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K. Sudhamani v/s The Hon'ble High Court of Andhra Pradesh, rep. by its Registrar (Vigilance), Guntur District & Others

    Writ Petition No. 15215 of 2022 (Hearing through physical mode

    Decided On, 16 September 2022

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE CHIEF JUSTICE MR. PRASHANT KUMAR MISHRA & THE HONOURABLE MR. JUSTICE D.V.S.S. SOMAYAJULU

    For the Petitioner: J. Sudheer, Advocate. For the Respondents: R1 & R2, N. Ashwani Kumar, S.C., R3, G.P. for Services – I.



Judgment Text

Prashant Kumar Mishra, CJ.

Petitioner is a Judicial Officer having retired as I Additional District Judge, Vizianagaram, Vizianagaram District. She has preferred this writ petition challenging the order ROC No.598/2021-B. Special dated 04.05.2022, informing her that she would be attaining the age of superannuation of 60 years as on 31.05.2022, based on G.O.Rt.No.228, Law (L.A & J – SC.F) Department dated 16.08.2021, through which a list of District and Sessions Judges, Senior Civil Judges and Junior Civil Judges, who would be retiring in the calendar year 2022 on attaining the age of superannuation of 60 years, was published.

2. Petitioner joined service as Junior Civil Judge on 01.06.1995; promoted as Senior Civil Judge in February 2008 and thereafter as District and Sessions Judge in March 2016. Undisputedly, her service is governed by Andhra Pradesh State Judicial Service Rules, 2007 (“Rules 2007” for brevity), which were issued vide G.O.Ms.No.119 Law (L.A & J – SC.F) Department dated 02.08.2008; however, they came into force with effect from 01.01.2007. These Rules were framed by the Governor of Andhra Pradesh in consultation with the High Court of Andhra Pradesh under Articles 233, 234, 235, 237 read with proviso to Article 309 and proviso to clause (3) of Article 320 of the Constitution of India.

3. The State of Andhra Pradesh enacted Act 4 of 2014, called as the Andhra Pradesh Public Employment (Regulation of Age of Superannuation) (Amendment) Act, 2014, amending the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984 and enhancing the age of superannuation from 58 to 60 years. Accordingly, the Government employees working in the State of Andhra Pradesh continued upto the age of 60 years. The State of Andhra Pradesh, again, promulgated Ordinance No.1 of 2022 on 30.01.2022 under Clause (1) of Article 213 of the Constitution of India, which came into force with effect from 01.01.2022. By this Ordinance, it was decided to enhance the current age of superannuation of 60 years to 62 years for all the State Government employees with effect from 01.01.2022. The 1st respondent has also adopted the Ordinance for applying the same to the employees of the Subordinate Judiciary of the State of Andhra Pradesh.

4. In the above backdrop, Sri J. Sudheer, learned counsel for the petitioner, would submit that the petitioner is entitled to continue in judicial service till she attains the age of superannuation of 62 years; however, her representation claiming continuation in service upto the age of 62 years has not been decided by the 1st respondent. It is argued that under Rule 16 of the Rules 2007, the age of superannuation of a member of judicial service is 60 years or such further age as is fixed by the Government from time to time. Therefore, the Government having enhanced the age of superannuation by virtue of Ordinance No.1 of 2022, the petitioner is also entitled to continue in service upto the age of 62 years. It is further argued that High Court of Andhra Pradesh lacks authority and jurisdiction to go contrary to the letter and spirit and wisdom of the rule-making authority and policy decision of the State Government. Referring to the decision taken by the High Court for the State of Telangana, it is further argued that when the State of Telangana increased the age of superannuation of its employees upto the age of 61 years, the same facility was extended by the High Court for the State of Telangana to the members of judicial service; therefore, the same facility should have been extended in the State of Andhra Pradesh also. Learned counsel for the petitioner has referred to the law laid down by the Hon’ble Supreme Court in Singareni Collieries Company Limited v. Vemuganti Ramakrishna Rao (2013) 8 SCC 789) (paragraph 20), Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited and others (2015) 9 SCC 209) and B.S. Yadav and others v. State of Haryana and others (AIR 1981 SC 561) (paragraph 50).

5. Learned standing counsel appearing for the 1st respondent argued that the petitioner cannot claim benefit of enhancement of the age of superannuation as a matter of right if the same is not extended by the Government/State explicitly. Referring to Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984, it is argued that the age of superannuation of the members of the Andhra Pradesh State Higher Judicial Service or the Andhra Pradesh State Judicial Service, still remains the same, i.e. 60 years and the said provision having not been amended, the petitioner is not entitled for the relief claimed for in this writ petition. Thus, even if Section 3 of the original Act has been amended by Ordinance No.1 of 2022, there being no amendment to Section 3(1A), the said Ordinance does not benefit the petitioner and the like candidates.

