IMPORTANT POINTS
1. The power of compulsory retirement can be exercised at any time and the power under Article 235 in this regard is not in any manner circumscribed by any rule or order.
2. In the matter of disciplinary action against a 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.
3. An order of compulsory retirement is not a punishment and does not have adverse consequence and, therefore, the principles of natural justice are not attracted.
4. Uncommunicated adverse remarks can be taken into consideration while passing the order of compulsory retirement. 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.
5. 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.
6.While considering the case of an officer as to 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.

Headnote:Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst-Plea that once a review was conducted by Screening Committee of High Court on 17.7.2000 on appellants’ reaching age of 50 years, which was accepted by Full Court, no second review on same material was permissible and service record of appellants for compulsory retirement, could have been reviewed only upon their reaching the age of 55 years and not before reaching said age- However held that decision of Committee dated July 17, 2000 was purely tentative in nature and was not a final decision- Use of expression “for the time being” in the Minutes of Committee showed that it was not a final decision meaning and that matters were to be considered in detail on a later date and final decision was to be taken later on- Even if it was assumed that there was consideration of cases of 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 notice of High Court that integrity of appellants was doubtful- Hence contention of appellants was held liable to be rejected (Paras 30 to 39)
        Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst- FR 56(j) gives absolute right to 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 Delhi Judicial Service Rules or Delhi Higher Judicial Service Rules or 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-Appropriate authority could retire any Government servant after he has attained age of 50 years or after he has completed 25 years of qualifying service and a starting point has been prescribed , which is the attaining of age of 50 years or the completion of 25 years of service-It is, therefore, open to appropriate authority to consider the case of a Government servant for premature retirement at any time after said starting points (Paras 40 to 44)
        Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst- Apart from the poor judicial performance, appellants were also retired compulsorily from service, on the ground that their integrity was doubtful- Thus, after so-called review of cases of 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- In respect of all the three officers, after the previous consideration in July, 2000, new material in form of ACR for the year 2000 “`C’ integrity doubtful” had come into existence and had become 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- The consideration of cases of three judicial officers on the basis of ACRs dated September 13, 2001 recorded by Full Court was not a review of earlier decision of July, 2000- It was a fresh consideration- It being review of record of service of officers and not review of the earlier decision such review was not only permissible but was perfectly legal and valid- Hence contention of appellants was held liable to be rejected (Paras 44 to 48)
        Constitution of India,1950- Article 239(AA)(4) - Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst-Plea that order passed by 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) was ultra vires as well as illegal –Case of respondent High Court on the other hand that since said contention was not advanced before High Court, said plea could not be permitted to be raised for the first time in the appeals arising by grant of special leave-Held Ordinarily Supreme Court would not entertain a new prayer at hearing of appeal under Article 136 when it is not raised in High Court or in the petition seeking leave to appeal- Point not raised before High Court but taken in Special Leave Petition will not ordinarily be allowed to be agitated before Apex Court- Apex 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, 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 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- Instantly question sought to be raised was a pure question of law for which factual foundation was already laid- Hence having regard to facts of case, Court permitted appellants to raise the point (Para 53)
        Constitution of India,1950- Article 239(AA)(4) - Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst-Plea that order passed by 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) was ultra vires as well as illegal-Held in the matter of compulsory retirement of a Judicial Officer Governor cannot act on the aid and the advice of Council of Ministers but has to act only on the recommendation of High Court- Though Lt. Governor was a party to these appeals, no plea raised by him that recommendation made by 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- Hence order of Lt. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers was neither ultra vires nor illegal and was rightly sustained by High Court- The Governor could not have passed any order on the aid and advice of Council of Ministers in this case- The advice could be of no other authority except that of the High Court in the matter of judicial officers- Governor cannot take aid and advice of his Council of Ministers in the case of judicial officers and accept its advice and act according to it-Contention of appellants held liable to be rejected (Para 81)
        Compulsory retirement vis-a- vis order of dismissal -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 service already put in- An order of removal also stands on the same footing as an order of dismissal and involves 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. (Para 88)
        Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst-Plea that appellants were made to retire compulsorily from service without affording them an opportunity to make representation against the ACR of year 2000 wherein they were graded as “`C’ doubtful integrity”-Held 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-Instantly authorities concerned were justified in relying upon adverse entry made against two appellants and the deceased officer in the year 2000 indicating that their integrity was doubtful alongwith other materials- 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, 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 two appellants and the deceased officer had no opportunity to make representation against said entry or that representation made against the same was pending, would not render consideration of said entry illegal, in any manner, whatsoever (Para 92)
