, in the process of interpreting the decision in Chandra  

Mohan Nigam’s case, this Court in para 25 of the reported  

decision inter-alia  observed that  “we have already  indicated  

above that this Court  made it  absolutely clear that when a  

person was retired under Rule 16(3) on the ground that his  

integrity was in question, the observations made by this Court  

would have no application.”

43. Apart  from  the  poor  judicial  performance,  the  

appellants  were  also  retired  compulsorily  from  

service,  on  the  ground  that  their  integrity  was  

doubtful.   

44. The mandate of  Article  235 of  the Constitution is  

that the High Court has to maintain constant vigil  

on its  subordinate  judiciary  as laid  down by  this  

Court  in  High  Court  of  Judicature  at  Bombay  

through its Registrars Vs. Shirishkumar Rangrao  

Patil and Another (1997) 6 SCC 339.  In the said  

case, this Court has explained that the lymph nodes  

(cancerous  cells)  of  corruption  constantly  keep  

68

creeping  into  the  vital  veins  of  the  judiciary  and  

need to stem it out by judicial surgery lies on the  

judiciary  itself  by  its  self-  imposed  or  corrective  

measures or disciplinary action under the doctrine  

of control enshrined in Articles 235, 124(6) of the  

Constitution,  and therefore, it would be necessary  

that  there  should  be  constant  vigil  by  the  High  

Court  concerned on its  subordinate  judiciary  and  

self introspection.   

45. Judicial service is not a service in the sense of an  

employment  as  is  commonly  understood.   Judges  

are discharging their functions while exercising the  

sovereign judicial power of the State.  Their honesty  

and integrity  is  expected to  be  beyond doubt.   It  

should  be  reflected  in  their  overall  reputation.  

There  is  no  manner  of  doubt  that  the  nature  of  

judicial service is such that it cannot afford to suffer  

continuance  in  service  of  persons  of  doubtful  

integrity or who have lost their utility.  As explained  

69

by  this  Court  in  Chandra  Singh and others Vs.  

State of Rajasthan & another (2003) 6 SCC 545,  

the  power  of  compulsory  retirement  can  be  

exercised  at  any  time  and  that  the  power  under  

Article  235  in  this  regard  is  not  in  any  manner  

circumscribed  by  any  rule  or  order.   What  is  

explained in the said decision by this Court is that  

Article 235 of the Constitution of India enables the  

High  Court  to  assess  the  performance  of  any  

judicial officer at any time with a view to discipline  

the black sheep or weed out the deadwood, and this  

constitutional  power  of  the  High Court  cannot be  

circumscribed by any rule or order.  Moreover while  

upholding  the  orders  of  compulsory  retirement  of  

judicial  officers  who were  working in  the  State  of  

U.P.,  following  weighty  observations  have  been  

made by this Court in para 13 of decision in case of  

Nawal Singh vs. State of U.P. and another (2003)  

8 SCC 117: -

70

“13. It  is  to  be  reiterated  that  for  keeping  the  stream of  justice  unpolluted,  repeated  scrutiny  of  service records of judicial  officers after a specified  age/completion of specified years of service provided  under the Rules is a must by each and every High  Court as the lower judiciary is the foundation of the  judicial  system.   We  hope  that  the  High  Courts  would take appropriate steps regularly for weeding  out  the  dead  wood  or  the  persons  polluting  the  justice delivery system.”

46. Under the circumstances this Court is of the firm  

opinion  that  the  principle  laid  down  in  Chandra  

Mohan Nigam’s  case will  not  be applicable  to the  

facts  of  the  appellants  who were  Members  of  the  

Delhi Higher Judicial Service.   

47. Even if it is assumed for the sake of argument that  

the principle laid down in Chandra Mohan Nigam’s  

case would apply with all the vigour to the facts of  

the appellants also, this Court finds that in respect  

of  all  the  three  officers,  after  the  previous  

consideration  in  July,  2000,  new  material  in  the  

form  of  ACR  for  the  year  2000  “‘C’  integrity  

doubtful” had come into existence and had become  

71

a part of their respective service records when the  

Full  Court  in  its  meeting  held  on  13.9.2001  

recorded their ACRs for the year 2000.  Thus the  

consideration by the Committee constituted for the  

purpose  of  evaluating  the  cases  of  the  officers  to  

ascertain  whether  they  should  be  compulsorily  

retired, was subsequent in point of time, namely, on  

21.09.2001 and as such it will be fully covered by  

the exception spelt out in Chandra Mohan Nigam’s  

Case itself in regard to consideration of cases again  

before the age of 55 years.  The consideration of the  

cases of the three judicial  officers on the basis of  

ACRs dated September  13,  2001 recorded  by  the  

Full Court of the Delhi High Court is not a review of  

the  earlier  decision  of  July,  2000.   It  is  a  fresh  

consideration.  It is review of the record of service of  

the  officers  and not  review of  the  earlier  decision  

and  such  review  is  not  only  permissible  but  is  

perfectly legal and valid.

72

48. The net result of the above discussion is that this  

Court  does  not  find  any  substance  in  the  first  

contention raised on behalf  of  the appellants  and  

the same is hereby rejected.  

49. The  next  contention  which  was  raised  by  the  

learned  counsel  for  the  appellants  was  that  the  

order  passed  by  the  Lt.  Governor  compulsorily  

retiring the appellants from service, without seeking  

aid  and  advice  of  his  Council  of  Ministers,  as  

required by Article 239(AA)(4) of the Constitution is  

ultra vires as well as illegal and therefore, the same  

should  not  be  sustained.   Elaborating  the  said  

point,  it  was  argued  that  the  order  retiring  the  

appellants compulsorily from service was passed by  

the Lt. Governor on receiving the recommendation  

of  the  High  Court  of  Delhi,  pursuant  to  the  

resolution of  the Full  Court  passed on September  

22,  2001  acting  under  and  in  exercise  of  control  

over subordinate judiciary under Article 235 of the  

73

Constitution, but the powers of the Lt. Governor of  

N.C.T. of Delhi under Article 239(AA)(4) which are  

analogous  to  powers  of  a  Governor  under  Article  

163(1) of the Constitution can be exercised only on  

aid  and  advice  of  his  Council  of  Ministers,  and  

therefore,  the  order  passed  by  the  Lt.  Governor  

retiring the appellants compulsorily from service are  

bad in law.  In support  of  these submissions the  

learned counsel  for  the  appellants  placed reliance  

on:  (a)  Samsher  Singh Vs.  State  of  Punjab  and  

Another, (1974) 2 SCC 831  = AIR 1974 SC 2192  

and  (b)  M.M.Gupta  and  Others Vs.  State  of  

Jammu  &  Kashmir  and  Others,  (1982)  3  SCC  

412.  

50. The  learned  counsel  for  the  respondent  High  Court  

pleaded that the contention that Lt. Governor while passing  

the  Order  of  compulsory  retirement  ought  to  have  been  

advised by his Council of Ministers was not advanced before  

the High Court and therefore was not considered by the High  

74

Court and this plea should not be permitted to be raised for  

the first time in the appeals arising by grant of special leave.  

It was pointed out that in the appeal arising out of SLP No.  

314 of 2009 in the list of dates filed by Mr. P.D. Gupta it was  

pleaded that this plea was urged before the High Court but the  

same was not considered before the High Court and if that be  

so the remedy of the appellant is to go back to the High Court  

and file the review petition.  What was emphasized was that  

Mr.  Gupta  had  in  fact  filed  a  review  petition  but  later  on  

withdrawn the same without seeking any liberty to agitate this  

point in the Special Leave Petition or in any other proceedings  

and  therefore,  he  is  not  entitled  to  urge  this  plea.   It  was  

emphatically pointed out by the learned counsel for the High  

Court that in other appeals, it is not stated by the appellants  

that such a plea was urged before the High Court and they  

having not urged such a plea in the memorandum of Special  

Leave  Petitions,  the  plea  raised  at  the  delayed  and  belated  

stage should not be considered by this Court.  In support of  

this argument, the learned counsel for the respondent relied  

upon decisions in (a) Daman Singh and Others Vs. State  

75

of Punjab and Others, (1985) 2 SCC 670, (b) State of Punjab  

and  Another Vs.  H.B.  Malhotra,  (2006)  11  SCC  169,  (c)  

Mohd. Akram Ansari Vs. Chief Election Officer and Others,  

(2008)  2 SCC 95 and (d)  Ex-Constable  Ramvir  Singh Vs.  

Union of India and Others, (2009) 3 SCC 97.

51. Without prejudice to the above stated contention, it was  

argued by the learned counsel for the respondent that under  

Article 235, it is High Court which has to exercise supervision  

and control over the subordinate judiciary and not the State  

Government  and  therefore,  recommendations  of  the  High  

Court in regard to compulsory retirement were/are binding on  

the  State  Government/the  Governor.   The  learned  counsel  

pleaded  that  the  Lt.  Governor  has  to  act  on  the  

recommendation of the High Court and there is no illegality, if  

the Governor on the recommendations of the High Court had  

passed order retiring the appellants compulsorily from service.  

To  buttress  this  submission,  the  learned  counsel  for  the  

respondent placed reliance on (a) Samsher Singh Vs. State of  

Punjab  and Another,  (1974)  2  SCC 831 =  AIR 1974 SC  

76

2192, (b) State of Haryana Vs. Inder Prakash Anand H.C.S.  

& Others, (1976) 2 SCC 977, (c) Baldev Raj Guliani Vs. The  

Punjab and Haryana High Court & Others, (1976) 4 SCC  

201,  (d)  Registrar,  High Court  of  Madras Vs.  R. Rajaiah,  

(1988)  3  SCC  211,  (e)  Registrar  (Admn.),  High  Court  of  

Orissa, Cuttack Vs. Sisir Kanta Satapathy (Dead) by LRs. &  

Another, (1999) 7 SCC 725, (f)  Tej Pal Singh Vs.  State of  

U.P.  &  Another,  (1986)  3  SCC  604 and  (g)  T.  Lakshmi  

Narasimha  Chari Vs.  High  Court  of  A.P.  and  Another,  

(1996) 5 SCC 90.  

This Court has heard the learned counsel for the parties  

at great length on the question whether the order passed by  

the  Lt.  Governor  compulsorily  retiring  the  appellants  from  

service  without  seeking  aid  and  advice  of  his  Council  of  

Ministers  as  required  under  Article  239  (AA)(4)  of  the  

Constitution is ultravires and illegal.   

52.It is true that the appellant Mr. Gupta has stated in the  

Memorandum of Special Leave Petition that the point that  

Lt.  Governor  could  not  have  passed  order  retiring  him  

77

compulsorily  from service  on the recommendation of  the  

High  Court  and  without  seeking  aid  and  advice  of  his  

Council of Ministers, was urged before the High Court, but  

the said point was not considered by the High Court.  It is  

rightly argued by the learned counsel for the respondent  

that even in such an eventuality, the only course/remedy  

available to the said appellant was to approach the High  

Court seeking review of the Judgment.  The record shows  

that the appellant Mr. Gupta had filed review application  

before the High Court, but the same was unconditionally  

withdrawn.  At the time of withdrawal of review application,  

the  appellant  had  not  sought  any  liberty  to  agitate  this  

point in Special Leave Petition before this Court.  So far as  

two other appellants are concerned they have not stated  

that such a point was argued on their  behalf  before  the  

High  Court  and  was  not  dealt  with  by  the  High  Court.  

Under  the  circumstances  a  question  arises  whether  the  

learned counsel for the appellants should be permitted to  

raise  such a plea  before  this  Court  at  the  stage  of  final  

disposal of the matters.   

78

53.Ordinarily the Supreme Court would not entertain a new  

prayer at the hearing of the appeal under Article 136 when  

it is not raised in the High Court or in the petition seeking  

leave to appeal.  Point not raised before the High Court but  

taken  in  Special  Leave  Petition  will  not  ordinarily  be  

allowed to be agitated before this Court.   The consistent  

practice of this Court is that the Court does not permit a  

party  to  raise  a  new  point  which  has  not  been  argued  

before  the  High  Court.   However,  there  are  exceptional  

cases in which this Court may permit a party to raise a new  

plea before this Court for the first time, for example, where  

the plea raised does not require investigation of new facts  

or where the question raised is a pure question of law or  

where  the  point  is  likely  to  be raised in future  affecting  

such  cases  or  where  the  respondent  has  dealt  with  the  

point raised for the first time, in the reply filed before this  

Court and the learned counsel for the parties are heard at  

length and in great detail.  This Court having gone through  

the  decisions relied upon by the learned counsel  for  the  

respondent, finds that no absolute proposition of law is laid  

79

down in any of the decisions that in no circumstances a  

new plea  can ever  be  permitted  to  be  raised before  this  

Court if  the same was not raised before the High Court.  

The question sought to be raised is a pure question of law  

for which factual foundation is already laid.  The learned  

counsel for the parties have been heard at great length on  

the  new point  sought  to  be  raised  first  time  before  this  

Court.  The authorities cited at the Bar have been read and  

re-read  to  emphasize  respective  view  points.   Therefore,  

having  regard  to  the  facts  of  the  case,  this  Court  has  

permitted the learned counsel  for  the appellants to raise  

the point and heard the learned counsel for the parties in  

detail.   

54.In order to answer the question posed for the consideration  

of  the  Court,  it  will  be  useful  to  notice  the  contents  of  

Articles 163(1) and 239(AA) (4) of the Constitution.  

55.Article 163 makes provision that Council of Ministers has  

to aid and advice Governor.  It inter alia provides that there  

shall be a Council of Ministers with the Chief Minister as  

80

the head to aid and advise the Governor in the exercise of  

his  functions,  except  in so far  as he is  by or  under  the  

Constitution required  to  exercise  his  functions or  any of  

them in his discretion.  The said Article further provides  

that if any question arises whether any matter is or is not a  

matter in respect of which the Governor is by or under this  

Constitution required to act in his discretion, the decision  

of  the  Governor  in  his  discretion shall  be  final,  and the  

validity  of  anything  done  by  the  Governor  shall  not  be  

called in question on the ground that he ought or ought not  

to have acted in his discretion.  Sub Article (3) of Article  

163  stipulates  that  the  question  whether  any,  and if  so  

what,  advice  was tendered by  Ministers  to  the  Governor  

shall not be inquired into in any Court.   

56.Article  239AA  inserted  by  the  Constitution  (Sixty-ninth  

Amendment)  Act,  1991  enacts  special  provisions  with  

respect to Delhi.  Clause (1) of said Article states that as  

from the date of commencement of the Constitution (Sixty-

ninth Amendment)  Act,  1991 which is  February 1,  1992  

81

the  Union Territory  of  Delhi  shall  be called the  National  

Capital Territory of the Delhi and the administrator thereof  

appointed  under  Article  239  shall  be  designated  as  the  

Lieutenant  Governor.   Sub-clause  (2)  deals  with  the  

constitution of Legislative Assembly for the National Capital  

Territory  and total  number of  seats  of  the  assembly etc.  

Sub-clause  (3)  of  the  Article  confers  power  on  the  

Legislative Assembly to make laws for the whole or any part  

of the National Capital Territory.  Sub-clause (4) with which  

the court is concerned, inter alia provides that there shall  

be a Council of Ministers consisting of not more than ten  

per cent of the total number of members in the Legislative  

Assembly, with the Chief Minister at the head to aid and  

advise  the  Lieutenant  Governor  in  the  exercise  of  his  

functions in relation to matters with respect to which the  

Legislative Assembly has power to make laws, except in so  

far as he is,  by or under any law, required to act in his  

discretion.  

