P. D. GOELversusHIGH COURT OF HIMACHAL PRADESH THROUGH ITS REGISTRAR GENERAL

                        [2017] 7 S.C.R. 523


                            P. D. GOEL                                   A
                                 v.
   HIGH COURT OF HIMACHAL PRADESH THROUGH ITS
               REGISTRAR GENERAL
                  (Civil Appeal No. 10244 of2017)                        B
                         AUGUST 08, 2017
     (J. CHELAMESWAR AND S. ABDUL NAZEER, JJ.(
        Himachal Pradesh Judicial Service Rules, 2004 - r. 14 -
Judicial Services - Retrospective retirement - Date. of retirement of    C
the appellant was 31.07.2007, date on which he completed the age
of 60 years as provided u/r. 14 - High Court issued notification
retiring appellant from service from 31.07.2005 i.e. at the age of 58
years - Notification challenged in writ petition - Single Judge of
High Court held the retirement contrary to law - Division Bench
held that notUlcation of High Court to be treated as                     D
recommendation to the Governor .for removal of services of the
appellant - Jn terms of the direction, the Governor passed an order
on 31.01.2017 retiring the appellant with retrospective effect from
31.07.2005 i.e. at the age of 58 years - Whether retiring the
appellant retrospectively at the age of 58 years was justified - Held:
                                                                         E
Jn the instant case, the High Court had issued notijlcation holding
that the appellant stood retired from service at the age of 58 years
- Appellant had not been retired by the appointing authority, namely,
the Governor of Himachal Pradesh - Therefore, ii cannot be said
that the appellant had retired on the completion of age of 58 years
- Division Bench treated the notification as recommendation to the       F
Governor for removal of the services - However, this order was
passed after appellant had completed the age of 60 years - The
order of the Governor retiring the appellaf!( retrospectively in terms
of order of the Division Bench, not permissible in law - Himachal
Judicial Service Rules do not provide for retrospective retirement of    G
judicial officers - Therefore, appellant to be treated as retired on
completion of 60 years of age - Service Law - Retirement.
       Constitution of India,... Arts.233, 234 and 235 - Scope of-
The control vested in the High Court over the subordinate judiciary
- Nature of - Held: Though absolute and exclusive, has to be
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                                 523
524           SUPREME COURT REPORTS                     [2017) 7 S.C.R.


A     exercised without usurping the power vested in the executive under
      the Constitution.
             Allowing the appeal, the Court
              HELD: 1. The control vested in the High Court over the
      subordinate judiciary though absolute and exclusive, has to be
B     exercised without usurping the power vested in the executive
      under the Constitution. The High Court retains the power of
      disciplinary control over the subordinate judiciary, including the
      power to initiate disciplinary proceedings, suspend them
      pending enquiry and impose punishment on them. But when it
c     comes to the question of dismissal, removal, reduction in rank
      or termination of judicial officers on any count whatsoever, the
      High Court becomes only the recommending authority and cannot
      itself pass such an order. The High Court has to send its
      recommendations to the Governor because the Governor is the
      authority to dismiss, remove, reduce in rank or terminate the
D     appointment. 1Para 91 [528-A-Cf
           2. In the instant case, the High Court issued a notification
   holding that the appellant stands retired from service with effect
   from the afternoon of 31.7.2005, i.e. the last day of the month in
   which he attains the age of superannuation, i.e. 58 years under
 E proviso to Rule 14 of the H.imachal Pradesh Judicial Service
   Rules. The appellant had not been retired by the appointing
   authority, namely, the Governor ofHimachal Pradesh. Therefore,
   it cannot be said that the appellant had retired on the completion
   of age of 58 years. Instead of quashing the notification, the
 F Division Bench treated the said notification as recommendation
   of the High Court to the Governor for removal of the services of
   the appellant. This order was passed after the appellant had
   completed the age of 60 years. In terms of the order of the Division
   Bench, the Governor has passed an order dated 31.1.2017
   retrospectively retiring the appellant with effect from 31.7.2005,
 G which is not permissible in law. The Himachal Pradesh Judicial
   Service Rules do not provide for retrospectively retiring the
   judicial officers. The order of the High Court retiring the appellant
   at the age of 58 years cannot take effect as it was without
   authority of law. It only means that the appellant has to be treated
 H to have been retired from service on completion of 60 years of
          P. D. GOEL v. HIGH COURT OF H.P. THR. ITS                            525
                    REGISTRAR GENERAL

age on 31.7.2007. The order of the Division Bench treating the                 A
notification as recommendation of the High Court to the Governor
for compulsorily retiring the appellant cannot be sustained. [Paras
3, 10, 111 [526-B; 528-D-G[
      Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir
      Kanta Satapathy (Dead) by Lrs. and Am: (1999) 7 SCC                      B
      725 : [19991 2 Suppl. SCR 473 - referred to.
                          Case Law Reference
      [1999[ 2 Suppl. SCR 473           referred to      Para 10