        Fundamental Rules- Rule 56 (j) read with Rules 27, 33 of Delhi Judicial Service Rules 1970- All India Service (Death-cum-Retirement Benefit) Rules 1958- Rule 16(3) read with Rule 27 of Delhi Higher Judicial Service Rules 1970-Premature retirement-justification for compulsory retirement of appellants, members of Delhi Judicial Service- Challenge thereagainst-Plea that since Rule 31A of DJS Rules incorporated since 1.1.1996 covers entire field of age of retirement and premature retirement of Delhi Judicial Officers , premature retirement of appellants could not have been made before their attaining age of 58 years-Held Rule 31 was inserted in DJS Rules with effect from 1.1.1996 providing that normal age of retirement of 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 benefit of increase of retirement age to 60 years was not available automatically to all judicial officers irrespective of their past records of service-It is true that 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 officer after he attains the age of 50 years- Rule 31A has bearing and impact in deciding the question whether the order of compulsory retirement against appellant in terms of Rule 33 read with F.R. 56(j) is valid or not- The newly added rule not dealt with aspect of compulsory retirement at all- In terms of Rule 33 subject of compulsory retirement did remain residuary even after introduction of Rule 31A in DJS Rules -Hence held that question of premature retirement would have to be considered only under FR 56(j) and not under newly added Rule 31A- Consideration of case of appellant for premature retirement before he attained age of 58 years could not be regarded as illegal in any manner at all- (Para 109)
        Compulsory retirement of members of Delhi Judicial Service- Appeals thereagainst –In view of entire service record of three officers, held that competent authority was justified in passing the order retiring them compulsorily from service- Mere glance at the ACRs of deceased officer and two other appellants showed that decision to compulsorily retire them was without blemish and well founded.- Before passing the orders in question, whole service record of each of officer was taken into consideration- Keeping in view comprehensive assessment of service record, Screening Committee rightly recommended that three officers should be prematurely retired in public interest forthwith- Full Court after considering report of Screening Committee correctly resolved that it be recommended to the Lt. Governor of NCT of Delhi to retire judicial officers forthwith in public interest- Evaluation made by Committee/Full Court, forming their unanimous opinion, was neither so arbitrary nor capricious nor could be said to be so irrational, so as to shock the conscience of Apex Court to warrant or justify any interference- No need or justification for Apex Court to interfere with impugned proceedings- Appeals dismissed (Paras 135, 136)
       Facts of the Case :
        A. An Order of Compulsory retirement of appellants, members of Delhi Judicial Service was passed herein in the instant case.
        B. Issue in consideration in present appeals was whether said Order of Compulsory retirement of appellants, members of Delhi Judicial Service was justified.
       Findings of the Court :
        A. Plea of appellants that once a review was conducted by Screening Committee of High Court on 17.7.2000 on appellants’ reaching age of 50 years, which was accepted by Full Court, no second review on same material was permissible and service record of appellants for compulsory retirement, could have been reviewed only upon their reaching the age of 55 years and not before reaching said age.
        However held that decision of Committee dated July 17, 2000 was purely tentative in nature and was not a final decision. Use of expression “for the time being” in the Minutes of Committee showed that it was not a final decision meaning and that matters were to be considered in detail on a later date and final decision was to be taken later on. Even if it was assumed that there was consideration of cases of 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 notice of High Court that integrity of appellants was doubtful. Apart from that this was not a case wherein a review had taken place and a positive final decision to continue appellants in service, was taken by Screening Committee. Hence contention of appellants was held liable to be rejected.
        B. 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 Delhi Judicial Service Rules or Delhi Higher Judicial Service Rules or 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. Appropriate authority could retire any Government servant after he has attained age of 50 years or after he has completed 25 years of qualifying service and a starting point has been prescribed , which is the attaining of age of 50 years or the completion of 25 years of service.It is, therefore, open to appropriate authority to consider the case of a Government servant for premature retirement at any time after said starting points.
        C. 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 termination of the services of the judicial officer, on any count whatsoever, High Court becomes only the recommending authority and cannot itself pass such an order. The formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of High Court.
        D. In the matter of compulsory retirement of a Judicial Officer Governor cannot act on the aid and the advice of Council of Ministers but has to act only on the recommendation of High Court. Though Lt. Governor was a party to these appeals, no plea raised by him that recommendation made by 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. Hence order of Lt. Governor compulsorily retiring the appellants without seeking aid and advice of his Council of Ministers was neither ultra vires nor illegal and was rightly sustained by High Court. The Governor could not have passed any order on the aid and advice of Council of Ministers in this case. The advice could be of no other authority except that of the High Court in the matter of judicial officers. Governor cannot take aid and advice of his Council of Ministers in the case of judicial officers and accept its advice and act according to it.
        E. In view of entire service record of three officers, held that competent authority was justified in passing the order retiring them compulsorily from service. Mere glance at the ACRs of deceased officer and two other appellants showed that decision to compulsorily retire them was without blemish and well founded. Before passing the orders in question, whole service record of each of officer was taken into consideration. Keeping in view comprehensive assessment of service record, Screening Committee rightly recommended that three officers should be prematurely retired in public interest forthwith. Full Court after considering report of Screening Committee correctly resolved that it be recommended to the Lt. Governor of NCT of Delhi to retire judicial officers forthwith in public interest. Evaluation made by Committee/Full Court, forming their unanimous opinion, was neither so arbitrary nor capricious nor could be said to be so irrational, so as to shock the conscience of Apex Court to warrant or justify any interference. Held there was no need or justification for Apex Court to interfere with impugned Proceedings. Appeals were dismissed.

JUDGMENT

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 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.

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.

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 rep

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2011 Supreme(SC) 892

Cases Referred (50)