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57. A meaningful  and conjoint  reading  of  Article  163  of  the  

Constitution makes it clear that the Governor has to act on  

aid and advice of the Council of Ministers with the Chief  

Ministers as the head except in so far as he is by or under  

this Constitution required to exercise his functions or any  

of them in his discretion.  In view of the provisions of sub  

Article  (4)  of  Article  239AA  of  the  Constitution,  the  Lt.  

Governor  has  to  take  aid  and  advice  of  the  Council  of  

Ministers  in  the  exercise  of  his  functions  in  relation  to  

matters with respect to which the Legislative Assembly has  

power to make laws.  Article 235 provides that the control  

over the subordinate courts is vested in High Court of a  

State.   The  expression  “control”  has  been  elucidated  in  

several reported decisions of this Court, the leading case  

being  Shamsher vs.  State of Punjab (1974) 2 SCC 831.  

The “control” vested in the High Court is a mechanism to  

ensure independence of the subordinate judiciary.  Under  

Article  235  of  the  Constitution,  the  control  over  the  

subordinate  judiciary,  vested  in  the  High  Court,  is  

exclusive in nature, comprehensive in extent and effective  

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in operation and it  is  to subserve a basic  feature of  the  

Constitution, i.e., independence of judiciary.  Among others  

things, it includes – (a) (i)  disciplinary jurisdiction and a  

complete control subject only to the power of Governor in  

the  matter  of  appointment,  dismissal,  removal  and  

reduction in rank of District Judges and initial posting and  

promotion to the cadre of District Judges, (ii) in Article 235  

the word ‘Control’ is accompanied by the word ‘vest’ which  

shows that the High Court alone is made the sole custodian  

of the control over the judiciary, and (iii) Suspension from  

service  of  a  member  of  judiciary  with  a  view  to  hold  

disciplinary  enquiry;  (b)  transfers,  promotion  and  

confirmation of such promotions, of persons holding posts  

in  judicial  service,  inferior  to  that  of  District  Judge;  (c)  

transfer  of  District  Judges;  (d)  recall  of  District  Judges  

posted  on  ex-cadre  posts  or   on  deputation  on  

administrative  posts;  (e)  award  of  selection  grade  to  the  

members of the judicial service, including District Judges  

and  grant  of  further  promotion  after  their  initial  

appointment to the cadre;  (f)  confirmation of  the District  

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Judges who have been on probation or are officiating after  

their initial appointment or promotion by the Governor to  

the  cadre  of  District  Judges  under  Article  233;  and  (g)  

premature  or  compulsory  retirement  of  Judges  of  the  

District Courts and of Subordinate Courts.  

58.The scheme envisaged by the Constitution does not permit  

the State to encroach upon the area reserved by Articles  

233, 234 and first part of Article 235 either by legislation or  

rules or executive instructions.   

59.Article  235  has  no  concern  with  the  conferring  of  

jurisdiction and powers on the Court but it only relates to  

administrative  and  disciplinary  jurisdiction  over  the  

subordinate Courts.  Therefore, the conferment of power of  

the  prescribed  authority  by  the  State  Legislature  on the  

Judicial  Officers  cannot  be  construed  to  mean  that  the  

power of the High Court under Article 235 is inoperative or  

inchoate  as  High  Court  alone  is  the  sole  authority  

competent  to  initiate  disciplinary  proceedings  against  

Subordinate  Judicial  Officers  or  to  impose  various  

85

punishments  including  passing  of  order  of  compulsory  

retirement on verification of the service record.    The State  

is  least  competent  to  aid  and  advise  Governor  on  such  

subjects.   While  the  High  Court  retains  the  power  of  

disciplinary  control  over  the  subordinate  judiciary  

including  power  to  initiate  disciplinary  proceedings,  

suspend them during enquiries and impose punishment on  

them,  but  when  it  comes  to  the  question  of  dismissal,  

removal or reduction in rank or termination of services of  

judicial officers on any count whatsoever, the High Court  

becomes  the  recommending  authority  and  cannot  itself  

pass the orders.  The formal order to give effect to such a  

decision has to be passed by the State  Governor  on the  

recommendations  of  the  High  Court.   In  disciplinary  

proceedings if an action is taken by the High Court against  

the judicial officer the recommendations made by the High  

Court bind the Governor and he is left with no discretion  

except  to  act  according  to  the  recommendations.   The  

Governor, under the scheme of Articles 233, 234 and 235  

of  the  Constitution cannot  refuse  to  act  in  terms of  the  

86

recommendations made by the High Court on the ground  

that he is not aided and advised by the Council of Ministers  

and this is the true import of total control of the High Court  

over the Subordinate Judiciary.   

60.In the light of the above mentioned principles the decisions  

sited at the bar will have to be considered.  

61. In  Shamsher  Singh (Supra),  there  were  two  appellants,  

namely, Shamsher Singh and Ishwar Chand Agarwal.  The  

two appellants were members of the Punjab Civil Services  

(Judicial Branch) and were appointed on probation.  The  

services of appellant Shamsher Singh were terminated by  

an order dated April 27, 1967, by the Governor of Punjab  

under Rule 9 of the Punjab Civil Services (Punishment and  

Appeal) Rules, 1952, with immediate effect.  By an order  

dated  December  15,  1969,  the  services  of  the  appellant  

Ishwar Chand Agarwal were terminated under Rule 7(3) in  

Part  ‘D’  of  the  Punjab  Civil  Services  (Judicial  Branch)  

Rules,  1951,  by  the  Governor  of  Punjab,  on  the  

recommendation of the High Court of Punjab and Haryana.  

87

Both of  them had filed writ  petitions  in the  Punjab and  

Haryana  High  Court  against  the  termination  of  their  

services.  The writ petitions were dismissed and, thereafter,  

they had filed appeals to the Supreme Court.

62.The  first  contention  raised  by  appellant  Ishwar  Chand  

Agarwal that he completed his initial period of probation of  

two years on November 11, 1968 and by reason of the fact  

that he continued in service after the maximum period of  

probation, he became confirmed by necessary implication,  

was  negatived  by  this  Court  on  the  ground  that  notice  

dated  October  4,  1968  was  given  at  the  end  of  the  

probation and the period of probation got extended till the  

inquiry proceedings commenced by the notice under Rule 9  

came to an end.

63.The second contention on behalf of Ishwar Chand Agarwal  

that termination of his service was by way of punishment  

on the basis of  charges of  gross misconduct  by ex-parte  

enquiry  conducted  by  the  Vigilance  Department  found  

favour with this Court.

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64.This Court accepted the plea that the termination of his  

services was based on the findings of misconduct contained  

in about eight complaints, which were never communicated  

to him and High Court had abdicated the control vested in  

it  under  Article  235  by  not  having  an  enquiry  through  

judicial  officers  subordinate  to  the  control  of  the  High  

Court, but asking the Government to enquire through the  

Vigilance Department.   

65.The abdication of the control over the subordinate judiciary  

by  the  High  Court  under  Article  235  in  favour  of  the  

Government and the stand of the State that the High Court  

wanted the Government to be satisfied about the suitability  

of Mr. Agarwal was found to be something obnoxious and  

had  annoyed  and  shocked  this  Court.   Therefore,  this  

Court, without mincing the words, authoritatively, clearly  

and for future guidance of one and all, expressed itself in  

the  following  strong  words  in  para  78  of  the  reported  

decision.

89

“78. The  High  Court  for  reasons  which  are  not  stated  requested  the  Government  to  depute  the  Director of Vigilance to hold an enquiry.  It is indeed  strange that the High Court which had control over  the subordinate judiciary asked the Government to  hold an enquiry through the Vigilance Department.  The members of the subordinate judiciary are not  only under  the control  of  the High Court  but  are  also under the care and custody of the High Court.  The  High  Court  failed  to  discharge  the  duty  of  preserving  its  control.   The  request  by  the  High  Court to have the enquiry through the Director of  Vigilance  was  an  act  of  self  abnegation.   The  contention of the State that the High Court wanted  the  Government  to  be  satisfied  makes  matters  worse.  The  Governor  will  act  on  the  recommendation  of  the  High  Court.   That  is  the  broad basis of Article 235.  The High Court should  have  conducted  the  enquiry  preferably  through  District Judges.  The members of the subordinate  judiciary  look  up  to  the  High  Court  not  only  for  discipline but also for dignity.  The High Court acted  in  total  disregard  of  Article  235  by  asking  the  Government  to  enquire  through  the  Director  of  Vigilance.”   

Having  laid  down,  abovementioned  proposition  of  law,  

this Court deprecated the abdication of control by the High  

Court  by  observing  that  the  High  Court  denied  itself  the  

dignified  control  over  the  Subordinate  Judiciary  and  after  

holding that the order of termination of the services of Ishwar  

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Chand Agarwal was clearly by way of punishment, set aside  

the same.

66. In view of what is categorically, clearly and authoritatively  

held in paragraph 78 of the reported decision there is no  

manner of doubt that it is ruled by Seven Judge Bench of  

this  Court  in  case  of  Shamsher Singh (supra),  that  the  

Governor has to act on the recommendation of  the High  

Court and that is the broad basis of Article 235.   

The appellant Shamsher Singh was appointed on May 1,  

1964 as Subordinate Judge.  He was on probation.  On March  

22,  1967,  the  Chief  Secretary  issued  a  notice  to  him  

substantially  repeating  the  same  charges  which  had  been  

communicated to him by the Registrar on December 15, 1966,  

and asked the appellant to show cause as to why his services  

should not be terminated as he was found unsuitable for the  

job.  The appellant gave an answer.  On April 29, 1967, the  

services of the appellant were terminated.

Shamsher Singh, in the context of the Rules of Business,  

contended  that  the  removal  of  a  Subordinate  Judge  from  

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service  was  a  personal  power  of  the  Governor  and  was  

incapable of being delegated or dealt with under the Rules of  

Business.

This  Court  held  that  the  Governor  can  allocate  the  

business  of  the  Government  to  the  Ministers  and  such  

allocation is no delegation and it is an exercise of executive  

power by the Governor through the Council or officers under  

the  Rules  of  Business.   Therefore,  the  contention  of  the  

appellant  that  the  order  was  passed  by  the  Chief  Minister  

without the formal approval of the Governor was found to be  

untenable and it was held that the order was of the Governor.

Thereafter,  this  Court  noted the  contents  of  the show-

cause notice, reply given to the said notice by the appellant,  

protection granted by Rule 9, etc. and held that it was clear  

that the order of termination of services of Shamsher Singh  

was one of punishment and set it aside.

In  the  light  of  the  contention  raised  on  behalf  of  

Shamsher Singh in the context of the Rules of Business, this  

Court, in para 88 of the said decision, held that the President  

92

and  the  Governor  act  on  the  aid  and  advice  of  Council  of  

Ministers in executive action and the appointment as well as  

removal of the members of the Subordinate Judicial Service is  

an executive action of the Governor to be exercised on the aid  

and advice of the Council of Ministers in accordance with the  

provisions of the Constitution.

67. Thus what is observed by the Supreme Court, in para 88 of  

the reported decision, will have to be read in the light of the  

submission  made  on  behalf  of  the  appellant  Shamsher  

Singh  and  subject  to  clear,  unambiguous  and  manifest  

proposition  of  law laid  down in  para  78  of  the  reported  

decision.   Therefore,  it  is  wrong  to  contend  that  in  

Shamsher Singh’s case (supra), it is ruled by this Court  

that the Governor is bound to act as per the aid and advice  

tendered  by  the  Council  of  Ministers  and  not  on  the  

recommendations  of  the  High  Court  in  the  matter  of  

termination of services of the judicial officers on any count  

whatsoever.

93

68. In another decision relied upon by the learned counsel for  

the  appellants,  i.e.,  in  M.M. Gupta and Others (Supra),  

this Court held that in the appointment of Judicial Officers  

or removal of Judicial Officer by the Government, there has  

to be effective consultation between the Government and  

the High Court.  This decision basically interprets Section  

109 of the Constitution of Jammu and Kashmir.   In the  

State of Jammu and Kashmir certain vacancies for the post  

of District and Sessions Judge occurred for being filled up  

out of the eligible Judicial Officers.  The High Court at a  

meeting  of  all  the  Judges  considered  the  merits  and  

suitability of all the eligible candidates and by a resolution  

recommended to the Government the name of some officers  

in supersession of others.  The Government then called for  

a  copy  of  the  High  Court’s  resolution  and  Annual  

Confidential  Reports of  the candidates.   In response,  the  

high  Court  sent  its  detailed  comments  justifying  its  

recommendation  as  also  reasons  for  the  supersession of  

seniors along with the resolution and confidential reports  

as desired by the Government.  Thereafter, a Cabinet sub-

94

committee  considered  the  matter.   But  the  government  

neither  communicated  the  recommendation  of  the  

Committee to the High Court, nor sought the High Court’s  

views thereon and thereafter without any further intimation  

or discussions made the appointments in accordance with  

seniority.  Those officers whose names were recommended  

by the High Court filed a writ petition under Article 226  

challenging  validity  of  the  appointments.   The  Court  

granted  a  stay  of  operation  of  the  appointment  order  

pending disposal  of  the  matter  regarding admissibility  of  

the  petition.   But  ultimately  in  view  of  the  agreement  

between the parties, the High Court declined to hear the  

petition on the ground of judicial propriety and vacated the  

order  of  stay  and  granted  a  certificate  of  fitness  to  the  

petitioners to file an appeal in the Supreme Court, holding  

that the point involved in the writ petition relating to the  

interpretation of Section 109 of the Constitution of Jammu  

and  Kashmir,  raised  a  substantial  question  of  law  of  

general  public  importance and the case was a fit  one in  

which a certificate of fitness should be granted.  Against  

95

this order the State filed a special leave to appeal in this  

Court.   The  petitioners  also  filed  a  writ  petition  under  

Article 32 substantially for the same reliefs claimed in their  

earlier  writ  petition  under  Article  226.   Allowing  the  

aggrieved  officers  appeal  with  costs  against  the  State  

Government,  this  Court  held  that  the  power  to  make  

appointment of District Judges vested in the Governor is  

conditioned  by  the  mandatory  duty  on  the  part  of  the  

Governor to consult the High Court,  and the High Court  

has to  decide  whether  a  person is  fit  for  promotion and  

make  recommendations  accordingly.   This  Court  further  

held that the consultation has to be made with the High  

Court alone and not with any other authority, because the  

High Court by virtue of its control over the officers must be  

considered to be the best judge of the ability and suitability  

of any officer as it  has in its  possession all  the relevant  

materials  regarding  the  performance  of  the  officers.  

Therefore, this Court in the said case ruled that it should  

generally be left to the High Court to decide as to which of  

the officers will best serve the requirements in furtherance  

96

of the cause of justice.   In this decision in no uncertain  

terms this Court after considering previous judgments on  

the  point  held  that  the  High  Court  should  judge  the  

suitability for promotion in a detached manner taking into  

consideration  all  material  facts  and relevant  factors  and  

normally, as a matter of rule, the recommendations made  

by  the  High  Court  should  be  accepted  by  the  State  

Government and the Governor should act on the same.  If  

the decision is construed in a pragmatic manner there is no  

manner of doubt that this decision also takes a view that  

Governor has to act on the recommendations made by the  

High  Court.   Ultimately,  this  Court  found  that  the  

appointments of respondent Nos. 3, 4, 5, 6 therein made by  

the  State  Government  were  in  violation  of  the  

Constitutional provisions and were therefore, set aside.  

