THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE R. SUBHASH REDDY + WRIT PETITION NO. 1554 OF 2007 % FRIDAY, 22ND DAY OF AUGUST, TWO THOUSAND EIGHT # Smt. T. Padma w/o K.Purnachandra Rao … Petitioner versus $ The State of A.P.rep.by its Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad and Another … Respondents ! Counsel for the petitioner : Mr. Challa Dhanamjaya ^ Counsel for the respondents : G.P. GAD for R-1 Mr. D.V.Sitharama Murthy for R-2 < Gist : >Head Note: ? (JT 2002(4) SC 92) 1. AIR 1958 SC 36 2. AIR 1964 SC 449 3. AIR 1964 SC 600 4. AIR 1968 SC 292 5. 1969 (2) SCC 158 6. (1972) 1 SCC 267 7. (1973) 2 SCC 650 8. (1982) 1 SCC 664 9. (1985) 3 SCC 398 10.AIR 1987 SC 1463 11.AIR 1992 SC 1872 12. (1996) 1 SCC 229 13. (2001) 10 SCC 83 14. (2007) 6 SCC 276 15. (1967) 1 LLJ 718 16. (1974) 2 SCC 831 17. (1999) 2 SCC 21 18. (1999) 3 SCC 60 19. (2000) 5 SCC 152 20. (2002) 1 SCC 520 21. AIR 1967 SC 1274 22. (1992) 3 SCC 124 23. (1993) 2 SCC 49 24. AIR 1996 SC 3240 25. AIR 1997 SC 1157 26. (1999) 7 SCC 409 27. (2007) 4 SCC 247 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRODAY, THE 22ND DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM AND THE HONBLE MR JUSTICE R. SUBHASH REDDY WRIT PETITION NO : 1554 of 2007 Between: Smt. T. Padma w/o K.Purnachandra Rao, Hindu, age: 42 years, Occ: Formerly District & Sessions Judge (FTC), R/o Flat No.301, Mount Meru, Road No.7, Banjara Hills, Hyderabad – 500 034. ... PETITIONER AND 1. The State of A.P.rep.by its Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 High Court of Andhra Pradesh, represented by Registrar (Vigilance), High Court of A.P., 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 a Writ of Mandamus or any other appropriate writ, order or direction, declaring the proposed action of the 1st re in terminating the petitioners services as Ad-hoc District Judge, vide G.O.Ms. No. 180 dated 29.12.2006 basing on the information of the 2nd respondent, without giving any reasonable opportunity to the petitioner as illegal, arbitrary and violative of principles of natural justice and for a consequential order to quash the impugned G.O., issued by the 1st respondent by directing the respondents to reinstate the petitioner forthwith with continuity of service and all consequential benefits viz., payment of arrears of salary and other benefits and pass such other order or orders as may deem fit an proper in the circumstances of the case. Counsel for the Petitioner: MR. Challa Dhanamjaya Counsel for the Respondent No.1: GP FOR G.A.D. Counsel for the Respondent No.2: MR. D.V.Sitharama Murthy, Standing Counsel for APHC The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO. 1554 OF 2007 ORDER: (Per Hon’ble Sri Justice G. Raghuram) Chronology of Relevant Facts:- Pursuant to a notification dated 12.08.2003 issued by the 1st respondent calling for applications from eligible candidates for appointment as ad hoc Judges for the Fast Track Courts in the State, the petitioner applied. By the order dated 6.10.2003 in G.O. Rt. No. 1798 Law (LA&J SC.F) Department, twenty persons including the petitioner were notified to have been appointed to act as District Judges on ad hoc basis for Fast Track Courts. Clause (4) of the order declared that the appointments would cease on 31.3.2005. By a consequent notification dated 22.10.2003 the petitioner and the other directly recruited ad hoc District & Sessions Judges were issued orders of posting by the 2nd respondent. In accordance with the conditions of appointment the petitioner also executed a deed of agreement dated 23.10.2003 with the 2nd respondent for her contractual appointment till 31.3.2005. The 2nd respondent through a circular dated 2.5.2005 directed all Unit Heads to continue the Fast Track Courts functioning in their respective districts and as also the officers and the staff appointed to such courts on ad hoc basis until further orders. The preamble to this circular spelt out that this arrangement is made in view of the representation by the Central Government before the Supreme Court agreeing for continuing of the scheme of Fast Track Courts beyond 31.3.2005. By the order in G.O. Rt. No. 430 Law Department dated 27.3.2006 the 1st respondent issued orders: “… to continue the (18) above candidates who are appointed on ad hoc basis to preside over Fast Track Courts in the cadre of Additional District & Sessions Judges for a further period of 5 years i.e., from 1.4.2005 to 31.3.2010.” The petitioner is amongst the 18 officers so continued on ad hoc basis, as Addl. District & Sessions Judges for the Fast Track Courts. The preamble to this order of