1. Judicial officer retired by High Court at age 58 instead of 60 — Challenge to retirement notification and validity of retrospective retirement by appointing authority. (Para 2 , 3 , 4 )
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2017 Supreme(SC) 714
SUPREME COURT OF INDIA
J. Chelameswar, S. Abdul Nazeer, JJ.
P.D. Goel – Appellant
Versus
High Court of Himachal Pradesh through Its Registrar General – Respondent
Civil Appeal No. 10244 of 2017 (Arising out of SLP (C) No. 13525 of 2016)
Decided On : 08-08-2017
Advocates Appeared:
For the Appellant : P.S. Patwalia, Sr. Adv., Tushar Bakshi, Dhruv Sheoran, Ms. Natasha Vinayak, Advs.
For the Respondent:- Ms. Pragati Neekhra, Suryanarayana Singh, Advs.
For the Appellant : P.S. Patwalia, Sr. Adv., Tushar Bakshi, Dhruv Sheoran, Ms. Natasha Vinayak, Advs.
For the Respondent:- Ms. Pragati Neekhra, Suryanarayana Singh, Advs.
Important Points
MAIN POINT
Nobody can be retired retrospectively.
Nobody can be retired retrospectively.
Subject
Judicial Review - Retirement of Judicial Officers
Act Referred
Headnote
Constitution of India – Articles 233, 234 and 235 – High Court’s powder of superintendence over subordinate judiciary – Falls short of dismissal, removal, reduction in rank or termination – In these matters High Court becomes only the recommending authority – Instantly, High court passing order Annexure P-16 retiring appellant at age of 58 years wef 31.7.2005 – Division Bench instead of quashing Annexure P-16 treating it as its recommendation – Governor accordingly retiring appellant on 31.7.2007 wef 31.7.2005 – Not permissible – Nobody can be retired retrospectively. (Para 10, 11)
(1999) 7 SCC 725 – Relied upon
Facts of the case:
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 Report for the year 2003-2004 on 30.10.2004.
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. 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 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 Single Judge struck down the adverse entry made in the Annual Confidential Report. It was held that retiring the appellant at the age of 58 years is contrary to law. It was further held that the order had not been passed by the appointing authority, viz. the Governor of State of Himachal Pradesh. The learned Single Judge further held that the appellant is entitled to all consequential benefits.
The Division Bench 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 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.
Finding of the Court:
Nobody can be retired retrospectively.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the High Court can retire a judicial officer or if such power rests solely with the Governor as the appointing authority. (Para 6 , 7 )
3. High Court's control over subordinate judiciary does not include power to dismiss or terminate; it acts only as a recommending authority to the Governor. (Para 5 , 8 , 9 , 10 )
4. The High Court cannot dismiss, remove, or terminate judicial officers; it only recommends such actions to the Governor, the sole appointing authority. (Para 9 , 10 )
5. Retrospective retirement order set aside — Appellant entitled to salary and consequential benefits until attaining the age of superannuation. (Para 11 , 12 )
6. Who has the authority to dismiss or terminate the services of a judicial officer?
The Governor is the appointing authority with the power to dismiss, remove, reduce in rank, or terminate the appointment. The High Court, while exercising disciplinary control, acts only as the recommending authority. (Para 9 )
7. Can a judicial officer be retired retrospectively?
Retrospective retirement is not permissible in law unless specifically provided for in the applicable service rules. In this case, the Himachal Pradesh Judicial Service Rules, 2004, did not provide for such retirement. (Para 10 )
8. What is the scope of the High Court's control over the subordinate judiciary regarding termination?
The High Court's control is absolute and exclusive but cannot usurp executive powers. It can initiate disciplinary proceedings and suspend officers, but cannot itself pass orders of dismissal or removal. (Para 9 )
JUDGMENT
S.Abdul Nazeer, J.
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 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 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 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.
6. Shri P.S. Patwalia, learned senior counsel appearing for the appellant submits that the Governor of the Himachal Pradesh is the appointing auth
