IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) , THE DAY OF APRIL TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE GODA RAGHURAM and HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.9566 of 2007 Between: N. Arjun Rao, S/o. N.V. Raghava Rao, Aged about 39 years, Occ: Retired Junior Civil Judge, R/o. Plot No.1-74/2, Sri Sai Apartments, Prabhat Nagar, Chaitanyapuri, Dilsukhnagar, Hyderabad. … Petitioner And 1. The Hon’ble High Court of Andhra Pradesh, rep. by its Registrar (Vigilance), Hyderabad. 2. The Secretary to Government, Law (LA&J) Home (Courts-C) Department, Government of Andhra Pradesh, A.P. Secretariat, Hyderabad. … Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to call for the records relating to G.O.Rt.No.1155, Law (LA & J) Home (Courts-C) Department, dated 24-08-2006 and issue an appropriate writ, order or direction, particularly one in the nature of Writ of Certiorari and quash the orders passed by the first respondent in proceedings Roc.No.4733/2006 – B. Special, dated 29-08-2006, and Roc.No.4733/2006 – B. Spl., dated 30-11-2006 confirming the order passed in G.O.Rt.No.1155, Law (LA & J) Home (Courts-C) Department, dated 24-08-2006, holding the same as illegal, unjust, contrary to law, arbitrary and consequently direct the respondents to reinstate the petitioner into service with back-wages. Counsel for the petitioner: Sri A.K. Jayaprakash Rao Counsel for respondent No.1: Sri D.V. Sitharama Murthy (S.C. for High Court of A.P.) Counsel for respondent No.2: The court made the following Order: (Per Sri R. Subhash Reddy, J) The petitioner, who was a member of Andhra Pradesh State Judicial Service, has questioned the validity of the orders issued by the second respondent in G.O.Rt.No.1155 Law (LA&J Home Courts. C) Department dated 24-08-2006, notifying his retirement from service on completion of 58 years of age on 31-08-2006. He has also questioned order dated 29-08-2006 relieving him from service and order dated 30-11-2006 rejecting his representation to review the recommendation made by the High Court. 2. The petitioner herein was initially appointed in Andhra Pradesh Judicial Ministerial Service as copyist on 01-09-1969. Thereafter, he was promoted to the post of Lower Division Clerk in 1971, Upper Division Clerk in 1977, Head Clerk in 1984, Shirestadar in 1990 and in July, 1995 he was appointed as Administrative Officer. Subsequently, he was selected to Andhra Pradesh State Judicial Service and was appointed as District Munsif on 01-06-1996 and worked at various stations. After the petitioner had completed 57 years of age, his case was reviewed and assessed for his continued utility in service beyond the age of 58 years. Having considered the service record and work review assessments, the first respondent-High Court had come to a conclusion that the petitioner has lost his utility and is not fit to be continued in judicial service beyond the age of 58 years. On communication of the said decision by the High Court on administrative side, vide order dated 03-08-2006, the second respondent-competent authority issued notification dated 24-08-2006 in G.O.Rt.No.1155 Law (LA&J Home Courts. C) Department notifying the retirement of the petitioner on completion of 58 years of age on 31-10-2006. Before the said orders are issued by the Government, the petitioner made representation dated 18-08-2006 to the High Court to review the recommendation made for his retirement on completion of 58 years of age. But, the same was rejected and communicated to the petitioner vide order dated 30-11- 2006. Hence, the writ petition. 3. Heard Sri A.K. Jayaprakash Rao, the learned counsel for the petitioner and Sri D.V. Sitharama Murthy, learned Standing Counsel appearing on behalf of the first respondent-High Court. 4. It has been submitted by Sri A.K. Jayaprakash Rao, the learned counsel for the petitioner, that in view of the provisions under Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 (for short ‘the Act’) the petitioner is entitled to continue in service till he attains the age of 60 years. It has been submitted by the learned counsel that the compulsory retirement of the petitioner on attaining the age of 58 years is arbitrary and the same is ordered without following the procedure contemplated under Rule 20 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ‘the CCCA Rules’). It has been further submitted that there is no valid reason to notify retirement of the petitioner at the age of 58 years in view of the meritorious service rendered by the petitioner as District Munsif. 5. On the other hand, it has been submitted by Sri D.V. Sitharama Murthy, learned Standing Counsel appearing for the first respondent-High Court, that the petitioner has no right to continue in service upto the age of 60 years, as submitted by the learned counsel for the petitioner. It has been further submitted that continuance of the petitioner in service beyond 58 years of age is subject to assessment and evaluation of the service record of the petitioner and in this case, the first respondent-High court, having considered the service record of the petitioner objectively, opined that he is not of continued utility and accordingly a decision is taken not to continue him in service beyond the age of 58 years. It has been further submitted that as much as retirement of the petitioner at the age of 58 years is not as a measure of penalty, the procedure contemplated under Rule 