Union of India and Others v Sushil Kumar Modi and Others
Supreme Court of India

11 September 1997
Civil Appeal Nos. 14164-65 of 1996
The Order of the Court was as follows :
Leave granted.
1.  This order has to be read in continuation of our order dated November 5, 1996 passed in Civil Appeal Nos. 14164-65 of 1996, Union of India & Ors. Vs. Sushil Kumar Modi & Ors., reported in  1996 Indlaw SC 1578. These appeals by special leave are against some portions of the orders dated November 13, 1996 and December 19, 1996 passed by the Patna High Court in the same matter - CWJC No. 1617 of 1996 with CWJC No. 602 of 1996 - as a sequel thereto. The material facts need not be reiterated as they are mentioned in our aforesaid order dated November 5, 1996.
2.  When the matter was taken up in the Patna High Court subsequent to our aforesaid order dated November 5, 1996, during the further proceedings after our order, the High Court has made the two orders dated November 13, 1996 and December 19, 1996. The learned Attorney General, on behalf of the appellants, has indicated certain portions of these two orders and contended that they do not match with our earlier order dated November 5, 1996. It would be appropriate at this stage to quote those portions of the two orders to which grievance is made by the learned Attorney General. These are:
In order dated November 13, 1996:
Portion 'A':
"The Supreme Court has not laid down the modality of making reference to the Attorney General in case of difference of opinion. What if the Director does not make the reference on his own. According to us, this can be sorted out by asking the Director, CBI, to submit the complete report(s) submitted by the Joint Director and/or other investigating officers so that in the event Court finds that there is difference of opinion, which requires resolution by the Attorney General, the same may be referred to him."
3.  Portion 'B': "The aforesaid aspects of the matter as also other aspects, which were briefly mentioned during the course of hearing today, can be more properly and effectively discussed in the presence of the Director, CBI, himself. He is also to be told about the import of the Supreme Court's orders. We are, therefore, of the opinion that the next hearing should take place in his presence." In order dated December 19, 1996: Whole of para 4, particularly the following:
Portion 'C':
"......the present case is the only case of its kind in which investigation is being monitored by the High Court......in the interest of proper and effective monitoring of the case we think it appropriate to direct that the final report which is submitted to the CBI Headquarters/Director be submitted in its original form.......The correct position, which emerges from the order of the Supreme Court, is that the report of the Joint Director is not to be submitted to this Court directly, the same has to be sent to the Director, CBI/Headquarters and then the same is to be filed in this Court. As indicated above, there is a very thin line of distinction between vetting and editing and if this authority to vet the report submitted to him is given to the Director, he may as well edit a part of it. The proper course, no doubt, would be to hold discussions across the table between the Director, Joint Director and others whose presence may be considered necessary so that difference, if any, between them are ironed out and a unanimous report is submitted. However, if such unanimity is not possible to arrive at, the Director must submit the original report as submitted to him along with his comments/views so that this Court may consider that too and issue appropriate directions."
In para 5, the following:
Portion 'D':
"....In those cases also the conspiracy angle does not appear to have been gone into, which is so vital for proper investigation into the crimes and in respect of which judicial finding has been recorded in the main judgment."
In para 6, the following:
Portion 'E':
"In this connection we would also like to impress upon the Director to consider in consultation with the Joint Director the desirability of posting/retaining officers, who do not belong to this State or the state cadre. Keeping in view the involvement of a very large number of persons of different hue and kind, chances of their influencing persons having local background cannot be ruled out....".
In para 8, the following:
4.  Portion 'F': "...The reports contain materials which constitute prima facie case against the persons concerned and it is not persons concerned and it is not understandable as to why chargesheet cannot be submitted on the basis of the materials referred to therein..."
5. The learned Attorney General submitted that the above e tracts of the two orders made by the High Court, in particular, are unwarranted apart from certain other observations therein which could have been avoided. In reply Shri Ram Jethmalani submitted that the observations of the High Court have to be understood in the context as indicating the manner in which the Central Bureau of Investigation. He submitted that a grievance of this kind by the CBI does not appear to be appropriate.
6.  At the outset, we would indicate that the nature of proceedings before the High Court is somewhat similar to those pending in this Court in Writ Petition (Crl.) Nos. 340-343 of 1993, Vineet Narain & Ors. Vs. Union of India & Ors., 1996 Indlaw SC 3437 and Writ Petition (Civil) No. 640 of 1995, Anukul Chandra Pradhan Vs. Union of India & Ors 1996 Indlaw SC 1235., and, therefore, the High Court is required to proceed with the matter in a similar manner. It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of the statutory duty by the CBI and the other Government agencies in accordance with law for the proper implementation of the rule of law. To achieve this object a fair, honest and expeditious investigation into every reasonable accusation against each and every person reasonably suspected of involvement in the alleged offences has to be made strictly in accordance with law. The duty of the Court in such proceedings is, therefore, to ensure that the CBI and other Government agencies do their duty and do so strictly in conformity with law. In these proceedings, the Court is not required to go into the merits of the accusation or even to express any opinion thereon, which is a matter for consideration by the competent court in which the charge-sheet is filed and the accused have to face trial.
