Gujarat High Court
Nagarbhai Ganeshbhai Parmar vs State Of Gujarat on 4 September, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14129 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR.JUSTICE R. T. VACHHANI Sd/-
=============================================
Approved for Reporting Yes No
✔
=============================================
NAGARBHAI GANESHBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
=============================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR AAKASH GUPTA, AGP for the Respondent(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 2
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 04/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present petition emanates from the Notification
dated 18.07.2016 passed by the Legal Department notifying
the premature retirement of the petitioner, who was serving as
the Judicial Officer in the State of Gujarat. The name of the
respective petitioner stands at Sr. No.6 of the Notification.
2. The petitioner, who was serving as an Additional District
Judge was retired prematurely in public interest on attaining
the age of 57 years and 01 month.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
3. The High Court on the administrative side undertook an
exercise for examining the performance of the Judicial Officers
of the State of Gujarat by verifying the service records, such as
Annual Confidential Reports, disposals, complaints, vigilance
complaints and departmental inquiry etc. and accordingly, the
Committee of three Hon'ble High Court Judges was formed
which had undertaken necessary exercise of verification of the
service records, and ultimately, the Committee filed its report
wherein it was found that 18 Judicial Officers including the
present petitioner, were required to be prematurely retired.
The Committee submitted its report before the Chamber and
Chamber meeting was held on 14.07.2016 and the report of
the Committee was accepted and accordingly, the names of 18
Judicial Officers, including the petitioner, were recommended
to the State Government to retire them prematurely under the
provisions of Rule 21 of the Gujarat State Judicial Service
Rules, 2005 (for short "the Rules of 2005") by giving three
months' pay in lieu of notice. The said recommendations were
accepted, and the Governor approved the same, and
ultimately, it culminated into the issuance of Notification dated
18.07.2016 approving recommendations of the High Court for
prematurely retiring the petitioner from service.
SUBMISSIONS MADE ON BEHALF OF PETITIONER
4. Learned advocate Mr.Vaibhav Vyas, appearing for the
petitioner has submitted that the impugned Notification dated
18.07.2016 is without authority of law since the same was
passed on the recommendation made by the High Court to the
Government of Gujarat and not to the Governor. He has
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
referred to the provisions of the Rule 20 of the Rules of 2005
and, in juxtaposition, has read the definition of the
Government and the Governor, which is incorporated in Rule
2(b) and 2(c) respectively. It is submitted that since the
Notification issued by the State Government, though it is in the
name of the Governor, the Governor had no occasion to
examine the recommendation sent by the High Court. Thus, it
is urged that the petitioner could not have been retired
prematurely in the absence of the Governor in his personal
capacity.
5. In this regard, learned advocate Mr.Vaibhav Vyas,
appearing for the petitioner, has referred to the contents of the
affidavit filed by the High Court. He has also referred to the
decision taken in the Chamber Meeting held on 14.07.2016. In
support of his submissions, he has referred to the decisions of
the Apex Court in the case of State of Gujarat and Another Vs.
Hon'ble Mr.Justice (Retd.) Ramesh Amritlal Mehta & Ors . (2013)
3 S.C.C. 1 and in the case of P.D.Goel vs. State of Himachal
Pradesh thorugh its Registrar General, 2017 (16) S.C.C. 390.
6. It is contended by the learned advocate Mr.Vaibhav Vyas,
that the reliance placed by the respondents on the
Government Resolution dated 05.03.1994 prescribes the
channel to mark cases related to service / establishment /
discipline of the State Government, and the same will not
apply to the case of the petitioner, who was serving as a
Judicial Officer under the establishment of the High Court.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
7. Learned advocate Mr. Vaibhav Vyas has also referred to
the Government Resolution dated 12.01.1999 issued by the
General Administration Department, which stipulates the
procedure to be adopted before an employee is retired
prematurely on reaching the age of 50-55 years. He has
submitted that in the instant case, the High Court has violated
these guidelines and hence, the impugned order of premature
retirement is required to be quashed and set aside. It is
submitted that there is a mechanical application of the mind
by the respondents. He has referred to representation dated
31.08.2016 filed by the petitioner, wherein he had already
clarified the difficulties faced by him, while functioning as a
Judicial Officer, which ultimately resulted into the observations
of the Committee that his performance was poor and
inadequate. Thus, it is urged that the present writ petition may
be allowed by setting aside the Notification dated 18.07.2016,
prematurely retiring him from service.
SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT-
HIGH COURT
8. In response to the aforesaid submissions, learned Senior
Advocate Mr.Shalin Mehta, appearing for the High Court, while
placing reliance on the decision of this Court dated 25.07.2025
rendered in Special Civil Application No.10772 of 2009 has
submitted that this Court has already delved into the similar
facts and issues regarding prematurely retiring the Judicial
Officers from service on attaining the age of 55-58 years. It is
submitted that in view of the communication dated 14.10.2008
issued by the Hon'ble the Chief Justice of India to various High
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
Courts, an exercise was undertaken to weed out the Judicial
Officers who were dead wood, and accordingly, a Committee
was formed to verify their service record.
9. With regard to the allegation about the lack of authority
by the Governor in issuance of the impugned Notification,
learned Senior Advocate Mr.Mehta has referred to the
provisions of Article 163 of the Constitution of India read with
the Gujarat Government Rules of Business, 1990 (for short,
"Rules of 1990"), more particularly Rule 8, and has submitted
that as per the aforesaid provisions, the Notification has been
issued in the name of the Governor, after the approval of the
Hon'ble Chief Minister, and hence, it cannot be said that the
same was without authority of law. He has submitted that the
assessment with regard to compulsory retirement of the
employees on attaining the age of 50-55 years is to be
channelized to the Chief Minister and the decision of the
Hon'ble Chief Minister's Office under the Rules of Business is
ultimately, the decision of the Governor.
10. It is submitted by learned Senior Advocate Mr.Mehta that
as per Rules 12 and 13 of the Rules of 1990, "All orders or
instruments made or executed by or on behalf of the
Government of the State shall be expressed to be made by or
by order of or executed in the name of the Governor". It is
submitted that this is not the case where the Governor has to
incorporate his/her personal wisdom and the decision has to be
taken personally by verifying the files of each and every
officer. It is submitted that the entire exercise was already
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
undertaken by the High Court on its administrative side that
too by the Committee comprising of three Hon'ble Judges and
ultimately, the report of the Committee was accepted by the
Chamber and such recommendations were forwarded to the
State Government. He has submitted that the Notification
cannot be set aside on the technical ground raised by the
petitioner for the first time in the writ petition. It is submitted
that the Review Committee of the High Court has considered
the entire service record of the petitioner and threadbare
scrutinized and assessed his performance in all the quarters
and ultimately, the Committee has opined that the during last
5 years of service, the petitioner has performed inadequately
and poorly and accordingly, he was made to retire prematurely
on reaching the age of 57 years and 01 month. Thus, it is
urged that the present writ petition may not be entertained
and be rejected.
ANALYSIS AND OPINION
11. We have heard the learned advocates appearing for the
respective parties at length and also perused the documents,
as pointed out by them.
12. The facts, which are established on record, are that vide
Notification dated 18.07.2016, the petitioner, who was serving
as an Additional District Judge has been prematurely retired
from service on attaining the age of 57 years and 01 month.
13. The exercise of evaluation of the potential of the Judicial
Officers in the entire Country before attaining the age of 50
years or 55 years was undertaken in view of the
communication dated 14.10.2008 written by the Hon'ble the
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
Chief Justice of India to all the High Courts. It was expressed
therein that the Service Rules can be suitably amended to
provide for the assessment of such officers on attaining the
age of 50 or 55 years in addition to 58 years in light of the
decision of the Apex Court in the case of All India Judges
Association Vs. Union of India, 2025 INSC 735, in order to weed
out those Judicial Officers, who are found to be indolent, infirm,
or with doubtful integrity. Accordingly, the Hon'ble the Chief
Justice of High Court undertook the necessary exercise of
evaluation of all the Judicial Officers of the State, who have
completed 50 years, 55 years, and 58 years of age, as required
under Rule 21 of the Judicial Rules.
14. Accordingly, the Committee of 03 Judges of this Court
was constituted to scrutinize the performance and evaluation
of the Judicial Officers, which included the petitioner.
Ultimately, the Committee in its report dated 01.04.2016
opined that 19 Judicial Officers, after considering their service
records, such as Annual Confidential Report, disposal,
complaints, vigilance complaints, departmental inquiry etc.,
are required to be retired prematurely in public interest except
one who has already retired on reaching the age of
superannuation during the process. Accordingly, the report
was placed before the Chamber, and a meeting was held on
14.07.2016, and after considering the report submitted by the
Committee consisting of three Hon'ble Judges, for effective
implementation of the provision of Rule 21 of the Rules of
2005, recommended the Government of Gujarat to
prematurely retire 18 Judicial Officers by giving three months'
pay in lieu of notice.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
15. Ultimately, such recommendations were accepted, and
the Notification dated 18.07.2016 was issued by the
Government of Gujarat, Legal Department, in the order and in
the name of the Governor of Gujarat.
