P.D. Goel vs High Court of Himachal Pradesh through its Registrar General

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

JUDGMENT

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 Signature Not Verified

19.4.1995. He was granted selection grade on 20.11.2003. He Digitally signed by DEEPAK MANSUKHANI Date: 2017.08.18 13:17:24 IST Reason:

was conveyed with the adverse entry in his Annual Confidential 2

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 3

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 31 st 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 4

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. 5

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.

6

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 7

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 8

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.