Holding

The order of compulsory retirement of the appellant was arbitrary and unsupported by material, and therefore was quashed.

Summary

Madan Mohan Choudhary, an Additional District & Sessions Judge, was compulsorily retired by the State of Bihar after the High Court, on the basis of an anticipatory bail order he had granted in a Section 307 IPC case, recommended his retirement. The High Court’s Standing Committee and Full Court recorded adverse remarks for three years in his character roll after the decision to retire, without giving him a proper opportunity to represent. The Supreme Court examined whether the High Court’s recommendation and the Governor’s action were arbitrary, whether the adverse entries could be relied upon, and whether the bail order could justify retirement. It held that the retirement order was arbitrary, unsupported by material, and that the adverse entries recorded “at one go” could not be legally considered. Consequently, the order of compulsory retirement dated 2 August 1997 was quashed and the appeal was allowed.

Issues considered

The validity of the High Court’s recommendation for compulsory retirement of a judicial officer based on an anticipatory bail order.
Whether adverse entries in the character roll, recorded after the decision to retire and without proper representation, can be considered for compulsory retirement.
Whether the Governor’s power to retire a judicial officer without proper consultation and material support is constitutionally valid.
Whether the grant of anticipatory bail under Section 307 IPC, even with a cross‑case, can constitute a ground for compulsory retirement.
The applicability of the principles laid down in Baikuntha Nath Das v. Chief District Medical Officer, Baripada regarding arbitrariness and natural justice in compulsory retirement.

Legislation cited

Bihar Service Code, 1952s. Rule 74
Constitution of Indias. Article 233, s. Article 234, s. Article 235, s. Article 236, s. Article 237

Subjects

Compulsory retirementJudicial serviceHigh Court controlArticle 235Natural justiceAnticipatory bailRule 74 Bihar Service CodeArbitrarinessConsultationCharacter rollJudicial independence

Judgment

A MADAN MOHAN CHOUDHARY ·'
v.
STATE OF BIHAR

FEBRUARY 12, 1999

B [S. SAGHIR AHMAD AND M. JAGANNADHA RAO, JJ.]

Constitution of India-A1ticle 235-Bihar Se1vice Code 1952--Rule
74--Compulsmy retirement of Dist1ict and Sessions Judge whethe1; on facts,
arbitrmy--Matter of grant of anticipatmy bail by District and Sessions Judge
C refemd to administrative side of High Cowt to examine his conduct-Char-
acter rolls for preceding three years prepared simultaneously, after decision to
compulsorily retire him-Prior entries not bad, and integrity never
doubted-Held, order granting anticipatory bail may have been wrong order,
but was bona fide judicial order and not motivated by extraneous considera-
tions Character rolls for preceding three years recorded after Standing Com-
D mittee of High Cowt had made up its mind to compuls01ily retire him-Held,
no reasonable person could have concluded that appellant had outlived his
utility as judicial office1~A1ticles 233, 234, 236, 237.

Constitution of India-A1ticles 233 and 23~"Consult''--Duty of High
Cowt--Where Govemor cannot act unless he has consulted High Cowt, held,
E High Court to tender advice after due deliberation---lf advice not suppmted
by any matelial on record or arbitrary, held ftuther, it may not have binding
value.

Se1vice La~haracter roll---E11tries contammg adverse remarks
recorded 'at one go' for three years whe11 decision to compulsorily retire
F already taken-Opp01tunity to make representation not given before directing
compulsory retirement-Held, entries were 11ot recorded in 11onnal course,
and representation not dealt with promptitude-Held, therefore, entries cannot
legally be taken into consideration-Constitution of India Articles 235--Bihar
Service Code 1952, Rule 74-Natural justice.
G
Constitution of India-Article 235-'Control' over subordinate
courts-Held, disciplinary control, and premature and compulsory retirement
within 'control' of High Court-Words & Phrases.

On 14.11.95, while working as District and Sessions Judge in charge,
H the appellant granted anticipatory .bail to certain persons accused under
596
M.M. CHOUDHARYv. STATE 597
Section 307, IPC. The bail order was challenged in the High Court where A
the Judge hearing the matter, while proceeding to reconsider, and eventual-
ly reverse, the order of bail vis-a-vis two of the accused, directed that the
matter be referred to the administrative side of the High Court to examine
the conduct of the appellant who had granted anticipatory bail in the case.
On 16.11.96, the Standing Committee of the High Court resolved that the
appellant be compulsorily retired,. and the office prepare a note to this B
effect. On 30.11.96, the Full Court approved the resolution. The State
Government thereafter compulsorily retired the appellant by order dated
2.8.97.

Between 1984 and 1990,the appellant was categorised in the character
rolls as being between B (average) in 1984 to B Plus in 1990. For the year
c
'
1991-1992, 1992-1993 an 1993-1994, however, there were no remarks given
in the character roll's; these were given all at one time and he was
categorised as "C" Grade officer. These remarks were communicated to him
on 29.11.96. His representation, filed on 20.2.97, was rejected by the High
Court on 12.12.97. D
The appellant challenged the order of compulsory retirement in a writ
petition which was dismissed by the High Court.