RECOMMENDATION MADE BY THE HIGH COURT AND
SCOPE OF EXERCISE OF POWERS BY THE GOVERNOR :
16. The first and foremost contention, which is raised before
us challenging the aforesaid Notification, is that the same is
without authority of law, as the Governor was not supplied with
the recommendation and instead, the same was supplied to
the State Government. We have examined the vigor of the
submission in light of the relevant Rules, and legal precedent.
Indubitably, the Notification dated 18.07.2016 is issued "By
Orders and in the name of the Governor of Gujarat," signed by
the Deputy Secretary, Legal Department.
17. The petitioner has been compulsorily retired by invoking
the provisions of Rule 21 of the Rules of 2005, which reads as
under : -
"Rule - 21. Addition of certain service for purpose of pension.
An Advocate appointed as a Civil Judge or a District Judge shall be
entitled to reckon, as service qualifying for superannuation pension,
the actual period of practice put in by him at the Bar not exceeding
three years or seven years respectively.
Provided that the benefits of the Gujarat Civil Service (Pension)
Rules, 2002 shall continue to apply to the Judicial Officers
appointed prior to the date of commencement of these Rules unless
they opt otherwise.
(1) Notwithstanding anything contained in these Rules the
Governor shall, on the recommendation of the High Court, if he is
of the opinion that, it is in the public interest so to do, have the
absolute right to retire any member of the service who has attained
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
the age of 50 years, by giving him notice of not less than three
months in writing or three months pay and allowances in lieu of
such notice.
(2) Whether a member of the service should be retired in public
interest under sub-rule (1) shall be considered at least three times,
that is, when he is about to attain the age of 50 years, 55 years and
58 years.
Provided that nothing in sub-rule (2) shall be construed as
preventing consideration of a member of the service at any time
other than those mentioned therein."
18. Thus, a plain and simple reading of the provisions of Sub-
rules (1) and (2) of Rule 21 abundantly clarifies that the
Governor has the absolute right to retire any Judicial Officer, or
any member from service, who has attained the age of 50
years, on the recommendations made by the High Court. As
per Clauses (b) and (c) of Rule 2 of the Rules of 2005, the term
"Government" means "the Government of Gujarat" and the
term "Governor" means "the Governor of Gujarat." As per Rule
4 of the Rules, the appointing authority for the cadre of District
Judges and Civil Judges is the Government of Gujarat, and for
the cadre of Senior Civil Judges, it is the High Court.
19. It is not in dispute that the Chamber accepted the Report
of the Committee and, thereafter, in its meeting held on
14.07.2016, resolved to recommend the premature retirement
of the writ petitioner to the Government of Gujarat. Pursuant
thereto, the Notification came to be issued.
20.Article 166 of the Constitution of India permits the Governor
to delegate powers, unless and until an occasion arises
wherein the Governor himself/herself would have to take a
decision. The provisions of Article 163 and 166 are as under: -
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
"163. Council of Ministers to aid and advise Governor
(1)There shall be a Council of Ministers with the Chief Minister
at the head to aid and advise the Governor in the exercise of
his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them
in his discretion.
(2)If any question arises whether any matter is or is not a
matter as respects 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.
(3)The question whether any, and if so what, advice was
tendered by Ministers to the Governor shall not be inquired
into in any court.
166 : Conduct of business of the Government of a State
(1) All executive action of the Government of a State shall be
expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the
name of the Governor shall be authenticated in such manner
as may be specified in the rules to be made by the Governor,
and the validity of an order or instrument which is so
authenticated shall not be called in question on the ground
that it is not an order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the more convenient
transaction of the business of the Government of the State,
and for the allocation among Ministers of the said business in
so far as it is not business with respect to which the Governor
is by or under this Constitution required to act in his
discretion.
21. It is not in dispute that a decision taken by any Minister
or Officer under the Rules of 1990, framed under Article 166(3)
of the Constitution of India, is deemed to be the decision of the
Governor. Such powers are conferred under the Rules of 1990,
more particularly Rule 8 thereof, which reads as under : -
"8. The Council shall be collectively responsible for all
advice tendered to the Governor whether by an individual
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
minister on a matter appertaining to his portfolio or as a result
of discussions at a meeting of the Council or howsoever
otherwise."
22. Rules 12 and 13 of the Rules of 1990, which reads as
under : -
"12. All orders or instruments made or executed by or on
behalf of the Government of the State shall be expressed to
be made by or by order of or executed in the name of the
Governor.
13. Every order or instrument of the Government of the State
shall be signed either by a Secretary, an Additional Secretary,
a Special Secretary, a Joint Secretary, A Deputy Secretary, an
Under Secretary, an Assistant Secretary or a Section Officer or
by such other officer as may be Specially empowered in that
behalf by the Government and such signature shall be
deemed to be the proper authentication of such order or
instrument."