7. It is, therefore, necessary that not even an observation relating to the merits of the accusation is made by the Court in these proceedings lest it prejudice the accused at the trial. The nature of these proceedings may be described as that of 'continuing mandamus' to require performance of its duty by the CBI and the other concerned Government agencies. The concerned agencies must bear in mind and, if needed, be reminded of the caution administered by Lord Denning in this behalf in R. Vs. Metropolitan Police Commissioner. Indicating the duty of the Commissioner of Police, Lord Denning stated thus:-
"...I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the secretary of State.....I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone...."
8.  The nature of such a proceeding in a Court of law was also indicated by Lord Denning, as under:
"A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced, I think, either by action at the suit of the Attorney- General: or by the prerogative order of mandamus...". (emphasis supplied)
9. There can hardly be any doubt that the obligation of the police in our constitutional scheme is no less.
10.  According to the Code of Criminal Procedure, the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority, Abhinandan Jha Vs. Dinesh Mishra, 1967 Indlaw SC 445. This must be borne in mind as also that the scope and purpose of a proceeding like the present is to ensure a proper and faithful performance of its duty by the police officer by resort to the prerogative writ of mandamus.
11.  To ensure this aspect, we had directed in our earlier order dated November 5, 1996 that in case of difference of opinion at any stage during the investigation, the final decision is not to be taken by the Director, CBI or any other officer but by the Attorney General on reference being made to him of the difference of opinion between the concerned officers. This part of our earlier directions was clear in the context in which it was made and this is to be understood as a direction to the Director, CBI for compliance in the manner indicated. The High Court is only required to ensure that the Director, CBI does not close any investigation based only upon his individual opinion if there be any difference of opinion between him and the concerned officers in the CBI. Such a matter is then required to be referred by the Director to the Attorney General for his opinion, which would govern the further action to be taken therein.
12. The above quoted portion 'A' of the order dated November 13, 1996 of the High Court requires the High Court to act in the manner herein indicated. So far as portion 'B', as quoted above, of the order dated November 13, 1996 is concerned, it is sufficient for us to observe that the High Court would take into account the fact that the personal presence of the Director, CBI in the High Court may be required only when it is essential for a purpose which cannot be served by the presence of the other officers of the CBI who normally represent the CBI at the hearings in the High Court. In view of the numerous cases pending in different High Courts, the Director, CBI personally may not be left with sufficient time from his official duties to appear personally at the hearings of these matters in the High Courts. However, it is the duty of the Director, CBI to ensure proper representation on his behalf in the High Court so that the High Court gets all the assistance needed at the hearings.
13.  The observations of the High Court contained in the above quoted portion 'D' in para 5 and portion 'F' in para 8 of its order, do not appear to conform strictly to the manner of exercise of the monitoring process by the Court. It is likely that they may be construed as expression of opinion on the merits of the case. Portion 'C' in para 4 of the High Court's order appears to be unnecessary. For the purpose of properly monitoring the case in terms of the order of this Court, keeping in view the nature of this proceeding and the manner in which the exercise is to be performed to ensure performance of its duty by the CBI, guidance through the counsel for the CBI could have been given by the High Court without entering into the merits of any of the accusations.
14.  The only remaining portion of the High Court's order for consideration is Portion 'E' in para 6. Suffice it to say that the High Court has merely suggested to the Director, CBI to consider the desirability of not involving any officer of the Bihar cadre in the investigation but no such directing has been given. It appears that the High Court intended to impress upon the Director, CBI the need to consider avoiding any possible embarrassment to officers of the Bihar cadre in view of the suspicion of the alleged involvement of several important persons in the State administration. We do not read the observations to mean that they cast any aspersion on the officers of the Bihar cadre. The learned Attorney General also did not further press this objection since this observation has to be so construed in the context.
15.  It appears to us necessary to reiterate that the proceeding before the High Court in the present case being somewhat similar to the proceedings in Writ Petition (Crl.) Nos. 340-343 of 1993, Vineet Narain & Ors. Vs. Union of India & Ors., 1996 Indlaw SC 3437 and Writ Petition (Civil) No. 640 of 1995, Anukul Chandra Pradhan Vs. Union of India & Ors 1996 Indlaw SC 1235., pending in this Court, the procedure required to be adopted by the High Court has to be on the same lines. We also consider it appropriate to draw the attention of the CBI and the High Court to the orders of this Court made in these matters indicating the manner of performance of the duty. In Vineet Narain & Ors. Vs. Union of India & Anr., 1996 Indlaw SC 3437, it was said:
"In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law."