69. In State of Haryana Vs. Inder Prakash Anand H.C.S. and  

Others (Supra),  the  respondent  joined  the  Punjab  Civil  

Service,  (Executive  Branch)  in November,  1954.   He was  

selected for the Judicial Branch of the Punjab Civil Service  

97

on May 1, 1965.   On November 15, 1968 he was promoted  

as officiating Additional District and Sessions Judge.  He  

was  due  to  attain  the  age  of  55  years  on  February  24,  

1971.  The State referred his case to the High Court for its  

recommendation whether he should be retired at the age of  

55 years or he should be retained in service till the age of  

58 years, i.e., the age of superannuation.  The High Court  

recommended that  the  respondent  should be  reverted to  

his  substantive  post  of  Senior  Subordinate  Judge/Chief  

Judicial  Magistrate  and  that  he  might  be  allowed  to  

continue in service till the age of 58 years.  The State again  

sought recommendation about  his  retirement.   The High  

Court recommended against compulsory retirement.  The  

State Government did not agree and retired the respondent  

compulsorily.  The High Court in a Writ Petition filed by the  

respondent  quashed  the  order.   In  appeal  this  Court  

examined the scope of Article 235 of the Constitution and  

held  that  control  which  is  vested  in  the  High  Court  is  

complete control subject only to the power of the Governor  

in the matter of appointment including dismissal, removal,  

98

reduction in rank and the initial posting and of the initial  

promotion  to  District  Judges.   According  to  this  Court  

when a case is not of removal or dismissal or reduction in  

rank, any order in respect of exercise of control over the  

judicial officers is by the High Court and cannot be by any  

other authority.   What is explained by this Court is that  

there cannot be dual control and if the State Government is  

to  have  the  power  of  deciding  whether  a  judicial  officer  

should be retained in service after attaining the age of 55  

years up to the age of 58 years, that will seriously affect the  

independence of the Judiciary and take away the control  

vested in the High Court.  What is ruled by this Court in  

the said decision is that it is unsound to contend that the  

Governor and not the High Court has the power to retire a  

judicial officer compulsorily under Section 14 of the Punjab  

General Clauses Act.   

70.In paragraph 18 of the reported judgment this Court has  

held that the control vested in the high Court is that if the  

High Court is of the opinion that a particular judicial officer  

99

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,  but  in  such  cases  it  is  the  

contemplation in the Constitution that the Governor as the  

head  of  the  State  will  act  in  harmony  with  the  

recommendation  of  the  High  Court.   According  to  this  

Court, if the recommendation of the High Court is not held  

to  be  binding  on  the  State,  the  consequences  will  be  

unfortunate.  What is highlighted by this Court in the said  

decision is that it is in public interest that the State will  

accept  the  recommendation  of  the  High  Court.   As  a  

principle, it is stated in the said decision that the vesting of  

complete control over the subordinate Judiciary in the High  

Court leads to this that the decision of the High Court in  

matters within its jurisdiction will bind the State.   

71. In Baldev Raj Guliani (1976) 4 SCC 201, this Court had  

occasion to consider and interpret the provisions of Articles  

235, 311 and 234 read with Article 309 of the Constitution.  

10

In  the  said  case  adverse  reports  having  been  received  

against the appellant while he was acting as Subordinate  

Judge, disciplinary proceedings were initiated against him  

by  the  High  Court.   After  preliminary  enquiry,  he  was  

suspended and on the findings of the departmental enquiry  

and on consideration of his explanation in reply to show-

cause  notice  under  Article  311(2),  the  High  Court  

recommended to the Government that the officer should be  

removed from service.  The State Government although on  

its own showing was inclined to agree with the views of the  

High  Court  and  with  the  recommendations  made  by  it,  

however  referred the case  to  the  Haryana Public  Service  

Commission  for  advice  purporting  to  act  under  Article  

320(3) of the Constitution.  The Commission advised that  

no case had been made out against the appellant and that  

he  should  be  exonerated.   The  Governor  accepted  the  

advice  of  the  Commission  and  passed  the  order  for  

reinstatement.  The High Court, however, did not issue any  

posting order as it regarded the order of reinstatement by  

the Governor illegal.  It even requested the Government to  

10

review its order.   

72.Thereupon the appellant filed a writ petition praying for a  

writ  of  mandamus  directing  the  high  Court  to  issue  an  

appropriate  order  of  posting  and  also  for  a  mandamus  

directing the Government to disburse full salary to him and  

other  consequential  reliefs.   While  the  writ  petition  was  

pending  the  Governor  compulsorily  retired  him.  

Subsequently a Full Bench of the High Court delivered its  

judgment  holding  the  order  of  reinstatement  violative  of  

Article  235,  for  the  Governor  was  bound  to  accept  the  

recommendation  of  the  High  Court  as  regards  the  

subordinate  judiciary.   Therefore,  the appellant  preferred  

an  appeal  before  this  Court.   Three  questions  were  

considered by this Court in the said case – (1) whether the  

Government is bound under the Constitution to accept the  

recommendation of the High Court and to pass an order of  

removal of the judicial officer, (2) whether consultation with  

the  Public  Service  Commission  in  the  matter  of  a  

disciplinary proceeding relating to the judicial officer under  

10

the control of the High Court is unconstitutional.  Was the  

order  of  reinstatement  passed  by  the  Government  

constitutionally valid, and (3) if not what will be position of  

the  officer  on  the  date  of  the  officer’s  compulsory  

retirement?  Was an order of removal possible after that  

date?  

73.After  considering  the  scheme  envisaged  by  different  

provisions  of  the  Constitution  this  Court  held  that  the  

appointing authority of a Subordinate Judge under Article  

235  as  well  as  under  the  Appointment  Rules,  is  the  

Governor because under Article 235 itself the Subordinate  

Judge will be governed by the Appointment Rules   made  

under Article 234 read with Article 309.   This Court then  

considered  the  submission  of  the  appellant  that  the  

Governor being the appointing authority, both under Article  

235 and the Appointment Rules read with the Punishment  

Rules, is the final authority to pass the order of removal of  

the officer and is not under any constitutional obligation to  

be bound by the recommendation of the High Court and  

10

also the assertion made on behalf of the High Court that  

Article 235 leaves no option to the Governor to refuse to  

accept  its  recommendation  in  a  disciplinary  matter  in  

respect of a judicial officer.  This Court found that the High  

Court in making its recommendation to the Governor for  

passing  the  order  of  removal,  had  rightly  conceded  the  

authority of the Governor to pass the same.  Thereafter the  

Court considered the question : Is the recommendation of  

the  High  Court  binding  on  the  Governor,  and  answered  

that since the Governor is the ultimate authority to pass  

the order for removal it will not be correct always to insist  

that he has no authority even under certain extraordinary  

circumstances  to  decline  to  accept,  forthwith,  the  

particular recommendation, but ordinarily and as a matter  

of graceful routine, recommendations of the High Court are  

and should be always accepted by the Governor, because  

that is ordinarily so and should be in practice the rule as a  

matter of healthy convention.  

10

74.In paragraph 28, of the reported decision this Court has  

held that the quality of exclusive control of the High Court  

does not appear to be whittled down by the constitutional  

device of all orders issued in the name of the Governor as  

the head of the State administration and, therefore, when  

the  High  Court  exercising  disciplinary  control  over  the  

subordinate judiciary finds, after a proper enquiry, that a  

certain  officer  is  guilty  of  gross  misconduct  and  is  

unworthy to be retained in judicial service and, therefore,  

recommends to the Governor his removal or dismissal, it is  

difficult  to  conceive  how and  under  what  circumstances  

such a recommendation should be rejected by the Governor  

acting with the aid and advice of the Council of Ministers  

or,  as is usually the case,  of  one of  the ministers.   It  is  

explained by this Court  in the said decision that in this  

context more than once the Supreme Court has observed  

that the recommendation of the High Court in respect of  

judicial officers should always be accepted by the Governor,  

and  this  is  the  inner  significance  of  the  constitutional  

provisions relating to the subordinate judiciary.  This Court  

10

further noted that whenever in an extraordinary case, rare  

in itself, the Governor feels, for certain reasons that he is  

unable to accept the High Court’s recommendations, these  

reasons will be communicated to the High Court to enable  

it to reconsider the matter, but it is, however, inconceivable  

that  without  reference  to  the  High  Court,  the  Governor  

would  pass  an  order  which  had  not  been  earlier  

recommended  by  the  High  Court.   This  Court  further  

explained  that  such  a  course  will  be  contrary  to  the  

contemplation  in  the  Constitution  and  should  not  take  

place.  In para 36 of the reported decision , this Court has  

explained  the  power  and/or  role  of  Governor  in  such  

matters and laid down the law authoritatively as under : -

“36. The Governor could not have passed any order  on the advice of the Public Service Commission in  this  case.   The  advice  should  be  of  no  other  authority  than  the  High  Court  in  the  matter  of  judicial  officers.   This  is  the  plain  implication  of  Article 235.  Article 320(3)(c) is clearly out of place  so far as the High Court is concerned dealing with  judicial officers.  To give any other interpretation to  article 320(3)(c) will be to defeat the supreme object  underlying Article 235 of the Constitution specially  intended  for  the  protection of  the  judicial  officers  and  necessarily  the  independence  of  the  

10

subordinate judiciary.  It is absolutely clear that the  Governor  cannot  consult  the  Public  Service  Commission  in  the  case  of  judicial  officers  and  accept its advice and act according to it.  There is  no room for any outside body between the Governor  and the High Court.”

It may be noted that in the case of Baldev Raj Guliani (supra),  

this Court had considered the case of Shamsher Singh and  

thereafter has laid down above mentioned proposition of law.  

In the decision delivered in case of Baldev Raj Guliani,  this  

Court has not ruled that the Governor has to act in aid and on  

advice of the Council of Ministers.  What is ruled is that the  

recommendation made by the High Court  is  binding on the  

Governor.   

75. Again in the case of Registrar, High Court of Madras     Vs.  

R. Rajaiah, (1988) 3 SCC 211, the High Court had decided  

to  compulsorily  retire  the  respondents  but  had  not  

communicated  the recommendations  to  the  Governor  for  

passing formal orders of compulsory retirement.  Instead  

the  High  Court  had  passed  the  orders  of  compulsory  

retirement under FR 56 (d).  As there was no formal order  

by the Government under FR 56 (d), this Court held that  

10

the  impugned  orders  of  the  High  Court  were  ineffective.  

Ultimately,  this  Court  did  not  interfere  with  the  view  

expressed  by  the  Division  Bench  of  the  High  Court  on  

merits  of  the  matter  and  held  that  the  High  Court  was  

perfectly  justified  in  quashing  orders  of  compulsory  

retirement.   However, this Court considered the scope of  

Article  235 of  the Constitution and held that the test  of  

control is not the passing of an order against a member of  

the subordinate judicial service, but the power to take such  

decision and action.  The Court explained 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 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.  This Court further explained that  

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  

10

servant  and  in  the  second  part,  the  decision  would  be  

carried out by a formal order.  Having explained this, this  

Court proceeded to hold that 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  and  such  a  decision  is  

arrived at by holding an enquiry by the High Court against  

the member concerned, and after the High Court comes to  

the  conclusion  that  some  action  either  in  the  nature  of  

compulsory  retirement  or  by  the  imposition  of  a  

punishment, as the case may be, has to be taken against  

the  member  concerned,  the  High  Court  will  make  a  

recommendation in  that  regard to  the  Governor  and the  

Governor will act in accordance with such recommendation  

of the High Court by passing an order in accordance with  

the decision of the High Court.  What is ruled by this Court  

is that the Governor cannot take any action against any  

member  of  a  subordinate  judicial  service  without  and  

contrary to the recommendation of the High Court.  After  

review of the law on the subject matter till then, this Court  

10

has made following pertinent observations,  in para 18 of  

the reported decision: -

“18. 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  a  subordinate  judicial  service  should  be  retired  prematurely or not.  If the High Court comes to the  conclusion  that  such  a  member  should  be  prematurely retired, it will make a recommendation  in  that  regard  to  the  Governor  inasmuch  as  the  Governor is the appointing authority.  The Governor  will make formal order of compulsory retirement in  accordance  with  the  recommendation  of  the  High  Court.”

Again, in para 20 of the reported decision, this Court, while  

holding  that  so  long  as  there  is  no  formal  order  by  the  

Governor, the compulsory retirement, as directed by the High  

Court would not take place, has, inter-alia observed that “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”.  The proposition of law laid  

down  in  this  case  also  supports  the  contention  of  the  

respondents that in the matter of disciplinary action against a  

11

member of the Subordinate Judicial Service, the Governor has  

no  option,  but  to  pass  final  order  on  the  basis  of  the  

recommendation of the High Court.

76. It may be mentioned that in this case, i.e., Registrar, High  

Court of  Madras (supra),  this  Court  has referred to the  

decision  of  Shamsher  Singh (supra),  and has  thereafter  

ruled  that  Governor  has  to  act  in  accordance  with  the  

recommendation of the High Court by passing an order in  

accordance  with the decision of  the  High Court  and the  

Governor cannot take any action against any member of  

the  judicial  service  without  and  contrary  to  the  

recommendation of the High Court.  

77. This Court further finds that in  Registrar (Admn.)  High  

Court of Orissa, Cuttack (Supra), decision of Orissa High  

Court on administrative side was required to be forwarded  

to  the  Governor  for  passing  an order  of  the  compulsory  

retirement  but  this  was  not  done,  and  an  order  of  

compulsory retirement was passed by the High Court itself.  

This  decision  was  challenged  before  the  high  Court  on  

11

judicial  side.   The writ  petition was decided in favour of  

judicial  officers holding that the order dated February 5,  

1987 compulsorily retiring them was bad in law.  In appeal,  

this Court considered the scope of Articles 233 to 235 of  

the Constitution as well as Articles 55 and 368 in the light  

of basic feature of the Constitution namely independence of  

the judiciary.  After noticing several previous decisions on  

the  point,  this  Court  considered the  powers  of  the  High  

Court  and  held  that  the  Governor  is  bound  by  the  

recommendation of the High Court but the constitutional  

propriety requires that the recommendation would be sent  

by the High Court to the Governor and formal order would  

be  passed  by  the  Governor.   Explaining  the  scope  of  

Articles 234, 235 and 311 of the Constitution, a five-Judge  

Constitution Bench of this Court has held 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 punishment on them but when it comes to the  

question  of  dismissal,  removal,  reduction  in  rank  or  

11

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.  What is ruled by the Constitution Bench is that 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.

78.In the said case, this Court found that 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 judicial officers were neither in service nor  

were they technically out of service nor had they performed  

any work and, therefore, in order to balance the equities  

between  the  parties  and  in  order  to  give  litigation  a  

quietous,  this  Court  had  requested  the  Governor  of  the  

State to pass a formal order of compulsory retirement of  

judicial officers.

79.On review of law, what is ruled by the Constitution Bench  

of this Court is that undoubtedly, the High Courts alone  

11

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, and it  

is well settled again by a catena of decisions of this Court  

that the recommendation of the High Court is binding on  

the State Government/Governor.   

80. In Tej Pal Singh Vs. State of U.P. and Another, (1986) 3  

SCC 604, the State Government moved the High Court in  

the year 1967 with proposal of premature retirement of the  

appellant, an Additional District and Sessions Judge.  On  

July  8,  1968  the  Administrative  Judge  agreed  with  the  

proposal of premature retirement after giving 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  

its approval to the recommendation of the Administrative  

Judge  earlier  communicated  to  the  State  Government.  

11

Thereafter  on  August  30,  1968  the  Additional  Registrar  

transmitted the order of retirement to the appellant.  It was  

actually  served  on  the  appellant  on  September  3,  1968.  

