* THE HON'BLE SRI JUSTICE V.V.S.RAO THE HON'BLE DR JUSTICE G.YETHIRAJULU AND THE HON'BLE SRI JUSTICE C.V.RAMULU + WRIT PETITION Nos.16437 and 18123 of 2007 % Dated 23-07-2008 # K. Veera Chary, S/o Kistaiah, Presently Working at Mahaboobnagar, and another. … Petitioners VERSUS $ The Hon'ble High Court of Andhra Pradesh, rep by Registrar Vigilance, Hyderabad, and another. …Respondents. ! Counsel for Petitioners: Sri G.Vidyasagar and Sri A.K.Jayaprakash Rao. ^Counsel for the respondents: GP for Law & Legislative Affairs and (SC for APHC),P.V.Sanjay Kumar <GIST: >HEAD NOTE: ? Cases referred 1. AIR 1964 SC 600 2. (1985) 1 SCC 523 : AIR 1985 SC 551 3. AIR 1986 SC 210 4. (1992) 1 SCC 119 = AIR 1992 SC 165 5. (1993) 4 SCC 288 = AIR 1993 SC 2493 6. (2001) 2 SCC 305 7. (2003) 8 SCC 117 = AIR 2003 SC 4303 8. (1985) 3 SCC 398 : AIR 1985 SC 1416 (para 50) 9. (2002) 5 SCC 294 = AIR 2002 SC 2112 10. (2003) 4 SCC 399 = AIR 2003 SC 2363 11. (1992) 2 SCC 299 = AIR 1992 SC 1020 12. AIR 1954 SC 369 13. AIR 1957 SC 892 14. AIR 1964 SC 1585 15. AIR 1960 SC 1305 16. (1969) 2 SCC 120 = AIR 1970 SC 143 17. AIR 1958 SC 538 (at p.547) 18. (1999) 4 SCC 235 = AIR 1999 SC 1661 19. (2000) 2 SCC 339 = AIR 2000 SC 2150 20. (2000) 6 SCC 332 = AIR 2000 SC 2168 21. (1991) 1 SCC 212 = AIR 1991 SC 537 22. AIR 1967 SC 1427 23. (2002) 4 SCC 247 = AIR 2002 SC 1752 24. (1977) 4 SCC 345 = AIR 1977 SC 2411 25. (1984) 2 SCC 8 = AIR 1984 SC 630 26. (2001) 3 SCC 314 = AIR 2001 SC 1109 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO THE HON'BLE DR JUSTICE G.YETHIRAJULU AND THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION Nos.16437 and 18123 of 2007 WRIT PETITION No.16437 of 2007 Between: K. Veera Chary, S/o Kistaiah, Presently Working at Mahaboobnagar. ..... PETITIONER AND 1 The Hon'ble High Court of Andhra Pradesh, rep by Registrar Vigilance, Hyderabad. 2 Government of Andhra Pradesh, Law (LA& J.Sc.F.) Department, rep by its Chief Secretary, 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 will be pleased to issue appropriate Writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings G.O.Ms. No87 dated 28-07-2007 issued by the 2nd respondent and proceedings Roc. No. 4572/2007-B.Spl dated 30-07-2007 issued by the Hon'ble High Court as illegal, arbitrary and against the principles of natural justice and set a side the same and also declare the A.P. Public Employment (Regulation of Age of Superannuation) amendment) Act No. 42/2006 as illegal & Ultra Vires and set a side the said act and pass such other order or orders this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: SRI G.VIDYASAGAR Counsel for the Respondents: GP FOR LAW & LEGISLATIVE AFFAIRS, (SC FOR APHC),P.V.SANJAY KUMAR WRIT PETITION NO : 18123 of 2007 Between: D.Chiranjivi Babu s/o.Pallaiah H.No.27-16/11/21/4,Neridmet, Secunderabad-56 Ranga Reddy District ..... PETITIONER AND 1 The Hon`ble High Court of Andhra Pradesh, Rep.by its Registrar (Vigilance) High Court, Hyderabad 2 The Government of Andhra Pradesh, rep.by Principal Secretary to Government, Law(LA.J.SEF),Department 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 will be pleased to issue an appropriate writ order or direction particularly one in the nature of writ of mandamus declaring that the Act 42 of 2006 as being unconstitutional and offending the rights under Articles 14 and 21 of the Constitution of India and further declare that the proceedings issued by the 2nd respondent in Roc.No.2339/2007-B.SPECIAL dated 13.4.2007 and also the GO issued by the 1st respondent in G.O.Ms.No.32 Law (LA &J SC.F) Department dated 7.4.2007 as arbitrary, unreasonable and violative of principles of natural justice and consequently grant the relief of reinstatement into service with all monetary benefits and pass such other order or orders as deemed fit and proper under the circumstances of the case. Counsel for the Petitioner: SRI A.K.JAYAPRAKASH RAO Counsel for the Respondent No.: (SC FOR APHC),P.V.SANJAY KUMAR The Court made the following common order: THE HON’BLE SRI JUSTICE V.V.S.RAO THE HON’BLE DR JUSTICE G.YETHIRAJULU AND THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION Nos.16437 AND 18123 OF 2007 COMMON ORDER (per Hon’ble Sri Justice V.V.S.Rao): Introduction Petitioners are Judicial Officers in the rank of District Judge Grade-II. They are governed by Andhra Pradesh State Higher Judicial Service Rules, 1958 (Higher Judicial Rules, for brevity). Both of them were initially appointed as District Munsiffs (redesignated as Junior Civil Judges), to State Judicial Service regulated by Andhra Pradesh