23. Thus, all orders or instruments made or executed by or
on behalf of the State Government are mandatorily required to
be made in the name of the Governor. It is further stipulated
that every order or instrument of the State Government may
be signed by a Secretary, an Additional Secretary, a Special
Secretary, a Joint Secretary, a Deputy Secretary, an Under
Secretary, an Assistant Secretary, or a Section Officer, or by
such other officer as may be specially empowered in that
behalf by the Government. Such signature shall be deemed to
be the proper authentication of such order or instrument.
24. The Apex Court in the case of the State of M.P. and
Others vs. Dr. Yashwant Trimbak, (1996) 2 S.C.C. 305, has held
as under: -
"10. Coming to the first question, from a bare look at the order
which was served on the respondent, it is implicitly clear that the
said order has been executed in the name of the Governor and
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
has been duly authenticated by the signature of the Under
Secretary to the Government and therefore the bar to judicial
enquiry with regard to the validity of such order engrafted in
Article 166(2) of the Constitution will be attracted. The order
which is expressed in the name of the Governor and is duly
authenticated cannot be questioned in any court on the ground
that it is not made or executed by the Governor. The signature of
the concerned Secretary or Under Secretary who is authorised
under the authentication rules to sign the document signifies the
consent of the Governor as well as the acceptance of the advice
rendered by the concerned Minister. It is not the case of the
respondent and Mr. Jain appearing for the respondent in this
Court did not urge that the order in question is not an order within
the meaning of Article 166(2) of the Constitution. But according to
Mr. Jain under the Rules the Governor being the authority to
sanction and the Governor not having sanctioned, the prohibition
contained in sub Article (2) of Article 166 of the Constitution
cannot be attracted and the courts power to examine is not taken
away. We are unable to accept this contention of Mr. Jain,
appearing for the respondent.
13. This being the position and the order initiating the
departmental proceeding having been signed by the Under
Secretary to the Government by Order of the Governor, the same
is immune from attack on the ground that it is not an order
executed by the Governor as provided under Article 166(2) of the
Constitution. As such the Tribunal was wholly incompetent to
examine the legality of the same. In fact Article 166(2) of the
Constitution has not been looked into at all by the Tribunal. In our
opinion the Tribunal was wholly in error in quashing the order on
the ground that the Governor has not executed the same. In view
of our conclusion on the first question though the appeal is bound
to succeed, but we think it proper to examine the second question
also."
25. The Apex Court, while examining the provisions of Article
166(2) of the Constitution of India, has held that an order
expressed in the name of the Governor and duly authenticated
cannot be questioned in any court on the ground that it was
not made or executed by the Governor. The signature of the
concerned Secretary or Under Secretary, who is authorized
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
under the Authentication Rules to sign the document, signifies
both, the consent of the Governor and the acceptance of the
advice rendered by the concerned Minister.
26. In the case of Hon'ble Mr.Justice (Retd) Ramesh
Amritlal Mehta (supra), on which reliance is placed by the
petitioner, the Apex Court, while examining the provisions of
the Gujarat Lokayukta Act, 1986, and powers conferred to the
Governor under Article 163 of the Constitution of India, has
held thus:
"41. Thus, where the Governor acts as the Head of the State,
except in relation to areas which are earmarked under the
Constitution as giving discretion to the Governor, the exercise of
power by him must only be upon the aid and advice of the
Council of Ministers, for the reason that the Governor being the
custodian of all executive and other powers under various
provisions of the Constitution is required to exercise his formal
constitutional powers only upon and in accordance with the aid
and advice of his Council of Ministers. He is, therefore, bound to
act under the Rules of Business framed under Article 166(3) of
the Constitution. (Vide Pu Myllai Hlychho v. State of
Mizoram [(2005) 2 SCC 92 : AIR 2005 SC 1537] .)
XXXXXXXX
44. ......................Article 166(3) of the Constitution further
bestows upon the Governor the power to make rules for more
convenient transactions of business of the Government of the
State and also for the purpose of allocating among the Ministers
of State such business. There are several ways by which, a
power may be conferred upon the Governor, or qua the
Governor, which will enable him to exercise the said power by
virtue of his office as Governor. Therefore, there can be no
gainsaying that all the powers that are exercisable by the
Governor by virtue of his office can be exercised only in
accordance with the aid and advice of the Council of Ministers
except insofar as the Constitution expressly, or perhaps by
necessary implication, provides otherwise.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
27. The Constitution Bench of the Apex Court in the case of
Registrar (Admin), High Court of Orissa, Cuttack Vs. Sisir Kanta
Satapathy, 1999 (7) S.C.C. 725 has held thus:
"15. On going through the judgments of this Court right
from Shyamlal v. State of U.P. [AIR 1954 SC 369 : (1955) 1 SCR
26] down to High Court of Judicature for Rajasthan v. Ramesh
Chand Paliwal [(1998) 3 SCC 72 : 1998 SCC (L&S) 786] one
cannot but reach one conclusion regarding the power of the High
Court in the matter of ordering compulsory retirement. That
conclusion is that the High Courts are vested with the disciplinary
control as well as administrative control over the members of the
judicial service exclusively, but that does not mean that they can
also pass orders of dismissal, removal, reduction in rank or
termination from service while exercising administrative and
disciplinary control over the members of the judicial service.