The  question  for  consideration  in  this  case  before  this  

Court  was  whether  the  order  of  compulsory  retirement  

passed against the appellant satisfied the requirements of  

the  Constitution.   While  allowing  the  appeal,  this  Court  

held  that  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 was void and ineffective.  What is ruled is that 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  comes to the conclusion that there  

should be such retirement, the Court recommends to the  

Governor to do so, and the conclusion is to be of the High  

Court since the control  vests therein.   After noticing the  

Rules  obtaining in the Allahabad High Court,  this Court  

11

held that the Administrative Committee could act for and  

on behalf of the Court but the Administrative Judge could  

not  have  done  so  and  therefore  his  agreeing  with  the  

Government proposal was of no consequence and did not  

amount  to  the  satisfaction  of  the  requirement  of  Article  

235.   After  noting  that  it  was  only  after  the  Governor  

passed  the  order  on the  basis  of  such recommendation,  

that  the  matter  was  placed  before  the  Administrative  

Committee  before  the  order  of  retirement  was  actually  

served on the appellant, this Court held that the deviation  

was not a mere irregularity which could be cured under  

Rule 21 of the Rules of Court, 1952 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 and the error committed was  

an incurable defect amounting to an illegality.  This Court  

took notice of the decision of the Court in State of U.P. Vs.  

Batuk Deo Pati Tripathi, (1978) 2 SCC 102, and ruled  

therein that the Governor can pass an order of compulsory  

retirement only on the recommendation made by the High  

11

Court  or  the  Administrative  Committee.   Further,  in  

paragraph 18 of the reported decision, this Court observed  

that  in  view  of  the  control  over  the  members  of  lower  

judiciary vested in the High Court by virtue of Article 235 of  

the Constitution, the Governor is bound, in each case, to  

act  in  accordance  with  the  recommendation  of  the  High  

Court.   This  decision  also  takes  the  firm  view  that  the  

recommendation made by the High Court is binding on the  

Governor.   

81.Thus, it is fairly well settled by catena of decisions of this  

Court  that  in  the  matter  of  compulsory  retirement  of  a  

Judicial Officer the Governor cannot act on the aid and the  

advice of Council of Ministers but has to act only on the  

recommendation  of  the  High  Court.   Though  the  Lt.  

Governor is a party to these appeals, he has not raised any  

plea  that  the  recommendation  made  by  the  Delhi  High  

Court was not binding on him and he could have acted in  

the  matter  only  on the aid and advice  of  his  Council  of  

Ministers.  Thus the order of the Lt. Governor compulsorily  

11

retiring the appellants without seeking aid and advice of his  

Council of Ministers is neither ultra vires nor illegal and is  

rightly sustained by the High Court.  The Governor could  

not have passed any order on the aid and advice of Council  

of Ministers in this case.  The advice should be of no other  

authority  except that of  the High Court  in the matter  of  

judicial officers.  This is the plain implication of Article 235.  

Reliance on Article 239AA(4) is entirely out of place so far  

as the High Court is concerned, dealing with the judicial  

officers.   To  give  any  other  interpretation  to  Article  

239AA(4) will  be to defeat the supreme object underlying  

Article  235  of  the  Constitution,  specially  intended  for  

protection  of  the  judicial  officers  and  necessarily  

independence of the subordinate judiciary.  It is absolutely  

clear that the Governor cannot take the aid and advice of  

his Council of Ministers in the case of judicial officers and  

accept its advice and act according to it.  There is no room  

for any outside body between the Governor and the High  

Court.  Therefore, this Court does not find any substance  

in this contention also and the same is rejected.  

11

82.The  next  point  which  was  argued  on  behalf  of  the  

appellants  was  that  the  appellants  were  made  to  retire  

compulsorily  from  service  without  affording  them  an  

opportunity to make representation against the ACR of the  

year  2000  wherein  they  were  graded  as  “‘C’  doubtful  

integrity”,  which  was  the  basis  for  their  compulsorily  

retirement,  and,  therefore,  the  orders  retiring  them  

compulsorily from service are liable to the set aside.  It was  

vehemently  contended  that  in  such  circumstances  when  

ACR of  2000 wherein the appellants were graded as “‘C’  

doubtful integrity” which was the sole basis of passing the  

order  of  compulsory  retirement,  the  respondents  were  

under legal obligation to look into the representation of the  

appellants  against  those adverse  remarks but  before  the  

appellants could made the representation against the said  

ACR, orders retiring them compulsorily from service were  

passed,  and,  therefore,  the  orders  impugned  should  be  

regarded as arbitrary, unfair and unreasonable.   

11

83.In the appeal arising from SLP No. 27028 of 2008 deceased  

Mr. R.S. Verma had stated that adverse remark for the year  

2000  was  communicated  to  him  vide  letter  dated  

September 21, 2001 by the Registrar, Vigilance, Delhi High  

Court which was received by him on September 25, 2001,  

whereas on the same date i.e. on September 21, 2001 the  

Screening  Committee  had  taken  decision  to  retire  him  

prematurely from service which was accepted by the Full  

Court  in  its  meeting  held  on  September  22,  2001  and  

though in the letter communicating ACR it was mentioned  

that  he  was  entitled  to  made  representation  within  six  

weeks, the order of compulsory retirement against him was  

passed on September 27, 2001 which was communicated  

to him on September 28, 2001 and as he was deprived of  

making  any representation against  the  ACR for  the  year  

2000, the order retiring him from service compulsorily was  

bad in law.  

84.In the Appeal arising from Special Leave Petition No.27200  

of 2008 it was contended by M.S. Rohilla that in the ACR  

12

for the year 2000, recorded by the Full Court on May 24,  

2001,  he  was  graded  ‘C-Integrity  doubtful’  and  he  was  

communicated the said ACR and was asked to submit his  

representation  within  six  weeks,  but  within  three  days  

thereafter i.e. on September 27, 2001 decision was taken to  

retire  him  compulsorily  from  service  and,  therefore,  the  

order retiring him compulsorily from service was illegal.   

85.In Appeal arising out of Special Leave Petition No. 314 of  

2009 it  was contended on behalf  of  P.D. Gupta that the  

Full Court had recorded remarks ‘C-Integrity Doubtful’ for  

the  year  2000,  in his  case,  which was communicated to  

him  vide  letter  dated  September  22,  2001  and  he  was  

asked to file his representation against the remarks within  

six weeks, but without waiting for the representation to be  

filed by him, the High court upon the adverse remarks of  

2000 had recommended his premature retirement to the Lt.  

Governor  under  F.R.  56(j)  read with Rule 33 of  the DJS  

Rules,  and  therefore  the  order  retiring  him from service  

should have been set aside by the High Court.   

12

86.As  against  this  it  was  emphasized  on  behalf  of  the  

respondents that this Court not only has taken the view  

that a single adverse entry reflecting on the integrity of the  

officer is sufficient because there has to be constant vigil by  

the High Court over subordinate judiciary but this Court  

has further  taken the view that  it  is  not  necessary  that  

such an entry should have been communicated or that the  

officer concerned should have an opportunity to represent  

against the said adverse entry or that before it  could be  

taken  into  consideration  and  acted  upon,  the  

representation should have been considered or rejected.   

87.The  High  Court  in  the  impugned  judgment,  while  

considering this plea raised on behalf of the appellants, has  

inter alia held that action under FR 56(j) need not await the  

final disposal of such representation.  It may be mentioned  

that in support of their respective contentions, the learned  

counsel have cited several decisions for the guidance of the  

Court  but  this  Court  proposes  to  refer  to  only  those  

judgments which are relevant for deciding the issue.   

12

88.Compulsory retirement from service is not considered to be  

a  punishment.   Under  the  relevant  rules,  an  order  of  

dismissal is a punishment laid on a Government servant  

when it is found that he has been guilty of misconduct or  

the like.  It is penal in character because it involves loss of  

pension which under the Rules have accrued in respect of  

the service already put in.  An order of removal also stands  

on the same footing as an order of dismissal and involves  

the same consequences, the only difference between them  

being that while a servant who is dismissed is not eligible  

for re-appointment, one who is removed is.  A compulsory  

retirement is neither dismissal nor removal and differs from  

both  of  them,  in  that  it  is  not  a  form  of  punishment  

prescribed  by  the  rules  and  involves  no  penal  

consequences, in as much as the person retired is entitled  

to pension and other retiral benefits, proportionate to the  

period of service standing to his credit.   

89. As explained by a Bench of three Hon’ble Judges of this  

Court in  State of U.P. vs.  Shyam Lal Sharma AIR 1971  

12

SC 2151, in ascertaining, whether the order of compulsory  

retirement is one of punishment, it has to be ascertained,  

whether in the order of compulsory retirement there was  

any  element  of  charge  or  stigma  or  imputation  or  any  

implication  of  misbehaviour  or  incapacity  against  the  

officer  concerned.   Secondly,  the  order  of  compulsory  

retirement will be indicative of punishment or penalty if the  

order will involve loss of benefits already earned.  Thirdly,  

as order of compulsory retirement on the completion of 25  

years of service or an order of compulsory retirement made  

in the public interest to dispense with further service will  

not amount to an order for dismissal or removal as there is  

no  element  of  punishment.   Fourthly,  an  order  of  

compulsory retirement will not be held to be an order in the  

nature of punishment or penalty on the ground that there  

is possibility of loss of future prospects, namely, that the  

officer  will  not  get  his  pay  till  he  attains  the  age  of  

superannuation, or will  not get an enhanced pension for  

not  being  allowed  to  remain  a  few  years  in  service  and  

being compulsorily retired.  So far as the present cases are  

12

concerned, this Court finds that there are no words in the  

orders of compulsory retirement, which throw any stigma  

against  the  two  appellants  and  the  deceased  officer.  

Therefore, it is not necessary for this Court to make inquiry  

into the Government files to discover whether any remark  

amounting  to  stigma  could  be  found  in  the  files.   The  

reason  is  that  it  is  the  order  of  compulsory  retirement,  

which alone is for examination.  If the order itself does not  

contain  any  imputation  or  charge  against  the  two  

appellants  and  the  deceased  officer,  the  fact  that  

considerations  of  misconduct  or  misbehaviour  weighed  

with the High Court in coming to its conclusion to retire  

them compulsorily does not amount to any imputation or  

charge against them.  It is not established from the order of  

compulsory retirement itself that the charge or imputation  

against the appellants was made a condition for exercise of  

the power.  Therefore, the orders of retirement cannot be  

considered to be one for dismissal or removal in the nature  

of penalty or punishment.

12

90.Now,  the  policy  underlying  Article  311(2)  of  the  

Constitution  is  that  when  it  is  proposed  to  take  action  

against  the  servant  by  way of  punishment  and that  will  

entail  forfeiture  of  benefits  already  earned  by  him,  he  

should be heard and given an opportunity to show cause  

against  the  order.   The  confidential  reports  provide  the  

basic and vital inputs for assessing the performance of an  

officer and his advancement in his career as also to serve  

the  data  for  judging  his  comparative  merits  when  the  

questions  arise  for  his  confirmation,  promotion,  grant  of  

selection grade, crossing E.B., retention in service beyond  

the age of 50 years etc.  Maintenance of such records is  

ordinarily regulated by administrative rules or instructions.  

Writing the confidential report is primarily and essentially  

an administrative function.  Normally tribunals/Courts are  

loath to  interfere  in  cases  of  complaints  against  adverse  

remarks and to substitute their own judgment for that of  

the  reporting  or  reviewing  officers.   It  is  because  these  

officers  alone  are  best  suited  to  judge  the  qualities  of  

officials working under them and about their competence in  

12

the  performance  of  official  duties  entrusted  to  them.  

Despite  fear  of  abuse  of  power  by  prejudiced  superior  

officers in certain cases, the service record contained in the  

confidential  reports,  by  and  large,  reflects  the  real  

personality of the officer.  The object of writing confidential  

reports and making entries therein is to give an opportunity  

to the public servant to improve excellence.  Article 51 A(j)  

of the Constitution enjoins upon every citizen the primary  

duty  to  constantly  endeavour  to  prove  excellence,  

individually  and  collectively,  as  a  member  of  the  group.  

Therefore, the officer entrusted with the duty to write C.R.  

has  a  public  responsibility  and  trust  to  write  the  C.R.  

objectively,  fairly  and  dispassionately  while  giving,  as  

accurately as possible the statement of facts on an overall  

assessment  of  performance  of  the  subordinate  officer.  

Opportunity  of  hearing  is  not  necessary  before  adverse  

remarks  because  adverse  remarks  by  themselves  do  not  

constitute  a  penalty.   However,  when  the  order  of  

compulsory retirement is passed, the authority concerned  

has to take into consideration the whole service record of  

12

the  officer  concerned  which  would  include  non-

communicated adverse remarks also.  Thus it is settled by  

several  reported  decisions  of  this  Court  that  un-

communicated  adverse  remarks  can  be  taken  into  

consideration  while  deciding  the  question  whether  an  

official should be made to retire compulsorily or not.   

91. In State of U.P. and Another Vs. Bihari Lal (1994) Supp  

(3) SCC 593, this Court has taken the view that even an  

adverse  entry  which  has  been  set  aside  in  appeal  on  

technical grounds could also be taken into consideration.  

The plea that since the last entry, i.e., ‘C-Integrity Doubtful’  

for the year 2000 was communicated almost around the  

same time when the order of compulsory retirement was  

communicated and as the appellants had no opportunity to  

represent against the same, it ought not to have been taken  

into consideration and that the consideration of the said  

last  adverse  entry  vitiates  the  order  of  compulsory  

retirement  has  no  merits.   This  Court  has  consistently  

taken the view that an order of compulsory retirement is  

12

not a punishment and does not have adverse consequence  

and,  therefore,  the  principles  of  natural  justice  are  not  

attracted.  What is relevant to notice is that this Court has  

held that an un-communicated adverse A.C.R.  on record  

can be taken into consideration and an order of compulsory  

retirement  cannot  be  set  aside  only  for  the  reason  that  

such  un-communicated  adverse  entry  was  taken  into  

consideration.   If  that  be  so,  the  fact  that  the  adverse  

A.C.R. was communicated but none of the appellants had  

an opportunity to represent against the same, before the  

same  was  taken  into  consideration  for  passing  order  of  

compulsory  retirement,  cannot  at  all  vitiate  the  order  of  

compulsory retirement.   

92. In  State of  U.P.  and another vs.  Biharilal (supra),  this  

Court has ruled that before exercise of the power to retire  

an employee compulsorily from service, the authority has to  

take into consideration the overall  record, even including  

some of the adverse remarks, though for technical reasons,  

might have been expunged on appeal or revision.  What is  

12

emphasised in the said decision is that in the absence of  

any  mala  fide  exercise  of  power  or  arbitrary  exercise  of  

power,  a  possible  different  conclusion  would  not  be  a  

ground for interference by the Court/Tribunal in exercise of  

its power of judicial review.  According to this Court, what  

is needed to be looked into is whether a bona fide decision  

is taken in the public interest to augment efficiency in the  

public service.  Again, a three Judge Bench of this Court in  

Union  of  India vs.  V.P.  Seth  and  another 1994  SCC  

(L&S)  1052,  has  held  that  uncommunicated  adverse  

remarks can be taken into consideration while passing the  

order of compulsory retirement.  The bench in the said case  

made reference to Baikuntha Nath Das vs. Chief District  

Medical Officer, Baripada (1992) 2 SCC 299, as well as  

Posts and Telegraphs Board vs.  C.S.N. Murthy (1992) 2  

SCC  317,  and  after  reiterating,  with  approval,  the  

principles stated therein, has laid down firm proposition of  

law that an order of compulsory retirement is not liable to  

be quashed by a Court merely on the showing that while  

passing  it,  uncommunicated  adverse  remarks  were  also  

13

taken into consideration.  Applying the ratio laid down in  

the above-mentioned two cases to the facts of the present  

cases, this Court finds that the authorities concerned were  

justified in relying upon the adverse entry made against the  

two appellants and the deceased officer in the year 2000  

indicating that their integrity was doubtful alongwith other  

materials.  Here in these cases, the ACRs for the year 2000  

were communicated to the  three officers but  before  they  

could  exercise  the  option  given  to  them  to  make  

representation against the same, the orders of compulsory  

retirement  were  passed.   When  an  uncommunicated  

adverse  entry  can  be  taken  into  consideration,  while  

passing order of compulsory retirement, there is no reason  

to hold that  adverse entry  communicated,  against  which  

opportunity of making representation is denied, cannot be  

taken  into  consideration  at  the  time  of  passing  order  of  

compulsory retirement.  Merely because the two appellants  

and  the  deceased  officer  had  no  opportunity  to  make  

representation  against  the  said  entry  or  that  the  

representation made against the same was pending, would  

13

not render consideration of  the said entry illegal,  in any  

manner, whatsoever.