20 of the CCCA Rules need not be followed. It has been further submitted that it is not for the petitioner to judge himself about his performance and it is for the first respondent-High Court to consider the service record of the petitioner so as to decide whether to continue him in service beyond the age of 58 years or not. 6. The age of superannuation for the members of Andhra Pradesh State Higher Judicial Service and Andhra Pradesh State Judicial Service is governed by the provisions under Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984. Under Section 3(1A) of the Act, a member of judicial service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Further, as per the proviso, a member of judicial service may be compulsorily retired from service on the afternoon of the last day of the month in which he attains the age of fifty eight years, if he is not found fit and eligible to be continued in service by the High Court on an assessment and evaluation of the record of such member for his continued utility well within time before he attains the age of fifty eight years. In this case, before the petitioner attained the age of 58 years, the first respondent-High Court, in view of the power conferred under proviso to Section 3(1A) of the Act, has considered and assessed the entire service record of the petitioner and on evaluation, came to conclusion that he has lost his utility and is not fit to be continued in judicial service beyond the age of 58 years. The learned members of the administrative committee, on 31-07-2006, considered the service profile of the petitioner, disposal of cases, quality of judgments, complaints received against him from time to time together with action taken thereon and has opined that the petitioner lost his utility and is not fit to be continued in service beyond the age of 58 years. From a perusal of the said proceedings, it is evident that the learned members of the committee have considered quantity and quality of the work done by the petitioner and also the entries made in the record and on overall assessment, arrived at a conclusion that the petitioner is not of continued utility, to continue in service beyond the age of 58 years. The learned members of the administrative committee have also taken note of the service record of the petitioner wherein entries were made to the effect that his integrity was doubtful. In view of the decision taken by the administrative committee, in the meeting held on 31-07-2006, the first respondent-High Court addressed the second respondent vide letter dated 03-08-2006 and in view of the same, notification dated 24-08-2006 was issued for retirement of the petitioner on completion of 58 years of age on 31-08- 2006. The petitioner also made a representation dated 18-08-2006 to the High Court seeking review of the recommendation, but the said representation was considered and rejected and the same was communicated to the petitioner by order dated 30-11-2006. As much as the notification issued by the second respondent, notifying the retirement of the petitioner on completing 58 years of age, is based on the recommendation made by the first respondent-High Court in exercise of power conferred under proviso to Section 3(1A) of the Act, it is not open to the petitioner to assail the validity of the said notification on the ground that the same was issued arbitrarily and without following the procedure as contemplated under Rule 20 of the CCCA Rules. 7. Part IV of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 deals with penalties and disciplinary authorities. As per Rule 9 of the said Rules, though compulsory retirement is classified as a major penalty, but as per explanation (xi) to Rule 9, compulsory retirement of Government Servant in accordance with the provisions relating to his superannuation will not amount to a penalty within the meaning of Rule 9. Notifying retirement of the petitioner at the age of 58 years is not on account of any misconduct, but in view of the powers conferred under proviso to Section 3(1A) of the Act. In that view of the matter, we do not find any substance in the argument of the learned counsel for the petitioner that notifying retirement of the petitioner without following the procedure contemplated under Rule 20 of the CCCA Rules is illegal. As much as retirement of the petitioner will not amount to penalty within the meaning of Rule 9 of the CCCA Rules, we are of the view that there is no need to follow the procedure contemplated under Rule 20 of the CCCA Rules, for notifying retirement of the petitioner by exercising powers as per proviso to Section 3(1A) of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 (for short ‘the Act’). Further contention of the learned counsel for the petitioner that in spite of his meritorious service respondents have notified his retirement at the age of 58 years and the same is not based on proper evaluation of his service record cannot also be accepted. A perusal of the record produced by the learned Standing Counsel appearing for the first respondent-High Court shows that the learned members of the administrative committee have considered the case of the petitioner with reference to his service record, disposal of cases, complaints received against him, entries made with regard to integrity etc. A perusal of the said record discloses that the petitioner is rated as ‘very poor’ to ‘satisfactory’ for the quantity and quality of the work