Before this Court, it was contended that the appellant was an honest,
hardworking and sincere officer and there had at no stage been any adverse E
remark, and his integrity had never been doubted. It was contended that the
order granting anticipatory bail, passed by him on the judilial side, could
not be made the basis of an order of compulsory retirement, specially when
~here was also a cross-case. Further, there was no material on the basis of
which the High Court could recommend compulsory retirement and the
whole decision-making process was conducted in an arbitrary manner.
F

It was urged for the High Court, and for the State, of Bihar, that the
High Court having resolved to compulsorily retire the appellant in public
interest, had taken a bona fide decision on an overall assessment of the work
and conduct of the appellant and, therefore, it was not open to judicial G
scrutiny.

Allowing the appeal, this Court

Held: 1. The action of compulsory retiring the appellant from service
cannot but be termed as arbitrary in the sense that no reasonable person H
598 SUPREME COURT REPORTS (1999) 1 S.C.R.
A could have come to the conclusion that the appellant had outlived his ...>
utility as a judicial officer. The order of compulsory retirement dated
2.8.97 is·quashed .with all consequential to the appellant.

2. The adverse entries in the character roll of the appellant for the
B years 1991-92 , 1992-93 and 1993-94 were not recorded in the normal
course. They were recorded at one go simultaneously. There is no indica-
tion of the date on which these entires were made. They were recorded at
a stage when the Standing Committee had already made up its mind to
compulsorily retire the appellant from service. The Full Court took the
decision to retire him from service without giving him any opportunity to
C make a representation which, however, he did make and which was rejected
a year later, in December 1997. All the entries prior to his promotion to
the Superior Judicial Service in 1991 were not bad and his integrity was
never doubted. In the abnormalities and strange circumstances of the case,
the categorisation of the appellant as 'C' class officer for the years 1991 •
D 1992, 1992-93 and 1993-94 could not have been legally taken into considera·
tion. [616-G; 613-D; 617-B-C]

Baiku11tha Nath Das v. Chief Dt. Medical Officer, Baripada, AIR
(1992) .SC 1020, applied.

E U11io11 of India v. M.E. Reddy, AIR (1980) SC 563; Brij Mohan Singh
Chopra, v. State of Punjab, AIR (1987) SC 948; Baidya11ath Mahapatra v.
State of Orissa, AIR (1989) SC 2218; Posts and Telegraphs Board v. C.S.N.
Murthy, AIR (1992) SC 1368; Secretary to the Government Harijllll & Tribal
Welfare Department, Bhubaneswar v. Nityananda Patil, AIR (1993) SC 383;
F Union of India v. V.P. Seth, AIR (1994) SC 1261; M.S. Bindra v. Union of
India, [1998] 7 SCC 310 and State of Gujarat v. Suryakant Chunilal Shah,
[1998] 6 SCALE 393, referred to.

3. The grant of anticipatory bail in the case under Section 307 IPC
G particularly when there was a cross case could not have been legally made a
basis for compulsory retirement in the particular facts of this case. This
might have been a wrong order, but it was not a motivated order based on
extraneous considerations. It was thus a case where there was no material on ("'"
the basis of which an opinion could have been reasonably formed that it
would be in the public interest to retire the appellant from judicial service
H prematurely in terms of Rule 74 of the Bihar Service Code. [613-B-C]
M.M. CHOUDHARYv. STATE 599

~. 4. The power of superintendence of the High Court extends to the A
subordinate courts. In order to ensure their independence, control over
the subordinate com1s has been vested in the High Court under Article
235. It is now well settled that the expression "control" in Article 235
includes disciplinary control. Premature and compulsory retirement are
also within the control of the High Court. [609-B]
B
Mohammad Ghouse v. State of Andhra Pradesh, AIR (1957) SC 246
and Chief Justice of Andhra Pradesh "· L. VA. Dikshitulu, AIR (1979) SC
193, referred to.

5. Under the Constitution, the Governor cannot make any appoint- C
ment or take any .disciplinary action including action for removal or
compulsory retirement unless the High Court is "consulted" as required in
Articles 233 and 234 and the "control" of the High Court indicated in
Article 235. The word "consult" in its ordinary meaning means "to ask
advice" or "to take counsel". The Governor is thus a "consultor" and the
High Court is the "consultee" which is treated as an expert body in all D
matters of ·service relating to the State Judicial Services. The Governor
cannot act on his own unless he has consulted the High Court. The High
Court cannot act arbitrarily in giving its opinion to the Governor. If the
advice is not supportable by any material and is arbitrary in character, it
may not have any binding value. [611-A-D] E

Registrar, High Court of Madras v. R Rajiah, AIR (1988) SC 1388;
M.M. Gupta v. State of J&K, AIR (1982) SC 1579 and State of Kera/a v. A.
Lakshmikutty, AIR (1987) SC 331, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 787 of F
1990.

From the Judgment and Order dated 22.7.98 of the Patna High Court
in C.W.J.C. No. 11184 of 1997.

Ms. Preena Swamp, Pramod Swamp and Praveen Swamp for the
G
Appellant.

N.K. Singh and Uma Nath Singh for the Respondents.

The Judgment of the Court was delivered by H
600 SUPREME COURT REPORTS [1999] 1 S.C.R.

A S. SAGHIR AHMAD, J. Leave granted.