16. In Vineet Narain & Ors. Vs. Union of India & Anr., 1996 Indlaw SC 3437, it was said:
"To eliminate any impression of bias and avoid erosion of credibility of the investigations being made by the CBI and any reasonable impression of lack of fairness and objectivity therein, it is directed that the CBI would not take any instructions from, report to, or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigations into any accusation. This direction applies even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception. We may add that this also accords with that the learned Solicitor General has very fairly submitted before us about the mode of functioning of the CBI in this matter."
17. In Anukul Chandra Pradhan Vs. Union of India & Ors.,1996 Indlaw SC 1235, its was said:
"A note of caution may be appropriate. No occasion should arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial. It is reiterated, that any observation made by this Court for the purpose of the proceedings pending here has no bearing on the merits of the accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermined in any manner."
18. The true purpose and scope of a proceeding of this nature clearly emerges from the above quoted orders passed in the cases pending in this Court. Some of the orders are indicated above. The required guidance to the CBI and other government agencies as well as to the courts' monitoring such investigations is available from the same. The delicate task of ensuring implementation of the rule of law by requiring proper performance of its duty by the CBI and other Government agencies, while taking care to avoid the likelihood of any prejudice to the accused at the ensuing trial because of any observation made on the merits of the accusation in the present proceeding. We have no doubt that all concerned, including the High Court, would bear in mind this aspect to prevent any reasonable impression of erosion in the credibility of the judicial process.
19.  We have no doubt that the CBI and the High Court would proceed further in the matter as indicated above. There can be no grievance to the CBI or any other authority if the High Court's order and the proceedings before it are so understood and continued. We make it clear that the above orders made by the High Court are to be construed and understood in the manner indicated herein.
These appeals are disposed of, accordingly.
Appeals disposed of


Vineet Narain & Ors. v Union Of India & Anr.
Supreme Court of India

30 January 1996
Writ Petition (Crl.) Nos. 340-43 of 1993
The Order of the Court was as follows :
1.  The true scope of this writ petition has been indicated during the earlier hearings. At this stage, when some charge sheets have been filed in the Special Court and there is considerable publicity in the media regarding this matter, with some speculation about its true scope, it is appropriate to make this order to form a part of the record.
2.  The gist of the allegations in the writ petition are that Government agencies, like the CBI and the revenue authorities, have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called "Jain Diaries" in certain raids conducted by the CBI. It is alleged that the apprehending of certain terrories led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'hawala' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the the CBI and other Government agencies have failed to fully investigate into the matter and take it to the logical and point of the trail and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every persons involved, irrespective of the height at which he is placed in the power set up.
3.  The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenant of rule of law:
"Be you ever so high, the law is above you".
4. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.
5.  In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.
6.  In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
7.  However. if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if any when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court.
8.  We may add that on account of the great public interest involved in this matter, the CBI and other Government agencies must expedite their action to complete the task and prevent pendency of this matter beyond the period necessary. It is needless to observe that the results achieved so far do not match the available time and opportunity for a full investigation ever since the matter came to light. It is of utmost national significance that no further time is lost in completion of the task.
Order Accordingly


Ashok Kumar Pandey v State of West Bengal and Others
Supreme Court of India

18 November 2003
Writ Petition (crl.) 199 of 2003
The Judgment was delivered by : Hon'ble Justice Arijit Pasayat
1. This petition u/art. 32 of the Constitution of India, 1950 (in short 'the Constitution') has been filed purportedly in public interest. The prayer in the writ petition is to the effect that the death sentence imposed on one Dhananjay Chatterjee @ Dhana (hereinafter referred to as 'the accused') by the Sessions Court, Alipur, West Bengal, affirmed by the Calcutta High Court and this Court, needs to be converted to a life sentence because there has been no execution of the death sentence for a long time. Reliance was placed on a Constitution Bench decision of this Court in Smt. Triveniben vs. State of Gujarat, (1989 (1) SCC 678 1989 Indlaw SC 43).
2. According to the petitioner, he saw a news item in a TV channel wherein it was shown that the authorities were unaware about the non-execution of the death sentence and, therefore, condemned prisoner, the accused has suffered a great degree of mental torture and that itself is a ground for conversion of his death sentence to a life sentence on the basis of ratio in Triveniben's case 1989 Indlaw SC 43 (supra). It needs to be noted here that prayer for conversion of death sentence to life sentence has already been turned down by the Governor of West Bengal and the President of India in February 1994 and June 1994 respectively as stated in the petition. When the matter was placed for admission, we asked the petitioner who appeared in-person as to what was his locus standi and how a petition u/art. 32 is maintainable on such nature of information by which he claims to have come to know of it. His answer was that as a public spirited citizen of the country, he has a locus to present the petition and when the matter involved life and liberty of a citizen, this Court should not stand on technicalities and should give effect to the ratio in Triveniben's case 1989 Indlaw SC 43 (supra). There has been violation of Art. 21 of the Constitution and the prolonged delay in execution of sentence is violative of Article 21, so far as the accused is concerned.
