J.S Verma, J.:— The petitioner S.N Jog was a member of the Judicial Service of this State and was officiating as a District and Sessions Judge when he was retired from service on attaining the age of 55 years in accordance with Fundamental Rule 56(3) as amended by the M.P Shaskiya Sevak (Adhiwarshiki Ayu Sanshodhan) Adhiyan 1976. This action was communicated to him by Order No. 3.A/68/79/21-B, dated 26-???-1979 (Annexure A) issued by the State Government. The petitioner seeks a writ of certiorari for quashing this dated 26-11-1979 (Annexure A).

2. Brief facts relevant for the purpose of this petition may now be stated the petitioner's date of birth is 24-11-1??? 24 and he attained the age of 55 years on 23-11-1979. The petitioner was appointed appointed a munsiff Magistrate in the erstwhile Part ‘C’ State of Bhopal in September 1953 and was absorbed in the new State of Madhya Pradesh as a Civil Judge Class II, on reorganisation of the States with effect from 1-11-1956. The petitioner was promoted as an officiating Additional District and Sessions Judge in April 1959 and his case was considered for confirmation as an Additional District and Sessions Judge in the Judges' meeting of the High Court on 8-9-1992, when he was not found fit for confirmation while several other officiating Additional District and Sessions Judges were found fit and confirmed. The petitioner's case for confirmation was were considered in the Judges' meeting held on 27/28 July when he was again not found fit for confirmation. Later, on a representation made by the petitioner, the Grievances Committee, consisting of some High Court Judges, reconsidered his case and submitted its report recommending his confirmation only from 27th July 1974 In the next Judges' meeting held on 4/5 May 1975 this report of the Grievances Committee was accepted and the petitioner was confirmed as an Additional district and Sessions Judge with effect from 27th July 1974 and not any earlier date. The petitioner's case then came up for further promotion in the Judges' meeting held on 6/7 May 1978 and it was decided to promote, him in his turn as an officiating District and Sessions Judge. An order to that effect was made on 6-6-78 and the petitioner took over charge as an officiating District and Sessions Judge on 16-8-78 at Madhleshawar in District Khargone. Later, the petitioner, while continuing as an officiating District and Sessions Judge, was transferred to Shahdol, where he worked in that capacity upto 29-11-79, when he was retired on attaining the age of 55 years in the manner aforesaid. The mate order (Annexure A) dated 26-11-79, retiring the petitioner on attaining the age of 55 years in the exercise of the aforesaid power, was issued by the State Government, accepting the recommendation made by the High Court as a result of the decision reached in the Judges' meeting held on 11-8-19???9. The facts so far are not in controversy. The petitioner's case is that he had an unblemished record of service and there was no reason why, after his promotion to officiate as a District and Sessions Judge in August 1978, it should have been decided to retire him in this manner in August 1979 it is claimed that no adverse entry in his confidential report subsequent to his confirmation as an Additional District and Sessions Judge, had been communicated to him and, therefore, decision to retire the petitioner on attaining the age of 55 years was arbitrary, not being based on any material. The petitioner also alleged that he had been unfortunate in his personal life and his remarriage to a widow after he had himself become a widower in 1972, did not prove successful and the lady whom he had remarried had been making several false allegations against him to ruin his reputation; and it appears that these complaints made by his second wife, whom he had remarried, may have influenced the decision reached by the High Court to retire him on attaining the age of 55 years. The petitioner also says that it is likely that the decision was influenced by some other false complaints made by some Advocates, who were annoyed with him. It is urged that these complaints, apart from being false, also do not constitute relevant material to provide a foundation for the requisite opinion. Justifying his retirement in ‘public interest’ on attaining the age of 55 years. It is also urged by the petitioner that his appointing authority was the State Government which did not form any opinion of its own and merely acted mechanically on the recommendation made by the High Court to this effect and for this reason, the impugned order (Annexure A) is invalid for non-application on the mind by the appointing authority.