The recommendation of the High Court on the basis of which the
appellant, who held the rank of Addi. District & Sessions Judge, was
compulsorily retired from service, exhibits the tragic fact that the highest
judicial body of the State which abhors anything done contrary to the rule
B of law or done in a whimsical manner or arbitrarily, can itself act in that
manner on the administrative side. Still, the plea that High Court Judges
suffer from "split personality" cannot be accepted for the pleasant fact that
though on the administrative side they might have had acted as ordinary
I
bureaucrat, once they don the robes they forget all their previous associa-
tions and connections. The transformation is so complete and real that
C even though they themselves were part of the decision making process, they
quash their own administrative decisions in exercise of their power of
judicial review and thus rnaimain the majesty and independence of the
Indian judiciary in which the people have always reposed tremendous faith.
In the instant case, however, the order of compulsory retirement dated
D 2.8.1997 passed by the State Government on the High Court's recornrnen-·
dati1Jn has been upheld and it has fallen to our lot, in this appeal, to
scrutinise the validity of this order.

Before corning to the merits of the case, we may scan the service
record of the appellant who joined the Judicial Service as Temporary
E Munsif on 15.5.1975. He was confirmed on that post on 8.2.1980 and was
promoted to the rank of Sub-Judge with effect from 16.5.1985. He was
confirmed as Sub-Judge on 19.1.1988. The appellant was promoted to the
Superior Judicial Service in 1991 and was put to officiate as Addi. District
& Sessions Judge with effect from 15.7.1991. He w.is not, till the date of
his compulsory retirement, confirmed on that post.
F
The character roll entries, as recorded by District Judges, under
whom the appellant had worked, are as set out below:-

"1975-76 (Distt. Muzaffarpur) - Quality of work satisfactory and
quantity capable of improve-
G ment. Relation with Bar satis-
factory.

H
1976-77 (Distt. Muzaffarpur) - Quality of work satisfactory and
quantity fair. Relation with Bar
fair.
(
M.M. CHOUDHARYv. STATE [S. SAGHIR AHMAD, J.) 601
"").
1977-78 (Distt. Gaya) He is intelligent. His Judgments A
are of average quality. Outturn
is satisfactory.

1978-79 No remarks.

1979-80 (Distt. Munger) On the whole his work and con- B
duct is average. Relationship
-1.. with the members of the Bar
and the Judicial Officers has
been satisfactory. He IS
laborious and painstaking.
c
1980-81 No remarks.·

1981-82 (Distt. Palamau) Intelligent and hard working.
Writes good Judgments. Enjoys
good relation of integrity.
D
1982-83 (Distt. Palamau) Carries a good reputation
regarding his integrity.

1983-84 (Distt. Palamau) Shaping well as a Judicial Of-
ficer. E
1984-85 (Distt. Hazaribagh) - He has satisfactory knowledge of
law and procedure. He is in-
dustrious and prompt in disposal
of cases. He is an efficient Officer.
He has maintained a reputation F
for honesty and impartiality.
An average Officer. Relation
with Bar, colleagues and staff
cordial.

1985-86 (Distt. Aurangabad) - Knowledge of law and proce- G
<lure satisfactory. He is in-
dustrious and prompt in the
disposal of cases. He is an effi-
cient Officer. He has main-
tained a reputation for honesty H
602 SUPREME COURT REPORTS (1999] 1 S.C.R.

A and impartiality during the
.
.,.
period. As incharge of the
Nazarat and Account he re-
quires to exercise more effective
control.
Satisfactory. Maintains good
B relation with the other Judicial
Officers and the Bar. ....
(·-

1986-87 (Distt. Aurangabad) - Knowledge of law and proce-
dure is satisfactory. He is in-
c dustrious and prompt in the
disposal of cases. Disposal of
the cases is satisfactory. He is an
efficient Officer. He writes well-
discussed judgments & orders,
both Civil & Criminal. He en-
D joys good reputation as an
honest & impartial Officer. "
Good. He maintains cordial
relation with other judicial Of-
ficers & Bar.
E
1987-88 (Distt. Aurangabad) - Knowledge of law and proce-
dure satisfactory. He is in-
dustrious and prompt in the
disposal of the cases. Disposal
satisfactory. He is an efficient
F
Officer. None made any com-
plaint regarding his honesty and
impartiality. He enjoys good
reputation with respect to his
integrity and laborious. Defects,
G if any:- No.
Good. He maintains cordial
relation with judicial Officers
and Bar.

H 1988-89 (Distt. Aurangabad) - His knowledge of law and pro-
M.M. CHOUDHARYv. STATE[S.SAGHIRAHMAD,J.] 603

•• cedure is satisfactory. He is in-
dustrious, an efficient Officer
A

and prompt in the disposal of
cases. He enjoys good reputa-
tion as an honest and impllJ"tial
Officer. He is fit for appoint-
ment as C.J.M. Defects - Nil.
B
Good. He maintains cordial
~~
relation with other judicial of.:
ficer, staff and Bar.

1989-90 (Distt. Begusarai) - Knowledge of law and proce- c
<lure satisfactory. He is in-
dustrious and prompt in the
disposal of cases. His super-
vision of distribution of business
among and his control over the D
subordinate Courts good. He is
an efficient Officer. He has
maintained a reputation for
honesty and impartiality.
Defects, if any - No.
Very frequently he loses his E
temper in the court but he writes
good judgment and order.