Undoubtedly, the High Courts alone 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. 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 (vide para 18 in Inder Prakash Anand
case [(1976) 2 SCC 977 : 1976 SCC (L&S) 372] )."
28. Thus, the conspectus of the foregoing discussion is that,
if the action of the Government and the order/Notification is
duly authenticated in accordance with Article 166(2) and the
Rules 12 and 13 of the Rules of 1990, a conclusive and
irrefutable presumption arises that the decision was duly taken
in accordance with the concerned Rules. The recommendation
of the High Court is binding on the State Government /
Governor. The exceptions carved out in the main clause of
Article 163(1) of the Constitution, permit the legislature to
entrust certain functions to the Governor to be performed by
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
him, either at his discretion, or in consultation with other
authorities, independent of the Council of Ministers. In the
present case, as noted hereinabove, the petitioners have not
challenged the decision of the Full Court or the findings of the
Committee comprising three Hon'ble Judges. The three
members Committee of the Hon'ble Judges of this Court, and
the Full Court had examined the service record of the
petitioners and thereafter, his case for premature retirement
was recommended to the State Government. As per Rule 4 of
the appointing authority for the cadre of District Judges and
Civil Judges, it is the Government of Gujarat. Hence, the High
Court had sent the recommendation to the State Government,
and ultimately after the recommendation has been accepted
and approved by the Governor the Notification has been issued
in his order and name. We do not find any infringement of any
Rules or the provisions of Articles 163 and 166 of the
Constitution in the entire process, hence, the Notification
issued in the name of the Governor of Gujarat, cannot be set
aside on the ground canvassed before us. Reliance placed on
the judgment of the Apex Court in the case of P.D.Goel
(supra) by the petitioners will not even remotely apply to the
facts of the present case, since in the said case, the Governor,
who was the appointing authority, retired a Sub-Judge Officer
retrospectively, after the High Court passed an order of
compulsory retirement.
SCOPE OF JUDICIAL REVIEW OF PREMATURE
RETIREMENT :
29. It is not in dispute that the Committee has examined the
service record of the petitioner, and accordingly, his
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
performance for the last five years was found to be poor, and
thus, he was prematurely retired on reaching the age of 57
years and 01 month. We may, at this stage, refer to the legal
precedent on the issue of compulsory/premature retirement,
as enunciated by the Apex Court in following cases.
(1) Bishwanath Prasad Singh vs. State of Bihar, (2001) 2 S.C.C.
305,
The Apex Court was dealing with the decision of the
compulsory retirement of an Officer of 58 years of age on
complaint. The Full Bench decision of the Apex Court, after
considering the array of judgements, has held that in absence
of any allegation of bias and mala fides against the High Court,
opinion formed by the High Court cannot be interfered with.
The judgement is primarily on the issue of timely preparation
and recording the entries in the CR, in order to see that the
Judicial Officers can improve their performance. The Apex
Court has also held that compulsory retirement of an Officer or
Government servant does not cause any stigma as the
Government servant is entitled to pension actually earned and
other retiral benefits.
It is also held that so long as the opinion formed on the
basis of the order of compulsory retirement in public interest is
found bona fide, the opinion cannot be ordinarily interfered
with by a judicial forum and the said order may be subject to
judicial review on very limited grounds such as the order being
mala fide, based on no material or on collateral grounds or
having been passed by the authority not competent to do so. It
is further observed that the object of compulsory retirement in
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
public interest is not to punish or penalize the Government
servant but to weed out the worthless, who have lost their
utility for the administration by their insensitive, unintelligent
or dubious conduct impeding the flow of administration or
promoting stagnation.
(2) Swaran Singh Chand vs. Punjab State Electricity Board,
(2009) 13 S.C.C. 758 :
The Apex Court has held that the principles of natural
justice are not required to be complied with and even adverse
entries in the CR (Confidential Report), including non-
communicated entries may be taken into consideration, while
compulsory retiring the Judicial Officers in public interest. The
relevant paragraphs are as under:
"16. The learned counsel appearing on behalf of the respondent
would contend that the principles of natural justice are not
required to be complied with in a case of compulsory retirement,
particularly, when no mala fide is alleged. Allegation against the
delinquent was not only that he lacked integrity but also unfit to
be retained in service. Those comments, in our opinion, are
stigmatic in nature.