State Judicial Service Rules, 1962 (Judicial Rules, for brevity). They were promoted as Senior Civil Judges, and later they were appointed by transfer as District Judges Grade-II to Higher Judicial Service. Government of Andhra Pradesh acting on the recommendation of High Court of Andhra Pradesh issued G.O.Ms.No.87, dated 28.07.2007, and G.O.Ms.No.32, dated 07.04.2007, compulsorily retiring them with effect from last day of the month in which orders were passed. As these orders were issued in purported exercise of powers under first proviso or second proviso to sub-section (1A) of Section 3 of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 (Parent Act, for brevity), as amended by A.P.Act No.42 of 2006, petitioners while impugning Government Orders also challenge first and second provisos to Section 3(1A) of the Parent Act as ultra vires the Constitution of India. The impugned first proviso empowered the State Government to compulsorily retire members of judicial service at the age of fifty years or fifty five years or fifty eight years or thirty three years of qualifying service, if such officer is found not fit and eligible to be continued in service. Second proviso empowers the State Government to retire an officer in public interest after giving three months notice in writing or three months of pay in lieu of such notice. Reference to Full Bench W.P.No.16437 of 2007 initially came up before a Division Bench. In Motiram Deka v General Manager, North East Frontier Railway[1] (hereafter referred to as Motiram), inter alia it was laid down that the rule permitting to compulsorily retire a civil servant without imposing limitation as to minimum period of service would violate Article 311(2) of Constitution of India. In view of this, Division Bench thought it fit to refer entire case to Full Bench to consider two issues. As the entire case is referred to Full Bench and not a mere question for an answer, it is appropriate for this Bench to consider gamut of controversy and points for consideration that are thrown up, in the background of pleadings and rival submissions. Points for consideration Four points would arise for consideration. 1) Whether first proviso to Section 3(1A) of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as amended by A.P.Act No.42 of 2006, insofar as the same enables the Government to compulsorily retire a judicial officer on attaining the age of fifty years or fifty five years, if he is found not fit and eligible to be continued in service is ultra vires and violative of Articles 14 and 311(2) of Constitution of India? 2) Whether second proviso to Section 3(1A) of Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as amended by A.P.Act No.42 of 2006, is ultra vires and violative of Articles 14 and 311(2) of Constitution of India? 3) Whether impugned order of the Government in G.O.Ms.No.87, dated 28.07.2007, whereunder the petitioner in W.P.No.16437 of 2007 was ordered to compulsorily retire from service with effect from 31.07.2007 in terms of second proviso to Section 3(1A), is unconstitutional and invalid? 4) Whether impugned order of the Government in G.O.Ms.No.32, dated 07.04.2007, whereunder the petitioner in W.P.No.18123 of 2007 was ordered to compulsorily retire from service with effect from 30.04.2007 in terms of first proviso to Section 3(1A) of the Act, is unconstitutional and invalid? Legal Context A brief history of relevant legislation is necessary to understand the background of the case and the controversy that has arisen for adjudication. Fundamental Rules govern age of superannuation of public servant. The appointment, pay, grant of increments, leave and disciplinary control are also regulated by Fundamental Rules, 1922. FR 56(a) of Andhra Pradesh Fundamental Rules and Rule 231 of Hyderabad Civil Service Rules prescribed superannuation age of fifty five years[2]. This was enhanced from fifty five to fifty eight years in 1979 (fifty eight to sixty years for last grade service). Five years thereafter, Parent Act was enacted. Section 3 thereof provided that every Government employee not being a workman shall retire from service at the age of fifty five years. When the Act was challenged, its constitutional validity was upheld by Supreme Court in K.Nagaraj v State of Andhra Pradesh[3]. Even while Nagaraj was pending before Supreme Court, State of Andhra Pradesh promulgated A.P.Ordinance No.24 of 1984 amending Section 3(1) of Parent Act providing that every Government employee shall retire at the age of fifty eight years. Subsequently, the same was