6. Rule 16 of the Rules 2007 speaks that the age of superannuation of a member of the service (judicial service) shall be sixty years or such further age as is fixed by the Government from time to time. Section 3 (1) of the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984 provides that every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Section 3(1A) makes specific provision to fix the age of superannuation of a member of judicial service. It says that 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. The age of superannuation fixed for the State Government employees in Section 3(1) has been increased from 60 to 62 years by virtue of Ordinance No.1 of 2022. This has been done by amending Section 3(1). However, there is no amendment to Section 3 (1A), which specifically provides for the age of superannuation of Judicial Officers. Thus, there is no legislative change to the benefit of the petitioner in respect of the age of superannuation. In the absence of any amendment to the provisions contained in Section 3(1A), the members of the judicial service in the State of Andhra Pradesh would still retire on attaining the age of 60 years.

7. The argument advanced by the learned counsel for the petitioner that Ordinance No.1 of 2022 would apply to judicial officers also, cannot be accepted for the simple reason that there is specific provision contained in Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984 for the judicial officers and the same has not been amended.

8. The decisions referred by the learned counsel for the petitioner in Singareni Collieries Company Limited (1 supra) and Petroleum and Natural Gas Regulatory Board (2 supra) would explain the principle of casus omissus, whereas the decision in B.S. Yadav and others (3 supra) deals with the issue of independence of judiciary. These decisions do not deal with the issue of age of superannuation of judicial officers. The present is not a case of casus omissus inasmuch as a separate provision in the form of Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984, exists under the statute book and the same has not been amended by the State Government. When a separate and independent provision has not suffered any amendment, change of the age of superannuation by amending a different provision would never attract the principle of casus omissus.

9. In a landmark judgment rendered by the Hon’ble Supreme Court in All India Judges’ Association and others v. Union of India and others (2002) 4 SCC 247), the issue concerning the age of superannuation of judicial officers was directly considered and the Hon’ble Supreme Court refused to accept Justice Shetty Commission’s Report proposing to increase the retirement age of judicial officers from 60 to 62 years. The following has been held in paragraph 26 of the said judgment:

“26. The Shetty Commission had recommended that there should be an increase in retirement age from 60 to 62 years. In our opinion, this cannot be done for the simple reason that the age of retirement of a High Court Judge is constitutionally fixed at 62 years. It will not be appropriate, seeing the constitutional framework with regard to the judiciary, to have an identical age of retirement between the members of the Subordinate Judicial Service and a High Court. As of today, the age of retirement of a Supreme Court Judge is 65 years, of a High Court Judge it is 62 years and logically the age of retirement of a judicial officer is 60 years. This difference is appropriate and has to be maintained. However, as there is a backlog of vacancies which has to be filled and as the Judge strength has to be increased, as directed by us, it would be appropriate for the States in consultation with the High Court to amend the service rules and to provide for re-employment of the retiring judicial officers till the age of 62 years if there are vacancies in the cadre of the District Judge. We direct this to be done as early as possible.”

10. From the above observation of the Hon’ble Supreme Court, it is apparent that the age of superannuation of a judicial officer cannot be increased from 60 to 62 years for the reason that the age of retirement of High Court Judge is constitutionally fixed at 62 years and it will not be appropriate, seeing the Constitutional framework with regard to the judiciary, to have an identical age of retirement between the members of Subordinate Judicial Service and a High Court. Further, the Hon’ble Supreme Court had also observed that this difference is appropriate and has to be maintained.

11. Even though the counter-affidavit of the 2nd respondent states that the matter is pendi

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ng consideration by the Full Court of Hon’ble Judges of the High Court of Andhra Pradesh, it is not possible or permissible even for the Full Court to increase the age of superannuation of members of the Subordinate Judiciary from 60 to 62 years, as the same shall be in direct conflict with the law laid down by the Hon’ble Supreme Court in All India Judges’ Association (4 supra). The Full Court cannot decide to increase the age of superannuation also for the reason that Section 3 (1A) of the Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984, still remains in force and increasing the same is not in consonance with paragraph 26 of the judgment rendered by the Hon’ble Supreme Court in All India Judges’ Association (4 supra). Thus, we have no hesitation in holding that the Full Court has no power, jurisdiction or authority to pass a resolution contrary to the judgment of the Hon’ble Supreme Court. 12. For all the aforesaid reasons, the writ petition fails and is, accordingly, dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.
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