3. Reliance was also placed on few decisions, for example, Sunil Batra (II) vs. Delhi Administration, (1980 (3) SCC 488 1979 Indlaw SC 329); S.P. Gupta vs. Union of India, (1981 (Supp.) SCC 87 1981 Indlaw SC 599); Daya Singh vs. Union of India, (1991 (3) SCC 61) 1991 Indlaw SC 103 and Janata Dal vs. H.S. Choudhary, (1992 (4) SCC 305 1992 Indlaw SC 1257) to substantiate the plea that the petitioner had locus standi to present the petition in public interest and this was a genuine public interest litigation.
4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal case 1992 Indlaw SC 1257 (supra) and Kazi Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116 1994 Indlaw SC 422). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852 1992 Indlaw SC 1037) and K.R. Srinivas vs. R.M. Premchand, (1994 (6) SCC 620 1994 Indlaw SC 1765).
5. It is necessary to take note of the meaning of expression 'public interest litigation'. In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
6. In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
"Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government "
7. In Janata Dal case 1992 Indlaw SC 1257 (supra) this Court considered the scope of public interest litigation. In para 52 of the said judgment, after considering what is public interest, has laid down as follows :
"The expression 'litigation' means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."
8. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:
"Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."
9. In para 96 of the said judgment, it has further been pointed out as follows:
"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
10. In subsequent paras of the said judgment, it was observed as follows:
"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold".
11. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the do others of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
13. The Council for Public Interest Law set up by the Ford Foundation in USA defined the "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:
"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others."
14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481 1993 Indlaw SC 461), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151 1994 Indlaw SC 1633). No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran, (1996) 7 JT 265 1996 Indlaw SC 977). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Others. v. Jitendra Kumar Mishra and Others. (AIR 1999 SC 114 1998 Indlaw SC 235), this Court held that in service matters PILs should not be entertained, the inflow of so- called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.
17. Coming to the facts of the case, it has not been shown as to how and in what manner the accused, condemned prisoner is handicapped in not seeking relief if any as available in law. The matter pertains to something to happen or not at Kolkatta and what was the truth about the news or cause for the delay, even if it be is not known or ascertained or even attempted to be ascertained by the petitioner before approaching this Court. To a pointed query, the petitioner submitted that the petitioner "may not be aware" of his rights, that except the news he heard he could not say any further and "the respondent-State may come and clarify the position. This petition cannot be entertained on such speculative foundations and premises and to make a roving enquiry. May be at times even on certain unconfirmed news but depending upon the gravity or heinous nature of the crime alleged to be perpetrated which would prove to be obnoxious to the avowed public policy, morals and greater societal interests involved, Courts have ventured to intervene but we are not satisfied that this could be one such case, on the facts disclosed. It is reliably learnt that a petition with almost identical prayers was filed before the Calcutta High Court by relatives of the accused and the same has been recently dismissed by the High Court.
18. In Gupta's case 1981 Indlaw SC 599 (supra) it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution:
"But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective."
19. In State of H.P. vs. A Parent of a Student of Medical College, Simla and Others. (1985 (3) SCC 169 1985 Indlaw SC 286), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.
20. Khalid, J. in his separate supplementing judgment in Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295 1987 Indlaw SC 28720, 331) said:
"Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion.  * * *
Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.  * * *
I will be second to none in extending help when such help is required. But this does not mean that the do others of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
21. Sabyasachi Mukharji, J. (as he then was) speaking for the Bench in Ramsharan Autyanuprasi vs. Union of India, (1989 Supp (1) SCC 251 1988 Indlaw SC 916), was in full agreement with the view expressed by Khalid, J. in Sachidanand Pandey's case 1987 Indlaw SC 28720 (supra) and added that 'public interest litigation' is an instrument of the administration of justice to be used properly in proper cases.
22. See also separate judgment by Pathak, J. (as he then was) in Bandhua Mukti Morcha vs. Union of India, (1984 (3) SCC 161 1983 Indlaw SC 192).
23. Sarkaria, J. in Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and Others. (1976 (1) SCC 671 1975 Indlaw SC 372) expressed his view that the application of the busybody should be rejected at the threshold in the following terms:
"It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories : (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold."