enacted as Act No.3 of 1985 (hereafter called, first Amendment Act). This, however, made the benefit of upward revision of retirement age inapplicable to those persons who had retired pursuant to the provisions of Parent Act. This impacted another round of litigation. The legislative policy excluding the retirees from the application of first Amendment Act did not find favour with Supreme Court. In B.Prabhakar Rao v State of Andhra Pradesh[4], Supreme Court invalidated offending provisions in first Amendment Act. Higher Judicial Rules are the Rules made by State Government in exercise of powers conferred by Article 233 of Constitution and the proviso to Article 309 of Constitution. District and Sessions Judges Grade-I and District and Sessions Judges Grade-II constitute service governed by these Rules. Junior Civil Judges, Senior Civil Judges and Judicial Magistrates of II Class constitute separate judicial service and are regulated by Judicial Rules promulgated by the State in exercise of powers under Article 234 read with proviso to Article 309 of Constitution[5]. In the matter of pay, allowances, leave, leave salary and other conditions of service, members of these services are also regulated by other service Rules[6] promulgated by the Government under proviso to Article 309 of Constitution. The members of judicial service are to retire at the age of fifty eight years as per Section 3 of Parent Act as modified by first Amendment Act, which is also applicable to all judicial officers. Turning Point There occurred turning point in judicial service benefiting all members of judicial service in the matter of age of superannuation. This happened in 1993 resulting in “betterment of service conditions of subordinate judiciary”. In All India Judges’ Association v Union of India[7] (hereafter referred to as All India Judges’ Association-I) inter alia Supreme Court directed to raise the age of superannuation of judicial officers in the country to sixty years. Yet again, when Union of India sought review, in All India Judges’ Association v Union of India[8] (hereafter referred to as All India Judges’ Association-II), the apex Court affirmed earlier decision and further directed that the enhancement from fifty eight to sixty years would be subject to High Court finding an officer fit to be of continued utility for judicial service, even after fifty eight years of age or else he should be compulsorily retired at fifty eight years. We do not propose to excerpt passages from these two very important cases. But, to the benefit of all, we may quote binding conclusions of these two cases as noticed by a Division Bench of Supreme Court in Bishwanath Prasad Singh v State of Bihar[9] (hereafter referred to as Bishwanath Prasad Singh). 1. Direction with regard to the enhancement of superannuation age of judicial officers given in All India Judges Association v Union of India [(1993) 4 SCC 288] does not result in automatic enhancement of the age of superannuation. By force of the judgment a judicial officer does not acquire a right to continue in service up to the extended age of 60 years. It is only a benefit conferred on the judicial officers subject to an evaluation as to their continued utility to the judicial system to be carried out by the respective High Courts before attaining the age of 58 years and formation of an opinion as to their potential for their continued useful service. Else the judicial officers retire at the superannuation age appointed in the service rules governing conditions of services of the judicial officers. 2. The direction given in 1993 case is by way of ad hoc arrangement so as to operate in the interregnum, commencing the date of judgment and until an appropriate amendment is made in the service rules by the State Government. Once the service rules governing superannuation age have been amended, the direction ceases to operate. 3. The High Court may, before or after the normal age of superannuation, compulsorily retire a judicial officer subject to formation of an opinion that compulsory retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of judicial officer made pursuant to 1993 case. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders. 4. If the High Court finds a judicial officer not entitled to the benefit of extension in superannuation age he would retire at the age of superannuation appointed by the service rules. No specific order or communication in that regard is called for either by the High Court or by the Governor of the State. Such retirement is not “compulsory retirement” in the sense of its being by way of penalty in disciplinary proceedings or even by way of “compulsory retirement in public interest”. No right of the judicial officer is taken away. Where the High Court may choose to make any communication in this regard, it would be better advised not to use therein the expression “compulsory retirement”. It creates confusion. It would suffice to communicate, if at all, that the officer concerned, having been found not fit for being given the benefit or extended age of superannuation, would stand retired at the normal age or date of superannuation. The decision in All India Judges’ Association-II led to second amendment of Parent Act. Sub-section (1A) with two provisos and explanation were added after sub-section (1) of Section 3 of Parent Act. Sub-section (1) provides that every Government employee not being a workman shall retire at the age of fifty eight years. Sub-section (1A) is a special provision with non-abstante clause. It provides that every member of Higher Judicial Service or Judicial Service shall retire at the age of sixty years. This is, however, subject to – as provided by first proviso; the High Court finding such officer fit to be continued. Such assessment and evaluation has to be undertaken before a judicial officer attains the age of fifty eight years. Second proviso gives an option to the member of service to retire at the age of fifty eight years, exercising such choice in writing before he attains age of fifty seven years. The next important step is the impugned A.P.Act No.42 of 2006 (hereafter called, third Amendment Act). The impugned Act excluding the short title provision, contained only one Section. Sub-section (1A) of Section 3 of Parent Act remained intact but while retaining the second proviso to Section 3(1A) of Parent Act, the legislature substituted the first proviso and inserted another proviso. After such amendment, Section 3 with sub-sections (1), (1A) and provisos reads as under. 3. Age of Superannuation:- (1) Every Government employee, not being a workman and not belonging to Last Grade Service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. (1A) Notwithstanding anything contained in sub-section (1), every member of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State 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; Provided that any such member of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State 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 years or fifty five years or fifty eight years or thirty three years of qualifying service, if he is found not fit and eligible to be continued in service by the High Court of Andhra Pradesh, 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 years or fifty five years or fifty eight years or thirty three years of qualifying service. Provided further that any member of service after giving three months notice in writing or three months of pay and allowances in lieu of notice may be required to retire in public interest from service on the date on which such member attains the age of fifty years of fifty five years or fifty eight years or thirty three years of qualifying service or any date thereafter to be specified in the notice. Provided further also that any such member of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State Judicial Service at his option to be exercised in writing before he attains the age of fifty seven years may retire from service on the afternoon of the last day of the month in which he attains the age of fifty years. Explanation:- The assessment and evaluation by the High Court of Andhra Pradesh for the purposes of this sub-section is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken at any other time under the relevant rules applicable to such members of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State Judicial Service. (Amendments by AP Act No.46 of 2006 are shown in highlighted italics) Analysis of First Proviso to Section 3(1A) Parent Act as modified by second amendment pursuant to All India Judges’ Association-II conferred the benefit of extended age of superannuation from fifty eight years to sixty years subject to the condition that record of the Judicial Officer for his continued utility should be assessed and evaluated by the High Court within time before an officer attains the age of fifty seven years by following the procedure for compulsory retirement under the applicable Rules. Judicial career review for the purpose of giving the benefit of extended superannuation age was to be undertaken