1990-91 (Distt. Begusarai) - Very sound knowledge of law F
.. and procedure. He is in-
dustrious and prompt in the dis-
posal of cases. His supervision of
the distribution of business
among and his control over the
subordinate Court good. He is an G
efficient officer. He enjoys con-
fidence of Bar and litigants.
He is a very good officer. Has
grip and control over office and
Subordinates. H
604 SUPREME COURT REPORTS [1999] 1 S.C.R.

A Relationship with Bar and Of-
ficers cordial."

Categorisation made by the Inspecting Judges of the High Court are
as follows:-

B "1984 · B (average) by Hon'ble Abhiram Singh
1987 · B (satisfactory) by Ho'l.'ble R.C.P. Sinha
1988 · Good by Ho~'ble S. Roy
1990 · B Plus by Hon'ble B.K. Roy"

C On 14th of November, 1995 while working as District & Sessions
Judge Incharge, Madhubani, the appellant granted anticipatory bail to
certain accused in a case under Section 307 IPC. The bail order was
challenged in the High Court in Criminal Miscellaneous Case No.18207 of
1995 which came up before a learned Judge of the High Court who passed
the following order on 26.3.1996 :-
D
"The allegations as against opposite parties no.2 and 3 appear
to be more serious than against the rest, although notice was issued
to all the opposite parties, it appears from the service report that
the notice is deemed to have been validly served as the concerned
opposite parties refused to grant the receipt. In my opinion, the
E
petitioner should take fresh steps for service of notice against
opposite parties no.2 and 3 alone.

Let requisites etc. under registered cover with AID be filed by
Mcinday(l.4.1996), failing which this application, as against the
F concerned opposite parties, shall stand rejected without further
reference to a Bench.

In the meantime, the office is directed to put up this matter on
Administrative side so that the conduct of the Officer, who granted
anticipatory bail, may be examined. The office will also disclose
G the name of the Sessions Judge I!C, who passed the order on
14.11.1995.

This case was finally disposed of by the same learned Judge on
22.7.1996 and the anticipatory bail, granted to two of the accused, was set
H aside. This order contains, inter alia, the following observations:-
M.M. CHOUDHARYv. STATE [S. SAGHIR AHMAD, J.] 605

1. "From the order of the Sessions Judge incharge it appears that A
he took into account the fact that with respect to the occurrence
a counter case had also been instituted and, therefore, 'the chances
of false implication cannot be ruled out.' Considering the fact that
two persons on the side of the prosecution had sustained grievous
injuries on vital parts of the body, I am unable to understand the
logic. Even if there was a counter version of the occurrence, the
B
court below should have considered the manner of occurrence and
-~
the fact that the prosecution party had sustained grievous injuries
which cannot be said to be manufactured or self- inflicted, before
coming to the final conclusion. Such a consideration was all the
more necessary because the opposite party were seeking the c
privilege of pre- arrest bail. It does not give correct message to the
public if persons accused of causing grievious injuries on vital parts
of the body do not even surrender to custody and are granted
anticipatory bail. Even if in the matter of cancellation of bail, the
court should not make distinction between the anticipatory bail and
D
regular bail; nevertheless if the superior court find that the exercise
"' of discretion itself was not proper, subverting the people's faith in the
administration of criminal justice, it is its duty to intervene and. set
aright the wrong. Besides, as stated above, there are also allegatiohs
that the opposite party have been holding out threats to the
petitioner, his family members and the prosecution witnesses and E
the attitude of the police is not helpful."

(Emphasis Supplied)

In pursuance of the direction issued by the learned Judge, the office
put up a note which was considered by the Standing. Committee on F
r
6.11.1996 and the following Resolution was adopted:-

''Agenda Decision

To consider the Order dated Having Considered the office
G
,. 26.3.96 passed in Crl.Misc.
Case No. 18207/95 against
the Sessions Judge l/C,
notes concerning the office.

It is resolved that the office shall
Madhubani. (XIX-32-96). put up necessary notes for the
compulsory retirement of Sh.
Madan Mohan Choudhary Addi H
606 SUPREME COURT REPORTS [1999] 1 S.C.R.

A Sessions Judge, Madhubani,
under Rule 74 of the Bihar Ser-
vice Code."

The office, thereafter, prepared the necessary note for compulsory
retirement of the appellant under Rule 74 of the Bihar Service Code. This
B note was considered by the Standing Committee in its meeting held on
21.11.1996 and the following Resolution was adopted:-

''Agenda Decision

To consider the desirability Having considered the entire
c of taking action under Rule 74 service records of each of the
of the Bihar Service Code following 4 officers :
against a few officers of the
Subordinate Judiciary. 1. Sh.Madan Mohan Choud-
(XIX-31-96) hary, Addi. Distt. & Sess.
D Judge, Madhubani.

2. ·········································

3......................................... .

E 4......................................... .

It is resolved that it is not in the
public interest to retain their
services any longer and they
F should, therefore, be retired
compulsorily from service under
Rule 74(b)(ii) of the Bihar Ser
vice Code.

The above decision be placed
G before the meeting of the Full
Court, scheduled to be held on
30th November, 1996 as per Rule
3(x) of Chapter-I Part-I of the
Rules of the High Court at Patna
H instead of getting it circulated."
M.M. CHOUDHARYv. STATE [S. SAGHIR AHMAD, f] 607

A Full Coutt meeting was convened on 30.11.1996 and the Resolu- A.
tion of the Standing Committee (extracted above) was approved. The
relevant extract of the minutes of the Full Court meeting is reproduced
below:-

"Item No.7:- To consider the decision of the Standing Com-
mittee regarding compulsory retirement of Judi- B
cial Officers under Rule 74 of the Bihar Service
. ;. Code, 1952.

