- (1.) Respondent 1, Batuk Deo Pati Tripathi, joined the Judicial Service of the State of Uttar Pradesh as a Munsif in 1943 and after intervening promotions, he was appointed as a District Judge on 15/04/1969. Under Note (1) to Article 465-A of the Civil Service Regulations, as adopted for application in Uttar Pradesh, the State government may at any time, without assigning any reason, require any officer to retire on three months' notice or pay in lieu of the whole or part thereof after he has attained the age of 50 years. Such decision is required to be taken by the government in its Administrative Department and only if it appears to it to be in public interest to do so. Some time in 1969 the State government requested the High court of Allahabad, respondent 2 to this appeal, to screen cases of judicial officers in order to determine which of them should be retired compulsorily under the aforesaid provision. In one of the meetings of the Administrative Committee of the High court which was held on 9/01/1974, it was resolved by the Committee that respondent 1 should be retired compulsorilyfrom service. The Registrar of the High court communicated the decision of the Administrative Committee to the State government, appellant herein, and thereafter, he circulated to all the Judges of the High court, for their intimation, the decision taken by the Administrative Committee. The governor of U. P. accepted the recommendation of the Administrative Committee and retired respondent 1 compulsorily by an order dated 27/02/1975.
(2.) Respondent 1 filed a writ petition under Article 226 of the Constitution against the State of Uttar Pradesh and the Allahabad High court challenging the validity of the aforesaid order on the following grounds : (1) The order is illegal since no salary was paid to respondent 1 at the time when the order was passed ; (2) I he order is really in the nature of punishment since it casts a stigma and is therefore contrary to Article 311 of the Constitution ; (3) Article 465-A of the Civil Service Regulations in so far it purports to empower the government to consult the Administrative Head of the Department before passing an order thereunder, contravenes Article 233 of the Constitution ; (4) The order was passed on irrelevant considerations since the High court had taken into account the character roll entries of respondent 1 prior to the date when he was allowed to cross the efficiency bar; (5) The order is arbitrary, capricious and perverse; and the satisfaction that it was in public interest to retire respondent 1 compulsorily was based on no material; (6) The order was passed by the governor without any application of mind since it was passed in pursuance of a general policy agreed upon between the governor and the chief justice of the High court that recommendations of the High court for retirement of Judicial officers should be accepted without scrutiny ; and (7) The order is illegal inasmuch as it was passed on the recommendation of the Administrative Committee, while Article 233 of the Constitution requires consultation by the governor with the entire High court and not with a Committee consisting of a few Judges of the court.
(3.) A division bench of the High court consisting of Gulati and C. S. P. Singh. JJ. rejected the first six contentions by their judgment dated 5/12/1975. On the 7th contention they were inclined to the view that Article 233 of the Constitution postulates consultation with the entire High court and therefore the High court in the exercise of its rule-making power cannot delegate its function to a smaller body. But considering that such a view was likely to upset the settled practice of the court and that it was likely to be inconflict with the decision in Civil Misc. Writ No. 1254 of 1968 dated 23/02/1970, they directed that the papers of the case be placed before the learned chief justice for constituting a full bench to consider the question "whether in view of Article 233 of the Constitution, consultation with the entire High court is necessary before making an order of compulsory retirement against the District Judge".;