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compulsory retirement = 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.

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 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

 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 

 2

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. 

 3

 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 

 4

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 

 5

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 

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 

 6

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 

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 

 7

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 

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 

 8

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 

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 

 9

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; 

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

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

 10

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 

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

 11

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 

 Court held that principles of natural justice were 

 12

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. 

According to the High Court the entire service 

 13

 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, 

 14

 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 

 15

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 

 16

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 

 17

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 

 18

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 

 19

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. 

 20

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 

 21

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 

 22

 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 

 23

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 

 24

 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. 

 25

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 

 26

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 

 27

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 

 28

 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 

 29

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 

 30

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 

 31

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)

 32

 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 

 33

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. 

 34

 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.

 35

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 

 36

 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 

 37

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 

 38

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 

 39

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. 

 40

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. 

 41

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 

 42

 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 

 43

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 

 44

 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. 

 45

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."

 46

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. 

 47

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 

 48

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 

 49

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 

 50

 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 

 51

 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 

 52

 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 

 53

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 

 54

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 

 55

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 

 56

 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 

 57

 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 

 58

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 

 59

 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 

 60

 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, 

 61

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 

 62

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.

 63

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 

 64

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 

 65

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.

 66

 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. 

 67

 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."

 68

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 

 69

 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 

 70

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: -

 71

 "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 

 72

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.

 73

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 

 74

 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 

 75

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 

 76

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 

 77

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 

 78

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. 

 79

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 

 80

 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 

 81

 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 

 82

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. 

 83

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 

 84

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 

 85

 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 

 86

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 

 87

 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. 

 88

 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.

 89

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.

 90

 "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 

 91

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 

 92

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 

 93

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.

 94

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-

 95

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 

 96

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 

 97

 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 

 98

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, 

 99

 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 

 10

 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 Regist
 rar, 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 

 11

 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. 

 12

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 

 13

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 

 14

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. 

 14

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 

 15

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 

 16

 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 

 17

 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 

 18

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 

 18

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 

 18

 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 

 18

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.

 18

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 

 18

 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 

 18

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. 

 18

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 

 19

 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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