3. Separate returns have been filed by the State of Madhya Pradesh and the High Court, in which the stand taken is similar. In the return of the State Government, the allegation of non-application of mind by the State Government before passing the impugned order of compulsory retirement, is denied. It is contended that the State Government passed the order after considering the High Court's recommendation and accepting the same. It is also stated that the High Court's opinion in such a matter has to be accepted by the State Government inasmuch as the High Court knows best about the performance of the subordinate Judges and the ‘control’ over the subordinate Judges vests entirely in the High Court, whose opinion is required to be accepted and acted on by the State Government. It is claimed that the opinion formed is bona fide opinion and not one based on no material, as claimed by the petitioner. The High Court, in its return, has stated facts to indicate that the petitioner's career as a subordinate Judge was not unblemished as he claims and that even his confirmation as an Additional District and Sessions Judge was deferred for some years, because he was not found fit for confirmation for a period of over 5 years since the date of his promotion to officiate as additional District and Sessions Judge as against the ordinary period of about two years. It is stated that the decision to retire the petitioner on attaining the age of 55 years ‘in public interest’, in exercise of the power available, was reached bona fide after considering the over-all performance of the petitioner in a Full Court meeting of the High Court Judges held on 11-8-1979. It is stated that the petitioner's reputation was also not satisfactory, while his work was at best only average. The decision was reached taking into account all the confidential reports of the petitioner, complaints file and assessment chits given by the High Court assessing his judicial work from time to time, his judicial work as a whole and his general reputation The cumulative impression formed in the Judges' meeting about the petitioner's judicial career led to the decision. It is also stated that while the petitioner was an officiating District and Sessions Judge at Mandleshwar near Khandwa, where his wife was living, complaints were received not only from his wife but some others about his frequent visits to Khandwa where he was staying with a local businessman After obtaining the petitioners comments, on the complaint, he was transferred by the High Court to Shandol, a place farther away from Khandwa. The confidential report for the period ending 31st March 1979, while the petitioner was officiating as a District and Sessions Judge, refers to his complaint and the opinion formed by the Chief Justice, alter obtaining comments of the petitioner thereon.

4. Confidential reports of the petitioner from the year 1958 till the end of his judicial career as well as the assessment chits showing the quality of his work and the adverse entries communicated to him from the confidential reports, have all been filed long with the return in support of the statements made in the returns. The case of the respondents in brief is that on the assessment of the over-all performance of the petitioner the High Court in its meeting held on 11-8-79 formed the opinion on the basis of the entire record, including the confidential report for the period he was an officiating District and Sessions' Judge that the petitioner's retirement on attaining the age of 55 years is in ‘public interest’ and therefore this decision of the High Court reached in the meeting was sent to the State Government on as its recommendation, and the State Government on a consideration of the recommendation being satisfied that such an action should be taken, the impugned order (Annexure A, dated 26-11-1979 was passed leading to the petitioner's retirement from 29-11-1979. It is contended that the action taken is not punitive in nature and was a part of the process of chopping off dead wood in the larger interest of the judicial administration and in public interest. Such a decision, it is claimed, is not open to challenge.

