WP/26555/2007 of M.Rama Murthy Varma, Vs Govt.Of A.P, on 31 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND EIGHTPRESENTTHE HON'BLE MR JUSTICE V.ESWARAIAHand THE HON'BLE MR JUSTICE K.C. BHANU

WRIT PETITION No.26555 of 2007

Between: M.Rama Murthy Varma, S/o.Late Sri Nagaiah Varma, C/o.M.Subba Rao,23-15-10/2-1,Subash Nagar,Beside Market Yard,Rajahmundry E.G Dist

..... PETITIONER

AND1 Govt.Of A.P, Rep.by its Chief Secretary,Law&J.S.C.-F) Dept Secretariat,Hyderabad 2 High Court of A.P, Rep.by its Registrar(Vigilance)Hyderabad

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavitfiled herein the High Court may be pleased to issue an order, direction or writ more particularly one in the nature ofMandamus, declaring G.O.Ms.No.88,Law(La&J SC.F) Department dt.28-07-2007 of the 1st respondent and orderin ROC No.4471/2007 B.SPL Dt 13-09-2007 of the 2nd respondent as wholly illegal, arbitrary, violative of theprinciples of natural justice, ultra vires the powers under the Andhra Pradesh Public Employment(Regulation ofAge of Superannuation) Act, and consequently direct the respondents to forthwith reinstate the petitioner intoservice as Dist and session Judge with all consequential benefits.

Counsel for the Petitioner:MR.B.ADINARAYANA RAO

Counsel for the Respondents: GP FOR LAW & LEGISLATIVE AFFAIRS

The Court made the following :

THE HON'BLE MR JUSTICE V.ESWARAIAHand THE HON'BLE MR JUSTICE K.C. BHANUWRIT PETITION No.26555 of 2007

ORDER:(per the Hon’ble Sri Justice V.Eswaraiah)

Heard the learned counsel for the petitioner, learned Government Pleader appearing for the 1[st] respondentand the learned Standing Counsel appearing for the 2[nd] respondent.

This writ petition is filed seeking a Writ of Mandamus declaring G.O.Ms.No.88, Law (LA&J SC.F)Department, dated 28-07-2007 of the 1[st] respondent and consequential order of the 2[nd] respondent in ROCNo.4471/2007-B.Spl., dated 13-09-2007, as illegal, arbitrary and violative of the principles of natural justice andconsequently direct the respondents to forthwith reinstate the petitioner into service as District and Sessions Judgewith all consequential benefits.

It is stated that the petitioner along with thirteen other Judicial Officers, after attaining the age of 50 years,was put up for review before this Court on the administrative side, keeping in view the provisions of the AndhraPradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as amended by Act, 42 of 2006. The Administrative Committee of Hon’ble Judges and the Portfolio Judges of the Districts in the State, in which thesaid Judicial Officers were working, in their meeting held on 03-07-2007, assessed the cases of the officersincluding the case of the petitioner. Insofar as the petitioner, after considering the service record and other relevantmaterial, the Committee resolved as follows:- “The Committee considered the service profile of the officer, the disposal of cases, quality ofjudgments and orders, entries recorded in the annual confidential records and complaints received from timeto time together with action taken thereon.judgments and orders, entries recorded in the annual confidential records and complaints received from timeto time together with action taken thereon.

The Committee noted that in the year 1995, 1996, 1997, 1998, 1999, 2001 adverse remarks, includingthose relating to his integrity, have been recorded. On January 13, 2000, a penalty of stoppage of oneincrement without cumulative effect was imposed on the officer. In 2004, he was twice cautioned. Quality ofhis work has, by and large, been described as satisfactory/average. In 2001, the quality of his workdescribed as below average.

On an overall assessment of the record of the officer, the Committee is of the opinion that the officer isnot fit to be continued in service beyond the age of 50 years. Accordingly, it was resolved that Sri M.RamaMurthy Varma, be compulsorily retired from service on completion of 50 years of age in terms of first provisoto Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984as amended by Act No.42 of 2006 and in lieu of notice, he be paid three months Salary.”

