Andhra HC (Pre-Telangana)
K. Venkatarao vs Government Of A.P. And Ors. on 7 June, 2002
Equivalent citations: 2002(4)ALD269, 2002(2)ALD(CRI)94, 2002(4)ALT240
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, C.J.
1. Heard Mr. D. Ramalinga Swamy learned Counsel for the petitioner assisted by Ms. V. Malathi, Mr. Chandra Rao, learned Standing Counsel for the High Court and Mr. Rama Rao, learned Government Pleader for Home.
2. The petitioner is a retired Tahsildar. He was appointed to the post of Special Judicial Second Class Magistrate, Bobbili, consequent on a notification issued in Dis.No.3276 dated 26-6-2000 by the District Court, Vizianagaram. In the notification, it was stated that candidates who have atleastone year to complete 65 years of age as on 31-7-2000 were also eligible for the post of Special Judicial Second Class Magistrate. The petitioner was born on 1-6-1937. Having regard to his date of birth he would complete the age of 65 years by 30-5-2002. According to him as on 31-7-2000 he was having 1 year 10 months to complete the age of 65 years and thus he became eligible for appointment to the post of Special Judicial Second Class Magistrate. Accordingly he was duly selected and appointed as a Special Judicial Second Class Magistrate, by the first respondent in proceeding G.O.Rt.No.1689, dated 4-12-2000 for a period of two years from the date of assuming the charge of the post or till he attains the age of 65 years whichever is earlier. Consequentially the second respondent issued proceedings in ROC No.594 dated 12-2-2001 conferring all the powers of a Special Judicial Second Class Magistrate on him for a period of two years or till he attains the age of 65 years whichever is earlier from the date of assuming the charge of the office. The 3rd respondent issued a notification dated 7-3-2001 prescribing and defining the local limits of the area within which, he can exercise the powers of a Magistrate for a period of two years. According to the petitioner, the restriction contained in the appointment order to the effect that the appointment shall be only either for a period of two years from the date of assuming charge of the post or till he completes the age of 65 years whichever is earlier is unjust, improper, and violative of the principles of natural justice. The petitioner states that while applying for the post of Special Judicial Second Class Magistrate, he gave his bio-data in the prescribed form and mentioned his date of birth therein as 1-6-1937. However, the respondent knowingly that the petitioner would complete the age of 65 years within 1 year 5 months and 27 days after the date of appointment, appointed the petitioner as a Special Judicial Second Class Magistrate, by proceedings dated 4-12-2000 for a period of two years from the date of assuming the charge of the post.
3. The learned Counsel for the petitioner states that Section 13 of the Code of Criminal Procedure, 1973 is the enabling provision to appoint Special Judicial Magistrates by conferring powers of a Judicial Magistrate of I class, or of II class Oh any person as stated therein. In the Code of Criminal Procedure, no age restrictions were prescribed for the post of a Special Judicial Magistrate nor does it say that one cannot exercise the powers of a Special Judicial Magistrate beyond the age of 65 years. Therefore, according to the petitioner, restricting the period of initial appointment for a period of two years, still with reference to the completion of the age of 65 years is an irrational restriction especially having regard to the present average span of life which is estimated at 70 years in India. It is further submitted that the age restriction contained in the service rules or in the Constitution of India limiting the age of the regular Government employees or Judges of High Court and Supreme Court have no bearing with regard to the service of a Special Judicial 11 Class Magistrate. Though the petitioner requested the authorities to pass orders continuing him as a Special Judicial Second Class Magistrate, upto 23-4-2003 till he completes the service of two years, there was no response and no extension was granted as prayed for. On the other hand, the petitioner was relieved from service on the afternoon of 31-5-2002. The second respondent issued proceedings dated 18-4-2002 intimating that the High Court has taken a decision to abolish the system of Special Judicial Magistrates and hence whenever a vacancy arises it should not be notified. For the above reasons, the petitioner preferred the above writ petition with the prayer to declare that the restriction of appointment of the petitioner as the Special Judicial II Class Magistrate and the conferment of powers of Special Judicial Second Class Magistrate on him till he completes the age of 65 years, while appointing and conferring the powers for a period of two years is highly unjust, improper, contrary to law and violative of the fundamental rights and the principles of natural justice and for a direction directing the respondents to permit him to continue in service and to exercise the powers of Special Judicial Second Class Magistrate, Bobbili till 24-3-2003 on which date he completes the total service of 2 years.
