P. Raghavender v. The Hon’ble High Court of Andhra Pradesh

Order

: Counsel for the Petitioner: Shri D. Prakash Reddy, Senior Sri A.K. Jayaprakash Rao Advocate assisted by Counsel for Respondent No.1: Shri C.V. Nagarjuna Reddy Counsel for Respondents 2 and 3: Government Pleader for Home August , 2006 Per G.S. Singhvi, CJ This petition is directed against G.O.Ms.No.99, Law (LA & J.SC.F) Department, dated 25-7-2005 as amended on 30-7-2005, whereby the Government of Andhra Pradesh retired the petitioner, who was a member of the Andhra Pradesh State Higher Judicial Service, on attaining the age of 58 years by invoking proviso to Section 3 (1-A) of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) Act, 1984 (for short, the Act’). The petitioner’s date of birth is 11-7-1947. He joined judicial service of the State of Andhra Pradesh as District Munsif on 16-8-

1976. He was promoted as Sub-Judge on 31-8-1987, as District and Sessions Judge Grade-II with effect from 6-1-1992 and as District and Sessions Judge, Grade-I with effect from 8-4-2002. In terms of the substantive part of Section 3 (1A) of the Act, as amended on 22-7-1998, he would have retired from service on 31- 7-2007, but, on the recommendations made by High Court, the State Government issued G.O.Ms.No.99 dated 25-7-2005 for his compulsory retirement with effect from 31-7-2005. Subsequently, that G.O. was amended by another G.O. dated 30-7-2005. The petitioner has challenged the order of retirement on the following grounds: 1) In terms of Article 235 of the Constitution, the decision to retire a member of the Andhra Pradesh State Higher Judicial Service can be taken only by the Full Court of the High Court and not by the Committee of Judges and, therefore, the G.O. issued by the State Government on the recommendations of the Administrative Committee of the High Court is liable to be declared as nullity. 2) The recommendations made by the Administrative Committee of the High Court, which led to the issuance of the impugned G.O. are liable to be quashed 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’) was not followed. 3) There is no adverse remark in his service record and no tangible material was available before the Administrative Committee which could justify formation of an opinion that he was not fit to be continued in service till the attaining of 60 years age. In the counter-affidavit filed on behalf of the High Court by Shri S. Sivaiah Naidu, Registrar (Vigilance), it has been averred that the Committee of Judges recommended the petitioner’s retirement at the age of 58 years because on an overall assessment of his service record, he was not found fit to be continued in service up to the age of 60 years. Accordingly, the State Government issued G.O.Ms.No.99 dated 25-7-2005, which was subsequently amended by G.O.Ms.No.103, dated 30-7-2005. The stand of the High Court is that non-extension of the petitioner’s service beyond 58 years age on the ground of lack of continued utility cannot be equated with compulsory retirement imposed as a measure of penalty under the 1991 Rules and, therefore, it was not necessary to follow the procedure prescribed under Rule 20 read with Rule 9 of those Rules. In the counter- affidavit, a reference has been made to Resolution dated 12-6-1974 passed by the Full Court of the High Court whereby the Chief Justice was authorized to constitute committees for convenience of administration to deal with every subject and it has been averred that in furtherance of that resolution, the Chief Justice constituted the Committees of Judges to review the records of the officers for the purpose of determining their continued utility for service and, therefore, the recommendations of the Committee of Judges will be