It is also not a case where there had been a steady decline in the
performance of the employee.
17. *** *** ***
18. *** *** ***
19. Thus, when an order suffers from malice in law, neither any
averment as such is required to be made nor strict proof thereof
is insisted upon. Such an order being illegal would be wholly
unsustainable."
(3) Nawal Singh Vs. State of Uttar Pradesh, (2003) 8 SCC 117:
The Apex Court, while examining the scope and power of
retiring the Judicial Officer by way of compulsory retirement,
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
has recorded thus:
"2. At the outset, it is to be reiterated that the judicial service is not a
service in the sense of an employment. 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. Further 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. If such
evaluation is done by the Committee of the High Court Judges and is
affirmed in the writ petition, except in very exceptional
circumstances, this Court would not interfere with the same,
particularly because order of compulsory retirement is based on the
subjective satisfaction of the Authority.
6. Case of Bharthari Prasad is also of the same nature. His
confidential reports reveal that various allegations were made and
various inquiries were held against him. In confidential report for the
year 1975-76, the District Judge observed disposal of cases to be poor
and judgment of average quality. For the years 1978-79 and 1980-81,
the disposal was observed to be below standard. Once he was
charged for the omission while delivering the judgment of conviction
in the absence of the accused and also discharging the bail bonds and
sureties, which was in violation of Section 353 Cr.P.C. For this, he
was asked to be careful in future. For the year 1994-95, District Judge
remarked his integrity to be doubtful and overall assessment as poor.
Representation of the appellant against these remarks was also
rejected. For the year 1997-98, the District Judge awarded adverse
remarks against him. The District Judge also requested for his
transfer from Allahabad to another station. The appellant was later on
transferred from Allahabad. It is also stated that the appellant did not
comply the orders of transfer but even after receiving the orders of
transfer, he continued to decide cases. The matter was later on
considered by the Administrative Committee."
The Apex Court has considered the judgement of Full
Bench in the case of Baikuntha Nath Das (supra) and held
as under:
"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.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
(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 perverse order.
(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 interfere. Interference is
permissible only on the grounds mentioned in (iii) above. This aspect
has been discussed in paras 29 to 31 above.
4. Appellant Nawal Singh was appointed in 1972. In Confidential
Reports for the year 1975-76, 1976-77, it has been mentioned that his
judicial work needs improvement. For the year 1980-81, his judicial
work was of average quality. For the year 1984-85, the District Judge
has rated him as good officer. For the year 1986-87, there were
complaints about his integrity. For this purpose, reference was made
to cases wherein he had granted bail in serious offences. However,
with regard to doubtful integrity, the representation of the appellant
was accepted and it was substituted by holding that no reason to
doubt the integrity of the officer. Again, for the year 1990-91, it has
been stated that with regard to the interim orders/injunctions, he was
directed to be more scrupulous; it was stated that integrity was
doubtful and over all assessment was poor. On his revision, adverse
remarks with regard to his integrity were expunged by holding that
the appellant was suspended during the relevant year pending the
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
departmental enquiry touching his integrity but he was exonerated by
the Administrative Committee. Again, there are instances indicating
that various inquiries were held subsequently. It is not necessary to
refer to the same. His application for revoking the suspension was
also rejected. However, later on, order of suspension was revoked.
5. *** *** ***
6. *** *** ***
7. Hence, it is apparent that the Screening Committee after
examining the past records of service; character roll and other
matters relating to the appellants opined that they were not suitable
for continuing in service beyond the age of 58 years.
8. From the facts narrated above, even if we were to sit in appeal
against the subjective satisfaction of the High Court, it cannot be said
that the orders of compulsory retirement of the appellants are, in any
way, erroneous or unjustified. Further, it is impossible to prove by
positive evidence the basis for doubting integrity of the judicial
officer. In the present day system, reliance is required to be placed on
the opinion of the higher officer who had the opportunity to watch the
performance of the concerned officer from close quarters and
formation of his opinion with regard to overall reputation enjoyed by
the concerned officer would be the basis.
9. It is to be reiterated that for keeping the stream of justice
unpolluted, repeated scrutiny of service records of judicial officers
after specified age/completion of specified years of service provided
under the Rules is must by each and every High Court as the lower
judiciary is the foundation of judicial system. We hope that the High
Courts would take appropriate steps regularly for weeding out the
dead-wood or the persons polluting justice delivery system."