the 1st respondent stated that the earlier term of these officers had expired by 31.3.2005 and the 2nd respondent had sent proposals for continuance of these persons for the period of 5 years up to 31.3.2010. In the light of the observation recorded in Crl.A.No. 971 of 2005 the 2nd respondent by the order in ROC No. 1971/E1/2006, dated 1.12.2006 instructed the District & Sessions Judge, Medak at Sangareddy to direct the petitioner not to dispose of any cases pending on the file of her court until further orders, while directing the District & Sessions Judge, Medak to attend to any urgent work of the Fast Track Court presided over by the petitioner. The 1st respondent issued an order dated 29.12.2006 in G.O.Ms. No. 180 Law (LA & J SC.F) Department notifying the termination from service of the petitioner with immediate effect. This order (impugned in this writ petition) being relevant, is extracted: “ORDER: Whereas, the Registrar (Vigilance), High Court of Andhra Pradesh has informed that Government vide G.O. 1st read above, have appointed 20 District Judges on ad hoc basis to preside over Fast Track Courts, under Rule 2 of the Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc appointments, 2001, from the members of the BAR, and Smt. T.Padma is one among them. Thereupon, the High Court issued posting orders to Smt. T.Padma as Presiding Officer of II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy and ever since she is working as such in the said post. In the reference 2nd read above, the Government have issued orders for continuance of the services of the said Ad hoc Judges for a period of 5 more years till 31.03.2010. 2. And whereas, the Registrar (Vigilance), High Court of Andhra Pradesh has further stated that, while so, Criminal Appeal No. 971/2005 has been preferred to the High Court against the judgment delivered by Smt. T.Padma, in S.C.No. 376/96, dated 23.06.2005 on the file of the II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy and when the said Criminal Appeal came up for hearing before the Division Bench of the High Court, it has been observed by the Hon’ble Judge as follows:- “Learned Judge convicted 15 Accused and sentenced them to undergo life imprisonment without evaluating the prosecution evidence after recording contentions in one para of 7 or 8 lines. It is not safe to assign Sessions Cases unless her performance with other cases is evaluated.” 3. And whereas, the Registrar (Vigilance) has also stated that, based on the above observation, the High Court having perused the other judgments delivered by the said officer in Sessions Cases came to a conclusion that, the judgments delivered by the officer are slipshod and devoid of reasons in support of her conclusions and the Judgment of the officer particularly in S.C. No. 376/96 shows that the officer mechanically convicted 15 Accused for the offence of murder and sentenced them to suffer imprisonment for life without evaluating the prosecution evidence. The High Court further observed that the officer casually decided Judicial matters involving the life and liberty of the individuals and it is not desirable to continue her in service and accordingly resolved to recommend His Excellency the Governor of Andhra Pradesh to terminate the services of Smt. T.Padma, II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy, by following the prescribed Rules i.e., “The Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc Appointments, 2001”. 4. Now, therefore, the Governor of Andhra Pradesh after careful examination of the material and considering the recommendations of the High Court of Andhra Pradesh and in exercise of the powers conferred under explanation (viii) to Rule 9 read with Rule 11 and sub-Rule (1) of Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 has decided to terminate Smt. T.Padma, II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy from service with immediate effect. 5. Accordingly, the following notification will be published in the Extra Ordinary Issue of Andhra Pradesh Gazette, dated the 29th December, 2006. NOTIFICATION In exercise of the powers conferred under explanation (viii) to Rule 9 read with Rule 11 and Sub-Rule (1) of Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, the Governor of Andhra Pradesh in consultation with the High Court of Andhra Pradesh hereby terminate the services of Smt. T.Padma, II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy with immediate effect. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) J.HARI NARAYAN CHIEF SECRETARY TO GOVERNMENT ” The petitioner assails the impugned order, inter alia, on the grounds - A. That the order has been issued without prior notice or opportunity to put forth her defence; B. That the order is issued purportedly in exercise of power under Explanation (viii) to Rule 9 read with Rule 11 and Sub-Rule (1) of Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules 1991 (‘the CCA Rules’) which is wholly inapplicable as it deals with termination of the service of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such position. As the petitioner was appointed on ad hoc basis but not as a probationer and the tenure of her service was extended up to 31.03.2010, no power is available to terminate her services. C. The order of termination on the ground of incompetence casts a stigma and could not have been issued without conducting an enquiry under the CCA Rules. D. In the absence of any charge relating to integrity, no disciplinary action could have been initiated for a mere erroneous judgment and the appropriate remedy is only by way of appeal or revision, to an aggrieved party. In the counter affidavit filed by the 2nd respondent, to the extent relevant and material, it is stated that the petitioner had delivered a judgment in SC No. 376 of 1996 convicting the 15 accused to R.I. for life. Crl.A. No. 977 of 2005 thereagainst was allowed and the judgment delivered by the petitioner was set aside by a Division Bench of this court. Thereon an opinion was expressed by one of the learned Judges of the Division Bench that – “The Learned Judge convicted 15 Accused and sentenced them to undergo life imprisonment without evaluating the prosecution evidence, after recording contentions, in one para of 7 or 8 lines. It is not safe to assign Sessions cases, unless her performance with other cases is evaluated.” This was brought to he notice of the Hon’ble the Chief Justice of the High Court, who recorded the following endorsement: “The matter may be put up before the Fast Track Court Committee for consideration and advise in the light of the observations made by the Division Bench in Criminal appeal No. 971 of 2005 decided on 10-7-2006”. The appropriate Committee of the High Court considered the matter at the meeting held on 7.11.2006 and observed that the judgment delivered by the petitioner in SC Nos. 376/1996, 164/2000, 383/2002, 223/2003, 232/2003 and 366/2004 are found to be most unsatisfactory. The Committee resolved to terminate the service of the petitioner. Thereafter the Hon’ble The Chief Justice placed the matter before the Administrative Committee of the High Court dealing with disciplinary matters. The Administrative Committee at the meeting on 20.11.2006 resolved as under: “ Considered the minutes dated 7-11-2006 of the Committee of Hon’ble Judges dealing with establishment of Courts including Fast Track Courts and perused the judgments of Smt. T.Padma, II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy in S.C.No. 376/1996, 164/2000, 383/2002, 223 and 232 of 2003 and 366/2004 and found them to be very slipshod and devoid of reasons in support of her conclusions. The judgments of the Officer, particularly S.C. No. 376/1996, Dated 23-6- 2005 shows that the officer mechanically convicted 15 accused for the offence of murder and sentenced them to suffer imprisonment for life without evaluating the prosecution evidence. The committee observes that the officer casually decided judicial matters involving the life and liberty of the individuals and it is not desirable to continue her in service. Hence, it is resolved that the services of Smt. T.Padma, II Additional District & Sessions Judge (Fast Track Court), Medak at Sangareddy, be terminated.” The Full Court at the meeting held on 30.11.2006 considered this aspect and the resolution of the Administrative Committee dated 20.11.2006 was approved. The Full Court resolved to recommend to the Governor of the State to terminate the services of the petitioner in the category of Ad hoc Judge presiding over Fast Track Court and currently working as II Additional District & Sessions Judge, Medak at Sangareddy. Pursuant to this resolution, a letter dated 10.12.2006 was addressed to the Government to terminate the services of the petitioner following the provisions of the Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc Appointments, 2001 (the 2001 Rules). Consequently the State Government issued the order impugned in this writ petition. The counter disputes the allegations of the petitioner that a recommendation for termination of her services was made by the High Court only on the basis of the observations by a learned Judge. The counter asserts that in the light of the said