5. The first contention of Shri Gulab Gupta, learned counsel for the petitioner is that the decision to retire the petitioner is arbitrary since it is not based on any relevant material. It is contended that there was no marked deterioration in the petitioner's performance after his confirmation as an Addl. District and Sessions Judge and promotion to officiate as a District and Sessions Judge, to justify this action It is urged that the relevant item in the agenda of the meeting of the High Court held on 11-8-1979 does not indicate that actual screening of subordinate Judges attaining the age of 55 years was to be done in that meeting and therefore it is reasonable to assume that all the relevant material was not available for consideration when the Judges meeting took that decision on 11-8-1979. It is further argued that the material now filed along with the return shows that one of the documents considered was the confidential report for the period ending 31-31-979 written by the Chief Justice, but the adverse remarks contained therein were not communicated to the petitioner and therefore, could not be relied on for the decision of compulsory retirement. It is lastly urged in this connection that even this material, which has been produced by the respondents, taken as a whole does not lead to the reasonable conclusion that the retirement of the petitioner on attaining the age of 55 years was in ‘public interest’. In reply Shri Y.S Dharmadhikari appearing for the High Court contended that the minutes of the judges meeting clearly shows that actual screening of the subordinate was done in the Judges meeting taking into account the entire material pertaining to the petitioner's case. He argued that the entire judicial career was relevant for this purpose and not only the petitioner's tenure as an officiating District and Sessions Judge, in view of object of an compulsory retirement after attaining the specified age In respect of the confidential report for the period ending 31-3-1979, it was contended that the same merely contained the opinion formed on the complaint made against petitioner, taking into account the petitioner's comments thereon and the facts which he had admitted It is argued that communication of the same to the petitioner was not necessary for the purpose compulsory retirement which is not a punitive action and yet such a communication had been made eliciting petitioner's comments before formation of the opinion. Rest of the contents of this confidential report contains; only the opinion formed by the Chief Justice taking into account the petitioner's comments and the facts admitted by him and a mention of the general reputation enjoyed by the petitioner and his past record, a fact well known to the petitioner. It is urged that no part of this report needed communication to the petitioner, even assuming that communication of, an adverse remark is necessary while taking decision of compulsory retirement Shri Tamaskar, learned Governmeat Advocate appearing for the State, adopted Shri Dharmadhikari's arguments on this as well as the remaining points mentioned hereafter.

6. In our opinion, this contention of the learned counsel for the petitioner Judge's meeting held on 10/11, August (Document No. 5 at page 46 of the P. Book.) shows the relevant subject as consideration of the question of screening five District and Sessions Judge and one Addl District and Sessions Judge on attaining the age of 55 years in 1979. Thereafter, The decision taken in the Judges' meeting is mentioned. It says that the, cases of five specified District and Sessions Judges were consider on the question whether they should be allowed continued after completion of 55 years and it was resolved that three out of them should be continued in service, while the remaining two, of whom the petitioner is one, be retired to public interest under Fundamental Rule 56(3). The relevant extract of the minutes of the Judges' meeting therefore, clearly shows that screening the petitioner's case to decide whether he should be continued in service after attaining the age of 55 years was not only specifically in the agenda but was so understood in the meeting and consequently his case was considered from that angle in the Judges' meeting taking a decision to retire the petitioner in public interest under Fundamental Rule 56(3) on his attaining the age of 55 years. In the return it is further stated that all the relevant material, including the confident report, the complaint's file and the assessment chits given from time to time by the High Court about the quality of the petitioner's judicial work, were available in the Judges' meeting and were taken into account for the purpose of reaching the decision in the petitioners case. Such material is also filed with the return and is from Page 49 to page 105 of the Paper Book. A perusal of this material filed with the return shows that the adverse entries communicated from time to time to the petitioner also mention as far back as 1965 of reports against his behavior in public and fondness for drink. The assessment chits show that the petitioner's qua lily of judicial work over a long number of years was at best only average, while at times it was assessed even as below average. The same impression is gathered also from his confidential reports for the period of over 20 years, filed with the return.

