IN THE HIGH COURT OF JUDICATURE :: ANDHRA PRADESH AT HYDERABAD W.P. No.23604 OF 2010 09-06-2011 BETWEEN : Ashok Pissay, S/o.Rama Rao Pissay, Aged : 58 Yrs, Occ : District Judge (Retd)., R/o.Flat No.203, Gaurav Kalyan Apts, Kachiguda, Hyderabad – 500 027 …Petitioner AND 1. The High Court of Andhra Pradesh, Rep. by Registrar (Vigilance), Hyderabad. 2. Government of Andhra Pradesh, Law (LA&J SC.F) Dept., Rep. by Chief Secretary to Govt., Secretariat, Hyderabad. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P. NO.23604 of 2010 ORDER : (Per: JUSTICE GODA RAGHURAM) Heard Sri Challa Seetharamiah – learned senior Counsel instructed by M/s H. Srinivasa Rao & Vijaya Lakshmi – counsel for the petitioners and Smt. M. Bhaskara Lakshmi – learned standing counsel for the 1st respondent. The petitioner while serving as the Principal District and Sessions Judge, Anantapur, was compulsorily retired from service on completion of the age of 58 years, i.e., on 31-08-2010, pursuant to the order of the 2nd respondent – the Government of Andhra Pradesh, issued in G.O.Ms. No.116 LAW (LA&J SC.F) DEPARTMENT, dated 24-08-2010, in purported exercise of powers under the first proviso to Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act 1984 as amended by Act No.42 of 2006 (for short, ‘the 1984 Act’). The petitioner was authorized to draw three months’ salary in lieu of notice. Consequent on the above order the 1st respondent in ROC No.3745/2010-B.Special, dated 26-08- 2010, relieved the officer from service and ordered alternative arrangements for charge of the post of Principal District and Sessions Judge, Anantapur. These two orders are impugned in the writ petition. The petitioner entered service after a process of selection as a District Munsif (since re-designated as Junior Civil Judge) and joined service as such on 07-10-1985. He was promoted as sub-ordinate judge by the proceedings of the 1st respondent dated 29-10-1981 and in 1998 as a District Judge, Grade – II, which post he joined on 01-01-1998. By 1st respondent’s orders dated 30-09-2008, the petitioner was appointed as District Judge Selection Grade with effect from 08-01-2008 in the time-scale of pay of Rs.18,750 - 400 – 22,850. He worked as Principal District and Sessions Judge, Anantapur, since 23-04-2010. The petitioner’s date of birth is 16-08-1952 and if he is entitled and authorized to continue in service up to the age of 60 years he could serve till 31-08-2012. Petitioner asserts to have an unsullied and excellent record of service throughout; that his work was evaluated and assessed by the High Court periodically and was rated as good/very good; there are not adverse remarks regarding his qualitative or quantitative disposals of cases; and there is not even a censure recorded in his entire career. The petitioner contends that no adverse remarks were ever communicated to him calling for his explanation except that on a complaint while he was serving in Kadapa, the 1st respondent initiated proceedings on 10-10-2000 to inquire into his conduct. The inquiry judge submitted his report on 05-10-2006 finding the charges framed against him not proved. Consequently, the 1st respondent agreeing with the findings of the Hon’ble inquiring Judge dropped the charges framed against him. His suspension pending the inquiry process was rescinded and he was reinstated into service with full pay and allowances, in the 1st respondent’s proceedings dated 28-01-2008. Thereafter, he was appointed to the selection grade scale in the post of District Judge in the 1st respondent’s proceedings dated 30-09-2008. Petitioner contends that if there be any adverse remarks regarding his integrity or conduct these must set out specific instances or particulars in support of such remarks; such instances and particulars must be recorded in his confidential record along with the adverse remarks and be communicated to him, providing him an opportunity to rebut or disprove the adverse remarks. Un-communicated adverse remarks without instances, particulars or evidentiary material; particularly, since he was granted the selection grade scale and also posted to discharge the functions of a Principal District and Sessions Judge, cannot be the basis for compulsorily retiring him at the age of 58 years. It is further contended that with effect from 01-01-2007 judicial officers in the State are governed by the A.P. Judicial Service Rules, 2007 (for short, ‘the 2007 Rules’) published in G.O.Ms. No.119, dated 02-08-2008. Under Rule 16 of these rules the age of superannuation of a member of the service shall be 60 years or such further age as is fixed by the Government from time to time. Rule–23 of these Rules confers power on the Governor, on the recommendation of the High Court containing reasons in writing, if of the opinion that it is in the public