observation, several of the judgments delivered by the petitioner in criminal cases were scrutinized by a committee of the High Court, which found the judgments delivered by the petitioner to be slipshod and the conclusions unsupported by reasons, also that the Officer had mechanically convicted 15 accused for the offence of murder and sentenced them to suffer RI for Life, without evaluating the evidence of the prosecution. The committee found that the officer had casually decided judicial matters involving life and liberty of the individuals. Regarding the plea that no notice was given or opportunity offered before issuance of the impugned order, the counter states that as the petitioner was appointed on ad hoc basis but not as a probationer, no notice is required to be issued under Explanation (viii) to Rule 9 read with Rule 11 and Sub-Rule (1) of Rule 20 of the CCA Rules. Before dealing with the issues arising in this writ petition, it is necessary to record, in very brief the scheme of the establishment of Fast Track Courts. The huge backlog of cases and the interminable delays in adjudication of cases has come to assume critical proportions in Indian Judicial System. Apart from an infrastructural mismatch, the lower judge strength of around 10.5 per a million population is broadly considered an endemic cause for this problem. In All India Judges’ Association & Ors. V. Union of India & Ors. (reported in JT 2002 (3) SC 503), the Supreme Court analyzed the reasons underlying the huge backlog of cases and observed that additional posts of judicial officers and the complementary infrastructure would have to be created and directed that an increase in the judge strength to achieve the level of 50 judges per a million population should be implemented in a phased manner and within a period of five years from the date of judgment apart from taking expeditious steps for filling up existing vacancies. Another Constitution Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka (reported in JT 2002 (4) SC 92) also pointed out the critical judge – population ratio in the country. As a consequence of such observations by the Apex Court, the Executive at the Federal level was energized and consequent on the recommendations of the XI Finance Commission evolved a scheme of ‘Fast Track Courts’. The operationalization of the scheme was however differently managed in several States. In the State of Andhra Pradesh pursuant to the Fast Track Courts scheme evolved by the Central Government, executive orders were issued by the State in G.O.Rt.Nos. 411, Law (LA & J Cts. C) Department dated 27-03-2001 and G.O.Rt.No.412, Law (LA & J SCF) Department dated 27-03-2001 appointing retired Judicial Officers as Additional District and Sessions Judges and Senior Civil Judges to preside over Fast Track Courts, on contract basis. This was done on the recommendations of the High Court. The appointments were initially for a period of two years up to 31-03-2003. On completion of this tenure, the State Government on recommendations of the High Court, issued orders in G.O.Rt.No. 666, Law (LA & J SCF) Department dated 15-04-2003 and G.O.Rt.No.703, Law (LA & J Home Cts. C) Department dated 21-04-2003 appointing Additional District and Sessions Judges and Senior Civil Judges to preside over the Fast Track Courts on contract basis for a period of two years or on attaining the age of 68 years whichever is earlier, under Rule 9 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (a provision for appointment on contract basis). In G.O.Rt.No.286 Law (LA & J SC.F) Department dated 05-03-2002, the Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc Appointments 2001 (for short ‘the Ad hoc Rules, 2001’) were notified and enjoined to come into force with effect from 01-03-2001. The Ad hoc Rules, 2001 being relevant are set out in extenso. NOTIFICATION In exercise of the powers conferred by Article 233 and proviso to Article 309 of the Constitution of India and all other powers hereinto enabling the Government of Andhra Pradesh makes the following Rules. These Rules are called the Andhra Pradesh State Higher Judicial Service Special Rules for Ad hoc Appointments 2001. These rules shall come into force from 01.03.2001. 1. CONSTITUTION: The Service under these rules shall consist of the District and Sessions Judges on Ad hoc appointment. 2. APPOINTMENT: Notwithstanding anything contained in the Special Rules for A.P. State Higher Judicial Service, 1958, the appointment of District and Sessions Judge on Ad hoc basis shall be made: i. By direct recruitment from the members of the bar. ii. Appointment by transfer from among Senior Civil Judges in the State Judicial Service. iii. By respondent-employment of retired District Judges, provided that 33.1/3% of the total number of Ad hoc posts, shall be filled by direct recruitment. 