In terms of the said Resolution, this Court vide its letter, dated 13-07-2007 addressed to the Government,recommending the retirement of the petitioner. Accordingly, the Government issued G.O.Ms.No.88 Law (LA & JSC.F) Department, dated 28-07-2007, whereby and whereunder the petitioner was ordered to be retired fromservice on the afternoon of 31-08-2007, in terms of the first proviso to Section 3(IA) of the Andhra Pradesh PublicEmployment (Regulation of Age of Superannuation) Act, 1984, as amended by Act, 42 of 2006, and also orderedto pay three months salary in lieu of notice in accordance with Rule 44 of A.P.Revised Pension Rules, 1980. Pursuant thereto, this court issued relief arrangements vide its proceedings in Roc.No.4471/2007-B.Special, dated01-08-2007, and the petitioner was retired from service on the afternoon of 31-08-2007.

It is stated that the petitioner also filed a representation, dated 30-07-2007, before this court to review hiscase and that the said review was dismissed on the ground that the petitioner was recommended for compulsoryretirement, after comprehensive evaluation of his performance, record, conduct and integrity.

It is not in dispute that the controversy relating to compulsory retirement in terms of first proviso to Section 3(IA) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984, as amended byAct, 42 of 2006, insofar as it enables Government to compulsorily retire a judicial officer on attaining the age of 50years or 55 years, was held to be ultra vires and violative of Articles 14 and 311(2) of the Constitution of India by a Division Bench of this Court in K.VEERA CHARY Vs. HIGH COURT OF A.P., HYDERABAD[[1]],wherein it washeld as follows:-

Conclusion

“…….. In the State of Andhra Pradesh, for entry level post of Junior civil Judge or Judicial Magistrate of FirstClass, minimum age is twenty one years and the maximum prescribed age is thirty four years for opencategory candidate and forty years for reserved categories like SC/ST. As observed by Supreme Court inAIR 1992 SC 165: (1992) 1 SCC 119 and AIR 1993 SC 2493: (1993) 4 SCC 288, there is always some gapbetween the practice at the bar and appointment of a qualified and suitable advocate to the post of JudicialOfficer at the lowest level. Assuming that a candidate enters the service at the age of thirty eight years orforty years, there will be qualifying service of less than ten years and he would be deprived of the benefitsearned during those years of service. Same is the case with regard to the compulsory retirement at the ageof fifty five years. To the posts of District and Sessions Judge governed by Higher Judicial Rules, themaximum age is forty five years. A person who joined as District Judge at the age of forty four or forty fiveyears if compulsorily retired at the age of fifty years or fifty five years it would certainly be violative of Article311(2) of the Constitution. The Court also not impressed with the submission of respondents that in all cases,the officers would not be deprived of the benefits earned during the service even if they are retired at the ageof fifty or fifty five years. If such an argument is accepted, incorrect factual position has to be assumed that allofficers entering judicial service could be joining at the minimum age, which would be irrational and does notstand to reason. Viewed from any angle, impugned first proviso violates constitutional rights under Article311(2) of the Constitution…..”

Both the counsel conceded that the issue involved in this writ petition is squarely covered by the aforesaidjudgment of this court.

Having regard to the facts and circumstances of the case, the Government order in G.O.Ms.No.88, Law(LA&J SC.F) Department, dated 28-07-2007, whereby and whereunder the petitioner is ordered to retire fromservice on the afternoon of 31-08-2007 in terms of the first proviso to Section 3(1A) of the Andhra PradeshPublic Employment (Regulation of Age of Superannuation) Act, 1984, as amended by Act, 42 of 2006, is arbitrary,illegal, invalid and unconstitutional. A writ of Mandamus shall issue accordingly with a further direction that thepetitioner shall forthwith be reinstated with all consequential benefits including the pay and allowances for theperiod during which he is out of service till he is reinstated.

Accordingly, the writ petition is allowed. There shall be no order as to costs.

Date:31-12-2008Prv

[1]2008 (5) ALD 372 (FB)

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(V.ESWARAIAH,J)

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(K.C.BHANU, J)