93. In  Baidyanath  Mahapatra Vs.  State  of  Orissa  and  

Another (1989)  4  SCC  664,  the  Review  Committee  

constituted by the Government of Orissa in October 1983  

to  determine  the  appellant’s  suitability  for  retention  in  

service  after  his  completing  the  age  of  50  years,  

recommended  the  appellant  to  be  compulsorily  retired  

under  Rule  71(1)(a)  of  the  Orissa  Service  Code.   The  

Committee  took into  account for  formulating  its  opinion,  

the  entries  awarded  to  him  for  the  years  1981-82  and  

1982-83 which had been communicated to the appellant on  

July  5,  1983  and  August  9,  1983  respectively.   The  

appellant  made  representations  against  entries  on  

November  1,  1983  but  without  disposing  them  of,  the  

Government  made  an  order  on  November  10,  1983  

compulsorily retiring the appellant from service, which was  

upheld by the State Administrative Tribunal.  Allowing the  

appeal this Court held that the appellant had right to make  

13

representation  against  the  adverse  entries  within  six  

months, and, therefore, the adverse entries awarded to him  

in the  years  1981-82 and 1982-83 could  not  have  been  

taken into account either by the Review Committee or by  

the State Government in forming the requisite opinion as  

contemplated by Rule 71(1)(a) of the Orissa Service Code,  

before the expiry of the period of six months.  According to  

the  Court,  the  proper  course  for  the  Review  Committee  

should have been not to consider those entries or in the  

alternative, the Review Committee should have waited for  

the  decision  of  the  Government  on  the  appellant’s  

representation.  This Court in the said decision emphasized  

the  purpose  of  communicating  adverse  entries  and  held  

that delay in communication of adverse entries should be  

avoided.  This Court finds that the said case did not deal  

with entry which had adverse reflection on the integrity of  

the official concerned.  

94. In  S.  Maheswar  Rao Vs.  State  of  Orissa  and Another  

1989  Supp  (2)  SCC  248 the  appellant  was  a  

13

Superintending Engineer.  His case was considered under  

the first proviso to Rule 71(a) of the Orissa Service Code  

and on the basis of adverse remarks awarded to him for the  

last three years, i.e., for the years 1980-81, 1981-82 and  

1982-83, the Review Committee had made recommendation  

for  his  premature  retirement.   At  that  time  his  

representation against the adverse remarks relating to the  

first year was pending.  Against the remarks for the other  

years, he made representations subsequently and the State  

Government had without disposing of these representations  

compulsorily  retired  him.   The  Bhubaneswar  

Administrative  Tribunal  disapproved  the  taking  into  

consideration  of  the  remarks  for  the  first  year  but  

sustained the impugned order of compulsory retirement on  

the  basis  of  remarks  for  the  subsequent  years.   While  

allowing  the  appeal  this  Court  observed  that  adverse  

entries for the years 1981-82 and 1982-83 could not have  

been taken into consideration for the premature retirement  

of the appellant,  and the Review Committee should have  

deferred the consideration of his case till his representation  

13

against the aforesaid adverse entries was disposed of or in  

the  alternative  the  State  Government  itself  should  have  

considered  and  disposed  of  the  representation  before  

issuing the order for premature retirement.   However,  in  

this case also, this Court finds that this was not a case of  

consideration of  adverse entry relating to the integrity  of  

the officer concerned.   

95. Though the learned counsel for the appellants have relied  

upon  decision  in  V.K.  Jain Vs.  High  Court  of  Delhi  

through Registrar General and Others, (2008) 17 SCC  

538, this Court finds that basically the said decision deals  

with  expunction  of  adverse  remarks  made  by  the  High  

Court  against  a  judicial  officer  while  setting  aside  his  

judicial order granting bail to an accused.  It emphasizes,  

the judicial restraints to be exercised by the High Courts in  

judicial  functions.   It  does  not  deal  with  compulsory  

retirement  of  a  judicial  officer  or  how to  write  his  ACR.  

Therefore, detailed reference to the same is avoided.   

13

96. However, this Court finds that in  Union of India Vs.  Col.  

J.N.  Sinha  and  Another,  1970  (2)  SCC  458,  the  

respondent was compulsorily retired by the Government of  

India under Fundamental Rule 56(j).  The said order was  

challenged by the respondent amongst other things on the  

ground  that  the  lack  of  opportunity  to  show  cause  

amounted to denial of natural justice.  The said plea was  

accepted by the High Court and High Court had issued a  

writ of certiorari quashing the said order.  In appeal this  

Court held that a Government Servant serving under the  

Union  of  India  holds  his  office  at  the  pleasure  of  the  

President, but this ‘pleasure’ doctrine is subject to the rules  

or law made under Article 309 as well as to the conditions  

prescribed under Article 311.  This Court firmly held that  

rules of natural justice are not embodied rules nor can they  

be elevated to the position of fundamental rights, and the  

Court cannot ignore the mandate of the Legislature or a  

statutory  authority.   After  holding  that  the  compulsory  

retirement  involves  no  civil  consequences  and  that  a  

Government  servant  does  not  lose  any  of  the  rights  

13

acquired  by  him  before  retirement,  it  was  held  that  

Fundamental  Rule  56  (j)  holds  the  balance  between  the  

rights  of  the  individual  Government  servant  and  the  

interests of the public.   According to this Court,  while  a  

minimum service is guaranteed to the Government servant,  

the  government is  given power  to energize  its  machinery  

and make it more efficient by compulsorily retiring those  

who in its opinion should not be there in public interest.  

Thus the plea of breach of principles of natural justice was  

not accepted by this Court in the said case.   

97. In  Baikuntha Nath Das and Another Vs.  Chief District  

Medical  Officer,  Baripada  and Another,  (1992)  2  SCC  

299, the three Judge Bench of this Court had occasion to  

consider the question of effect of uncommunicated adverse  

remarks  taken  into  consideration  while  passing  order  of  

compulsory retirement against the appellants of that case  

and  scope  of  judicial  review  of  the  order  retiring  an  

employee compulsorily from service.  The appellants in the  

appeals  were  compulsorily  retired  by  the  Government  of  

13

Orissa in exercise of the power conferred upon it  by the  

first Proviso to sub-rule (a) of Rule 71 of the Orissa Service  

Code.   The  appellant  Mr.  Baikuntha  Nath  Das  was  

appointed  as  a  Pharmacist  by  the  Civil  Surgeon,  

Mayurbhanj  on  March  15,  1951.   By  an  order  dated  

February 13 1976 the Government of  Orissa had retired  

him compulsorily.  The said Order was challenged by him  

in the High Court of Orissa by way of a Writ Petition.  His  

case was that the order was based on no material and that  

it  was the result of  ill-will  and malice,  the Chief  District  

Medical Officer bore towards him.   According to him he  

was transferred by the said officer from place to place and  

was also  placed under  suspension at  one  stage,  but  his  

entire service had been spotless and that at no time were  

any  adverse  entries  in  his  confidential  character  rolls  

communicated  to  him.   In  the  counter  affidavit  filed  on  

behalf  of  the  Government  it  was  submitted  that  the  

decision  to  retire  him  compulsorily  was  taken  by  the  

Review Committee and not by the Chief Medical Officer and  

it  was  stated  that  besides  the  remarks  made  in  the  

13

confidential character rolls, other material was also taken  

into consideration by the Review Committee and that it had  

arrived  at  its  decision  bona  fide  and  in  public  interest  

which  decision  was  accepted  and  approved  by  the  

Government.  In the Counter the allegation of mala fide was  

denied.  The High Court had looked into the proceedings of  

the Review Committee and the confidential character rolls  

of  the  appellant  and dismissed  the  writ  petition  holding  

that an order of compulsory retirement after putting in the  

prescribed qualifying period of service does not amount to  

punishment.  The High Court had observed that the order  

in question was passed by the State Government and not  

by the Chief Medical Officer and did not suffer from vice of  

malice.  It was further held by the High Court that it was  

true  that  the  confidential  character  roll  of  the  appellant  

contained several remarks adverse to him which were, no  

doubt,  not  communicated  to  him.   On  behalf  of  the  

appellants  who  were  compulsorily  retired  reliance  was  

placed  upon  the  decisions  of  this  Court  in  Brij  Mohan  

Singh Chopra Vs. State of Punjab, (1987) 2 SCC 188 and  

13

Baidyanath  Mahapatra (Supra)  in  support  of  the  

contention that it  was not permissible  to the respondent  

Government to order compulsory retirement on the basis of  

material  which  included  uncommunicated  adverse  

remarks, whereas on behalf of the respondent Government  

reliance was placed upon the decision in  Union of India  

Vs. M.E. Reddy, (1980) 2 SCC 15, to contend that it was  

permissible to the Government to take into consideration  

uncommunicated  adverse  remarks  also  while  taking  a  

decision to retire a Government servant compulsorily.   A  

study of the decision rendered by the three Judge Bench of  

this  Court  makes  it  evident  that  not  less  than  twenty  

reported  decisions  of  this  Court  were  taken  into  

consideration and thereafter the Court has overruled the  

decision  in  Baidyanath  Mahapatra Vs.  State  of  Orissa  

(1989)  4  SCC  664, which  took  the  view  that  

uncommunicated  adverse  remarks  cannot  be  taken  into  

consideration  while  passing  an  order  of  compulsory  

retirement against a Government servant.   

14

98. In Baikuntha Nath Das case, after referring to decision of  

this  Court  in Brij  Mohan  Singh  Chopra Vs.  State  of  

Punjab (1987) 2 SCC 188, where a three Judge Bench of  

this Court has specifically affirmed the decision rendered in  

Union of  India Vs.  M.E. Reddy (1980) 2 SCC 15, this  

Court has laid down following firm proposition of law stated  

in paragraph 34 of the reported decision:  

“34. The following principles emerge from the above  discussion: (i) An  order  of  compulsory  retirement  is  not  a  

punishment.  It  implies  no  stigma  nor  any  suggestion of misbehaviour.

(ii) The order has to be passed by the government  on forming the opinion that it is in the public  interest  to  retire  a  government  servant  compulsorily.  The  order  is  passed  on  the  subjective satisfaction of the government.

(iii) Principles of natural justice have no place in  the  context  of  an  order  of  compulsory  retirement.  This  does  not  mean that  judicial  scrutiny is excluded altogether. While the High  Court  or  this  Court  would  not  examine  the  matter  as  an  appellate  court,  they  may  interfere if they are satisfied that the order is  passed (a) mala fide or (b) that it is based on  no evidence or (c) that it is arbitrary — in the  sense that  no reasonable person would form  the requisite opinion on the given material; in  short, if it is found to be a perverse order.

14

(iv) The government (or the Review Committee, as  the  case  may be)  shall  have  to  consider  the  entire record of service before taking a decision  in  the  matter  —  of  course  attaching  more  importance  to  record  of  and  performance  during  the  later  years.  The  record  to  be  so  considered would naturally include the entries  in  the  confidential  records/character  rolls,  both favourable and adverse. If a government  servant  is  promoted  to  a  higher  post  notwithstanding  the  adverse  remarks,  such  remarks  lose  their  sting,  more  so,  if  the  promotion is based upon merit (selection) and  not upon seniority.

(v) An order of compulsory retirement is not liable  to  be  quashed  by  a  Court  merely  on  the  showing  that  while  passing  it  uncommunicated  adverse  remarks  were  also  taken  into  consideration.  That  circumstance  by itself cannot be a basis for interference.

Interference  is  permissible  only  on  the  grounds  mentioned in (iii) above..”

99.In  view  of  the  two  three  Judge  Bench  decisions  of  this  

Court  mentioned  above  the  contention  that  adverse  

remarks  relating  to  integrity  regarding  which  no  

opportunity  of  making  representation  was  provided  or  

pending representation was not considered and, therefore,  

orders of compulsory retirement were bad in law cannot be  

accepted.  Therefore, the said contention is hereby rejected.  

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100.Another point which was canvassed for consideration of  

the  Court  was that  Rule  31A of  DJS Rules  incorporated  

since 1.1.1996 covers entire field of age of retirement and  

premature  retirement  of  Delhi  Judicial  Officers  and,  

therefore, premature retirement of the appellants could not  

have been made before their attaining the age of 58 years.  

According to the learned counsel  for the appellants Rule  

31A was added by notification dated 1.1.1996 issued by Lt.  

Governor on the recommendation of the Delhi High Court  

under Article 309 of the Constitution to DJS Rules on the  

subject  of  retirement,  providing  the  normal  age  of  

retirement  as  60  years  with  proviso  of  compulsory  

retirement  at  the  age  of  58  years  and  for  voluntary  

retirement at the age of 58 years and after addition of this  

Rule, Rule 33 of DJS Rules could not have been invoked for  

application of Fundamental Rules, on the subject of normal  

age  of  retirement,  age  of  premature  retirement  and  

assessment  of  performance  as  well  as  age  of  voluntary  

retirement.   What  was  emphasized  was  that  after  

introduction  of  Rule  31A  in  DJS  Rules  the  subject  of  

14

premature  retirement  cannot  be  considered  to  be  a  

residuary matter for which no Rule exists in DJS rules and,  

therefore, premature retirement of the appellants could not  

have been ordered before they attained the age of 58 years.

101.The learned counsel  for  the High Court argued that this  

point was given up before the High Court and, therefore,  

the Court should not permit the appellants to agitate the  

same in  appeals  arising  from grant  of  special  leave.   In  

support  of  this  submission  reliance  was  placed  by  the  

learned  counsel  for  the  High  Court  on:  (1)  State  of  

Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., (1982)  

2 SCC 463, (2)  Shankar K. Mandal & Ors. Vs.  State of  

Bihar  &  Ors., (2003)  9  SCC  519,  (3)  Mount  Carmel  

School  Society Vs.  DDA,  (2008)  2SCC  141,  and  (4)  

Bhavnagar University Vs.  Palitana Sugar Mill (P) Ltd. &  

Ors., (2003) 2SCC 111.

102.Without prejudice to the above contention, it was argued by  

the learned counsel  for the High Court that in  All India  

Judge’s Association Vs. Union of India & Ors., (1992) 1  

14

SCC 119, this Court directed that the age of retirement of  

the judicial officers be increased to 60, and when a review  

was filed, this Court in All India Judges’ Association and  

others vs. Union of India and others (1993) 4 SCC 288,  

while maintaining that the judicial officers be permitted to  

serve up to the age of 60 years, imposed a condition that all  

judicial  officers would not be entitled to the said benefit  

automatically, but only those who were found fit after the  

evaluation of their fitness would be permitted to go up to  

60  years  and  this  Court  expressed  the  view  that  the  

standard of evaluation could be the same as for compulsory  

retirement.   The  learned  counsel  emphasized  that  while  

giving  the  said  direction,  this  Court  expressly  and  

specifically provided that the ordinary provisions relating to  

compulsory retirement at earlier stages were not dispensed  

with  and  they  will  continue  to  operate,  and,  therefore,  

incorporation of Rule 31A in the Delhi Judicial Service was  

made but it is wrong to contend that Rule 31A overrides  

the other provisions of the Rules and in particular, Rule 33  

read  with  Fundamental  Rules  which  provide  for  

14

compulsory retirement after  a judicial officer attains the  

age of 50 years.  According to the learned counsel for the  

respondent,  Rule  31A  has  no  bearing  and  impact  in  

deciding  whether  the  order  of  compulsory  retirement  

against the appellant in terms of Rule 33 read with F.R.  