24. Krishna Iyer, J. in Fertilizer Corporation Kamgar Union (Regd.) Sundri and Others. v. Union of India, (1981 (1) SCC 568 1980 Indlaw SC 243) in stronger terms stated:
"If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him."
25. In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990 (4) SCC 449 1990 Indlaw SC 199), Sabyasachi Mukharji, C.J. observed:
"While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon u/art. 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by the court."
26. In Union Carbide Corporation v. Union of India, (1991 (4) SCC 584 1991 Indlaw SC 912, 610), Ranganath Mishra, C.J. in his separate judgment while concurring with the conclusions of the majority judgment has said thus:
"I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which would affect the dignity of the Court and bring down the serviceability of the institution to the people at large. Those who are acquainted with jurisprudence and enjoy social privilege as men educated in law owe an obligation to the community of educating it properly and allowing the judicial process to continue unsoiled."
27. In Subhash Kumar v. State of Bihar, (1991 (1) SCC 598 1991 Indlaw SC 913) it was observed as follows:
"Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court u/art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court u/art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is the duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation".
28. In the words of Bhagwati, J. (as he then was) "the courts must be careful in entertaining public interest litigations" or in the words of Sarkaria, J. "the applications of the busybodies should be rejected at the threshold itself" and as Krishna Iyer, J. has pointed out, "the do others of the courts should not be ajar for such vexatious litigants".
29. It will be appropriate at this stage to take note of what this Court felt when dealing with petitions u/art. 32 with somewhat similar issues. The petitioner in one case filed writ petition u/art. 32 of the Constitution challenging the order of this Court whereby it had affirmed the conviction of two accused and confirmed the death sentence for reasons stated in its judgment in State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC 2100 1992 Indlaw SC 44).
30. The writ petition was dismissed holding that third party has no locus standi to challenge the conviction by filing the writ petition u/art. 32 of the Constitution. (See Simranjit Singh Mann v. Union of India (AIR 1993 SC 280 1992 Indlaw SC 75)
31. The petitioner there claimed to be a friend of the convicts, and it was held that he has no locus standi to move the Court u/art. 32 of the Constitution. Unless the aggrieved party is a minor or an insane or one who is suffering from any other disability which the law recognizes as sufficient to permit another person e.g., next friend, to move the Court on his behalf; for example, see Ss. 320(4-a), 330(2) read with Ss. 335(1)(b) and 339 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Ordinarily the aggrieved party has the right to seek redress. Admittedly, it was not the case of the petitioner that the two convicts are minothers or insane persons but had argued that since they were suffering from an acute obsession such obsession amounts to a legal disability which permits the next friend to initiate proceedings u/art. 32 of the Constitution.
32. A mere obsession based on religious belief or any other personal philosophy cannot be regarded as a legal disability of the type recognized by the Code or any other law which would permit initiation of proceedings by a third party, be he a friend. It must be remembered that the repercussions of permitting such a third party to challenge the findings of the Court can be serious, e.g., in the instant case, itself the co-accused who have been acquitted by the Designated Court and whose acquittal has been confirmed by this Court would run the risk of a fresh trial and a possible conviction.
33. Similar view was expressed in Karamjeet Singh v. Union of India (AIR 1993 SC 284 1992 Indlaw SC 202).
34. It was noted that Art. 32 which finds a place in Part III of the Constitution entitled "fundamental rights" provides that right to move this Court for the enforcement of the rights conferred in that part is guaranteed. It empowers this Court to issue directions or orders or writs for the enforcement of any of the fundamental rights. The petitioner did not seek to enforce any of his fundamental rights nor did he complain that any of his fundamental right was violated. He sought to enforce the fundamental rights of others, namely, the two condemned convicts who themselves did not complain of their violation. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, e.g. next friend, to move the court on his behalf.
35. Unless an aggrieved party is under some disability recognized by law, it would be unsafe and hazardous to allow any third party be a member of the Bar to question the decision against third parties.
36. Neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence.
37. Based on the above backgrounds, we do not think this a fit case which can be entertained and that too, u/art. 32 of the Constitution and is accordingly dismissed, but without costs.


Registrar. High Court Of Madras Etc. v R. Rajiah And K. Rajeswaran
Supreme Court of India

11  May  1988
Civil Appeal No. 367 and 368 of 1984
The Judgment was delivered by: M. M. Dutt, J.
1.  These two appeals are directed against a common judgment of the Division Bench of the Madras High Court whereby, in exercise of its jurisdiction u/art. 226 of the Constitution of India, the High Court quashed the orders of compulsory retirement of the two respondents, Mr. R. Rajiah and Mr K. Rajeswaran, who were then the District Munsifs.
