HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD Writ Petition No.23101 of 2005 Between: D. Vittal … Petitioner And The Hon’ble High Court of Andhra Pradesh Through its Registrar (Vigilance) and others … Respondents :: ORDER:: Counsel for the Petitioner: Shri V. Venugopal Rao Counsel for Respondent No.1: Shri C.V. Nagarjuna Reddy Counsel for Respondent No. 2: Government Pleader for Home August , 2006 Per G.S. Singhvi, CJ Whether the petitioner, who was a member of the Andhra Pradesh State Judicial Service, could be retired at the age of 58 years by invoking proviso to Section 3 (1-A) of the Andhra Pradesh Public Employment (Regulation of Age of Super-annuation) Act, 1984 (for short, the Act’) is the question which arises for determination in this petition filed for quashing G.O. Ms.No.101 Home (Courts-C1) Department, dated 27-7-2005 and the consequential proceedings of the High Court of Andhra Pradesh in Order Roc.No.4047/2005-B. Special, dated 27-7-2005. The petitioner was born on 10-7-1947. He joined service as Copyist in 1966 under District and Sessions Judge, Nizamabad. While working as Head Clerk in the Court of District and Sessions Judge, Nizamabad, he was appointed by transfer as District Munsif and was posted as IV Additional District Munsif at Warangal, vide Notification No.385-132, dated 27-11-1985. In 1992, he passed the examination conducted by the Andhra Pradesh Public Service Commission. Thereafter, his appointment as District Munsif was regularized with effect from 21-9-1992. When he was working at Siricilla in Karimnagar District, disciplinary proceedings were initiated against the petitioner which ended in imposition of punishment of removal from service under G.O. Ms. No.455 Home (Courts), dated 14-6-1994. He challenged the same in Writ Petition No.14615 of 1994. By an order dated 6-6-2002, a Division Bench of this Court allowed the writ petition and ordered his reinstatement with continuity of service and other consequential benefits except back wages for the period between the date of removal and the date of reinstatement. Accordingly, he was reinstated as Junior Civil Judge and was posted at Atmakur in Nellore District. After sometime, the petitioner filed Writ Petition No.8277 of 2005 questioning order dated 2-10-2004 vide which eleven persons junior to him in the cadre of Junior Civil Judges were promoted. During the pendency of that petition, he represented to the High Court for being allowed to continue in service up to the age of 60 years by claiming that there was no adversity in his service record. It is borne out from the record that the issue relating to petitioner’s continuance in service up to the age of 60 years was considered by the Administrative Committee of the High Court which recommended that he be compulsorily retired at the age of 58 years. Accordingly, the State Government issued the impugned G.O. The petitioner has challenged his retirement on the following grounds: 1) The recommendation made by the Administrative Committee of the High Court is liable to be declared as nullity because the procedure prescribed under Rule 9 read with Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, ‘the 1991 Rules’) had not been followed; and 2) the decision of the High Court not to extend his service beyond the age of 58 years is tainted by arbitrariness. In the counter-affidavit filed on behalf of the High Court by Shri S. Sivaiah Naidu, Registrar (Vigilance), it has been averred that the petitioner was retired from service at the age of 58 years on the recommendations made by the Administrative Committee of the High Court. It has been further averred that compulsory retirement under proviso to Section 3 (1-A) of the Act does not amount to punishment and, therefore, it was not necessary to follow the procedure prescribed under the 1991 Rules. On merits, it has been averred that the Committee of Judges recommended the petitioner’s retirement after making an overall review and assessment of his entire service record and such recommendations are not subject to judicial review. During the pendency of the writ petition, in the light of the statement made by Shri C.V.Nagarjuna Reddy, learned counsel for the High Court on 22-2-2006, the petitioner made representation for review of his premature retirement. The same was rejected by the Committee of Judges. The decision of the Committee was conveyed to the petitioner vide Roc No.4047/2005. B-Special dated 12-4-2006. Thereafter, on an application filed by the petitioner, which was registered as WPMP No.18639 of 2006, leave was granted to him to amend the writ petition and make prayer for setting aside the decision of the Committee to reject his representation. Shri V. Venugopal Rao, learned counsel for the petitioner and Shri C.V. Nagarjuna Reddy, learned counsel for the High Court reiterated the stand taken by their respective clients in the pleadings. While Shri V. Venugopal Rao argued that the petitioner could not have been retired except after following the procedure prescribed under the 1991 Rules and that the service record of the petitioner did not contain any material which could justify formation of an opinion that he was not fit to be continued in service, Shri C.V. Nagarjuna Reddy submitted that compulsory retirement envisaged under proviso to Section 3 (1-A) is not penalty and, therefore, it was not necessary to follow the procedure prescribed under Rule 20 of the 1991 Rules. Shri Reddy further submitted that the Committee of Judges recommended compulsory retirement of the petitioner because he was not found fit to be continued up to the age of 60 years. We have given serious thought to the entire matter and perused the service record of the petitioner made available by Shri C.V. Nagarjuna Reddy. For deciding the question whether the compulsory retirement of the petitioner is liable to be nullified on the premise that the exercise undertaken by the High Court and the State Government was not preceded by an enquiry made in accordance with Rule 9 read with Rule 20 of the 1991 Rules, it will be useful to notice the background in which Section 3 (1-A) was inserted in the Act, which in its unamended form provided for retirement of all officers including the judicial officers at the age of 58 years. In All India Judges’ Assn. v. Union of India[1], the Supreme Court considered various issues relating to conditions of services of judicial officers and gave the following directions: “(i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard. (ii) Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by March 31, 