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2008 Supreme(AP) 554
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
V.V.S.RAO, Dr. G.YETHIRAJULU and C.V.RAMULU, JJ.
K. Veera Chary and another - Appellant
Versus
Honble High Court of Andhra Pradesh, rep. by Registrar Vigilance, Hyderabad and another - Respondents
Writ Petition Nos.16437 and 18123 of 2007
Decided on 23-07-2008.
M/s. G.Vidyasagar and A.K. Jayaprakash Rao, Council for the Petitioners.
G.P. for Law & Legislative Affairs and Mr. P.V. Sanjay Kumar, S.C. for APHC for the Respondents.
Headnote:a) AP Public Employment (Regulation of Age of Superannuation) Act 1984 Section 3(IA) Provisos 1st and 2nd (as amended by Act 42 of 2006):- The first proviso to Section 3(1A) in so far as it authorizes the Government to pass orders of compulsorily ordering a judicial officer on attaining the age of fifty years or fifty years is contrary to Article 311 or Article 14 The second proviso to section 3(1A) authorizing retiring the services of any judicial officer after attaining the fifty or fifty five years by giving a three months notice is also violative of Article 311 or Article 14 This is because it amounts to Domecle’s sword hanging over the heads of the judicial officers affecting the judicial independence as enshrined in the constitution It also bestows unbridled arbitrary power in the hands of the executive to pick and choose to impose the punishment The orders passed in respect of these powers were also set aside in a writ petition after referring the constitutional validity of the provisions to Full Bench
b) SERVICES:- Orders of compulsory retirement of judicial officers passed on the basis of recommendations of a high powered committee dugging out adverse remarks in the confidential reports before being promoted to the post of senior civil judge and even after promotion to the post of District Judge unsustainable and illegal
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 subsection (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
2. W.P.No.16437 of 2007 initially came up before a Division Bench. In Motiram Deka v General Manager, North East Frontier Railwai (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
3. Four points would arise for consideration.
(i) Whether first proviso to Sec. 3(1 A) 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?
(ii) Whether second proviso to Section 3( 1 A) 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?
(iii) 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?
(iv) 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(A) of the Act, is unconstitutional and invalid?
Legal Context
4. A brief history of relevant legislation is necessary to understand the background of the case and the controversy that has a