deemed to be the recommendations of the High Court. In a separate affidavit filed on behalf of Government of Andhra Pradesh, Shri T. Madan Mohan Reddy, Secretary to Government, Law (LA & J SC. F) Department, has averred that the State Government issued G.O.Ms.No.99 dated 25-7-2005 as per the recommendations of the High Court. At this stage, we consider it proper to mention that during the course of hearing of the writ petition, Shri C.V. Nagarjuna Reddy, Advocate appearing on behalf of the High Court made a request on 14-2-2006 for grant of time to seek instructions. On the next date i.e. 22-2-2006, he made a statement that if the petitioner makes fresh representation for review of his premature retirement from service, the High Court will objectively re-consider the same and take appropriate decision. After taking cognizance of his statement, the Court passed the following order: “Sri A.K. Jayaprakash Rao for the petitioner. Sri C.V. Nagarjuna Reddy for respondent No.1. Sri C.V. Nagarjuna Reddy, learned counsel for the respondent – High Court, who had sought adjournment on the last date of hearing to seek instructions, says that if the petitioner makes a fresh representation for review of his the High Court will from service, premature retirement objectively re-consider the same and take appropriate action. In view of the statement made by Sri C.V. Nagarjuna Reddy, we direct the petitioner to make appropriate representation to the High Court for reconsideration of his case of premature retirement, and hope that the same would be dealt with and decided within a period of one month of its presentation. List the case for further consideration on April 3, 2006.” In furtherance of the aforementioned order, the petitioner made representation for reconsideration of his case for compulsory retirement, but the same was rejected by the Committee of Judges. The decision of the committee was conveyed to the petitioner vide Roc.No.4048/2005-B.Spl. dated 12-4-2006. He then amended the writ petition and prayed for quashing that communication. Shri D. Prakash Reddy, Senior Advocate appearing for the petitioner argued recommendations made by Administrative Committee cannot be treated as the recommendations made by the High Court and, therefore, the entire exercise undertaken by the respondents for compulsory retirement of the petitioner is liable to be nullified on the ground of violation of Article 235 of the Constitution. He pointed out that in terms of the proviso to Section 3(1-A) of the Act, a member of the Andhra Pradesh State Higher Judicial Service can be retired at the age of 58 years only after following the procedure prescribed under the 1991 Rules for compulsory retirement and argued that the impugned G.Os. are liable to be quashed because neither any enquiry was held against the petitioner under the 1991 Rules nor he was given opportunity of hearing. Sri Reddy submitted that compulsory retirement is one of the major penalties specified in Rule 9 and argued that the petitioner could not have been retired without following the procedure prescribed under Rule 20 of the 1991 Rules, which envisages issuance of charge sheet, appointment of enquiry officer, recording of evidence of the parties, submission of enquiry report, consideration thereof by the disciplinary authority, supply of copy of enquiry report to the delinquent with an opportunity to him to make a representation against the procedure of enquiry as well as the merits of the findings recorded by the enquiring authority. Learned counsel then argued that even if the court comes to the conclusion that the procedure prescribed under the 1991 Rules is not required to be followed for compulsorily retiring a member of the State Higher Judicial Service at the age of 58 years, recommendations made by Administrative Committee and the consequential G.Os. issued by the State Government should be declared illegal and quashed because there is no adversity in the service record of the petitioner and his annual confidential reports, which could justify formation of an opinion that he was not fit to be continued in service beyond the age of 58 years. In support of this argument, Shri Reddy relied on the judgments of the Supreme Court in Baldev Raj Chadha v. Union of India , Brij Bihari Lal Agarwal v. High Court of M.P. , The [2] [1] Registrar, High Court of Madras v. R. Rajaiah [3] and Ramesh Chandra Acharya v. Registrar, High Court of Orissa and [4] another . Shri Reddy also assailed the rejection of the petitioner’s representation by arguing that the decision conveyed to his client vide proceedings dated 12-4-2006 is totally bereft of reasons. He emphasised that while deciding the representation made by the petitioner, the High Court was duty bound to objectively consider his entire record and assign reasons for not accepting his prayer for reinstatement. Shri C.V. Nagarjuna Reddy, learned counsel for the High Court relied on the judgment of the Supreme Court in High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil and [5] another and argued that the recommendations made by the Administrative Committee of the High Court will be deemed to be the recommendations of the Full Court because in furtherance of the authorization given by the Full Court, the Chief Justice had constituted separate committees to look into the records of the officers of the Andhra Pradesh State Higher Judicial Service as well as Andhra Pradesh State Judicial Service the purpose of determination of their continued utility. On merits, Shri C.V. Nagarjuna Reddy submitted that the Administrative Committee had, after making a comprehensive evaluation of the service record of the petitioner including the annual confidential reports, recommended his retirement at the age of 58 years and then argued that such decision cannot be annulled merely because on judicial side there is a possibility of forming a different opinion. He further argued that in exercise of power under Article 226 of the Constitution, the High Court cannot sit in appeal over the recommendations made by the Administrative Committee not to continue the petitioner in service beyond the age of 58 years. Learned counsel pointed out that there were several complaints against the petitioner casting adverse reflection on his integrity and conduct and submitted that the same were rightly considered by the Administrative Committee while recommending his compulsory retirement at the age of 58 years and also for rejecting his representation. We have given serious thought to the respective arguments and carefully perused the record produced by Sri C.V. Nagarjuna Reddy. At the outset, we deem it proper to take cognizance of Resolution dated 12-6-1974 passed by the Full Court of the High Court whereby the Chief Justice was authorized to constitute Committees of Judges to deal with various subjects. The same reads as under: “Resolved that the Hon’ble the Chief Justice be to constitute committees, authorized the convenient administration, to deal with the several subjects and also to reconstitute them as and when he deems it necessary.” In furtherance of the aforementioned resolution, the Chief Justice has, from time to time, constituted and re-constituted Committees of Judges to assess the records of the officers of the Andhra Pradesh State Higher Judicial Service and the Andhra Pradesh State Judicial Service for the purpose of determining their continued utility. In the backdrop of the above facts, we shall now determine whether recommendations made by the Administrative Committee could be treated as recommenda-tions of the High Court for the purpose of Article 235 of the Constitution and whether the State Government committed any illegality by accepting recommendations of the Administrative Committee. Article 235 which finds place in Chapter VI of the Constitution and which the control over the subordinate judiciary vests in the High Court reads as under: “235. Control over subordinate Courts: The control over district Courts and Courts subordinate thereto including the posting and promotion of. and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.” The width and amplitude of the word ‘control’ appearing in Article 235 of the Constitution has been considered in various cases and it has been held that transfers, promotions, confirmation, fixation of pay, grant of Selection Grade, retirement from service including compulsory/premature retirement, and various disciplinary matters fall within the ambit and reach of Article 235 of the Constitution. In Chief Justice, A.P. v. L.V.A. Dikshitulu [6] , the Constitution Bench of the Supreme Court referred to several judicial precedents on the subject and culled out the following propositions: “(a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, the initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of impose punishment other than dismissal or removal, subject, the subordinate judiciary, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311(2). (ii) In Article 235, the word 'control' is accompanied by the word “vest” which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority. {State of West Bengal v. (AIR 1966 SC 447), Nripendra Nath Bagchi Shamsher Singh v. State of Punjab, (1975) 1 SCR 814 = AIR 1974 SC 2192); Punjab and Haryana High Court v. State of Haryana (subnom Narendra Singh Rao) (1975) 3 SCR 365 : (AIR 1975 SC 613)} (iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry. (b) Transfers, promotions and confirmation of such