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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURSIDCITON

CIVIL APPEAL NO. 10244 OF 2017 (Arising out of SLP (C) No.13525 2016)

P. D. GOEL … APPELLANT  

VERSUS

HIGH COURT OF HIMACHAL PRADESH THROUGH ITS REGISTRAR GENERAL …RESPONDENT

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. The appellant was appointed as sub Judge on 14.1.1975.  He

was  inducted  as  a  member  of  the  Higher  Judicial  Service  on

19.4.1995.  He was granted selection grade on 20.11.2003.  He

was conveyed with the adverse entry in his Annual Confidential

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Report  for  the  year  2003-2004  on  30.10.2004.   He  sought  a

clarification  from  the  Registrar  (Vigilance)  as  to  whether  the

aforesaid  remarks  were  advisory  or  adverse  in  nature.  The

respondent vide letter dated 1.12.2004 conveyed that the remark

in column No.13 against him was ‘adverse’ whereas the remark in

column  No.14  was  ‘advisory’  in  nature.  After  prolonged

correspondence, the respondent conveyed to the appellant vide

letter  dated  5.3.2005  that  upon  consideration  of  the  entire

matter, the Full Court felt that the adverse entry in column No.13

was not specifically relatable to any particular record nor it had

any specific genesis of particular record of his service.   

3. As per the gradation list of Himachal Pradesh Judicial Service

as it stood on 1.1.2005, the date of retirement of the appellant

was shown as 31.7.2007 on which date he completed the age of

60  years  as  provided  under  Rule  14  of  the  Himachal  Pradesh

Judicial  Service  Rules,  2004  (hereinafter  referred  to  as  ‘the

Rules’).   The High Court issued a notification at Annexure P-16

dated 20.4.2005 holding that the appellant stands retired from

service with effect from the afternoon of 31.7.2005, i.e. the last

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day of the month in which he attains the age of superannuation,

i.e.  58 years under  proviso to Rule 14 of the Rules.  The said

Notification is as under:

“HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171001  HHC/GAZ/14-46/74-IV      Dated Shimla April 20, 2005.

NOTIFICATION

Hon’ble the Chief Justice and Hon’ble Judges of the High Court of Himachal Pradesh are pleased to order that Shri P.D. Goel, District and Sessions Judge, Chamba (a Member of Himachal Pradesh Judicial Service), shall stand retired from service on and with effect from the afternoon of 31st

July, 2005 i.e. last day of the month in which he attains the age of superannuation, that is, 58 years, under Rule 14 of Himachal Pradesh Judicial Service Rules, 2004.

BY ORDER OF THE HON’BLE HIGH COURT OF H.P. REGISTRAR GENERAL

Endst. No. HHC/GAZ/14-46/74-IV-      Dated: 20.04.2005”

4. The  appellant  filed  C.W.P.  No.649/2005  challenging  the

notification before the High Court of Himachal Pradesh, Shimla.

The learned Single Judge vide order dated 9.1.2009 struck down

the adverse entry made in the Annual Confidential Report. It was

held that retiring the appellant at the age of 58 years vide order

dated 20.4.2005 is contrary to law.  It was further held that the

order had not been passed by the appointing authority, viz. the

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Governor of State of Himachal Pradesh. The learned Single Judge

further  held  that  the  appellant  is  entitled  to  all  consequential

benefits.

5. The respondent challenged the order of the learned Single

Judge by filing Letters Patent Appeal, being LPA No.34 of 2009,

before the Division Bench. The Division Bench vide order dated

31.12.2015 did not agree with the order of the learned Single

Judge  striking  down  the  adverse  entry  made  in  the  Annual

Confidential Report.  The Division Bench held that the Governor

alone has the power to pass an order of dismissal, removal or

termination on the recommendation of the High Court which is

made in exercise of powers of control vested in the High Court

and that the High Court cannot dismiss, remove or terminate the

services  of  the  District  Judge.   It  was  further  held  that  the

notification Annexure P-16 has to be treated as recommendation

of the High Court to the Governor for removal of services of the

appellant and the Governor has to proceed and make necessary

consequential order in accordance with the recommendations of

the High Court.  Accordingly the appeal was disposed of.  