2.  The respondent, R. Rajiah, originally joined service as a Sub-Magistrate on 3.3.1965. On 6.1.1973, he was appointed a District Munsif in the Tamil Nadu State Judicial Service. While he was functioning as District Munsif, on 3.3.1980 the Registrar of the High Court, the appellant herein, sent a communication to the respondent Rajiah stating therein that he was being compulsorily retired from service in public interest with effect from 3.3.1980
3.  The other respondent, K. Rajeswaran, was also originally appointed a Sub-Magistrate in 1953. On 29.11. 1971, he was appointed a District Munsif having been selected by the Tamil Nadu Public Service Commission. On 22.2.1976, the High Court passed an order confirming him as District Munsif with effect from 1.1.1976. On 27.10.1976, the High Court passed an order compulsorily retiring him from service, which was communicated to him by the Registrar.
4.  Both the respondents being aggrieved by the orders of compulsory retirement, moved the High Court u/art. 226 of the Constitution challenging the validity of the impugned ordes of compulsory retirement passed by the High Court in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules.
5.  The principal contention of the respondents before the High Court was that the High Court had no power to oompulsorily retire members of the Tamil Nadu State Judicial Service. Such an order could be passed only by the State Governor, who was the appointing authority. All that the High Court could do was to make a recommendation to the State Governor in that behalf. It was also contended on behalf of the respondents that there was no material on record which would justify the premature retirement of the respondents. The respondents also challenged the validity of the Constitution of the Review Committees of the High Court that passed the impugned orders of compulsory retirement.
6.  Two learned Judges of the Division Bench delivered two separate judgments. One of the learned Judges of the Division Bench took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial Service should be compulsorily retired or not in public interest, the formal order of compulsory retirement was to be passed by the Governor acting on the recommendation of the High Court. The other learned Judge, however, did not subscribe to the above view. According to him, it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules. Both the learned Judges, however, came to the conclusion that there was no material on record to justify the impugned orders of compulsory retirement of the two respondents. The learned Judges also held against the validity of the Constitution of the Review Committee of the High Court that considered the question of passing the order of compulsory retirement of the respondent, Rajeswaran. According to the learned Judges, the irregular or illegal constitution of the Review Committee vitiated the impugned order of compulsory retirement. In the case of respondent, Rajiah, it was held that the manner in which the Review Committee considered the question of compulsory retirement of Rajiah was illegal. The writ petitions filed by the respondents were accordingly, allowed by the High Court and the impugned orders of compulsory retirement were quashed. Hence these two appeals.
7.  Mr. Datta, learned Additional Solicitor General appearing on behalf of the High Court, has strenuously urged that it is the High Court and the High Court alone that is competent to pass an order of compulsory retirement of a member of the subordinate judiciary under rule 56(d) of the Fundamental Rules. He has placed much reliance on the provision of Art. 235 of the Constitution. It is submitted by him that unless it is held that the High Court is the only competent authority to pass an order of compulsory retirement, it would be denuding the High Court of its control over subordinate courts as conferred on it by Art. 235 of the Constitution. On the merits of the case, it is submitted by the learned Additional Solicitor General that the Division Bench of the High Court was not at all justified in considering the question as to the adequacy or otherwise of the materials on record in support of the impugned orders of compulsory retirement.
8.  Before considering the contention advanced on the basis of Art. 235 of the Constitution, we may, at this stage, refer to the provision of rule 56(d) of the Fundamental Rules, the relevant portion of which is extracted below:-
"R. 56(d)-Notwithstanding anything contained in this rule, the appropriate authority shall if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained the age of fifty years or after he has completed twenty five years of qualifying service. Any Government servant who has attained the age of fifty years or who has completed twenty five years of qualifying service may likewise retire from service by giving notice of not less than three months in writing to the appropriate authority.
Explanation I: Appropriate authority means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required to retire or wants to retire.
[Explanations II to V are omitted as they are not relevant for our purpose.]
9.  Rule 56(d) of the Fundamental Rules confers absolute right on the appropriate authority to retire a Government servant in the public interest. Under Explanation, I "appropriate authority" means the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire or wants to retire. In view of Explanation I, it is manifestly clear that the absolute power to retire any Government servant has been conferred on the appropriate authority, that is, the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire. It is not disputed that the authority to make substantive appointment to the post of Munsif or District Munsif is the Governor.
Therefore, without anything else, under rule 56(d) of the Fundamental Rules, the State Government or the Governor being the appointing authority, has the absolute power to retire a District Munsiff.
10.  It is not necessary to consider the provision of Art. 235 of the Constitution and its impact on rule 56(d) of the Fundamental Rules as to the absolute right of the State Government to retire a member of the subordinate judicial service. Art. 235 vests in the High Court the control over District Courts and Courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment, promotion and imposition of punishment, both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Art. 235 of the Constitution.