interest to do so, the absolute right to retire any member of the service, who has attained the age of 50, 55 or 58 years by giving him notice of not less than 3 months in writing or 3 months’ pay and allowances in lieu of thereof. It is the petitioner’s case that on a conjoint reading of Rules-16 & 23 the power to retire a member of the service prematurely is only in public interest, i.e., for weeding out the inefficient, the corrupt or the deadwood. Since nothing adverse about the petitioner’s conduct, integrity or performance was ever communicated to him and there is no material or evidence in support of any such adverse comment about his character, integrity or performance, he could not be retired before completing the age of 60 years which is the normal age of superannuation, is the contention. The Registrar (Vigilance) has filed a counter-affidavit on behalf of the 1st respondent wherein it is pleaded: [a] As seen from the work review remarks of the petitioner the quantitative assessment was generally graded as satisfactory, good and very good and as poor on one occasion; the qualitative assessment of the petitioner’s work was usually graded as satisfactory and average and at no time was the petitioner graded as good or very good; [b] The conduct of the petitioner as seen from his vigilance profile reveals, several complaints received against him alleging that he was taking bribes; but after enquiry the complaints were closed. Pursuant to an anonymous complaint that the petitioner was collecting bribes from certain advocates, he was kept under suspension and a regular department enquiry ordered. He was not found guilty of the charges framed and was reinstated into service and further proceedings were dropped; [c] The adverse remarks in the petitioner’s Annual Confidential Report (ACR) are recorded prior to 2006. Rule – 6 of the Rules and Instructions for Maintenance and Scrutiny of Confidential Reports (personal files) of the Judicial Officers in the State Judicial Service prior to 2006 reads: If the confidential report on the work and character of a Subordinate Judicial Officer contains any adverse remarks, which in the opinion of the High Court should be communicated to him for his guidance and correction, the substance of such remarks shall be communicated by the Registrar, directly to the concerned Officer. While communicating adverse remarks to the concerned Officer, the substance of such report and not its actual working shall be mentioned. The name of the officer from whom the adverse remarks emanated shall on no account be conveyed. The petitioner was therefore not communicated the adverse remarks recorded in his ACR as the High Court did not opine that these should be communicated; [d] The Administrative Committee of the High Court at its meeting held on 10-06-2010, considered the petitioner’s service profile, the rate of disposals, quality of judgments and orders, integrity, complaints received from time to time and the action taken thereon and noted: The Committee noted that in the year 1992, while the officer was working as Senior civil Judge, Jagtial the District Judge, Karimnagar in General remarks column noted that he was disposing of more sessions cases wherein the witnesses turned hostile and he should concentrate on old civil suits. Basing on the said observation, one of the Hon’ble Judges noted that the officer was concentrating on disposal of sessions cases, where the witnesses turned hostile and it was difficult to assess the quantity of work turned out by him as “excellent”. The Committee also noted that in the year 1993, the District Judge, Karimnagar observed that he should bestow more attention to civil work and one of the Hon’ble Judges noted that his judgments were of average quality. The Committee also noted that in the year 1994, the District Judge, Karimnagar noted that he is slow in disposal of work on civil side. The Committee also noted that in the year 1995, the District Judge, Krishna observed that always the officer hesitates to shoulder responsibility and is a doubting Thomas and in his Special Confidential Report, he also observed that he always shirks and tries to avoid to shoulder any type of responsibility and his approach always remains to show turn out of more work by trying small matters. The committee also noted that in the year 1999, one of the Hon’ble Judges noted that he is one officer who always tries to hanker around city by giving lame excuses. The Committee also noted that in the year 2000, one of the Hon’ble Judges noted that there are complaints from very responsible quarters and vigilance may have to keep a watch on the officer. During the same year another Hon’ble Judge noted that the officer is of doubtful integrity and he has to be watched. The Committee also noted that in the year 2001, one of the Hon’ble