7. The last confidential report written by the Chief Justice on 1-8-1979 for the period ending 31-3-1979 says that a complaint was received against him that he used to spend his week-ends at Khandwa where he stayed with a local businessman Seth Manmohan Das and indulged in gambling, drinking and other vices. The petitioner's explanation to this complaint was called wherein he denied the allegations but admitted that during his visit to Khandwa, he stayed with the said businessman. Obviously, the petitioner's trips to Khandwa were not to visit his wife with whom his relations were admittedly strained and be admitted staying with the business-man instead of his wife, while at Khandwa. Taking into account, the petitioner's explanation to the complaint, his conduct was found to be improper and the relevant pipers including his explanation, were kept in his personal confidential file and in his own interest, the petitioner was transfer red from Mandleshwar to Shahdol, the latter being farther away from Khandwa. This confidential report also mentions that there were other complaints also of his excessive drinking and that such complaints were made even when he was Additional District and Sessions Judge, in which capacity he was not found fit for confirmation on one occasion. This confidential report was la???est assessment of the petitioner's worth as a judicial officer and was taken into account as stated in the return, while reaching the decision to retire him in ‘public interest’ on attaining the age of 55 years. As mentioned earlier, similar reports of his excessive drinking were received earlier and communicated to the petitioner at least as far back as 1965. The position was found to be the same even in 1979, when the decision to retire him was taken. It cannot, therefore, be said that there was no material to justify formation of this opinion or that the decision could not be a reasonable conclusion on the material present.

8. In this connection, Shri Gupta, learned counsel for the petitioner, placed reliance mainly on the decision in Brij Behari Lal Agarwal v. High Court of M.P (1), to contend that the adverse remarks contained in the latest confidential report for the period ending 31-3-1979 could not be taken into account without communicating the same to the petitioner. It is urged that certain observations, made in para 7 of this decision support the contention that even in a case of compulsory retirement, no adverse remark in a confidential report can be taken into account, without communicating the same and obtaining the public servant's explanation thereto.

9. In our opinion, Brij Behari Lal's case cannot be read as laying down such a proposition and that too when the Supreme Court decision in Union of India v. M.S Reddy (2), saying the contrary, is expressly relied on therein The M.E Reddi's case, the requirement of communicating adverse remarks in confidential reports before taking decision of compulsory retirement, under a similar provision, was considered at length and it was held that there was no such requirement, since compulsory retirement of a Government servant in public interest in accordance with an express power, does not cast any stigma and is not punitive in nature as held repeatedly by the Supreme Court and such a rule permitting compulsory retirement on attaining a specified age, excludes the principles of natural justice. It was held that so long as the authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before the Court. It was also held that it is not every adverse entry or remark that has to be communicated to the office, concerned, e.g some of the remarks may be purely innocuous or be connected with general reputation of honesty and integrity enjoyed by the officer and it will be difficult, if not impossible, to prove the same by positive evidence, but those who had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation he enjoys. It was also pointed out that the fact that an officer is of doubtful integrity stands on a separate footing and if he is compulsorily retired, that does not attach any stigma M.E Reddy's case also says that before passing an order of compulsory retirement, it is not only the entries in confidential reports which have to be taken into consideration but the overall picture of the officer during the long years of his service which has to be considered from the point of view of achieving higher standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service. Earlier decisions of the Supreme Court were referred which lay down that the right to be in public employment is defensible according to rules, which also provide for compulsory retirement was unequivocally reiterated in Reddy's case referring to the earlier decisions of the Supreme Court, that confidential reports can certainly be considered while passing an order of compulsory retirement, even if they are not communicated to the officer concerned. The decisions relied on in M.E Reddy's case are of larger Benches and it is reasonable to assume that the decision in Brij Behar, Lal's case (supra), by a Bench of two Judges, is not contrary to the law reiterated in M.E Reddy's caae, following the earlier decisions of larger Benches. It is, therefore, in this background that Brij Behari Lal's case has to be read.