4. Along with the writ petition, the petitioner filed six Annexures viz., P1 to P6 Annexure-Pl is the Notification G.O. Rt. No. 1689, Law (LA&J Home-Courts-B) Department, dated 4-12-2000. In order to appreciate the contentions of the petitioner it is useful to reproduce the said Notification in its verbatim as under:
"In exercise of the powers conferred under Sub-section (1) of Section 13 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Andhra Pradesh. hereby appoints Sri K. Venkala Rao for the post of Special Judicial Second Class Magistrate, Bobbili in Vizianagaram District for a period of two years from the date of assuming the charge of the post or till he attains the age of 65 years whichever is earlier subject to condition that if he refuses or does not join within the prescribed time, shall forfeit his claim to this post for ever."
Annexure-P2 is the Notification in ROC No. 594/SO-3/2000 dated 12-2-2001. Annexure-P3 is the Notification defining the local limits of the area within which the petitioner may exercise all powers of the Judicial Magistrate of II Class under the Code conferred on him by the High Court of Andhra Pradesh in the above proceedings dated 12-2-2001. Annexure-P4 is the General Notification inviting applications from eligible and suitable persons who are willing to serve as Special Judicial Second Class Magistrate, Bobbili on a monthly honorarium of Rs. 1,800/- and a proforma is also attached to the said General Notification. Annexure P5 is the representation made by the petitioner to the Registrar General praying to issue orders continuing him as a Special Judicial Second Class Magistrate, upto 23-2-2003. Annexure P6 is the the Circular ROC No.775/SO-3/2000, dated 18-4-2002 wherein a decision has been taken to abolish the system of Special Judicial Magistrate of Second Class/Special Metropolitan Magistrates and for upgradation of existing Courts and converting them as regular Courts of Judicial First Class Magistrates/Metropolitan Magistrates. The said Circular is also reproduced in verbatim hereunder:
"The High Court has taken a decision to abolish the system of Special Judicial Magistrate of Second Class/Special Metropolitan Magistrates and for upgradation of the existing Courts and converting them as regular Courts of Judicial First Class Magistrates/Metropolitan Magistrates.
In view of the above decision, the High Court hereby direct all the Unit Heads not to notify the vacancies of the Special Judicial Magistrate of Second Class/Special Metropolitan Magistrates in their respective Units as and when they fall vacant.
The Unit Heads are also requested that whenever any post of Special Judicial Magistrate of Second Class falls vacant after the expiry of the term of the incumbent, the neighbouring Judicial Magistrate of First Class may be placed in Full Additional Charge of the post till the Government abolishes these posts.
The above instructions should be strictly followed."
5. A counter-affidavit has been filed by Mr. K.C. Bhanu, the Registrar General of this Court along with the Rules and Guidelines framed by the High Court with regard to the appointment of Special Judicial Magistrate of Second Class/Special Metropolitan Magistrates. The Government of Andhra Pradesh did not file any counter-affidavit. But, however, the learned Government Pleader for Home argued the matter on merits and also adopted the arguments advanced by the learned Counsel Mr. S.Chcmdra Rao, appearing on behalf of the High Court of A.P. Before proceeding to consider the submissions made by the learned Counsel for the petitioner, it is useful to reproduce Section 13 of the Code of Criminal Procedure which reads thus:
13. Special Judicial Magistrates :--(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area:
Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.
(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction."
6. The State of Andhra Pradesh had introduced an amendment to Section 13 of the Code of Criminal Procedure by A.P. Amendment Act 2 of 1992. The amendment is reproduced hereunder:
"In Sub-section (2):--
"(1) The words "not-exceeding two years at a time" shall be substituted for the words" not exceeding one year at a time."
(1) The following proviso shall be inserted after Sub-section (2).
"Provided that any person who is holding the office of Special Judicial Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992 and has not completed sixty-five years of age shall continue to hold office for a term of two years from the date of his appointment."
7. Section 18 of the Code of Criminal Procedure deals with Special Metropolitan Magistrates. The said section reads thus:
18. Special Metropolitan Magistrates:--The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases in any metropolitan area within its local jurisdiction:
Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.
(3) The High Court or the State Government, as the case may be, may empower any Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the First Class."
8. An amendment was introduced to this section also by Andhra Pradesh Act 2 of 1992, which is reproduced hereunder:
"In Sub-section (2):--
(1) substitute the words "not exceeding two years at a lime" for the words "not exceeding one year at a time."