11.  Rule 56(d) of the Fundamental Rules under which a member of subordinate judicial service can be compulsorily retired has to be read subject to and in harmony with the power of control vested in the High Court under Art. 235 of the Constitution At this stage, it is necessary to consider the extent of the power of control of the High Court u/art. 235. In the instant cases, it has been already noticed that the High Court had held the enquiry and made the impugned orders of compulsory retirement. According to one of the learned Judges of the Division Bench of the High Court, as the impugned orders were not signed by the Governor, but by the High Court, they were illegal and should be struck down. The contention of the learned Additional Solicitor General is that if the Governor is required to sign the impugned orders, it would take away the control of the High Court as conferred on it by Art. 235.
We are, however, unable to accept the contention.
12.  The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member. But passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Art. 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Art. 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court.
13.  In the State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771 1965 Indlaw SC 268 a question arose whether Art. 311 takes away the control of the High Court vested in it under Art. 235 of the Constitution. In that context, Hidayatullah, J. (as he then was) speaking for the Court observed as follows:
"There is, therefore, nothing in Art. 311 which comples the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if Art. 235 vested such a power in it. In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by cl. (2) of Art. 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction."
14.  Thus, it appears that this Court brought about a harmony between the power of the Governor and the power of control of the High Court.
15.  The question was again considered by this Court in State of Haryana v. Inder Prakash Anand, [1976] Suppl. SCR 603 1976 Indlaw SC 328. In that case A.N. Ray, C.J. Observed as follows:
"The control vested in the High Court is that if the High Court is of opinion that a particular Judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235".
16.  It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken, it will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court.
17.  There can be no doubt and, indeed, it is well established that compulsory retirement of members of the subordinate judicial service comes within the purview of the power of control of the High Court under Art. 235 of the Constitution. See State of Uttar Pradesh v. Batuk Deo Pati Tripathi, [1978] 2 SCC 102 1978 Indlaw SC 141; High Court of Punjab & Haryana v. State of Haryana, [1975] 3 SCR 365 1975 Indlaw SC 422; Shamsher Singh v. State of Punjab, [1975] 1 SCR 814 1974 Indlaw SC 127; State of Haryana v. Inder Prakash Anand 1976 Indlaw SC 328 (supra) and B. Misra v. Orissa High Court, [1976] 3 SCC 327 1976 Indlaw SC 511.
18.  The control of the High Court, as understood, will also be applicable in the case of compulsory retirement is that the High Court will, upon an enquiry, come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not. If the High Court comes to the conclusion that such a member should be prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority. The Governor will make a formal order of compulsory retirement in accordance with the recommendation of the High Court.
19.  In the instant cases, admittedly, the impugned orders of compulsory retirement have been passed by the High Court under rule 56(d) of the Fundamental Rules. It has been noticed that under rule 56(d) of the Fundamental Rules right of compulsory retirement has been conferred on the appropriate authority which, under Explanation I, means the appointing authority, that is, the Governor. While the High Court decided to compulsorily retire the respondents. it did not communicate the recommendations to the State Governor for passing formal orders of compulsory retirement. Instead, the High Court passed the orders of compulsory retirement itself. As Art. 235 vests the power of control of subordinate judiciary in the High Court, the absolute right to compulsorily retire a Government servant conferred on the Governor by rule 56(d) of the Fundamental Rules must be subject to the power of control of the High Court, so far as the members of the subordinate judicial service are concerned. In other words, if the High Court considers that a member of the subordinate judicial service should be compulsorily retired, the High Court will make a recommendation in that regard to the Governor, who will make an order of compulsory retirement in accordance with the recommendation of the High Court. The Governor will only act on the basis of the recommendation and pass a formal order.
20.  But however formal it is, the compulsory retirement of the member concerned will take effect after the order is passed by the Governor. The High Court, in the present cases, sought to derive its power to compulsorily retire the respondents from rule 56(d) of the Fundamental Rules and in exercise of its power of control it decided to compulsorily retire the respondents, but ignored the power of the Governor under rule 56(d) of the Fundamental Rules to make the order of compulsory retirement in accordance with the recommendation of the High Court. It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court by signing an order in that regard. But however formal it may be, yet the procedure has to be complied with. So long as there is no formal order by the Governor, the compulsory retirement, as directed by the High Court, could not take effect. We are unable to accept the contention of the learned Additional Solicitor General that to send the recommendation to the Governor for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the High Court as vested in it under Art. 235 of the Constitution. As has been discussed above, the power of control is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so, what would be the nature of the action. In the case of compulsory retirement, when the High Court comes to a decision that the member should be compulsorily retired from service, its decision or recommendation has to be communicated to the Governor so that he may pass a formal order of compulsory retirement. In the instant cases, as there is no formal order by the Governor under rule 56(d) of the Fundamental Rules, the impugned orders of the High Court are ineffective. The view expressed by one of the learned Judges of the Division Bench that it was not the High Court but the Governor who had to pass formal orders of compulsory retirement, is correct. The contention made on behalf of the High Court that as rule 56(d) of the Fundamental Rules impinges upon the power of control of the High Court, as vested in it under Art. 235 of the Constitution, it should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire Government servants, who, in the instant cases, are members of the subordinate judicial service, is without any substance whatsoever and is rejected.