1993. (iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by December 31, 1992. (iv) As and when the Pay Commissions/Committees are set up in the States and Union territories, the question of appropriate pay scales of judicial officers be specifically referred and considered. (v) A working library at the residence of every judicial officer has to be provided by June 30, 1992. Provision for sumptuary allowance as stated has to be made. (vi) Residential accommodation to every judicial officer has to beprovided and until State accommodation is available, government should provide requisitioned accommodation for them in the manner indicated by December 31, 1992. In providing residential accommodation, availability of an office room should be kept in view. (vii) Every District Judge and Chief Judicial Magistrate should have a State vehicle, judicial officers in sets of five should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits as specified. (viii) In-service Institute should be set up within one year at the Central and State or Union territory level.” Feeling aggrieved by the aforementioned directions given by the Supreme Court, the Union of India and various State Governments filed review petitions. On the issue of enhancement of superannuation age, it was pleaded that the Supreme Court had erred in drawing distinction between the members of the judicial service and those of other services and further that the Court was not justified in giving direction in a policy matter which lay within the exclusive domain of the executive. A three Judges Bench of the Supreme Court considered various objections in All India Judges’ Assn. v. Union of India[2]. While reiterating that the judicial services were not comparable with other services and confirming the directions given in the earlier judgment for enhancing the age of superannuation of the judicial officers to 60 years, the Supreme Court administered the following words of caution: “There is, however, one aspect we should emphasise here. To that extent the direction contained in the main judgment under review shall stand modified. The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officer’s past record of service, character rolls, quality of judgments and other relevant matters.” The Supreme Court then gave the following directions regarding the procedure to be followed by the High Courts in the matter of extension of the age of superannuation of the judicial officers up to the age of 60 years: “The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules.” After taking note of the two judgments of the Supreme Court, the Government of Andhra Pradesh amended Section 3 (1-A) of the Act. The same reads as under: “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 eight years if he is not found 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-eight years by following the procedure for compulsory retirement under the rules applicable to him; Explanation:- The assessment and evaluation by the High Court of Andhra Pradesh for the purpose 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". On a reading of the plain language of the above reproduced provision, the argument of Sri Venugopal Rao that the petitioner could have been retired under proviso to Section 3(1-A) of the Act only after following the procedure prescribed under the 1991 Rules for imposing the penalty of compulsory retirement appears attractive, but on a deeper examination, we do not find any merit in it. In terms of substantive part of Section 3 (1-A), a member of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State Judicial Service is entitled to continue in service up to the age of 60 years. Proviso to this section postulates retirement of a member of service at the age of 58 years if, on an assessment and evaluation of his record, the High Court comes to the conclusion that he is not fit and eligible to be continued in service beyond the age of 58 years. Explanation to this rule clarifies that the assessment and evaluation by the High Court for the purpose of sub-section (1-A) of Section 3 is in addition to and independent of the assessment for compulsory retirement which may be undertaken at any other time under the relevant rules. In service jurisprudence, the expression “compulsory retirement” has two connotations. Under various disciplinary rules, compulsory retirement is one of the penalties which can be inflicted on a delinquent employee if he is found guilty of misconduct. Such penalty can be inflicted only after following the procedure prescribed under the relevant rules and the principles of natural justice. The Central Government/ State Government/appropriate authority can also retire an employee on attaining a particular age or after completing the specified period of qualifying service, if the competent authority, on an evaluation and assessment of the record of the employee forms an opinion that he is no longer fit to be continued in service or that he has become deadwood or that his retention in service is no longer in public interest. The latter category of retirement cannot be treated as punitive per se. I n Bishwanath Prasad Singh v. State of Bihar[3], the Supreme Court highlighted the distinction between two concepts of compulsory retirement in the following words: “Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt being recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a government servant. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. Compulsory retirement in public interest under service rules is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the government servant but to weed out the worthless who have lost their utility for the administration.” If the expression ‘by following the procedure for compulsory retirement under the rules applicable to him’ used in the proviso to Section 3(1-A) is read in the light of what we have discussed above, it becomes clear that the same does not impose an obligation on the High Court to follow the procedure contained in the 1991 Rules before recommending retirement of an officer at the age of 58 years. It merely ordains that if there exists any rule for premature retirement of an employee, then the said rule should be complied with before ordering retirement of an officer at the age of 58 years. In its very nature, compulsory retirement envisaged under proviso to Section 3 (1-A) is non-punitive in character because decision in that regard has to be taken on the basis of an assessment and evaluation of the service record of the officer concerned. Therefore, the requirement of following the procedure prescribed under Rule 20 of the 1991 Rules cannot be read as implicit in proviso to Section 3(1-A) of the Act. We are further of the view that if proviso to Section 3 (1-A) of the Act is interpreted in the manner suggested by the learned counsel for the petitioner, the purpose of substantive portion of the proviso will be defeated because the power to compulsorily retire an office by way of punishment can be exercised by the competent authority at any time by following the procedure prescribed under the 1991 Rules. What we have observed above is fully supported by the judgment of this Court in Kotipally Murali Mukunda Rao v. State of A.P.