(4) R.C.Chandel Vs. High Court of M P & Anr.(2012) 8 SCC 58
In the cases, where the District Judge was granted
selection grade and super time scale, it was held that the same
do not wipe out the adverse entries which have remained on
record and continued to hold the field, it was held thus:
"34. It is true that the appellant was confirmed as District Judge in
1985; he got lower selection grade with effect from 24.03.1989; he
was awarded super time scale in May, 1999 and he was also given
above super time scale in 2002 but the confirmation as District Judge
and grant of selection grade and super time scale do not wipe out the
earlier adverse entries which have remained on record and continued
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
to hold the field. The criterion for promotion or grant of increment or
higher scale is different from an exercise which is undertaken by the
High Court to assess a judicial officer's continued utility to the
judicial system. In assessing potential for continued useful service of
a judicial officer in the system, the High Court is required to take into
account the entire service record.
Overall profile of a judicial officer is the guiding factor. Those of
doubtful integrity, questionable reputation and wanting in utility are
not entitled to benefit of service after attaining the requisite length of
service or age.
35. *** *** ***
36. *** *** ***
37. Judicial service is not an ordinary government service and the
Judges are not employees as such. Judges hold the public office; their
function is one of the essential functions of the State. In discharge of
their functions and duties, the Judges represent the State. The office
that a Judge holds is an office of public trust. A Judge must be a
person of impeccable integrity and unimpeachable independence. He
must be honest to the core with high moral values. When a litigant
enters the courtroom, he must feel secured that the Judge before
whom his matter has come, would deliver justice impartially and
uninfluenced by any consideration. The standard of conduct expected
of a Judge is much higher than an ordinary man. This is no excuse
that since the standards in the society have fallen, the Judges who are
drawn from the society cannot be expected to have high standards
and ethical firmness required of a Judge. A Judge, like Caesar's wife,
must be above suspicion. The credibility of the judicial system is
dependent upon the Judges who man it. For a democracy to thrive
and rule of law to survive, justice system and the judicial process
have to be strong and every Judge must discharge his judicial
functions with integrity, impartiality and intellectual honesty."
(5) Rajendra Singh Verma Vs. Lt.Governor of NCT of Delhi
and Anr., (2011) 10 S.C.C. 01.
The Apex Court, after considering the array of
judgements on the issue and also on the issue of the
compulsory retiring the Judicial Officer while considering his
grading of doubtful integrity, has held thus:
"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
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
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.
XXX XXX XXX
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 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 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 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
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
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 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.
XXX XXX XXX
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 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
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
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 entries were recorded in the
ACR of the appellants cannot be upheld and is hereby rejected.
XXX XXX XXX
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 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."
(6) High Court of Judicature For Rajasthan Vs. Bhanwar Lal
Lamror, (2021) 8 S.C.C. 377. In this case, the Apex Court has
held as under:
"8 We have heard learned counsel for the parties. The moot question
is whether it was open to the High Court to substitute its view for the
one recorded by the Administrative Committee, which commended to
the Full Court of the High Court, pursuant to which the order of
compulsory retirement came to be issued.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
9 Indeed, the High Court on judicial side could have done so, if it
found that there was absolutely no record or material whatsoever as
referred to in the recommendations made by the Administrative
Committee, or that the Committee relied on irrelevant material, or
that apposite material was overlooked and discarded. Further, the
High Court's view would have been acceptable if it found patent
illegality, breach of procedure causing prejudice to respondent no.1,
or imposition of a gravely disproportionate measure. We notice that
the Administrative Committee, in its Report, had adverted to the
entire service record, including the pending disciplinary enquiry
regarding integrity of respondent no.1.
10 It is settled position in law that the competent authority is
supposed to consider the entire service record of the judicial officer
and even if there is a solitary remark of lack and breach of integrity,
that may be sufficient for a Judicial Officer to be compulsory retired
as expounded in Tarak Singh Vs. Jyoti Basu reported in (2005) 1 SCC
11 The High Court took notice of this judgment, but still ventured to
examine the entire record by itself, overlooking the thorough
examination conducted by the Administrative Committee, which was
affirmed and commended to the Full Court. It was not open to the
High Court to substitute its own view for the satisfaction arrived at by
the Full Court of the High Court regarding the necessity or otherwise
of the respondent no.1 continuing in the Rajasthan Higher Judicial
Services. It was also not open to the High Court to re-write the annual
confidential reports by taking over the role of inspecting or
confirming authority.
12 Suffice it to note that the disciplinary enquiry was pending
against respondent no.1 which raised questions about his integrity.
Past service record of respondent no. 1 was found to be sub-par and
short of the exacting standard expected from a judicial officer.
13 It is also noticed from the record that the disciplinary enquiry
came to be dropped in lieu of compulsory retirement of respondent
no.1. That was a composite recommendation made by the
Administrative Committee and commended to the Full Court of the
High Court. The two being inseparable, and the solitary remark about
integrity with the service record being sufficient in law to proceed
against the judicial officer, we fail to comprehend as to how the
conclusion reached by the competent authority can be said to be
arbitrary or manifestly wrong."