Judges observed that the officer is of doubtful integrity and there are several allegations against him when he worked as Presiding Officer of CBI Court. Hon’ble Judges also observed that the officer does not command good reputation. The committee also noted that in the year 2002, one of the Hon’ble Judges observed that the integrity of the officer is of highly doubtful and he does not take any interest in the work. Another Hon’ble Judge observed that he was transferred for alleged misconduct but nothing was proved. The Committee also noted that in the year 2003, one of the Hon’ble Judges noted that officer is of doubtful integrity and requires to be watched. The Committee also noted that in the year 2004, one of the Hon’ble Judges observed that the officer has highly doubtful reputation and has to be watched carefully. Another Hon’ble Judge observed that his conduct was average. The Committee noted that in the year 2005, one of the Hon’ble Judges observed that the officer is of highly doubtful reputation and he has to be watched carefully. Another Hon’ble Judge observed that the conduct of the officer is not satisfactory. On perusal of vigilance profile, the Committee found that officer was transferred on the complaint of the Public Prosecutor, CBI Court, Hyderabad alleging harassment at the hands of the officer, vide Roc.No.1331/2002. The officer was placed under suspension in public interest on an anonymous complaint filed vide Roc.No.814/2005 alleging that the officer was awfully corrupt and collecting bribes through advocates and after conducting of regular departmental enquiry he was reinstated into service. By taking over all view of the matter, the Committee resolved that Sri Ashok Pissay, Prl. District and Sessions Judge, Anantapur is not fit to be continued in service upto the age of 60 years. It is resolved that he be compulsorily retired from service on completion of 58 years of age in terms of first proviso to Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984. He shall be paid three months pay in lieu of notice. Pursuant to the above resolution a recommendation was forwarded to the second respondent for compulsory retirement of the petitioner with effect from 31-08-2010 since he was not found fit to be of continued utility to serve up to the age of 60 years; [e] The petitioner’s contention that he was given independent charge as Principal District and Sessions Judge, Anantapur, on account of his sincerity, merit and ability, is not wholly correct. On account of his doubtful integrity and several corruption allegations against him he was denied independent charge earlier though several of his juniors were given independent charge and posted as Principal District and Sessions Judge. The Petitioner’s compulsory retirement order is the culmination of a careful evaluation by the 1st respondent of his entire record of service; [f] Merely because the petitioner was given promotions from time to time and appointed to the Selection Grade Scale – District and Sessions Judge would not preclude an assessment of the petitioner’s total record of service for determining his continued utility to serve up to the age of 60 years. The petitioner’s contention on the basis of Rule–16 of the 2007 Rules is misconceived. The entitlement to continue in service up to the age of 60 years is subject to the provisions of Rule-23 which enable compulsory retirement of a judicial officer in public interest at the age of 50, 55 or 58 years. In view of the judgment of the full Bench of this Court in W.P. Nos. 16437 & 18123 of 2007, review of the performance of Judicial Officers while attaining the age of 50, 55 and 58 years is not being taken up under the provisions of the 1984 Act and the assessment is now confined to the period when an officer is attaining the age of 58 years to ascertain whether such officer is of continued utility for continuance of service up to the age of 60 years; and [g] in the totality of facts and circumstances, no case is made out for interference. In a brief (undated) reply affidavit, the petitioner reiterated the contentions set out in the writ petition. The reply emphasizes that notwithstanding the several complaints received against the petitioner all these were closed as there was no merit in such complaints; complaints which were treated as closed could not be the basis for the order of compulsory retirement; since petitioner was promoted and appointed to positions of higher responsibility such as Subordinate Judge, entry level District Judge; Selection Grade District Judge and Principal District and Sessions Judge on the basis of his merit, ability and service record notwithstanding entries as to doubtful integrity, these cannot be relied upon to compulsorily retire and must be considered to have been ignored. The petitioner reiterates that