The decision of the Standing Committee meeting dated 21.11.96
regarding compulsory retirement of the following Judicial Officers C
r under Rule 74(b) of the Bihar Service Code, is considered by the
Full Court and the same is approved.

1. Sri Madan Mohan Choudhary,
Addl.Distt. & Sessions Judge, Madhubani.
D
2............................................................................................... .

3. ·······························································································

4............................................................................................... .
E
The State Government may be requested .to give three months
pay in advance to the aforesaid officers recommended for compul-
sory retirement in lieu of three months notice to be given to them.

It is further resolved that the District & Sessions Judges con-
cerned be directed to relieve the aforesaid officers of all their F
Judicial works."

The State Government, acting on the recommendation of the High
Court, compulsorily retired the appellant from service by order dated
2.8.1997.
G
It may be mentioned that there were no remarks given by the High
~ Court to the appellant in his character roll for the years 1991- 92, 1992-93
and 1993- 94 but these remarks were given all at one time and he was
categorised as "C" Grade Officer. Regarding these remarks, the opposite
parties in the counter affidavit say as under:- H
608 SUPREME COURT REPORTS [1999] 1 S.C.R.

A "Thereafter, the petitioner was awarded Grade 'C'in his C.R. for
3 years consecutively and the assessment of petitioner's C.R. for
years at one go is not a solitary case but the same practice was
)

.
followed in the case of all the Judicial Officers. The placing of
petitioner in Grade 'C' category means below average which was
communicated to him by the Registrar General by letter No.9560
B dated 29.11.1996."

When these remarks were communicated to the appellant on ._.
29.11.1996, he filed a representation on 20.2.1997 before the High Court
and prayed that his categorisation as "C"Grade Officer may be set aside.
c This representation was rejected by the High Court on 12.12.1997.

The order of compulsory retirement, as pointed out above, was
challenged before the High Court in a Writ Petition filed under Article 226 '
of the Constitution but the pleas raised by the appellant were turned down
and the Writ Petition was dismissed.
D
Learned counsel for the appellant has contended that the appellant ,"-
was an honest, hardworking and sincere officer who had not, at any time,
been given any adverse remark and his integrity, at no stage, was ever
doubted. It is contended that an order passed by him on the judicial side
by which bail was granted to certain accused in a case under Section 307
E
IPC specially when there was a cross case also, could not be made the basis
of an order of compulsory retirement. It is also contended that there was
no material on the basis of which the High Court could recommend
compulsory retirement. The whole decision making process, it is claimed,
was conducted in an arbitrary manner.
F
Learned counsel appearing on behalf of the High Court as also the
State of Bihar have vehemently contended that the High · Court having
resolved to compulsorily retire the appellant in public interest had taken a
bona fide decision on an overall assessment of the work and conduct of the
appellant and, therefore, it was not open to judicial scrutiny.
G
We may, at this stage, consider the role of the High Courts in the
matter of State Judicial Services. ~.l.

The Indian Constitution provides for an independent judiciary in
H every State by making a provision for a High Court being constituted for
M.M.CHOUDHARYv.STATE[S.SAGHIRAHMAD,J.] · 609

each State. The Constitution has conferred very wide powers and extensive A
jurisdiction on each High Court, including the power of superintendence
over all the courts and tribunals in the territory over which it has jurisdic-
tion. Undoubtedly, one of the most important wings of the judiciary com-
prises of the subordinate courts as it is in these courts that the judiciary
comes in close contact with the people. In order to secure the inde-
pendence of the subordinatejudiciary from the Executive, Articles 233 to
B
237 have been placed in the Constitution. Article 233 deals with the
appointment of District Judges and provides that appointments, posting
and promotions of District Judges in any State shall be made by the
Governor in consultation with the High Court, exercising jurisdiction in
relation to such State. The word "District Judge" has been defined in c
Article 236(a) as under :

"The expression "district judge" includes judge of a city civil Court,
additional district judge, joint district judge, assistant district judge,
chief judge of a small cause Court, chief presidency magistrate,
additional chief presidency magistrate, sessions judge, additional D
sessions judge and assistant session judge."

The expression "judicial service" has been defind in ~lause (b) of
Article 236 which is reproduced below:
E
"The expression"judicial service" means a service consisting ex-
clusively of persons intended to fill the post of district judge and
other civil judicial posts inferior to the post of district judge."