done by him, except one or two occasions. In the year 1999, his work was rated as poor and his integrity was also doubted and entries to that effect are made by three learned Judges of this court. In the same year, he was administered warning and was transferred vide proceedings dated 29-09-1999. Taking into account the entries referred above, the members of the administrative committee have taken a decision for having objectively considered the case of the petitioner and arrived at a conclusion that he is not of continued utility, for continuing him in service beyond the age of 58 years. We do not find any illegality in the decision-making process while considering the case of the petitioner in terms of proviso to Section 3(1A) of the Act. In that view of the matter, we do not find any illegality in the recommendation made by the High Court and the consequential order issued by the Government notifying retirement of the petitioner from service on completion of 58 years of age. Further, the scope of Section 3(1A) of the Act, was considered by a Division Bench of this court (one of us was a party therein) in the case of M. Vijaya Bhaskara Reddy v. Hon’ble High Court of A.P., rep. by its Registrar (Vigilance) [1]. In the said judgment, it has been held as under: “Section 3(1A) has been incorporated by the State into the provisions of the Act pursuant to the direction in the above judgment of the Supreme Court. On a true and fair construction of the provisions of Sec.3(1A) considered in its entirety, it is apparent that while the age of superannuation of the judicial officers belonging to the AP State Higher Judicial Service or AP State Judicial Service has been fixed at 60 years, the entitlement to continue to that age (after attainment of the age of 58 years) is conditional upon being assessed fit and eligible for such continuance. There is no unconditional right vouchsafed to continue in service up to the age of 60 years. Such interpretation of the provisions of Sec.3(1A) is compelling and in the light of the All India Judges’ Association (the review judgment) (1 supra). The Supreme Court has clearly mandated that the benefit of the increase to 60 years is not available automatically to all judicial officers irrespective of their past record of service and fitness or their continued utility to the judicial system. The Apex Court held that the benefit would be available only to those officers, who in the opinion of the respective High Courts have a potential for continued useful service and that this is not intended to be a bounty for the indolent, infirm and those of doubtful integrity, reputation and utility. It was also directed that the potential for continued utility should be assessed and evaluated by appropriate committees of Judges of the respective High Courts constituted and headed by the Chief Justice of the High Court and that the evaluation shall be made on the basis of the judicial officers’ past record of service, character rolls, quality of judgments and other relevant matters. It is apparent that the provisions of Sec.3(1A) read in the context of their evolutionary history and in particular the judgment of the Supreme Court referred to supra are a legislative measure evolved for ushering in a qualitative improvement in the functioning of the subordinate judiciary, through incorporating incentives and disincentives for achieving qualitative and efficient delivery of justice. The assessment and evaluation by the appropriate committee must identify (as directed by the Supreme Court) officers who are indolent, inform, or doubtful integrity, reputation and utility and those whose past record of service, character roll, quality of judgments and other relevant aspects of the judicial persona are not such as to justify an assessment as to their continued utility. On such identification, those not cleared in the assessment of the appropriate committee are not to be given the windfall of continuance up to 60 years. The charter enjoined upon the appropriate committee of Judges of the High Court headed by the Chief Justice concerned, is a critical function. Continuation beyond 58 years of age is not a routine entitlement, the Supreme Court judgment emphasizes. The review decision (1 supra) at Para-31 directed that the exercise must be undertaken well before attainment of the age of 58 years and for finding out the suitability of the concerned officer for entitlement to the benefit of the increased age of superannuation, from 58 to 60 years.” 8. In the aforesaid circumstances, we are of the view that, in the case of the petitioner, the learned members of the administrative committee, by objectively considering the service record of the petitioner and on evaluation, came to a conclusion that the petitioner is not of continued utility to continue him in service beyond the age of 58 years. Based on the opinion expressed by the High Court, orders were issued by the competent authority-Government notifying retirement of the petitioner from service at the age of 58 years. Therefore, we do not find any illegality in the decision-making process, so as to interfere with the impugned orders in this petition filed under Article 226 of the Constitution of India. 9. The writ petition is devoid of merits and is accordingly dismissed. No order as to costs. _______________________ GODA RAGHURAM, J. _________________________ R. SUBHASH REDDY, J. April ,2009 MRR [1]2007 (6) ALT 518 (D.B.)