un-communicated adverse remarks as set out in the counter affidavit cannot form the basis for acting against him to retire him at the age of 58 years and that as the rules for maintenance and scrutiny of confidential reports (personal files) were amended in G.O.Ms.No.167 dated 20-11- 2006, no adverse remarks including as to doubtful integrity, even if recorded prior to the amendment of these Rules cannot be considered if not communicated. In the facts and circumstances of the case and in the light of the rival contentions, substantially two issues fall for consideration: ISSUES: A) Whether the impugned order compulsorily retiring the petitioner from service on completion of the age of 58 years i.e., on 31-08-2010, on the appraisal of his record of service including entries anterior to the award of selection grade (vide Roc.No.5508/2008-B.Spl., Dated 30-09-2008 of the 1st respondent); on the basis of remote and stale entries; on the basis of un-communicated adverse entries including those pertaining to his integrity; and on the basis of general observations as to his doubtful integrity without substantiating material and particulars to support such observations, is valid and sustainable; and B) Since the age of superannuation of judicial officers in the State of Andhra Pradesh qua the 2007 Rules is 60 years (Rule 16); whether impugned order of compulsory retirement on completion of age of 58 years amounts to removal from service without a disciplinary inquiry, violating Article 311 (2) of the Constitution of India, in view of the law declared by this Court (Full Bench) in K. Veerachari v. High Court of Andhra Pradesh[1]. ISSUE- (A): On the undisputed and established factual scenario, the petitioner, who entered the judicial service of the State as District Munsif (Junior Civil Judge), was promoted from the category of Subordinate Judge as a District Judge Grade-II by the proceedings of the High Court dated 30-09-1998. On the recommendation by the High Court, the State Government in G.O.Ms.No. 149 Law (LA&J. SC.F) Department dated 25-09-2008 appointed the petitioner to the Selection Grade in the category of District and Sessions Judge and the petitioner was communicated this appointment in the High Court proceedings dated 30-09-2008. No adverse remarks either pertaining to quantitative and qualitative performance of the petitioner nor as to his conduct or integrity were communicated to him. On the basis of a complaint as to officer’s corrupt practices, integrity and irregularities, disciplinary proceedings were initiated against the petitioner by the High Court in 2006. He was placed under suspension in April, 2006 on the basis of the complaint and the Hon’ble Inquiring Judge submitted the report of inquiry on 05-10-2007 and held that the charges framed against the petitioner were not duly proved or established. The High Court agreed with the conclusions in the inquiry report and decided to drop further action; revoked the suspension ordered pending inquiry and reinstated him with all consequential benefits, treating the period of suspension as on duty with full pay and allowances for the period (vide order dated 28-01-2008). The date of birth of the petitioner being 16-08-1952 he will complete the age of 58 years and with the entitlement to continue up to the end of the month, would be liable to be retired on 31-08-2010; but would be entitled to continue in service up to 31-08-2012 if he is permitted to retire on completion of age of 60 years. By the impugned order of the 2nd respondent (G.O.Ms.No. 116 Law (LA&J SC.F) Department dated 24-08-2010) the petitioner is compulsorily retired on completion of the age of 58 years i.e., on 31-08-2010. The record of service of the officer as appraised by the Administrative Committee of the High Court disclosed (vide observations of the Administrative Committee dated 10-06-2010) that the qualitative performance of the officer was ‘average’; that he endeavors to achieve the stipulated units by disposing of un-contested cases; and sessions cases where the witnesses had turned hostile; hesitates to shoulder responsibility; and evinces greater interest in obtaining a posting around Hyderabad. For the years 2000 to 2005 there were persistent entries regarding several complaints against the officer; that his integrity is doubtful and needs to be watched (2000); that he does not command good reputation (2001); his integrity is highly doubtful and he does not take interest in work (2002); he was transferred for alleged misconduct though nothing was proved (2002); in 2003 again that he was of doubtful integrity and requires to be watched; in 2004 that he has highly doubtful reputation and requires to be watched carefully; and reiteration of substantially same remarks in 2005. The appraisal by the Administrative Committee (adverted