Article 234 provides as under:-
F
!>-
"234. Recrnitment of persons other than district judges to the judicial
service.- Appointments of persons other than district judges to the
judicial service of a State shall be made by the Governor of the
State in accordance with rules made by him in that behalf after
consultation with the State Public Service Commission and with
the High Court exercising jurisdiction in relation to such siate." G

Article 237 gives power to the Governor to apply, by public Notifica-
tion, the provisions of this Chapter and the Rules made thereunder to any
class or classes of Magistrates. Once such a Notification is issued, the
provisions of Articles 234, 235 and 236 will become applicable to those H
-)

610 SUPREME COURT REPORTS [1999] 1 S.C.R.
'>
A Magistrates and they would become members of the 'judicial service' under "
the control of the High Court. ~

In order to ensure their independence, the control over the sub-
ordinate courts has been vested in the High Court under Article
235 which provides as under :
B
·"Control over subrodinate Courts - The control over district Courts
and Courts subordinate thereto including the posting and promo- ~

tion of, and the grant of leave to, persons belonging to the judicial
service of a State and holding any post inferior to the post of
district judge shall be vested in the High Court, but nothing in this
c article shall be construed as taking away from any such person any
right of appeal which he may have under the law regulating the
conditions of his service or as authorising the High Court to deal
with him otherwise than in accordance with the conditions of his
service prescribed under such law."
D
Under this Article, the High Court's control over the subordinate _i.

judiciary is comprehensive and extends over a variety of matters, including
posting, promotion and grant of leave. The three words, namely, "posting",
promotion and "grant of leave", used in this Article, are only illustrative in
character and do not limit the extent of control exercised by the High Court
E
over the officers of the subordinate judiciary.

It is now well-settled by a catena of decisions (See, for example,
Mohammad Ghouse v. State of Andhra, AIR (1957) SC 246 = 1957 SCR
414 and Chief Justice of Andhra Pradesh v. L.VA. Dikshitulu, AIR (1979)
F SC 193 = [1979] 1 SCR 26 = [1979] 3 SCC 34 that the expression "control",
in Article 235 of the Constitution, includes "Disciplinary Control".
...
Transfers, promotions and confirmations including transfer of Dis-
trict Judges or the recall of District Judges posted on ex- cadre post or on
deputation or on administrative post etc. etc. is also within the administra-
G tive control of the High Court. So als<? premature and compulsory retire-
ment is also within the "control" of the High Court.
~""
From the scheme of the Constitution, as set out above. it will be seen
that though the officers of subordinate judiciary are basically and essen-
H tially Government servants, their whole service is placed under the control
M.M.CHOUDHARYv. STATE[S.SAGHIRAHMAD,J.] 611
i of the High Court and the Governor cannot make any appointment or take A
any disciplinary action including action for removal or compulsory retire-
ment unless the High Court is "CONSULTED" as required by the constitu-
tional impact of both the Articles 233 and 234 and the "control" of the High
Court indicated in Article 235.

The word "consult" in its ordinary meaning means "to ask advice" or B
'·- "to take counsel". The Governor is thus a"consultor" and the High Court is
~
the "consultee" which is treated as an expert body in all matters of service
including appointments, disciplinary action comuplsory retirement etc.
relating to State Judicial Services. Since the Governor cannot act on his
own unless he has consulted the High _Court, the Constitution has con- c
ferred upon the High Court a sacred and noble duty to give the best of
adv.ice or opinion to the Governor; an advice tendered after due delibera-
tion and after taking into consideration all the relevant material and record
relating to the problem on which consultation is made or advice is sought
by the Governor. It is, therefore, essentially a matter of trust and con-
fidence between the Governor and the High Court. The High Court cannot
D
?\
act arbitrarily in giving its opinion to the Governor or else it will be a
betrayal of that trust. If the advice is not supportable by any material on
record and is arbitrary in character, it may not have any binding value.

It has already been pointed out by this Court in Registrar, High Court E
of Madras V; R. Rajiah, AIR (1988) SC 1388 = (1988) 3 SCC 211 = 1988
Supp. (1) SCR 332 that though the High Court, in its administrative
jurisdiction, has the power to recommend compulsory retirement of a
member of the Judicial Service in accordance with the rules framed in that
regard, it cannot act arbitrarily and there has to be material to come to a F
>- decision that the officer has outlived his utility. It was also pointed out in
this case that the High Court while exercising its power of control over the
subordinate judiciary is under a constitutional obligation to guide and
protect judicial officers from being harassed or annoyed by trifling com-
plaints relating to judicial orders so that the Officers may discharge their
duties honestly independently unconcerned by the ill-conceived or G
_.... motivated complaints,made by unscrupulous lawyers and litigants.

In M.M. Gupta v. State of J & K, AIR (1982) SC 1579 = [1983] 1
SCR 593 = [1982] 3 sec 412, it was indicated that normally, as a rule, the
High Court's recommendations for the appointment of a District Judge H
612 SUPREME COURT REPORTS [1999] 1 S.C.R.
)
A should be accepted by the State Government and the Governor should act
on the same. If in any particular case, the State Government for good and
weighty reasons find it difficult to accept the recommendations, it should
communicate its views to, and have complete and effective consultation
with, the High Court. It was also pointed out that there can be no doubt
that if the High Court is convinced that the Government's objection are
B for good reasons, it will undoubtedly reconsider its earlier recommenda-
tiort. Efficient and proper judicial administration being the main object, ~
both the High Court and the State Government must necessarily approach
the question in a detached manner.

c Again in State of Kera/a v. A. Lakshrnikutty, AIR 1987 SC 331 = 1987
(1) SCR 136 = (1986) 4 SCC 632, this Court pointed out that the duty of
the Governor to consult the High Court in the appointment of District
Judges is integrated with the exercise of his power; he must exercise it in
the manner provided by Article 233(1) or not at all. Normally, the High
Court's recommendations have to be accepted by the State Government
D and the Governor has to act on the same but if the State Government for
'good and weighty reasons' cannot agree with the High Court, it should !<

take the High Court into confidence and place before it the difficulties in
acting upon the recommendations.