56(j) is valid or not.   

103.Though  High  Court  in  paragraph  45  of  the  impugned  

judgment  has  observed  that  the  plea  taken  in  the  writ  

petition filed by Mr. Gupta that FR 56(j) read with Rule 33  

of the DJS Rules is not applicable after the introduction of  

Rule  31  of  the  DJS  rules,  was  dropped  at  the  time  of  

argument  by  the  learned  counsel  for  the  appellant  

conceding that the order could have been passed under the  

aforesaid  provision,  this  Court  finds  that  this  was  a  

concession  on  point  of  law  which  would  not  bind  the  

appellants.  Further in the interest of justice it is necessary  

to settle the controversy once for all and, therefore, though  

in view of  decisions cited by the learned counsel  for  the  

High Court, it is accepted as correct by this Court that the  

14

point  sought  to  be  argued  was dropped before  the  High  

Court, it would not be in the interest of justice to preclude  

the learned counsel for the appellants from agitating this  

point  before  this  Court.   Under  the  circumstances,  the  

Court proposes to examine the said contention on merits.  

104.It is well known fact that in All India Judge’s Association  

(Supra),  this  Hon’ble  Court  in  paragraph  63(iii)  directed  

that :

“Retirement age of judicial officers be raised to 60  years  and  appropriate  steps  are  to  be  taken  by  December 31, 1992.”  

105.In  Second All  India  Judge’s  Association & Others Vs.  

Union of India & Others, (1993) 4 SCC 288, this Court  

clarified in paragraph 30 of the said judgment as under :

“The benefit of the increase of the retirement age to  60 years, shall not be available automatically to all  judicial officers irrespective of their past records of  service and evidence of their continued utility to the  judicial  system...................The  potential  for  continued utility shall be assessed and evaluated by  appropriate Committees of Judges of the respective  High Courts  constituted and headed by the Chief  Justice of the High Courts and the evaluation shall  be made on the basis of the judicial officer’s past  

14

record  of  service,  character  rolls,  quality  of  judgments and other relevant matters.”  

106.In paragraph 31 of the reported decision this Court has  

inter alia observed that the standard of evaluation shall be  

as applicable to compulsory retirement.  However what is  

relevant  to  notice  is  paragraph  52  wherein  this  Court  

observed and directed as under:-

“The assessment directed here is for evaluating the  eligibility to continue in service beyond 58 years of  age and is  in addition to and independent  of  the  assessment  for  compulsory  retirement  that  may  have to be undertaken under the relevant Service  Rules, at the earlier stage/s.”

107.In  Nawal Singh Vs.  State of U.P.  & Another,  (2003) 8  

SCC 117,  this Court had again occasion to consider the  

observations made in  All India Judge’s Association case  

(second)  and after  making reference  to  the  said  decision  

this Court observed as under :-

“……….there is no embargo on the competent  authority to exercise its power of compulsory  retirement under Rule 56 of the Fundamental  Rules.  As stated above, we have arrived at the  conclusion  that  because  of  the  increase  in  retirement age, rest of the Rules providing for  

14

compulsory retirement would not be nugatory  and are not repealed.”  

108.Again in Ramesh Chandra Acharya Vs.  Registrary, High  

Court  of  Orissa  and Another,  (2000)  6  SCC 332,  this  

Court observed in paragraph 8 of the reported decision that  

“the Court thereafter clarified that the assessment at the  

age of 58 years is for the purpose of finding out suitability  

of the officers concerned for the entitlement of the benefit of  

the increased age of superannuation from 58 years to 60  

years; it is in addition to the assessment to be undertaken  

for compulsory retirement and the compulsory retirement  

at the earlier stage/s under the respective service rules.”   

109.In  view  of  the  direction  contained  in  All  India  Judge’s  

Association case Rule 31 was inserted in DJS Rules with  

effect  from  1.1.1996  providing  that  the  normal  age  of  

retirement of the Delhi Judicial Officers governed by D.J.S.  

Rules  would  be  60  years.   The  potential  for  continued  

utility was to be assessed and evaluated at the age of 58  

years because the benefit of the increase of the retirement  

14

age  to  60  years  was  not  available  automatically  to  all  

judicial officers irrespective of their past records of service.  

Though this Court observed that the standard of evaluation  

for determining the potential for continued utility should be  

the  same  as  for  compulsory  retirement  but  it  was  

specifically made clear that the assessment directed was for  

evaluating the eligibility to continue in service beyond 58  

years of age and was in addition to and independent of the  

assessment for compulsory retirement that might have to  

be  undertaken  under  the  relevant  Service  Rules  at  the  

earlier stage/s.  The clarification made by this Court in All  

India Judge’s Association case No. 2 leaves the matter in  

no doubt that the independent assessment for compulsory  

retirement  to  be  undertaken  under  the  relevant  Service  

Rules is not affected at all in any manner whatsoever. It is  

true  that  the  performance  of  a  judicial  officer  is  to  be  

evaluated for determining his utility to continue in service  

upto the age of 60 years but it is wrong to contend that  

Rule  31  overrides  Rule  33,  which  deals  with  residuary  

matters which includes compulsory retirement of a judicial  

15

officer after he attains the age of  50 years.   It  is rightly  

contended by the learned counsel for the High Court that  

Rule 31A has bearing and impact in deciding the question  

whether  the  order  of  compulsory  retirement  against  the  

appellant in terms of Rule 33 read with F.R. 56(j) is valid or  

not.  The newly added rule does not deal with the aspect of  

compulsory  retirement  at  all.   In  terms  of  Rule  33  the  

subject of compulsory retirement did remain residuary even  

after  the  introduction  of  Rule  31A  in  DJS  Rules  and,  

therefore, the question of premature retirement will have to  

be considered only under FR 56(j) and not under the newly  

added Rule  31A.   Thus consideration  of  the  case  of  the  

appellant for premature retirement before he attained the  

age of 58 years cannot be regarded as illegal in any manner  

at  all.   This  Court  does  not  find  any  substance  in  this  

contention raised on behalf of the appellant and, therefore,  

the same is rejected.  

110.Another  point  which  was  pressed  into  service  for  

consideration  of  the  Court  was  that  the  procedure  of  

15

recording ACR wherein the appellants were given adverse  

remarks was in violation of rules of principles of natural  

justice and as there was no material which would justify  

adverse entries in ACR’s of the appellants, the same could  

not  have  been  taken  into  consideration  while  passing  

orders of compulsory retirement.  On behalf of the deceased  

Mr.  Verma it  was  argued  that  there  was  no material  to  

retire  him prematurely  and it  was admitted by the  High  

Court  in  his  case  that  premature  retirement  was  not  

ordered  because  of  complaints,  but  on  the  bona  fide  

impression and opinion formed by the High Court.  It was  

also argued on behalf of Mr. Verma that no inspection was  

made, of the judicial work done by him for the years 1998,  

1999  and  2000  and  as  this  fact  was  not  denied  in  the  

counter affidavit filed by the High Court, the order retiring  

him compulsorily from service suffers from vice of malice in  

law, and should have been set aside by the High Court on  

judicial  side.  Mr.  Rohilla  who had argued his appeal  in  

person  had  contended  that  the  order  of  compulsory  

retirement was expected to have been passed on the basis  

15

of all the material available prior to the passing of the order  

but  the  material  in  respect  of  which  he  had  made  

representation  which  was  pending  to  be  replied  or  

representation against the material which was still required  

to  be  submitted,  could  not  have  been  relied  upon  for  

passing order of compulsory retirement.  According to him,  

the so called material relied upon was only one-sided view  

and was not the wholesome exercise which was required to  

be  undertaken  before  passing  order  of  compulsory  

retirement.  Mr. Rohilla had further argued that there was  

no record of any complaints either oral or in writing nor  

there  was  any  record  to  show  whether  the  complaints  

related to his judicial work on the basis of which ACR of  

the year 2000 were recorded.  The oral communication by  

members  of  the  Bar  or  by  office  bearers  of  the  Bar  

Association  was  thoroughly  irrelevant  in  the  absence  of  

particulars mentioned in the ACR and, could not have been  

taken into consideration while passing order of compulsory  

retirement.  

15

111.On  behalf  of  the  appellant  Mr.  P.D.  Gupta,  it  was  

contended  that  for  the  year  2000  Hon’ble  Mr.  Justice  

M.S.A. Siddique was appointed as Inspecting Judge by the  

High Court but Hon’ble Mr. Justice Siddique had retired on  

29.5.2001 without giving any Inspection Report and he had  

not  inspected  his  Court  during  the  year  at  all,  whereas  

during the year 2001, three Judges had been appointed as  

Inspecting  Judges  namely  Hon’ble  Mr.  Justice  Dalveer  

Bhandari  (as  he  then  was),  Hon’ble  Mr.  Justice  Mukul  

Mudgal  (as  he  then  was)  and  Hon’ble  Mr.  Justice  R.C.  

Chopra, but the report for the year 2000 in his respect was  

given by Hon’ble Mr. Justice K.S. Gupta who was not the  

Inspecting Judge either for the year 2000 or for the year  

2001  and  as  Hon’ble  Mr.  Justice  Gupta  had  visited  his  

Court  on 7.9.2001 and stayed only  for  ten minutes  and  

asked him to send three judgments delivered in the year  

2000 which were sent by the appellant on 10.9.2001, the  

report given by Hon’ble Mr. Justice Gupta grading him as  

an  average  officer  could  not  have  been  taken  into  

consideration by the High Court while passing the order of  

15

compulsory retirement.  It was further pointed out on his  

behalf that Hon’ble Mr. Justice Gupta had observed in his  

report  dated  11.9.2001  that  on  inquiry  from  the  cross  

section of Bar, he had come to know that Mr. Gupta did not  

enjoy good reputation and on the basis of this report, the  

Full Court in its meeting held on 21.9.2001 had graded his  

ACR  as  ‘C’  (integrity  doubtful)  without  supplying  the  

material  to  him  and,  therefore,  order  retiring  him  

compulsorily from service was bad in law.   

112.In reply to abovementioned contentions it was argued by  

the learned counsel for the High Court that a single adverse  

entry indicating that the integrity of the officer is doubtful  

is sufficient to order his compulsory retirement, even if the  

said adverse entry relates to a distant past and in respect  

of all the three appellants the last ACR for the year 2000 is  

C “integrity doubtful”, which by itself is sufficient to sustain  

orders of compulsory retirement passed against them.  

113.So far as Mr. M. S. Rohilla is concerned, it was submitted  

by the learned counsel for the respondent High Court that  

15

there were two adverse ACR’s for the years 1993 and 1994  

indicating  that  his  integrity  was  doubtful  and  the  

representations  made  by  him  against  the  same  were  

considered  and  rejected,  which  decisions  were  not  

challenged by him by way of a writ petition before the High  

Court nor there was any challenge to the ACRs either in the  

earlier writ petition filed by him challenging his reversion  

from the Delhi Higher Judicial Service to the Delhi Judicial  

Service  nor  in  the  writ  petition  challenging  the  order  of  

compulsory  retirement  and,  therefore,  order  retiring  him  

compulsorily cannot be regarded as illegal or arbitrary.   

114.While dealing with the arguments advanced on behalf of  

the appellant Mr. P.D. Gupta it was stressed that for two  

years  i.e.  1994  and  1995  his  ACRs  were  C  “Integrity  

Doubtful” which were challenged by him by filing a Writ  

Petition and though the learned Single Judge of the High  

Court had allowed the Writ Petition, the Division Bench in  

appeal  had set  aside  the  judgment of  the learned Single  

Judge and upheld the adverse ACRs “C Doubtful Integrity”  

15

for the years 1994 and 1995, against which Special Leave  

Petition filed by Mr. P.D. Gupta was also dismissed after  

which  Review  Petition  was  filed  by  him  against  the  

judgment of the Division Bench in Letters Patent Appeal,  

which was also dismissed and thus those entries having  

become final, it would be wrong to contend that order of  

compulsory retirement passed in his case was liable to be  

set aside.    

115.On consideration of rival submissions, this Court finds that  

there  is  no  manner  of  doubt  that  the  nature  of  judicial  

service is such that the High Court cannot afford to suffer  

continuance  in  service  of  persons  of  doubtful  integrity.  

Therefore, in High of Judicature at Bombay Through its  

Registrar Vs.  Shirishkumar Rangrao Patil and Another,  

(1997)  6  SCC  339,  this  Court  emphasized  that  it  is  

necessary that there should be constant vigil by the High  

Court  concerned  on  its  subordinate  judiciary  and  self  

introspection.  It is well settled by a catena of decisions of  

this Court that while considering the case of an officer as to  

15

whether he should be continued in service or compulsorily  

retired, his entire service record upto that date on which  

consideration is made has to be taken into account.  What  

weight should be attached to earlier entries as compared to  

recent  entries  is  a  matter  of  evaluation,  but  there  is  no  

manner of doubt that consideration has to be of the entire  

service  record.   The fact  that  an officer,  after  an earlier  

adverse  entry,  was  promoted  does  not  wipe  out  earlier  

adverse entry at all.   It  would be wrong to contend that  

merely for the reason that after an earlier adverse entry an  

officer  was  promoted  that  by  itself  would  preclude  the  

authority from considering the earlier adverse entry.  When  

the law says that the entire service record has to be taken  

into consideration, the earlier adverse entry, which forms a  

part  of  the  service  record,  would  also  be  relevant  

irrespective  of  the  fact  whether  officer  concerned  was  

promoted  to  higher  position  or  whether  he  was  granted  

certain benefits like increments etc.  Therefore, this Court  

in  State  of  Orissa    and    Others   Vs.  Ram Chandra Das,  

(1996) 5 SCC 331, observed as under in paragraph 7 of  

15

the reported decision :-

“……..  it  is  settled  law  that  the  Government  is  required to consider the entire record of service…… …. We find that selfsame material after promotion  may not be taken into consideration only to deny  him further  promotion,  if  any.   But that material  undoubtedly would be available to the Government  to  consider  the  overall  expediency  or  necessity  to  continue the government servant in service after he  attained the required length of service or qualified  period of service for pension.”

116.Thus the respondent High Court was justified in taking  

into consideration adverse ACRs reflecting on integrity of  

Mr. M.S. Rohilla for the years 1993, 1994 and 2000 while  

considering  the  question  whether  it  was  expedient  to  

continue  him  in  service  on  his  attaining  the  age  of  50  

years.  Similarly, in so far as appellant Mr. P.D. Gupta is  

concerned for two years that is 1994 and again in 1995 his  

ACRs  were  C “Integrity  Doubtful”  and again  in  the  year  

2000, the position was the same.  Further, for two years,  

i.e., 1994 and 1995 his ACRs “C Integrity Doubtful” were  

upheld by the  Division Bench of  the High Court  against  

which his  Special  Leave Petition was dismissed.   At  this  

15

stage  it  would  be  relevant  to  notice  certain  observations  

made by Division Bench of the High Court while allowing  

the Letters Patent Appeal filed by the High Court against  

the  judgment  of  the  learned  Single  Judge  by  which  the  

ACRs for two years were set aside, which are as follows: -   

“To summarize, it is held:  

a) The  adverse  remarks  recorded  by  the  High  Court  in  the  Confidential  Reports  of  respondent No.1 for the years 1994 and 1995  were  not  without  any  ‘material’.   They  were  recorded  on  the  basis  of  material  on  record  and the judgment of the learned Single Judge  quashing those remarks is hereby set aside.   

b) The learned Single Judge should not and could  not have graded B+ to respondent No.1 as it is  the  function  of  the  High  Court  to  assign  appropriate  grading.   Therefore,  the  matter  should have been referred to the Full Court for  giving appropriate  grading.   This  direction of  the  learned  Single  Judge  is  accordingly  set  aside.   

c) Direction  of  the  learned  Single  Judge  in  treating the petitioner as promoted w.e.f. 18th  May,  1996  is  not  correct  in  law  and  is  therefore, set aside.”