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6. Shri P.S. Patwalia, learned senior counsel appearing for the

appellant submits that the Governor of the Himachal Pradesh is

the appointing authority who alone could retire the appellant, that

too in public interest after forming an opinion and after giving a

notice of three months to the appellant and that the High Court is

only recommending authority in that respect.  The Governor has

not passed an order retiring the appellant at the age of 58 years.

The  appellant  has  attained  the  age  of  superannuation  on

31.7.2007.  Therefore, he is entitled for all the service benefits till

the date of attaining the age of superannuation.   

7. Ms.  Pragati  Neekhra,  learned  counsel  appearing  for  the

respondent submits that in terms of the direction of the Division

Bench, the Governor of Himachal Pradesh has passed an order on

31.1.2017 retiring the appellant with effect from the afternoon of

31.7.2005, i.e. the last day of the month in which he attains the

age of superannuation, i.e. 58 years.   Therefore, it cannot be

said  that  the  appellant  has  retired  on  attaining  the  age  of

superannuation at 60 years.

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8. Having regard to the contentions urged, the only question

for consideration is whether retiring the appellant retrospectively

on completing the age of 58 years is justified in law.  

9. This Court in  Registrar (Admn.), High Court of Orissa,

Cuttack vs. Sisir Kanta Satapathy (Dead) by LRs. and Anr.

(1999) 7 SCC 725, while considering the scope of Articles 233,

234 and 235 of the Constitution of India has held that the control

vested in the High Court over the subordinate judiciary though

absolute and exclusive, has to be exercised without usurping the

power vested in the executive under the Constitution. The High

Court  retains  the  power  of  disciplinary  control  over  the

subordinate judiciary, including the power to initiate disciplinary

proceedings,  suspend  them  pending  enquiry  and  impose

punishment  on  them.  But  when  it  comes  to  the  question  of

dismissal,  removal,  reduction in  rank or  termination of  judicial

officers on any count whatsoever, the High Court becomes only

the recommending authority and cannot itself pass such an order.

The High Court has to send its recommendations to the Governor

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because the Governor is the authority to dismiss, remove, reduce

in rank or terminate the appointment.

10. In the instant case, the appellant had not been retired by

the  appointing  authority,  namely,  the  Governor  of  Himachal

Pradesh.  Therefore,  it  cannot  be  said  that  the  appellant  had

retired on the completion of age of 58 years. Instead of quashing

the notification at Annexure P-16, the Division Bench treated the

said  notification  as  recommendation  of  the  High  Court  to  the

Governor for removal of the services of the appellant. This order

was  passed  after  the  appellant  had  completed  the  age  of  60

years.  In terms of the order of the Division Bench, the Governor

has passed an order dated 31.1.2017 retrospectively retiring the

appellant with effect from 31.7.2005, which, in our view, is not

permissible in law.  The Himachal Pradesh Judicial Service Rules,

2004  do  not  provide  for  retrospectively  retiring  the  judicial

officers.  The order of the High Court retiring the appellant at the

age of 58 years cannot take effect as it was without authority of

law.  It only means that the appellant has to be treated to have

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been retired from service on completion of 60 years of age on

31.7.2007.   

11.  We are  of  the  view  that  the  order  of  the  Division  Bench

treating the recommendation of the High Court to the Governor

for compulsorily retiring the appellant cannot be sustained.  The

order of the Division Bench to that extent is hereby set aside.

Consequently, the order of the Governor dated 31.1.2017 is also

set aside. The appellant is entitled to his salary, allowances and

all other consequential benefits till 31.7.2007.  The arrears as per

above terms shall be paid to the appellant within three months

from the date of receipt of copy of this judgment. The appeal is

accordingly allowed.   

12. There will be no order as to costs.           

…………………………………………J. (J. CHELAMESWAR)

…………………………………………J. (S. ABDUL NAZEER)

New Delhi; August 08, 2017.