                                                                               c
          CIVILAPPELLATEJURISDICTION: Civil Appeal No.10244
of2017.
        From the Judgment and Order dated 31.12.2015 of the High
Court ofHimachal Pradesh, Shimla in LPANo. 34 of2009.
                                                                               D
       P. S. Patwalia, Sr. Adv. Tushar Bakshi, Dhruv Sheoran,
Ms.Natasha Vinayak, Advs. for the Appellant.
       Ms. Pragati Neekhra, Suryanarayana Singh, Advs. for the
Respondent.
          The Judgment of the Court was delivered by                           E
          S. ABDUL NAZEER, J. l. Leave granted.
          2. The appellant was appointed as sub Judge on 14.1.1975. He
was inducted as a member of the Higher Judicial Service on 19.4.1995.
He was granted selection grade on 20.11.2003. He was conveyed with
the adverse entry in his Annual Confidential Report for the year 2003-         F
2004 on 30.10.2004. He sought a clarification from the Registrar
(Vigilance) as to whether the aforesaid remarks were advisory or adverse
in nature. The respondent vi de letter dated 1.12.2004 conveyed that the
remark in column No.13 against him was 'adverse' whereas the remark
in column No.14 was 'advisory' in nature. After prolonged                      G
correspondence, the respondent conveyed to the appellant vide letter
dated 5.3 .2005 that upon consideration of the entire matter, the Full Court
felt that the adverse entry in column No.13 was not specifically relatable
to any particular record nor it had any specific genesis of particular
record of his service.
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526             SUPREME COURT REPORTS                           [2017] 7 S.C.R.


A               3. As per the gradation list of Himachal Pradesh Judicial Service
      as it stood on 1.1.2005, the date ofretirement of the appellant was shown
      as 31.7.2007 on which date he completed the age of60 years as provided
      under Rule 14 of the Himachal Pradesh Judicial Service Rules, 2004
      (hereinafter referred to as 'the Rules'). The High Court issued a
B     notification atAnnexure P-16 dated 20.4.2005 holding that th~ appellant
      stands retired from service with effect from the afternoon of 31. 7.2005,
      i.e. the last day of the month in which he attains the age of superannuation,
      i.e. 58 years under proviso to Rule 14 of the Rules. The said Notification
      is as under:
             "HIGH COURT OF HIMACHALPRADESH, SHIMLA-171001
 c
             HHC/GAZ/14-46/74-IV            Dated ShimlaApril 20, 2005.
                                  NOTIFICATION
             Hon'ble the Chief Justice and Hon'ble Judges of the High Court
             of Himachal Pradesh are pleased to order that Shri P.D. Goel,
 D           District and Sessions Judge, Chamba (a Member of Himachal
             Pradesh Judicial Service), shall stand retired from service on and
             with effect from the afternoon of 31" July, 2005 i.e. last day of
             the month in which he attains the age of superannuation, that is,
             58 years, under Rule 14 of Himachal Pradesh Judicial Service
 E           Rules, 2004.
                                      BY ORDER OF THE HON'BLE HIGH
                                      COURT OF H.P.
                                      REGISTRAR GENERAL
             Endst. No. HHC/GAZ/14-46/74-IV-            Dated: 20.04.2005"
 F

              4. The appellant filed C.W.P. No.649/2005 challenging the
      notification before the High Court of Himachal Pradesh, Shimla. The
      learned Single Judge vide order dated 9.1.2009 struck down the adverse
      entry made in the Annual Confidential Report. It was held that retiring
 G    the appellant at the age of58 years vide orderdated20.4.2005 is contrary
      to law. It was further held that the order had not been passed by the
      appointing authority, viz. the Governor of State of Himachal Pradesh.
      The learned Single Judge further held that the appellant is entitled to all
      consequential benefits.
 H
         P. D. GOEL v. HIGH COURT OF H.P. THR. ITS                           527
        REGISTRAR GENERAL [S. ABDUL NAZEER, J.]