1. In the determination of 33.1/3% of total number of Ad hoc posts, fractions exceeding one half shall be counted as one and other fractions shall be disregarded. 2. Appointments under Rules 2 (ii) shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 3. Appointments under Rule 2 (iii) shall be made on grounds of merit ability and fitness. 4. All appointments made from time to time under Rule 2 shall cease on 31-03- 2005. 3. RULE OF RESERVATION: The rule of reservation shall only be applicable for direct recruitment as provided under Rule 22 & 22A in Part II of Andhra Pradesh State and Subordinate Service Rules except insofar as it relates to physically handicapped persons. 4. QUALIFICATIONS: The qualifications prescribed for appointment of persons from the Bar to Category II under Rule 3 of Special Rules for Andhra Pradesh State Higher Judicial Service shall apply mutates mutandis to direct recruitment from the Bar under rules. 5. POSTING AND TRANSFERS: 1. All appointments covered under Rule 2 shall be made by Governor in consultation with the High Court. 2. All postings and transfers of Ad hoc Judges shall be made by the High Court. 6. SENIORITY: Inter-se Seniority of the promotees from Senior Civil Judges to the Cadre of District and Sessions Judges shall be as per the seniority fixed at the time of appointment. 7. TERMS AND CONDITIONS: 1. (a) The District and Sessions Judges appointed by direct recruitment from the Members of the Bar shall be eligible for such perquisites and allowances, for such term and on such conditions as the Governor may prescribe at the time of appointment and on all subsequent occasions at the Governor may deem fit and necessary. They shall be entitled to avail Casual Leave to which the District and Sessions Judges, Grade II are entitled. b. A person appointed under Rule 2 (i) shall not be regarded as a Member of permanent cadre covered under Rule 2 of the Special Rules for Andhra Pradesh State Higher Judicial Service, 1958, and shall not be entitled to any preferential right to any other appointment to this service or any other service and their service shall not be treated as regular or permanent under the State Government nor shall be a bar for appointment to the posts, covered by the Special Rules for Andhra Pradesh State Higher Judicial Service, 1958 or the Andhra Pradesh State Judicial Service Rules, 1962. 2(a) The respondent-employment of retired District and Sessions Judges shall not be regarded as first appointment to the service and the same shall be on such terms and conditions and for such term of the Governor deems fit at the time of appointment or on all subsequent occasions. They shall be entitled to such Casual Leave as is available to the District and Sessions Judges Grade. II. EXPLANATION: The terms of such respondent-employment shall include the conditions of service, pay and allowances, discipline and control, period of appointment and termination of service etc., (b) The service rendered by a person appointment under Rule 2 (iii) shall not be counted for pensionary and other benefits. 3. The District and Sessions Judges appointed under Rule 2 (ii) shall be eligible to such salary, leave, leave allowances and traveling allowance permissible to the District and Sessions Judges, Grade. II and for such perquisites, allowances and facilities provided in the Courts presided over by the District and Sessions Judges appointed on Ad hoc basis. 8. APPLICATION OF A.P. CIVIL SERVICES (C.C. & A) RULES, 1991. The Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 as are applicable to A.P. State Higher Judicial Service or the A.P. Revised Pension Rules, 1980 as the case may be shall apply to all the services under these rules mutates mutandis. 9. SAVE: Notwithstanding anything contained in any other law for the time being in force, all appointments made on Ad hoc basis on or after 1-3-2001, shall be deemed to be the appointments made under these rules. In view of Rule 9 of the Ad hoc Rules, 2001, the appointments made under G.O.Rt.Nos. 411, 412, 666 and 703 supra are appointments deemed to have been made under the Ad hoc Rules, 2001 and are governed by the provisions of these Rules. Rule 2 (4) enacts a sunset clause viz., that all appointments made from time to time under Rule 2 shall cease on 31-03-2005. Thus all these appointments stood determined by 31.03.2005. In view of the availability of a statutory