only after the officer attains the age of fifty seven years and if he is found fit he may be continued upto age of sixty years. The impugned provision also requires an assessment of the record by High Court. But, the provision is silent as to the procedure to be followed for such assessment and evaluation of the record of the officer. Admittedly High Court is following procedure for compulsory retirement, while extending the benefit of superannuation age of fifty eight years to sixty years. Hence, the same is not a contentious issue in these writ petitions. It is agreed by all that the procedure followed for non-punitive compulsory retirement is also adopted by High court while taking up assessment and evaluation of record of member of judicial service for extending the benefit of enhanced age of superannuation. The first proviso mandates judicial officers career review at the age of fifty years, fifty five years or fifty eight years. Such career review is also required after an officer completes thirty three years of qualifying service. The first proviso speaks of compulsory retirement at the ‘age of fifty years or fifty five years or fifty eight years or thirty three years of qualifying service’. This, by ordinary meaning, would mean that in the career of a judicial officer there can be career review for the purpose of compulsory retirement at four stages. It might be argued that such career review should be undertaken when an officer completes fifty years of age or thirty three years of qualifying service, fifty five years of age or thirty three years of qualifying service or fifty eight years of age or thirty three years of qualifying service. The words ‘qualifying service in the first proviso’ would mean the service, which qualifies an officer for pension and other retirement benefits. A person who is compulsorily retired under first proviso – say; at the age of fifty years can never have thirty three years of qualifying service, even when such officer enters service at the age of twenty one years. In such a case, after thirty three years, the officer would have completed fifty four years. Be that as it is, the proviso mandates the assessment and evaluation of record of an officer likely to attain the age of fifty years or fifty five years or fifty eight years of age well within time before he attains such age. The first proviso to Section 3(1A) of Parent Act prior to impugned amendment provided that a member of judicial service may be compulsorily retired when he attains the age of fifty eight years if he is found unfit for extending the age of superannuation. It does not contain the words ‘fifty eight years of age or thirty three years of qualifying service’. Analysis of Second Proviso to Section 3(1A) A member of judicial service can be ordered to retire in public interest on the day on which such member attains the age of fifty years or fifty five years or fifty eight years or thirty three years of qualifying service. Here again, the phrase ‘on the date on which such member attains age of fifty years or fifty five years or fifty eight years or thirty three years of qualifying service’ would possibly have same meaning as in the case of first proviso. Be that as it is, a member can be asked to retire in public interest not only on the day when he attains the specified age but also on “any date thereafter”, to be specified in the notice of three months or payment of three months pay in lieu thereof. The provision is silent as to whether the ‘retirement’ under second proviso is non- punitive compulsory retirement. It is also not clear whether before giving three months notice of retirement, assessment and evaluation of the record has to be undertaken or not. The respondents submit that even where a judicial officer is retired under second proviso to Section 3(1A), the High Court is undertaking assessment and evaluation of the record of judicial officer concerned. In Re point No.1 The submission of learned counsel in both the writ petitions is that the first proviso insofar as it enables compulsory retirement of a judicial officer at ‘the age of fifty years or fifty five years’ is unconstitutional being violative of Articles 14 and 311(2) of Constitution of India. They would also urge that it is arbitrary and irrational. They would further submit that to that extent first proviso is contrary to the Judgment of Supreme Court in All India Judges’ Association–I and II and Bishwanath Prasad Singh. The learned standing counsel for High Court submits that the power of Government to compulsory retire