        5. The respondent challenged the order of the learned Single A
Judge by filing Letters Patent Appeal, being LPANo.34 of2009, before
the Division Bench. The Division Bench vide order dated 31.12.2015
did not agree with the order of the learned Single Judge striking down
the adverse entry made in the Annual Confidential Report. The Division
Bench held that the Governor alone has the power to pass an order of B
dismissal, removal or termination on the recommendation of the High
Court which is made in exercise of powers of control vested in the High
Court and that the High Court cannot dismiss, remove or terminate the
services of the District Judge. It was further held that the notification
Annexure P-16 has to be treated as recommendation of the High Court
to the Governor for removal of services of the appellant and the Governor C
has to proceed and make necessary consequential order in accordance
with the recommendations of the High Court. Accordingly the appeal
was disposed of.
         6. Shri P.S. Patwalia, learned senior counsel appearing for the
appellant submits that the Governor of the Himachal Pradesh is the D
appointing authority who alone could retire the appellant, that too in public
interest after forming an opinion and after giving a notice of three months
to the appellant and that the High Court is only recommending authority
in that respect. The Governor has not passed an order retiring the
appellant at the age of 58 years. The appellant has attained the age of
superannuation on 31. 7.2007. Therefore, he is entitled for all the service E
benefits till the date of attaining the age of superannuation.
         7. Ms.Pragati Neekhra, learned counsel appearing for the
respondent submits that in terms of the direction of the Division Bench,
the Governor of Himachal Pradesh has passed an order on 31.1.2017
retiring the appellant with effect from the afternoon of 31.7.2005, i.e.     F
the last day of the month in which he attains the age of superannuation,
i.e. 58 years. Therefore, it cannot be said that the appellant has retired
on attaining the age of superannuation at 60 years.
       8. Having regard to the contentions urged, the only question for
consideration is whether retiring the appellant retrospectively on           G
completing the age of 58 years is justified in law.   '
        ..
       9. This Court in Registrar (Admn.), High Court of Orissa,
Cuttack vs. Sisir Kanta Satapathy (Dead) by LRs. and Anr. ( 1999)

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 528            SUPREME COURT REPORTS                            [2017) 7 S.C.R.



 A     7 SCC 725, while considering the scope ofArticles 233, 234 and235 of
       the Constitution of India has held that the control vested in the High
       Court over the subordinate judiciary though absolute and exclusive, has
       to be exercised without usurping the power vested in the executive under
       the Constitution. The High Court retains the power of disciplinary control
 B     over the subordinate judiciary, including the power to initiate disciplinary
       proceedings, suspend them pending enquiry and impose punishment on
       them. But when it comes to the question of dismissal, removal, reduction
       in rank or termination of judicial officers on any count whatsoever, the
       High Court becomes only the recommending authority and cannot itself
       pass such an order. The High Court has to send its recommendations to·
  C    the Governor because the Governor is the authority to dismiss, remove,
       reduce in rank or terminate the appointment.

                10. In the instant case, the appellant had not been retired by the
       appointing authority, namely, the Governor of Himachal Pradesh.
       Therefore, it cannot be said that the appellant had retired on the completion
 D     of age of 58 years. Instead of quashing the notification at Annexure P-
       16, the Division Bench treated the said notification as recommendation
       of the High Court to the Governor for removal of the services of the
       appellant. This order was passed after the appellant had completed the
       age of 60 years. In terms of !he order of the Division Bench, the Governor
  E    has passed an order dated 31.1.2017 retrospectively retiring the appellant
       with effect from 31. 7.2005, which, in our view, is not permissible in law.
       The Himachal Pradesh Judicial Service Rules, 2004 do not provide for
       retrospectively retiring the judicial officers; The order of the High Court
       retiring the appellant at the age of 58 years cannot take effect as it was
       without authority of law. It only means that the appellant has to be
  F    treated to have been retired from service on completion of 60 years of
       age on 31.7.2007.

                 11. We are of the view that the order of the Division Bench
       treating the recommendation of the High Court to the Governor for
  G    compulsorily retiring the appellantcannot be sustained. The order of the
       Division Bench to that extent is hereby set aside. Consequently, the
       order of the Governor dated 3Ll.2017 is also set aside. The appellant is
       entitled to his salary, allowances and all other consequential benefits till
       31. 7 .2007. The arrears as per above terms shall be paid to the appellant

. H
          P. D~ GOEL v. HIGH COURT OF H.P. THR. ITS                         529
         REGISTRAR GENERAL [S. ABDUL NAZEER, J.]

within three months from the date of receipt of copy of this judgment.      A
The appeal is accordingly allowed.

        12. There will be no order as to costs.


Ankit Gyan                                                Appeal allowed.