CONCLUSION
30. Thus, the law on compulsory retirement a Judicial Officer
is no more res integra. The Order of compulsory/premature
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
retirement in public interest or in the interest of administration
is not a punishment. The compliance of principles of natural
justice is not necessary. A single uncommunicated adverse
remark in the entire service record or doubtful integrity is
enough to retire a Judicial Officer compulsorily in the public
interest. Any promotion or grant of higher pay scale / selection
grade cannot have any impact on the order of compulsory
retirement. The Full Court, on the collective wisdom of all the
Judges and considering the general reputation of an employee,
without any tangible material against him/her, may
compulsorily retire a Judicial Officer in public interest and
judicial review of such order is permissible only on very
restricted grounds. Even the filing of complaints made against
the Judicial Officer may not ipso facto wipe out the subjective
satisfaction and deliberation of the High Court, which has been
arrived at by careful scrutiny and filtration at different stages.
We may reiterate that sometimes it would be very tough to
gather concrete or material evidence to prove the doubtful
integrity and make it part of the record, and it would be
impracticable for the Reporting Officer or the competent
controlling officer writing the Confidential Report to give
specific instances of shortfalls supported by evidence. The
entire exercise of the High Court stems out of special
circumstances doctrine. The opinion formed by the
Administrative Committee, which undertakes the task of
gathering information from various sources, and the
perception formed of integrity of the Judicial Officer cannot be
tinkered with by exercising powers under Article 226 of the
Constitution, more particularly when it is sanctioned further by
the Standing Committee and the Full Court. The impression of
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
the Judicial Officer is premised on the perception by the High
Court, after careful circumspection and deliberation, and it
would be on preponderance of probability for entertaining a
doubt about integrity of an official which is based on
substance, matter, information etc. Therefore, in such
circumstances an opinion formed by the High Court cannot be
interfered with the reason that it is formed sans any material.
The satisfaction and the recommendation of the Administrative
Committee, Standing Committee, and Full Court of the High
Court cannot be interfered with unless it is tainted with patent
illegality, breach of procedure, causing prejudice to the Judicial
Officer, or it is a grave disproportionate measure. In view of the
settled legal precedent regulating the premature/compulsory
retirement of the Judicial Officers and the domain and
supremacy of the High Court in this regard, the reliance placed
by the petitioner on the government Resolution dated
12.01.1999, prescribing the procedure to be adopted in
reviewing the cases of government employees on reaching the
age of 50-55 years, pales into insignificance.
31. All the aspects of the decision / deliberation and
satisfaction of the High Court exclusively emanate from the
overall reputation of the Judicial Officers. As held by the Apex
Court in the case of R.C.Chandel (supra), "Judicial service is
not an ordinary government service and the Judges are not
employees as such. Judges hold the public office; their function
is one of the essential functions of the State. In discharge of
their functions and duties, the Judges represent the State. The
office that a Judge holds is an office of public trust. A Judge
must be a person of impeccable integrity and unimpeachable
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
independence. He must be honest to the core with high moral
values. When a litigant enters the courtroom, he must feel
secured that the Judge before whom his matter has come,
would deliver justice impartially and uninfluenced by any
consideration. The standard of conduct expected of a Judge is
much higher than an ordinary man. This is no excuse that
since the standards in the society have fallen, the Judges who
are drawn from the society cannot be expected to have high
standards and ethical firmness required of a Judge. A Judge,
like Caesar's wife, must be above suspicion. The credibility of
the judicial system is dependent upon the Judges who man it.
For a democracy to thrive and rule of law to survive, justice
system and the judicial process have to be strong and every
Judge must discharge his judicial functions with integrity,
impartiality and intellectual honesty."
32. Any breach of the pristine standards/values as
enumerated above will invite scrutiny from the High Court, and
any Judicial Officer, whose conduct / reputation / behavior is
found impinging the same can either attract disciplinary
proceedings or compulsory retirement in the public interest,
depending upon the extent of the breach. Thus, in view of the
settled legal proposition, this Court cannot delve into the
wisdom of the Full Court of the High Court, which has
formulated the opinion of assessment/valuation by considering
multiple factors of the service record of the petitioner, more
particularly in wake of the fact that the petitioner has not
alleged patent illegality or mala fide in the decision-making
process adopted by the High Court.
NEUTRAL CITATION
C/SCA/14129/2017 JUDGMENT DATED: 04/09/2025
undefined
33. In light of the foregoing observations, the present writ
petition fails. The same is hereby dismissed.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(R. T. VACHHANI, J)
NVMEWADA & MAHESH/05