[4]. The facts of that case were that the petitioner who was a member of judicial service of the State of Andhra Pradesh was compulsorily retired on attaining the age of 58 years. Writ Petition No.14670 of 1993 filed by him was dismissed by the Division Bench vide order dated 10-12-1993. However, by taking shelter of sub- section (1-A) of Section 3, which was inserted by Amendment Act of 1998, he filed Writ Petition No.17408 of 1999 for invalidation of his retirement by contending that the decision to retire him was taken without following the procedure prescribed for compulsory retirement. The Division Bench considered the issue in detail, negatived the petitioner’s challenge and held as under: “8. The stress laid on the words "following the procedure for compulsory retirement under the Rules applicable" is, if we may say so, rather misconceived. The premise on which the learned counsel for the petitioner has built up his argument rests on a wrong assumption as to the real purport and nuances of that phraseology. In fact, the same language is used in the judgment of the Supreme Court. The real emphasis, in our view, is on the word 'procedure'. The legislative injunction in tune with the Supreme Court's ruling is that the procedure laid down in the Service Rules or the procedure evolved by administrative instructions if any on the subject should be followed. It does not mean that substantive requirements of the rule relating to compulsory retirement such as the fundamental conditions for initiating a move to compulsorily retire a public servant can be regarded as the 'procedure for compulsory retirement'. For instance, the rule contained in the proviso to Rule 44 requiring the appointing authority to give a notice in writing three months ahead of the date on which the employee is required to retire or to tender three months' pay in lieu of such notice, is a part of procedural requirement. It is also possible to visualise the issuance of certain administrative instructions to provide for modalities for assessment of the performance and utility of the public servant for the purpose of taking a decision under Rule 44. For instance, there may be some instructions as to the materials to be considered by the Review Committee or obtaining of reports from any administrative superiors. Such instructions may be regarded as part of the procedural gamut for consideration of cases of compulsory retirement under Rule 44. 9. It would lead to incongruous and contradictory results if we consider the expression "procedure for compulsory retirement" as to mean that the entire Rule 44 of A. P. Revised Pension Rules is to be transplanted into sub-section (1-A) of Section 3. Completion of 33 years of qualifying service will be wholly out of place in the context of sub- section (1-A) which as we have already clarified is nothing but reiteration of the principle laid down by the AIJA case (supra). 'Public interest' as such cannot also be imported into this provision, though very often, the considerations which go into the assessment of fitness and continued utility as member of the Judicial Service coincide with the considerations of public interest. The expression 'procedure for compulsory retirement' cannot be divorced from the context and it cannot run counter to the mandate of opening clause of the proviso. The proviso which is in the nature of an exception or qualification to the main provision ordains that a Judicial Officer should be compulsorily retired from service on the last date of the month on which he attains the age of 58 years when once the High Court on assessment reaches a decision that the Officer does not have the continued utility to remain in service and therefore, he is unfit to continue beyond 58 years. The concept of completion of 33 years is wholly alien to the proviso to sub-section (1-A) which empowers the competent authority to retire a Judicial Officer on attaining the age of 58 years, in case he is found lacking in utility and fitness to continue further in service. The Explanation to sub-section (1-A) dispels any doubts in this regard and eloquently speaks for itself as to what is the true nature and purport of the assessment to be made in terms of the proviso. It is categorically stated therein ---- again in reiteration of the principle laid down by the Supreme Court, that the assessment and evaluation is in addition to and independent of the assessment for compulsory retirement that may have to be undertaken in accordance with the relevant service Rules governing the members of the A. P. Higher Judicial Service and A. P. Judicial Service. This again emphasises that the power conferred under sub- section (1-A) of Section 3 of Act 26 of 1998 is a special power exercisable vis-a-vis the retirement age of Judicial Officers. The entire provision would be unworkable if we endorse the interpretation placed by the learned counsel for the petitioner on the expression "following the procedure for compulsory retirement". 10. At the risk of repetition, we would like to clarify that the 'procedure' contemplated by the proviso does not mean substantive requirement for ordering compulsory retirement under the Service Rules. The procedure for compulsory retirement will only apply 'mutatis mutandis'. In the guise of applying the procedure, the essence and core of the substantive power to compulsorily retire a Judicial Officer on considerations of continued utility and fitness cannot be destroyed. It may be mentioned that what is stated in the Explanation to sub-section (1-A) was also stated by the Division Bench of this Court in Writ Petition No. 14670 of 1993 based on the dicta of the Supreme Court. The petitioner is placed in no better position by reason of the Amendment Act of 1998. Considering the question from every stand point, we have therefore no hesitation in rejecting the contention of the learned counsel for the petitioner.” The above judgment is, in