10. In Brij Behari Lal's case, the principles governing the cases of compulsory retirement and the circumstances in which it is necessary to communicate adverse entries in the confidential reports were reiterated with reference to the earlier decisions, including M.E Reddy's case It was, however, added that in considering the question of compulsory retirement while an over-all assessment of the Government servant's record is desirable, the confidential reports pertaining to the years immediately preceding such consideration are to be given greater weight being of direct relevance and utmost importance, than those for the earlier wears because it is possible that the Government servant might have corrected himself with the passage of time. Thus, on this view also, in the present case, the latest confidential report pertaining to the petitioner for the period ending 31-3-1979 (page 105 of the P Book) deserves greatest weight and that, as already shown is one which the petitioner is trying to exclude from consideration. In Brij Behari Lal's case, for the latest period under consideration, there were two conflicting confidential reports of two successive Chief Justices for over-lapping periods, which were difficult to reconcile. One report was very favorable to Brij Behari Lal, while the other was very adverse There was no material present to show that this apparent in consistency between the two reports was taken into account by the High Court while deciding to retire Brij Behari Lal and the High Court then preferred to accept ihe adverse report for that ever-lapping period. The decision in Brij Behari Lal's case turned on the point that this apparent inconsistency in the two latest reports covering the same period, appears to have escaped attention of the High Court vitiating the decision. The order of compulsory retirement was set aside obviously on this ground leaving it open to the High Court and the State Government to consider the matter afresh. This fact clearly distinguishes he present case from Brij Behari Lal's case, since there is no conflicting material in the case of the present petitioner to give rise to such a situation. Moreover the return filed on behalf of the High Court in this case has disclosed the material which was the basis of its opinion. In Brij Behari Lal's caae, no such return was filed in the High Court which dismissed the petition summarly without notice to the respondents.

11. In Brij Behari Lal's case, however, certain observations were made in para 7 of the judgment, which are relied on by the learned counsel for the petitioner to support the aforesaid contention. It says that the record included a copy of an order sheet in a criminal case decided by the High Court, which contained some observations criticizing Brij Behari Lal for the manner in which he had disposed of the sessions case and it did not appear that these remarks were communicated to Brij Behari Lal, even though they were placed in his confidential file. This is all that para 7 of the judgment says and Shri Gupta wants to infer there from that there was a further requirement to communicate all adverse remarks in a confidential report before it can be used for compulsory retirement. In the first place, what is contained in para 7 is merely an observation with regard to certain facts and is not either the decision of the Supreme Court on that point or the basis of the ultimate decision in Brij Behari Lal's case, which, as earlier indicated, was merely on overlooking two conflicting confidential reports tor the same period by two successive Chief Justices. Tiat apart, a specific reliance on M.E Reddy's case (supra) and some other Supreme Court decisions, taking a contrary view, further indicates that in Brij Behari Lal's case, such opinion could not have been intended in conflict with decisions of large Benches. We are, therefore, unable to read the decision in Brij Behari Lal's case, as laying down that every adverse entry in a confidential report requires prior communication before it can be taken into account for deciding the question of compulsory retirement permitted by a specific provision. We need not refer to such a requirement in cases of promotion, etc. which are obviously on a different footing than that of compulsory retirement.

12. The next contention of the learned counsel for the petitioner is that while the petitioner was merely an officiating District and Sessions Judge, the power of compulsory retirement could not be invoked and at best he could be reverted to his substantive rank of an Addl. District and Sessions Judge, since the power does not extend to retire an officiating Government servant. Reliance is placed by the learned counsel on the decision in Union of India v. K.R Tahiliani (???), to support this contention In reply. Shri Y.S Dharmadhikari learned counsel for the respondent, contended that the facts of Tahiliania's case were different and no such principle was laid down therein and that Tahiliani's case has to be read in the light of Fundamental Rule 56(j) applicable therein to the Central Government servants, which was different from Fundamental Rule 56(3), with which we are concerned and the point involved therein was entirely different. Reference is also made to the decision of this Court in M.L Kalia v. Union of India (4), talking a different view, against which special leave was refused by the Supreme Court subsequent to the decision by the Supreme Court in Tahiliani's case. Learned counsel for the respondent, however, relied mainly on the fact that the point involved in Tahiliani's case for decision and the rule there were entirely different. In our opinion, learned counsel for the respondent is right in contending that Tahiliani's case does not support the present petitioner.