E Let us now examine the merits of the case.

The character roll entries, recorded by various District Judges, have
already been reproduced by us in the earlier part of the Judgment. The
remarks given by the High Court on various occasions have also been set
out above. It has also been found that there were no entries in the character
F roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries
...
for these years were recorded at one time simultaneously and the appellant
was categorised as "C" Grade Officer. The expression used by the High
Court in the counter affidavit, filed in this Court, in relation to the entries
for the aforesaid three years is that they were recorded "at one go". And,
we may add, the Officer was made to go! The date on which these entries
G were made is not indicated either in the original record or in the counter
affidavit filed by the respondents. These were communicated to the appel-
!ant on 29.11.1996 and were considered by the Full Court on 30.11.1996 but "'...
it is clear that these entries were recorded at a stage when the Standing
Committee had already made up its mind to compulsorily retire the appel- ·
H lant from service as it had directed the office, on 06.11.1996, to put up a
M.M. CHOUDHARYv. STATE [S. SAGHIRAHMAD, J.] 613
i, note for compulsory retirement of the appellant. The High Court should A
have considered that all entries prior to his promotion to Superior Judicial
Service were not bad and his integrity either as a member of the Inferior
Judicial Service or Superior Judicial Service was never doubted. The grant
of anticipatory bail in a case under Section 307 IPC particularly when there
was a cross case could not haw been legally made the basis of compulsory
retirement in the particular circumstances of this case. Whatever might B
have been the feeling of the learned Judge who entertained and ultimately
'l
allowed the petition for cancellation of bail granted by the appellant, the
by the fact remains that it was an order passed on the judicial side in all
bona fides. It may have been a wrong order but it was not a motivated order
.... based on extraneous considerations. It was thus a case where there was no
material on the basis of which an opinion could have been reasonably
c
formed that it would be in the public interest to retire the appellant from
service prematurely in terms of Rule 74 of the Bihar Service Code.

The entries recorded "at one go" for the three years, namely, 1991-92,
1992-93 and 1993-94 could hardly have been taken into consideration. They D
;'-, were communicated to the appellant on 29.11.1996 and on the next day,
namely, on 30.11.1996, the Full Court took the decision to retire him from
service without giving any opportunity to him to make a representation
which, however, he did make but had the mortification of seeing it rejected
a year later in December, 1997.
E
Learned counsel for the respondent contended that the entries for
the aforesaid three years cannot be excluded on the ground that the
appellant was not given the adequate chance to represent against those
entries. He referred to a decision of a Three Judge Bench of this Court in
Baikuntha Nath Das v. Chief Distt. Medical Officer Baripada, JT (1992) 2
,. SC 1 = AIR (1992) SC 1020 = [1992] 1 SCR 836 = [1992] 2 sec 299 F
and contended that in view of the law laid down therein, the order of
compulsory retirement, passed in the instant case, cannot be legally as-
sailed particularly as the character roll entries which are not even com-
municated can be taken into considertion for purpose of forming an
opinion for retiring a person compulsorily in public interest. We hardly find
any merit in this submission.
G

....~ The questiop, relating to uncommunicated adverse entries has been
the subject matter of several decisions of this Court. In Union of India v.
M.E. Reddy, AIR (1980) SC 563 = [1980] 1 SCR 736 = [1980] 2 sec 15,
it was laid down that uncommunicated adverse remarks can be relied upon H
_)

614 SUPREME COURT REPORTS [1999) 1 S.C.R.
A while passing an order of compulsory retirement. But in two subsequent ·-"
decisions, namely, Brij Mohan Singh Chopra v. State of Punjab, AIR (1987)
SC 948 = [1987) 2 SCC 188 = [1987) 2 SCR 583 and Baidyanath
Mahapatra v. State of Orissa, AIR 1989 SC 2218 = [1989) 3 SCR 803 =
. [i989J 4 sec 664, it was laid down that uncommunicated adverse entries
could not be legally relied upon while making an order of compulsory
B retirement. It was also laid down in Baidyanath's case (supra) that if a
representation was pending against the adverse remarks, the adverse .i,
entries against which the representation is made could not be taken into
consideration ·unless the representation itself was considered and disposed
of.
c Both these decisions were considered by a Three-Judge Bench in
Baikuntha Nath Das's case (supra) and were over-ruled and the following
five principles were laid down:- ·

"(i) An order of compulsory retirement is not a pu~ishment. It
D 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 pa~sed on the subjective satis-
faction of the government.
E
(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
F interfere if they are satisfied that the order is passed (a) ma/a 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.
•
G (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 con-
H fidential records/character rolls, both favourable and adverse. If a
M.M. CHOVDHARYv. STATE [S.SAGHIRAHMAD,J.] 615
.,, government servant is promoted to a higher post notwithstanding A
the adverse remarks, such remarks lose their stirig, 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 quahsed
by a Court merely on the showing that while passing it uncom-
municated adverse remarks were also taken into consideration. B
~-
That circumstance by itself cannot be a basis for interference."
j_