to in the preceding paragraphs) is the basis for the High Court’s recommendation that the officer be compulsorily retired on completing the age of 58 years as he was not found suitable or of continued utility to be continued up to the age of 60 years. Consequently, the impugned order was issued by the State Government. Sri Challa Seetharamiah, the learned senior counsel for the petitioner cited a large number of precedents for contending that old and stale entries in the service profile of an officer; adverse entries which are not communicated or adverse entries anterior to the promotion of the petitioner or award of selection grade to him, cannot legitimately be considered for retiring him before he completes the normal age of superannuation of 60 years. It is also contended by the learned senior counsel that vague and general observations as to lack of integrity without substantiating material and particulars cannot be countenanced nor can legitimately form the basis of an order of compulsory retirement. I n D. Ramaswami v. State of T.N.[2] a Deputy Commissioner of Commercial Taxes of Tamil Nadu was compulsorily retired under Fundamental Rule 56 (d) on the basis of adverse entries in his record of service of the year 1969 which led to disciplinary proceedings which were however dropped after an inquiry, by the State Government in November, 1974. The Supreme Court held (per O. Chinnappa Reddy, J) that in the absence of any adverse remarks after the officer’s promotion in 1975, the earlier entries cannot be reckoned for retiring him from service. In Registrar, High Court of Madras v. R. Rajiah[3] the order of compulsory retirement of a District Munsif in the judicial services of Tamil Nadu State was quashed by the High Court and this decision was upheld by the Supreme Court on the basis of plural ratios. One of the reasons recorded by the Supreme Court is that reliance was placed on events prior to his appointment as District Munsif and his confirmation in the said post. The Supreme Court relied on its earlier decisions in Baldev Raj Chadha v. Union of India[4] and Brij Behari Lal Agarwal v. High Court of M.P.[5] for holding that old and stale entries and entries prior to appointment or promotion to a post must not be considered for visiting an officer with compulsory retirement. I n Baidyanath Mahapatra v. State of Orissa and another[6] a Superintending Engineer (Electrical) who crossed the Efficiency Bar with effect from 01-01-1979 and was also officiating as Chief Engineer (Electrical) in the Orissa State Electricity Board was prematurely retired from service on the basis of adverse remarks in his record during 1969-70 to 1982-83. The Supreme Court quashed the order of compulsory retirement by holding that the earlier adverse entries which were communicated to him together in 1978 denied him the fair opportunity to improve his work or to make a representation thereagianst; and also for the reason that these entries have lost significance since despite them he was promoted as Superintending Engineer, to a selection post. I n Madan Mohan Choudhary v. State of Bihar and others[7], compulsory retirement of an additional District and Sessions Judge was quashed on the ground that un- communicated adverse entries could not be relied on while passing an order of compulsory retirement or if a representation was pending against the adverse remarks such remarks could not be taken into consideration, unless the representation was considered and disposed of and on the basis of the fact that the officer’s record of service prior to his promotion to the superior judicial services or his integrity either as a member of the inferior or superior judicial services was never in doubt. The Supreme Court observed that even an erroneous judicial order bona fide passed but without extraneous consideration could not be the basis of an order of compulsory retirement. Several decisions were cited on behalf of the petitioner to contend that every adverse remark or entry recorded against an officer must be communicated and on the basis of un- communicated adverse remarks even promotion to a selection post cannot be denied. On this aspect, apart from the decisions referred to above, the other precedents cited are Amar Kant Choudhary v. State of Bihar & Ors.[8] and Abhijit Ghosh Dastidar v. Union of India and others (MANU/SC/8547/2008) and Dev Dutt v. Union of India[9]. In Dev Dutt (9 supra) the Supreme Court on a consideration of several precedents held that it is developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential reports of a public servant, whether in civil, judicial, police or any other service, (except the Military), must be communicated to him within a reasonable period so that he can make a representation for his upgradation. The Apex Court ruled that it is the legal