13. We shall first refer to the facts of Tahilian's case and the point for decision therein, to enable proper appreciation of that decision. For this purpose, it would be more useful to refer to decision of the Delhi High Court in Tahiliani's case, which was later affirmed by the Supreme Court. The Delhi High Court's decision is reported in K.R Tahiliani…Petitioner v. Union Of India & Another…S (5), Tahiliani was a Central Government servant and he was compulsorily retired under Fundamental Rule 56(j)(i) on attaining the age of 50 years. The only question which arose for decision was whether sub-clause (1) of clause (j) of Fundamental Rule 56, applicable to Central Government servants, was available to support compulsory retirement of Tahiliani, because he had attained the age of 50 years but not the age of 55 years. Clause (j) of F.K 56 considered in Tahilianis' case to the extent it is relevant, is as under:—

“Notwithstanding anything contained in this rule, the appropriats 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:

(i) if he is in class I or class II service of post and had entered Government service before attaining the age of thirty-five years, after he has attained the age of fifty years;

(ii) in any other case after he has attained the age of fify-five years”.

14. The contention of Tahiliani in that case was that he could not be retired under sub-clause (i) of clause (j) on attaining the age of 50 years because He did not hold a substantive post in class I or class II service and not having attained the age of 55 years, sub-clause (ii) which could apply to his case, was not available to support the order of compulsory retirement Compulsory retirement of Tahiliani was supported only on the basis of subclause (i) since he had attained the age of 50 years only and not the age of 55 years to make sub-clause (ii) available in his case. It was held by the Delhi High Court and later by the Supreme Court that in order to attract sub-clause (i), it was necessary for the Govt., servant to hold a substantive post in class I or class II service and no such post being held by Tahiliani as he was merely officiating in class II post, to which he had been appointed on an ad hoc basis, his substantive post being only in class III service sub-clause (i) of clause (j) of F.R 56 did not apply to enable his compulsory retirement merely on attaining the age of 50 years before he had attained the age of 55 years, when sub-clause (ii) could be availed of. All that was held in Tahiliani's case by the Supreme Court was, therefore, that to attract the power available under sub-clause (i) of clause (j) of F.R 56 the Government servant should have held a substantive post in class I or class II service and not merely an ad hoc appointment therein, while be held a substantive rank only in class III service. From Tahilian's case, it in apparent that there was no difficulty in upholding compulsory retirement on attaining the age of 55 years, when sub-clause (ii) of clause (j) became available, even to the case of a Government servant, who was officiating in a class I or class II post without holding a substantive rank therein.

15. Tahilian's case, therefore, is of no assistance to the petitioner since there is no such difficulty present herein and the petitioner was retired on attaining the age of 55 years and that too under Fundamental Rule 56(3) as it applied to him and which is differently worded. This Fundamental Rule 56(3) reads as under:—

“56(3)(a) A Government servant may, in the public interest be, retired at any time after he attains the age of 55 years without assigning any reason by giving him a notice in writing.

(b) The period of such notice shall be three months. Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the retirement or, as the case may be, for the period by which notice falls short of three months”.

16. A bare comparison of this Fundamental Rule 56(3) with F.R 56 (j)(i) and (ii), as applicable to the Central Government servants and considered in Tahiliani's case, together with this point for decision in Tahiliani's case, is sufficient to support our conclusion. In view of this fact, it is not even necessary to seek reliance from the decision of this Court in M.L Kalia's case (supra) against which leave was refused by the Supreme Court. The second contention of the learned counsel for the petitioner is also, therefore rejected.

17. The third contention of Shri Gupta is that the competent authority to pass the order of compulsory retirement being the State Government and the impugned order (Annexure A) being actually passed by the State Government, it should have been passed after application of mind by the State Government, which has not been done. It is urged that the State Government mechanically accepted the recommendation of the High Court without application of its mind and the order is therefore, bad for this reason. In the alternative, it is contended that if the High Court be the competent authority, having the entire control over the subordinate judiciary as envisaged by Article 235 of the Constitution, then no such order has been passed by the High Court, which alone was the competent authority and passing of such order by the State Government is of no consequence It is urged that the appointing authority is the only competent authority to pass the order of compulsory retirement. The alternative submission made by Shri Gupta does not appear from the petition and has been urged at the hearing before us. The point taken in the petition is that the State Government being the appointing authority was the competent authority but its order has been passed without application of its mind We are unable to accept even this contention.