117.The above findings would indicate that the appellant Mr.  

Gupta is not justified in arguing that there was no material  

16

on  the  basis  of  which  adverse  entries  could  have  been  

made against him for the years 1994 and 1995 nor is he  

justified in urging that the order of compulsory retirement  

also based on those two adverse entries is liable to be set  

aside.  

118.In  S.D. Singh vs.  Jharkhand High Court through R.G.  

and  others (2005)  13  SCC  737,  benefit  of  enhanced  

retirement  age  from  58  to  60  years  was  denied  to  the  

appellant.   The Evaluation Committee,  after perusing his  

service  record,  recommended  that  he  should  not  be  

continued in service beyond the age of 58 years.  The Full  

Court,  on  assessment  and  evaluation  of  service  record,  

resolved that the benefit of extension in age up to 60 years  

should not be extended to him.  The appellant relied upon  

his promotional order superseding several senior officers.  

However,  he  had not  alleged  mala  fide  against  any  one.  

The Evaluation Committee had, after considering his ACR,  

noted  that  he  was  an  average  officer  and  the  vigilance  

proceedings  initiated  against  him  were  dropped.   While  

16

dismissing his appeal, this Court has held that there was  

material, on the basis of which, an opinion was formed and  

promotion  would  not  indicate  that  he  was  fit  to  be  

continued  after  the  age  of  58  years.   The  material,  

according to this Court, against the appellant in that case,  

was  that  he  was  an  average  officer  and  the  vigilance  

proceedings initiated were dropped.  If on these materials,  

benefit  of  enhanced  retirement  was  denied  to  Mr.  S.D.  

Singh,  this  Court  has  no  hesitation  in  concluding  that  

having regard to the service record of the two appellants  

and the deceased officer, the High Court was justified in  

compulsorily retiring them from service.

119.The argument that material was not supplied on the basis  

of  which  “‘C’  Doubtful  Integrity”  was  awarded  to  the  

appellants  and,  therefore,  the  order  of  compulsory  

retirement  is  liable  to  be  set  aside  has  no  substance.  

Normally  and  contextually  word  ‘material’  means  

substance, matter, stuff,  something, materiality, medium,  

data, facts, information, figures, notes etc. When this Court  

16

is examining as to whether there was any ‘material’ before  

the High Court on the basis of which adverse remarks were  

recorded in the confidential reports of the appellants, this  

‘material’  relates  to  substance,  matter,  data,  information  

etc.  While considering the case of a judicial officer it is not  

necessary to limit the ‘material’ only to written complaints  

or ‘tangible’ evidence pointing finger at the integrity of the  

judicial officer.  Such an evidence may not be forthcoming  

in such cases.   

120.As  observed  by  this  Court  in  R.L.  Butail Vs.  Union of  

India and Others, (1970) 2 SCC 876, it is not necessary  

that an opportunity of being heard before recording adverse  

entry should be afforded to the officer concerned.  In the  

said  case,  the  contention  that  an  inquiry  would  be  

necessary before an adverse entry is made was rejected as  

suffering  from  a  misapprehension  that  such  an  entry  

amounts to the penalty of censure.  It is explained by this  

Court in the said decision that making of an adverse entry  

is not equivalent to imposition of a penalty which would  

16

necessitate an enquiry or giving of a reasonable opportunity  

of  being  heard  to  the  concerned  Government  servant.  

Further  in  case where  the  Full  Court  of  the  High Court  

recommends compulsory retirement of an officer, the High  

Court on the judicial side has to exercise great caution and  

circumspection in setting aside that order because it is a  

complement of all the judges of the High Court who go into  

the question and it is possible that in all  cases evidence  

would not  be  forth  coming about  doubtful  integrity  of  a  

Judicial Officer.   

121.As  observed  by  this  Court  in  High  Court  of  Punjab  &  

Haryana  through  R.G. Vs. Ishwar  Chand  Jain  and  

Another,  (1999) 4 SCC 579, at times, the Full Court has  

to act on the collective wisdom of all the Judges and if the  

general reputation of an employee is not good, though there  

may not be any tangible material against him, he may be  

given compulsory retirement in public interest and judicial  

review of such order is permissible only on limited grounds.  

The  reputation  of  being  corrupt  would  gather  thick  and  

16

unchaseable clouds around the conduct of an officer and  

gain notoriety  much faster  than the  smoke.   Sometimes  

there may not be concrete or material evidence to make it  

part of the record.  It would, therefore, be impracticable for  

the  reporting  officer  or  the  competent  controlling  officer  

writing the confidential report to give specific instances of  

shortfalls, supported by evidence.  

122.Normally,  the  adverse  entry  reflecting  on  the  integrity  

would  be  based  on  formulations  of  impressions  which  

would be result of multiple factors simultaneously playing  

in the mind.  Though the perceptions may differ in the very  

nature  of  things  there  is  a  difficulty  nearing  an  

impossibility  in  subjecting  the  entries  in  the confidential  

rolls  to  judicial  review.   Sometimes,  if  the  general  

reputation of an employee is not good though there may  

not  be  any  tangible  material  against  him,  he  may  be  

compulsorily retired in public interest.  The duty conferred  

on the  appropriate  authority  to  consider  the  question  of  

continuance of a judicial officer beyond a particular age is  

16

an  absolute  one.   If  that  authority  bona  fide  forms  an  

opinion that the integrity of a particular officer is doubtful,  

the correctness of that opinion cannot be challenged before  

courts.  When such a constitutional function is exercised  

on the administrative side of the High Court, any judicial  

review thereon should be made only with great care and  

circumspection  and  it  must  be  confined  strictly  to  the  

parameters set by this Court in several reported decisions.  

When  the  appropriate  authority  forms  bona  fide  opinion  

that compulsory retirement of a judicial officer is in public  

interest,  the  writ  Court  under  Article  226  or  this  Court  

under Article 32 would not interfere with the order.   

123.Further this Court in M.S. Bindra’s case (Supra) has used  

the  phrase  ‘preponderance  of  probability’  to  be  applied  

before  recording  adverse  entry  regarding  integrity  of  a  

judicial  officer.   There  is  no  manner  of  doubt  that  the  

authority  which is  entrusted with a duty of  writing ACR  

does not have right to tarnish the reputation of a judicial  

officer  without  any  basis  and  without  any  ‘material’  on  

16

record,  but  at  the  same  time  other  equally  important  

interest  is  also  to  be  safeguarded  i.e.  ensuring  that  the  

corruption  does  not  creep  in  judicial  services  and  all  

possible attempts must be made to remove such a virus so  

that it  should not spread and become infectious.   When  

even  verbal  repeated  complaints  are  received  against  a  

judicial  officer or on enquiries,  discreet or otherwise, the  

general impression created in the minds of those making  

inquiries or the Full Court is that concerned judicial officer  

does not carry good reputation, such discreet inquiry and  

or verbal repeated complaints would constitute material on  

the basis of which ACR indicating that the integrity of the  

officer  is  doubtful  can  be  recorded.   While  undertaking  

judicial review, the Court in an appropriate case may still  

quash the decision of the Full Court on administrative side  

if it is found that there is no basis or material on which the  

ACR  of  the  judicial  officer  was  recorded,  but  while  

undertaking this exercise of judicial  review and trying to  

find out whether there is any material on record or not, it is  

the  duty  of  the  Court  to  keep  in  mind  the  nature  of  

16

function  being  discharged  by  the  judicial  officer,  the  

delicate nature of the exercise to be performed by the High  

Court on administrative side while recording the ACR and  

the mechanism/system adopted in recording such ACR.   

124.From the admitted facts noted earlier it  is  evident that  

there was first a report of the Inspecting Judge to the effect  

that  he  had  received  complaints  against  the  appellants  

reflecting  on  their  integrity.   It  would  not  be  correct  to  

presume  that  the  Inspecting  Judge  had  written  those  

remarks in a casual or whimsical  manner.   It  has to be  

legitimately  presumed  that  the  Inspecting  Judge,  before  

making such remarks of serious nature, acted responsibly.  

Thereafter, the Full Court considered the entire issue and  

endorsed the view of the Inspecting Judge while recording  

the  ACR  of  the  appellants.   It  is  a  matter  of  common  

knowledge that the complaints which are made against a  

judicial  officer,  orally  or in writing are dealt  with by the  

Inspecting  Judge  or  the  High  Court  with  great  caution.  

Knowing that most of such complaints are frivolous and by  

16

disgruntled  elements,  there  is  generally  a  tendency  to  

discard  them.   However,  when  the  suspicion  arises  

regarding integrity of a judicial officer, whether on the basis  

of complaints  or information received from other sources  

and a committee is formed to look into the same, as was  

done in the instant case and the committee undertakes the  

task by gathering information from various sources as are  

available to it, on the basis of which a perception about the  

concerned judicial officer is formed, it would be difficult for  

the Court either under Article 226 or for this Court under  

Article  32  to  interfere  with  such  an  exercise.   Such  an  

opinion and impression formed consciously and rationally  

after  the enquiries of the nature mentioned above would  

definitely constitute material for recording adverse report in  

respect of  an officer.   Such an impression is  not readily  

formed but after Court’s circumspection, deliberation, etc.  

and thus it  is a case of  preponderance of probability for  

entertaining a doubt about integrity of an official which is  

based on substance, matter, information etc. Therefore, the  

contention  that  without  material  or  basis  the  adverse  

16

entries were recorded in the ACR of the appellants cannot  

be upheld and is hereby rejected.                

125.On behalf of deceased R.S. Verma his learned Counsel had  

argued that ACRs for the years 1997, 1998 and 1999 were  

written in one go which is arbitrary and constitute malice  

in law.  Pointing out to the Court that normal procedure  

followed by the Delhi  High Court  for  communicating  the  

ACRs  is  referred  to  in  the  circular  dated  4.9.1998,  

according to which conducting of inspection and making of  

enquiries before  condemning a judicial  officer  as regards  

his integrity is necessary, but this was not done in the case  

of  the  deceased  and,  therefore,  his  ACRs  for  the  years  

1997,  1998  and  1999  should  have  been  ignored  while  

deciding the question whether he was fit to be retained in  

service on attaining the age of 50 years.  It was emphasized  

that  all  the  entries  should  be  communicated  within  a  

reasonable period so that the employee concerned gets an  

opportunity  to  make  representation  and  that  the  

representation  is  also  decided  fairly  within  a  reasonable  

17

period, but this was not done in the case of the deceased  

officer.  According to the learned counsel for the appellant,  

the  requirement  to  write  ACR  on  due  date  and  

communication thereof to the employee concerned within  

reasonable  time  flows  from  constitutional  obligation  of  

fairness, non-arbitrariness and natural justice as laid down  

in  Dev Dutt Vs.  Union of India, 2008 (8) SCC 725, and  

Abhijit  Ghosh Dastidar Vs.  Union of  India,  2009 (16)  

SCC 146,  and as this requirement was committed breach  

of in case of the deceased, ACRs for the years 1996 and  

1997 had lost their significance and were irrelevant while  

considering  case  of  the  deceased  officer  for  compulsory  

retirement.  On behalf of the respondent High Court it was  

submitted that it was true that ACRs for the years 1997,  

1998  and  1999  were  recorded  at  one  point  and  

communicated thereafter, but a detailed note indicating the  

circumstances in which ACRs for the years 1997, 1998 and  

1999 were placed before the Full Court on 13.12.2000 after  

which ACRs were recorded and, therefore,  in view of the  

explanation offered in the note which was noted by the Full  

17

Court on 13.12.2000, it is wrong to contend that ACRs for  

those  three  years  could  not  have  been  taken  into  

consideration  before  passing  order  of  compulsory  

retirement against the deceased officer.   

126.On consideration of the argument advanced by the learned  

counsel for the parties, this Court finds that it has been  

ruled by this Court that ACRs for several years should not  

be  recorded  at  one  go  and  communicated  thereafter.  

Normally,  entries in confidential  records should be made  

within a specified time soon following the end of the period  

under review and generally within three months from the  

end  of  the  year.   Delay  in  carrying  out  inspections  or  

making  entries  frustrates  the  very  purpose  sought  to  be  

achieved.  The mental impressions may fade away or get  

embellished.   Events  of  succeeding years  may cast  their  

shadow on assessment of previous years.  In a given case,  

proper  inspection  might  not  have  been  conducted  nor  

notes/findings  of  inspection  might  have  been  properly  

maintained.  In such a case, there is every possibility of a  

17

judicial officer being condemned arbitrarily for no fault on  

his part.  Therefore, recording of entries for more than one  

year,  later  on,  at  the  same  time  should  be  avoided.  

However, the learned counsel for the respondent is right in  

contending that no decision has taken the view that merely  

for  the  reason  that  ACRs  for  more  than  one  years  are  

recorded at one point of time, the same are bad or that they  

would cease to be ACRs for the relevant years or that they  

should not be taken into consideration for any purpose or  

for  the  purpose  of  compulsory  retirement.   As  stated  

earlier, in the normal course it would not be appropriate to  

record the ACRs of number of years at one point of time.  

However, at the same time it is not possible to lay down as  

an absolute  proposition  of  law  that  irrespective  of  good,  

cogent,  plausible  and  acceptable  reasons,  recording  of  

ACRs  of  number  of  years  at  once  should  always  be  

regarded as illegal and bad for all purposes.  This Court,  

while deciding the appeals, has gone through the record of  

the  deceased  officer,  and  other  relevant  documents  

produced by the High Court.  From the record, this Court  

17

finds that all the columns of ACR forms for the years 1997,  

1998  and  1999  were  filled  up  by  the  inspecting  judges  

respectively  well  in  time  for  all  these  years,  but  the  

inspecting  judges  had  not  recorded  any  remarks  

concerning  the  judicial  reputation  for  honesty  and  

impartiality  of  the  deceased  officer  as  a  corollary  the  

column regarding “Net  Result”  for  these  years  were  left  

blank by them.  Instead the learned inspecting judges had  

observed that these remarks be recorded by the Full Court.  

When such a course  of  action is  adopted,  the  reason is  

obvious.  There was something amiss in the estimation of  

the  learned  inspecting  Judges  which  they  wanted  entire  

Full  Court  to  consider  and,  therefore,  refrained  from  

making their observations.  If everything had been all right,  

nothing  prevented  the  learned  Inspecting  Judges  from  

mentioning that the honesty of the deceased officer was not  

in  doubt  at  all.   However,  when  an  inspecting  judge  

receives certain complaints about the integrity of the officer  

concerned but has no means to verify the same, he leaves  

the matter to the Full Court, which appoints a Committee  

17

to  go into  the  aspects  and records  relevant  entries  after  

report of the Committee is received.  This is what precisely  

happened  in  the  present  case  as  well.   Because  of  the  

aforesaid course adopted by the learned Inspecting Judges,  

the consideration of recording the ACR was deferred by the  

Full Court and ultimately, in its meeting held on 21.4.2001  

in respect of the deceased officer the Full Court decided as  

under :-  

“Deferred.  Referred to the Committee constituted to  look  into  the  allegations  against  the  judicial  Officers.”