21.  We may now come to the merits of the case. It has been upheld by both the learned Judges of the Division Bench of the High Court that the impugned orders were not supported by any material. Further, it has been held that no material has been placed before the High Court to show that the impugned orders have been passed in public interest. This finding has not been challenged by the learned Additional Solicitor General appearing on behalf of the High Court. All that has been submitted by him is that the High Court was not justified in considering the adequacy or otherwise of the materials in support of the orders of compulsory retirement. There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement. But, in the instant case, there is no question of adequacy or sufficiency of the materials in support of the impugned orders of compulsory retirement. According to the High Court, no material has been placed in justification of the impugned orders of compulsory retirement of the respondents.
22.  It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Art. 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.
23.  In Rajiah's case, a Review Committee consisting of three Judges was appointed by a resolution of the High Court. In the meeting of the Review Committee held on June 25, 1979 to consider the case of the respondent Rajiah, only two Judges of the High Court were present. The two Judges came to the conclusion that the respondent, Rajiah, should be compulsorily retired with effect from April 2, 1980. The Division Bench found that the third Judge had no notice of the meeting held on June 25, 1979, but he agreed with the view expressed by the two Judges with a slight modification that the respondent would retire with effect from March 3, 1980 under rule 56(d) of the Fundamental Rules. The Division Bench of the High Court took the view that as all the three Judges had not sat together and considered the question of compulsory retirement of respondent Rajiah, and that, further, the third Judge having also modified the decision of the two Judges, namely, that the respondent would be compulsorily retired with effect from March 3, 1980, the impugned order of compulsory retirement of the respondent, Rajiah, was vitiated. It is true that the members of the Review Committee should sit together and consider the question of compulsory retirement, but simply because one of them did not participate in the meeting, and subsequently agreed with the view expressed by the other two Judges, it would not vitiate the decision of the Committee to compulsorily retire the respondent. The third Judge might be justified in correcting the date with effect from which the respondent would compulsorily retire, but that is a very minor issue and would not, in our opinion, make the decision invalid.
24.  In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the Constitution of the Review Committee by the Chief Justice and not by the Full Court was illegal. We are unable to accept the view cf the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, correct, namely, that the decision of the Review Committee should have been placed before a meeting of the Judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was not placed before the Full Court meeting. Nor is there any material to show that the same was circulated to the Judges. In that sense, the recommendation of the Review Committee was not strictly legal.
25.  Another fact which has been pointed out by the High Court is that although the Review Committee was constituted with two Judges, another Judge also participated in the meeting of the Review Committee and, indeed, he recorded a very elaborate minute. The Division Bench has looked into the record and found that the learned Chief Justice had appointed only two Judges to constitute the Review Committee and observed that the participation of the third Judge was improper. It is, however, not known whether he participated in the meeting of the Review Committee under the direction of the Chief Justice. We had not the opportunity of looking into the record and, as such, we do not make any final pronouncement about the same.
26.  Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent, K. Rajeswaran, was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976, there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired, the third Judge of the Review Committee relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif, but for the purpose of compulsory retirement those events were considered to be of importance. In Baldev Raj Chadha v. Union of India, [1981] 1 SCR 430 1980 Indlaw SC 173 this Court observed as follows:
"One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained."
27.  The above decision has been relied upon by the Division Bench and that rightly. The decision to compulsory retire the respondent, in our opinion, is vitiated as the High Court had relied upon some adverse incidents against the respondent that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976. In this regard, we may also refer to an observation by this Court in Brij Bihari Lal Agarwal v. High Court of M.P., [1981] 2 SCR 297 1980 Indlaw SC 232:
"It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation."
28.  For the reasons aforesaid, we are of the view that the Division Bench of the High Court was perfectly justified in quashing the impugned orders of compulsory retirement.
29.  In the result, the appeals are dismissed. There will, however, be no order as to costs.
SHARMA, J.
30.  I have gone through the Judgment just now delivered by Mr. Justice M.M. Dutt, and I agree that since there is no material on the records of the cases in support of the impugned orders of compulsory retirement of the two respondents-Mr. R. Rajiah and Mr. K. Rajeswaran, they were rightly quashed by the High Court. The appeals are accordingly dismissed. I am not expressing any opinion on the other questions raised in these cases.
Appeals dismissed.