18. The return of the State Government clearly denies the allegation of non-application of mind by it and asserts that the impugned order was passed by the State Government accepting tae recommendation made by the High Court to retire the petitioner from service in public interest on attaining the age of 55 years. Reading the State Governments return as a whole, it is clear that the State Government asserts full application of mind by it and the acceptance of the High Court's recommendation as a result thereof. Merely because the High Court's recommendation, for obvious reason and at repeatedly held by the Supreme Court, have to be accepted by the Stale Government in such cases and this was also done is the present case, it cannot be said that the State Government's order was passed without application of mind. The return filed on behalf of the High Court also shows that the relevant material was made available to the State Government, while making the recommendation and it was thereafter that the State Government passed the impugned order of compulsory retirement in the petitioner's case. It is the petitioner's own case in the petition that the competent authority was the State Government, which was the appointing authority and, therefore, the alternative submission of the learned counsel does not in fact arise However, there is no merit in the same.

19. No doubt the entire control over the subordinate judiciary vests in the High court for obvious reasons which has been reiterated time and again by the Supreme Court and the-ultimate order is to be passed by the State Government accepting the High Court's recommendation is such matters. Compulsory retirement of a subordinate Judge results in termination of his employment and, therefore, the final order bringing about this result has to be passed by the State Government accepting the High Court's recommendation. This is the scheme of the relevant provisions, particularly Articles 233 and 235, read together, and this is the accepted practice also being followed as appears from the reported decisions concerning the subordinate Judges. It is sufficient to refer to the recent decision is State of U.P v. Batuk Deopati Tripathi (6) which also was a case of a subordinate Judge and in which the same procedure for compulsory retirement of the subordinate Judge was adopted. The action taken was upheld by the Supreme Court and this decision of five learned Judges reiterated he position with regard to compulsory retirement of Judges of the subordinate judiciary and the scheme of the constitutional provision which are attracted. In the face of this decision, which clearly holds that compulsory retirement of Judges of District Courts and subordinate Courts is a matter which falls squarely within the power and control vested in the High Court by Article 235 of the Constitution, no exception can be taken to the procedure of compulsory retirement adopted in the present case. There is thus no defect in the impugned order as alleged by the petitioner.

20. The last contention off Shri Gupta is that payment of three months' salary in lieu of notice had to he made simultaneously to the petitioner or at least soon thereafter as required by the proviso to F.R 56(3) and that not being done the action of compulsory retirement is bad. In the alternative, Shri Gupta contended that even if this is not the requirement of the proviso to F.R 56 (3), such was the recommendation of the High Court and, therefore, its non-compliance invalidates the order of compulsory retirement. Shri Gupta's grievance is that the impugned order (Annexure A) merely says that the petitioner is entitled to payment of the sum and that alone is not sufficient to meet the requirement of either the proviso to F.R 56(3) or the decision of the High Court contained in Document Mo, 5 at page 46 of the Paper Book. This argument also has no merit.

21. A bare perusal of the proviso to F.R 56(3), which is reproduced ear lier, shows that the retirement of the Government servant is ‘forthwith’ and ‘on such retirement the Government Servant snail be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice’. There is no requirement of simultaneous payment or payment soon thereafter to validate the order of retirement which may operate forthwith. The proviso only says that the retirement may be forthwith and its result then is to enti tle the Government servant to claim pay, etc. for the notice period. A similcr proviso was construed by the Supreme Court in Raj Kumar v. Union of India (7) and it was held that it was not obligatory to pay the Government Servant the salary for the notice period to bring about the result of termi nation of service, which was effected forthwith and the result was only to entitle the Government Servant to claim the sum mentioned. A similar argument was repelled in M.L Kalia's case (supra). This point, therefore, does not require any further consideration, the same being negatived by the clear language of the proviso to F.R 56 (3) and being also covered by thd authorities cited.