127.The matter was, therefore, examined by the Committee of  

two learned judges of the Delhi High Court constituted for  

this  purpose.   This  committee  made  certain  discreet  

inquiries.   The  concerned  Inspecting  Judge(s)  were  also  

associated  in  deliberations  by  the  Committee.   The  

Committee  gave its  report  dated 6.12.2001 as per which  

the  information gathered by the Committee  from various  

sources  confirmed  the  allegation  of  doubtful  integrity  

against  the  deceased  officer.   The  matter  was  thereafter  

17

placed before the Full Court and the ACRs of the deceased  

officer were recorded for the years 1997, 1998 and 1999 on  

13.12.2000.   Thus  there  is  sufficient  explanation  for  

recording the ACRs of three years at one time.  It is wrong  

to contend that the ACRs for  the years 1997,  1998 and  

1999 should have been ignored while passing the order of  

compulsory  retirement  against  the  deceased  officer.  

Therefore, the argument that ACRs for those years could  

not have been taken into consideration while deciding the  

question  of  suitability  or  otherwise  to  continue  the  

deceased officer in service on attaining the age of 50 years,  

is hereby rejected.  Even if it is assumed for the sake of  

argument  that  ACRs  recorded  for  the  three  years,  i.e.,  

1997, 1998 and 1999 recorded at one go, irrespective of  

reasons, good, bad or indifferent, must be ignored for all  

time to come and for all the purposes, this Court finds that  

the ACRs for the year 1999 were recorded with promptitude  

and without any delay in the year 2000.  It is not argued on  

behalf of the deceased officer that there was any delay in  

recording ACRs for the year 1999.  For the year 1999, the  

17

deceased officer was assessed as “C Below Average”.  The  

ACRs  for  the  year  1999  could  have  been  taken  into  

consideration  while  assessing  the  service  record  of  the  

deceased officer for determining the question whether the  

deceased officer was fit to be continued in service on his  

attaining the age of 50 years.  What is the effect of ACRs for  

the  year  1999 when taken into consideration  along with  

other service record is proposed to be considered at a little  

later stage.

128.On  behalf  of  deceased  officer  Mr.  R.S.  Verma,  it  was  

argued that Mr.  Verma’s ACRs for the years 1997, 1998  

and  1999,  which  were  written  at  one  go  and  also  were  

communicated  at  one  go,  suffer  from  arbitrariness,  

unreasonableness and constitute malice in law.  This Court  

has come to the conclusion that writing of ACRs for the  

years  1997,  1998  and  1999  at  one  time  as  also  

communication of the same at one time was justified in the  

circumstances  of  the  case.   Therefore,  it  is  difficult  to  

uphold the contention raised on behalf of Mr. Verma that  

17

writing  of  ACRs  for  three  years  at  one  go  and  

communication  of  the  same  at  one  go  suffer  from  

arbitrariness,  unreasonableness  and constitute  malice  in  

law.

129.Similarly,  the  plea  raised  by  Mr.  Rohilla  that  the  

impugned judgment is not sustainable in law because the  

act  of  the  High Court  in  making recommendation  to  Lt.  

Governor for retiring him compulsorily emanates from mala  

fide, arbitrariness and perversity, has no substance.  The  

reason  given  by  Mr.  Rohilla  to  treat  the  order  of  his  

compulsory retirement as mala fide, arbitrary and perverse  

is that while communicating adverse remarks for the year  

2000 vide letter dated 21.9.2001, High Court had granted  

six weeks’ time to make representation, but much before  

the  representation  could  be  caused,  the  order  of  

compulsory  retirement  dated  27.9.2001  was  

communicated, coupled with the fact that on that date, the  

writ petition filed by him against his reversion was pending.  

This Court has already taken the view that merely because  

17

Mr.  Rohilla  did  not  get  any  opportunity  to  make  

representation  against  the  adverse  remarks  for  the  year  

2000, those remarks could not have been ignored by the  

competent authority while passing the order of compulsory  

retirement against him because the settled law is that even  

uncommunicated  adverse  remarks  can  be  taken  into  

consideration  while  passing  the  order  of  compulsory  

retirement.  So far as the writ petition, filed by Mr. Rohilla  

against his reversion is concerned, this Court finds that the  

order of compulsory retirement was not passed to render  

the  said  petition  infructuous.   The  order  of  compulsory  

retirement has been passed on assessment of whole service  

record  of  Mr.  Rohilla.   Thus,  Mr.  Rohilla  has  failed  to  

substantiate  the  plea  that  the  order  of  his  compulsory  

retirement is either mala fide or arbitrary or perverse.

130.Mr.  R.  S.  Rohilla  had argued that  the  order  of  the  Lt.  

Governor  compulsorily  retiring  him  from  service  was  by  

invoking FR 56(j) which was not applicable to his case as  

he was a member of a Delhi Higher Judicial Service and  

17

such an order could have been passed only under Rule 27  

of the Delhi Higher Judicial Service read with Rule 16 of  

the Indian Administrative Services and, therefore, the same  

should be set aside.  It is rightly pointed out by the learned  

counsel for the High Court that though the said plea was  

raised by Mr.  Rohilla  the  same was given up before  the  

High Court, and it is so recorded by the Division Bench in  

paragraph 31 of the impugned judgment. Thus, in normal  

circumstances,  Mr.  Rohilla  would  not  be  justified  in  

arguing the same point before this Court.  However, even if  

it is taken for granted that he is entitled to argue the point  

before this Court because it is a pure question of law, this  

Court  does  not  find  any  substance  what  so  ever  in  the  

same.  What is relevant to be noticed is that under both the  

Rules there is power to compulsorily retire a judicial officer  

after  he  attains  the  age  of  50  years  in  public  interest.  

Therefore, whether the Lt. Governor had invoked FR 56 (j)  

or Rule 27 of the DJS is of little consequence since both the  

Rules  make  provision  for  retirement  of  a  judicial  officer  

compulsorily  from service  after  he  attains  the  age  of  50  

18

years in public interest.  In fact Mr. Rohilla should have  

pointed out to the High Court the relevant and material fact  

that for two years that is for the year 1993 and for the year  

1994 he had suffered adverse ACR ‘C’ “Integrity Doubtful”  

and that  the  representations made by him were rejected  

which were not challenged by him before higher forum.  In  

any view of the matter, it is settled law that when power  

can be traced to a valid source, the fact that the power is  

purported to have been exercised under a wrong provision  

of law, would not invalidate exercise of power.

131.To sum up, this Court finds that so far as deceased officer  

Mr. Rajinder Singh Verma is concerned, he was appointed  

in the  year 1995 and as  on 21.9.2001 his  ACRs for  six  

years were available.  The grading given to him for these  

years was as follows: -

Year Grading 1995 “B” (Average) No  representation  was  

made  against  this  remark,  nor  was  it  challenged  before  any  authority.

1996 “B” (Average) No  representation  was  

18

made  against  this  remark,  nor  was  it  challenged  before  any  authority.

1997 “C” (Below Average)

1998 “C” (Below Average)

1999 “C” (Below Average)

2000 “C” (Integrity doubtful)

132.The report  dated September 21,  2001 of  the  Screening  

Committee  further  reveals  that  the  Screening  Committee  

had considered the entire record relevant to his work and  

conduct and found that throughout his career, he had been  

assessed and graded either as “average officer” or “officer  

below  average”  and  in  the  year  2000,  his  integrity  was  

found to be doubtful.  The Screening Committee had also  

found that for the year 1998, the Inspecting Judge of Mr.  

Verma had made a remark that the judgments and orders  

written by him were just average; whereas the Inspecting  

Judges for  the year 1996 to 2000 had not recorded any  

remark concerning his judicial reputation for honesty and  

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impartiality  and  the  column “Net  Result”  was  left  to  be  

recorded by the Full Court.  The record further shows that  

the judicial work was withdrawn from him with effect from  

December  8,  2000  upon  the  recommendation  of  the  

Committee of Judges in its report dated December 6, 2000.  

This  decision  was  never  challenged  by  him  before  any  

authority.   It  goes  without  saying  that  withdrawal  of  

judicial work from a judicial officer is a serious matter and  

such a drastic order would not have been passed unless  

the  judicial  work  performed  by  him  was  found  to  be  

shocking  and  perverse.   Later  on,  all  work  including  

administrative  work  was  withdrawn from him.   Further,  

pursuant  to  the  decision  taken  by  the  Full  Court  in  its  

meeting held on April  21, 2001 referring the matter to a  

Committee of  Judges to make inquiry into his work and  

conduct,  the  Committee  had  submitted  its  report  dated  

September 8, 2001 in which it was observed and recorded  

that he did not enjoy good reputation and integrity.  There  

was  gradual  down  fall  in  his  performance  as  a  judicial  

officer.   The  service  record  of  the  deceased  officer  is  so  

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glaring  that  on  the  basis  thereof  any  prudent  authority  

could have come to a reasonable conclusion that it was not  

in the public interest to continue him in service and that he  

should be compulsorily retired from service.  Therefore, the  

order  of  compulsory  retirement  passed  against  the  

deceased officer is not liable to be set aside.

133.So far as Mr. Rohilla is concerned, he was appointed as a  

Civil/Sub-Judge  in  the  Subordinate  Judicial  Services  on  

May 5, 1972.  On June 17, 1995, he was confirmed as an  

officer  in  the  Delhi  Judicial  Services.   He  was  granted  

Selection Grade on June 3, 1980 and was promoted to the  

Higher Judicial Services as Additional District and Sessions  

Judge on November 1, 1989.  One anonymous complaint  

was received against him and after looking into the same,  

he was reverted to Subordinate Judicial Services by order  

dated February 15, 1995, which was challenged by him in  

Writ Petition No. 4589 of 1995.  Meanwhile, he was served  

with a communication from the High Court of Delhi dated  

October 23, 1997, wherein his ACR for the year 1996 was  

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graded  as  “C”,  i.e.,  below  average.   Thereupon,  he  had  

made a representation, which was rejected on December 2,  

1998.  No steps were taken by him to challenge the said  

decision  and  thus,  the  grading  awarded  to  him  was  

accepted by him.  Thereafter, he received a communication  

from the  High  Court  in  the  year  1999,  wherein  he  was  

informed  that  in  his  ACR  for  the  year  1997,  he  was  

awarded  “B”  grade.   Again,  by  a  communication  dated  

February  9,  2000  forwarded  by  the  High  Court,  he  was  

informed that in his ACR for the year 1998, he was graded  

“B”.  He made a representation against his ACR for the year  

1998 in the year 2000.  As noticed earlier, in the year 2000,  

he was communicated ACR indicating that his integrity was  

doubtful.  Thus, the service record of Mr. Rohilla indicates  

that he was an officer “below average” or at the best  an  

average officer and his integrity was doubtful.  Under the  

circumstances,  the  decision  taken  by  the  competent  

authority to retire him from service cannot be said to be  

illegal in any manner whatsoever.

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134.So  also,  the  record  of  Mr.  P.D.  Gupta  shows  that  he  

joined  Delhi  Judicial  Service  on  January  28,  1978.  

Admittedly, his work and conduct from 1978 to 1992 was  

graded as “B”, which means his performance was that of an  

average officer.  In the year 1995, the Inspecting Judge had  

reported that though he had not inspected the court of Mr.  

Gupta, he had heard complaints about his integrity and,  

therefore, column Nos. 6 and 7 were left blank to be filled  

up by the Full Court.  On May 18, 1986, the Full Court had  

recorded  his  ACR for  the  year  1994-95  as  “C”  (integrity  

doubtful) and on the basis of the same, denied promotion  

to him.  He had filed a representation against the same, but  

it  was  rejected  by  the  High  Court  by  an  order  dated  

September 5, 1997.  Again on September 26, 1997, the Full  

Court of Delhi  High Court had recorded his ACR for the  

year 1996 as “B”.  Against rejection of his representation,  

which was made with reference to ACRs for the year 1994-

95, he had filed Writ Petition (C) No. 4334 of 1997 and in  

the said writ petition he had made a grievance for his non-

promotion to Delhi  Higher Judicial  Service.   Pending the  

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said petition, on May 22, 1998, the Full Court had recorded  

his ACR for the year 1997 as “B”.  The writ petition filed by  

Mr.  Gupta  was  allowed  by  a  Single  Judge  of  the  High  

Court, which decision was set aside in L.P.A. No. 329 of  

1999, filed by the High Court administration, and the order  

passed by the Division Bench was ultimately upheld by this  

Court when the special  leave petition filed by Mr. Gupta  

against the decision rendered in the L.P.A. was dismissed.  

In his ACR for  the year 2000,  he was categorized as an  

officer having doubtful integrity.  Thus, the record shows  

that for the year 1994-95 his integrity was found to be of  

doubtful character.  For rest of the years, his performance  

was that of an average officer and in the year 2000, his  

integrity  was  again  found  doubtful.   Under  the  

circumstances,  the  compulsory  retirement  of  Mr.  Gupta  

can never be said to be arbitrary or illegal.   

135.Having regard to their entire service record of the three  

officers,  this  Court  is  of  the  opinion that  the  competent  

authority was justified in passing the order retiring them  

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compulsorily from service.  Mere glance at the ACRs of the  

deceased  officer  and  two  other  appellants  makes  it  so  

glaring  that  on  the  basis  thereof  the  decision  to  

compulsorily retire them would clearly be without blemish  

and will  have to be treated as well  founded.  This Court  

finds  that  before  passing  the  orders  in  question,  whole  

service  record  of  each  of  the  officer  was  taken  into  

consideration.   Keeping  in  view  the  comprehensive  

assessment  of  service  record,  the  Screening  Committee  

rightly  recommended  that  the  three  officers  should  be  

prematurely retired in public interest forthwith.  The Full  

Court  after  considering  the  report  of  the  Screening  

Committee  and  also  after  taking  into  consideration  the  

record of work and conduct, general reputation and service  

record  of  the  three  officers  correctly  resolved  that  it  be  

recommended to the Lt. Governor of NCT of Delhi to retire  

the judicial officers forthwith in public interest.  The orders  

do  not  entail  any  punishment  in  the  sense  that  all  the  

officers  have  been  paid  retiral  benefits  till  they  were  

compulsorily retired from service.   

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136.On a careful consideration of the entire material, it must  

be held that the evaluation made by the Committee/Full  

Court,  forming  their  unanimous  opinion,  is  neither  so  

arbitrary nor capricious nor can be said to be so irrational,  

so as to shock the conscience of this Court to warrant or  

justify  any  interference.   In  cases  of  such  assessment,  

evaluation  and  formulation  of  opinions,  a  vast  range  of  

multiple factors play a vital and important role and no one  

factor  should  be  allowed  to  be  blown  out  of  proportion  

either to decry or deify an issue to be resolved or claims  

sought to be considered or asserted.  In the very nature of  

things, it would be difficult, nearing almost an impossibility  

to subject such exercise undertaken by the Full Court, to  

judicial  review except in an extraordinary case when the  

Court is convinced that some real injustice,  which ought  

not  to  have  taken  place,  has  really  happened  and  not  

merely  because  there  could  be  another  possible  view  or  

someone  has  some  grievance  about  the  exercise  

undertaken by the Committee/Full  Court.   Viewed thus,  

and considered in the background of the factual details and  

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materials  on  record,  there  is  absolutely  no  need  or  

justification for this Court to interfere with the impugned  

proceedings.   Therefore,  the  three  appeals  fail  and  are  

dismissed.  Having regard to the facts of the case,  there  

shall be no order as to costs.

………………………………J.          (J.M. PANCHAL)

……………………………….J. New Delhi;                   (H.L. GOKHALE) September 12, 2011

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