This decision has since been followed in Posts & Telegraphs Board v.
C.S.N. Murthy, AIR (1992) SC 1368 = [1992] 2 SCR 338 = (1992) 2 sec
317; Secretary to the Govemment Ha1ija11 & Tribal Welfare Department
Bhubaneswar v. Nityana11da Pati, AIR (1993) SC 383 = [1993] Suppl. 2
c
SCC 391 and Unio11 of India v. V.P. Seth, AIR (1994) SC 1261 and
considered by this Court in M.S. Bi11dra v. Union of I11dia and Ors., JT
(1998) 6 SC 34 = (1998) 5 Scale 45 = [1998] 7 SCC 310 and again in The
State of Gujarat & Anr. v. Suryakant Chu11ilal Shah, JT (1998) 8 SC 326 =
(1998) 6 Scale 393. D
>
The fifth principle in Baiku11tha Nath Das's case (supra), which has
already been extracted above, itself contemplates that the mere cir-
cumstance that uncommunicated adverse remarks were taken into con-
sideration would not constitute a basis for interference with an order of
compulsory retirement. In para 32 of the Judgment, the learned Ju.dges E
observed as under:-

"32. We may not be understood as saying either that adverse
remarks need not be communicated or that the representations, if
any, submitted by the government servant (against such remarks) F
~
need not be considered or disposed of. The adverse remarks ought
to be communicated in the nonnal course, as required by the r.tles/
orders in that behalf. Any represe/ltation made against them would
and should also be dealt with in the nonnal course, with reasonable
promptitude. All that we are saying is that the action under F.R.56(j)
(or the rule corresponding to it) need not await the disposal or final G
disposal of such representation or represe11tatio11s, as the case may
"
~
be. In some cases, it may happen that some adverse remarks of the
recent years are not communicated or if communicated, the rep-
resentation received in that behalf are pending consideration. On
this account alone, the action under F.R. 56G) need not be held H
616 SUPREME COURT REPORTS [1999] 1 S.C.R.

A back. There is no reason to presume that the Review Committee
or the government, if it chooses to take into consideration such
uncommunicated remarks_, would not be conscious or cognizant of
the fact that they are not communicated to the government servant
and that he was not given an opportunity to explain or rebut the
same. Similarly, if any representation made by the govemment se1vant
B is there, it shall also be taken into consideration. We may reiterate
that not only the Review Committee is generally composed of high
and responsible officers, the power is vested in govemment alone and
not in a minor official. It is unlikely that adverse remarks over a
number of years remain uncommunicated and yet they are made the
c plima1y basis of action. Such an unlikely situation, if indeed present,
may be indicative of malice in law. We may mention in this connec-
tion that the remedy provided by A1ticle 226 of the Constitution is
no less an impoltant safeguard. Even with its well known con-
straints, the remedy is an effective check against mala fide, perverse
or arbitrary action."
D
(Emphasis supplied)

These observations indicate that the adverse remarks if recorded in
an employee's character roll in the "normal course", ought to be communi-
E cated to him and if any representation is macle aginst those remarks; the
said representation should be disposed of in the "normal course" but with
promptitude. It was further emphasised that the pendency of repre-
sentation against the adverse remarks or non-disposal of that repre-
sentation would, however, not prevent the action being taken for
F compulsory retirement of the employee even on the basis of that entry
either under F.R.560) or any provision equivalent thereto. .
In the instant case, the adverse remarks, namely, the remarks for the
years 1991-92, 1992-93 and 1993-94 were not recorded in the "normal
course" but were recorded "at one go" and that too when the Standing
G Committee of the High Court had already formed an opinion to compul-
sorily retire the appellant from service. The representation made against
these remarks ·was not dealt with promptitude but was disposed of by the
High Court after a long period of one year. These remarks which were
recorded in the character roll of the appellant "at one go" and were
H communicated to the appellant on 29.11.1996, were considered by the Full
M.M. CHOUDHARY v. STATE [S. SAGHIR AHMAD, J.] 617
:~. Court on 30.11.96 which approved the proposal of compulsorily retiring the A
appellant from service. The appellant had been categorised as "B" plus in
1990 by Mr. Justice B.K. Roy. There was no categorisation for the next
three years and when the action for compulsory retirement of the appellant
was initiated by the High Court on the ground that he had granted
anticipatory bail in a case under Section 307 IPC, categorisation for 1991- ;B
92, 1992-93 and 1993-94 was done "at one go" which is unreasonable and
not fair. Moreove:r, the compulsory retirement ';,;as ordered in 1996. What
was the appellaii't's categorisation for 1994-95 and 1995-96 is not indicated
in the original service record placed before us. It is on account of these
abnormalities coupled with other strange circumstances of this case that
we are of the opinion that the categorisation of the appellant as a "C" class C
officer for the years 1991-92, 1992-93 and 1993-94 could not have been
legally taken into consideration. If these remarks are excluded, principle
(iii) laid down in Baikuntha Nath Das's case (supra) becomes applicable
immediately and the impugned action of compulsorily retiring the appellant
from service cannot but be termed as arbitrary in the sense that no D
reasonable person could have come to the conclusion._that the appellant
had outlived his utility as a Judicial Officer and had become a dead wood
which had to be chopped of.

For the reasons stated above, the appeal is allowed. The judgment
and order dated 22.7.1998 passed by the High Court is set aside. The Writ E
Petition filed by the appellant is allowed and the order of compulsory
retirement dated 02.08.1997, passed by the State Government, is quashed
with all consequential benefits to the appellant. There will be no order as
to costs.

S.M. Appeal allowed. F