22. The alternative submission of Shri Gupta on this point cannot also be accepted. He places reliance on the Court Resolution (Document No. 5 at page 46 of the Paper (Book) in which it was resolved to retire the petitioner in public interest under F.R 56(3) on giving three months' salary in lieu of notice. It is urged that giving of three months' salary in lieu of notice was a simultaneous requirement according to the High Court's decision and this had to be obeyed. We are unable to read this document in the manner suggested. The question for decision by the High Court was whether the petitioner should be retired on attaining the age of 55 years in public interest and the decision was to retire him under F.R 56(3). The subsequent words thereafter indicated that instead of giving three months' notice the petitioner was to be retired forthwith and he would only get three months' salary in lieu of notice. In other words, the decision was to invoke the proviso to F.R 56(3). This decision of High Court cannot be read as amending the proviso to F.R 56(3) which was neither the question before the High Court nor the decision taken. We are unable to read in this decision of the High Court any such recommendation as suggested by the learned counsel for the petitioner that the compulsory retirement of the petitioner was to be made under F.R 56(3) subject only to the condition of simultaneous payment of three months' salary in lieu of notice. The fact that the petitioner became entitled to salary for the notice period on his compulsory retirement is stated expressly in the impugned order (Annexure A) itself, a copy of which was marked to the Accountant General for taking necessary steps in this connection, it has not been disputed and is also not in controversy that the petitioner is entitled to the payment of salary for the notice period as he was clearly told in the impugned order (Annexure A) itself. This last contention of the learned counsel for the petitioner is also, therefore, rejected.

23. These being the only points urged in support of the petition and they being untenable, the petition has to be rejected.

24. However, at the end of the hearing before us, some observation was made by both counsel, to which we shall briefly refer. Learned counsel for the petitioner stated that we must apply the same principles for deciding this case as we do in the case of other Government Servants and the fact that the petitioner was a subordinate Judge, who is challenging an action taken on the recommendation of the High Court made in Judges' meeting, should not weigh with us. Shri Dharmadhikari, on the other hand; stated that even though the same principles no doubt apply to the case of a subordinate Judge challenging an action taken on the recommendation of the High Court, yet, the fact that the decision is reached by the High Court in a meeting of all the Judges is by itself sufficient to ensure absence of arbitrariness and want of bona fides in reaching the decision. He stated that to this extent the position here was different as compared to cases where the decision was taken by individuals only.

25. There can be no doubt that the principles applicable for deciding the case of a subordinate Judge are the same as in the case of other Government servants and no distinction between them can be made on this ground. Accordingly, we have applied the very same principles in deciding the points urged on behalf of the petitioner, as is the suggestion of the petitioner's counsel.

26. It is, however, significant that the decision in the case of a subordinate Judge, reached in a Judges' meeting of the High Court is actually a corporate decision emerging as a result of discussion in the meeting, wherein all possible points of view are likely to be visualized and duly projected. A corporate decision reached by a large body of individuals of equal authority after discussion in a meeting is an inherent safeguard against arbitrariness and want of bona fides. Such an internal, check is absent where the decision is fry an individual or a hierarchy of individuals or unequal authority and that too without the benefit of discussion in a meeting. It is to this extent that the case of a subordinate Judge decided in a Judges' meeting of the High Court is distinguishable from that of other Government Servants, in whose case, the decision making process is not similar and the decision is not a corporate decision of a body of persons of equal authority acting together. This is relevant where arbitrariness or want of bona fides is alleged. No such point is involved here and it is, therefore, unnecessary to dwell any further on this aspect. The only points urged have been considered earlier and they are all based on the record or the meaning of the law applicable. For the aforesaid reasons, this petition fails and is dismissed. The petitioner being out of employment, parties shall bear their own costs.

27. Petition dismissed.