(2) after Sub-section (2) insert the following proviso.
"Provided that a person who is holding the office of Special Metropolitan Magistrate at the amendment of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992, and has not completed sixty-five years of age shall continue to hold office for a term of two years from the date of his appointment."
9. Shri Chandra Rao, learned Counsel appearing on behalf of the A.P. High Court submitted that the High Court is empowered to stipulate the upper age limit of the petitioner for holding the office of the Special Judicial II Class Magistrate/Special Metropolitan Magistrate by way of a General or Special Order under Sub-section (2) of Section 13 of the Code of Criminal Procedure. He would further submit that as per Sections 13 and 18 of the Code i.e., prior to the Andhra Pradesh Amendment dated 10-4-1992, the tenure of office of the Special Judicial Magistrates and Special Metropolitan Magistrates was only one year at a time. After the amendment to Subsection (2) of Sections 13 and 18, the term of office of the Special Judicial Magistrate of Second Class/Special Metropolitan Magistrate is extended from one year to two years. And two Provisos to Subsection (2) of Sections 13 and 18 of the Code were added by the Amendment Act in respect of the Special Magistrates who continued in service at the time of commencement of the Andhra Pradesh Amendment Act, 1992 and have not attained the age of 65 years. The amendment was introduced in order to permit them to continue to hold the office for a term of two years from the date of their appointment i.e., to give the benefit of one more year of term of office to them as they were initially appointed for a period of one year. Thus, it is submitted that the provisos have not taken away the authority of the High Court from framing rules and guidelines with regard to the qualifications, appointment and prescription of the upper age limit of the Special Judicial Magistrate/Special Metropolitan Magistrates.
10. We see substance, merit and force in the said contention of Shri Chandra Rao. The Proviso to Sub-section (1) of Section 13 prescribes that:
". ..no such powers shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify."
11. In pursuance with this proviso, the High Court framed the rules and Guidelines with regard to the appointment of Special Judicial Magistrates of Second Class/Special Metropolitan Magistrates, which were notified in the A.P. Gazette, dated 29-3-1997.
12. Our attention was also drawn to the rules framed by the High Court in exercise of the powers conferred under Sections 13 and 18 of the Code of Criminal Procedure, 1973 in supersession of the earlier notifications issued on the subject. The High Court, by these rules specified the qualifications or experience in relation to legal affairs to be possessed by a person to be conferred with the powers .of Special Judicial Magistrate/Metropolitan Magistrate.
13. In this case, were are concerned only with Sub-rule (2) of Rule 3. The said rules also in its entirety is reproduced hereunder:
"3. Revocation of Powers of Special Magistrates :
(i) On appointment and while in service a Special Magistrate of II Class or Special Magistrate of any other category may be removed without being called upon two show-cause if he failed to attend three consecutive sittings of the Court without a written permission of the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be.
(ii) Powers conferred by the Court on Special Judicial Magistrate of II Class or Special Magistrate of any other category shall automatically stand withdrawn on his attaining the age of 65 years."
14. Sub-rule (ii) of Rule 3 specifically states that the power conferred by the High Court on Special Magistrate of II Class or Special Magistrate of any other category shall automatically stand withdrawn on his attaining the age of 65 years. Thus, Rule 2 of the Rules framed by the High Court provides for disqualifications and Rule 3 provides for revocation of powers of Special Magistrates.
15. A close scrutiny of Sections 13 and 18 of the Code of Criminal Procedure and the rules framed by the High Court of Andhra Pradesh shows that the Notifications issued by the first respondent and the High Court in respect of the appointment and tenure of the office of the Special Judicial Magistrates, are in pursuance with the above stated rules framed by the High Court. Therefore, we are of the considered opinion that the Notifications issued by the Government and the High Court in pursuance with the Special Rules prescribing the upper age limit of the Special Judicial Magistrate/Special Metropolitan Magistrate to be 65 years are well within the powers conferred by Sub-section (2) and proviso to Sub-section (1) of Section 13 of the Code of Criminal Procedure.
16. Therefore, the contention of the petitioner that when the tenure is prescribed as two years in the appointment order, the restriction contained therein that he shall continue in service for a period of two years or till he attains the age of 65 years whichever is earlier is not in accordance with the provisions of law and violative of the principles of natural justice has no merit and cannot at all be countenanced in the light of the above discussions.
17. We, therefore, hold that the High Court is empowered to stipulate the upper age limit of the petitioner by passing a General or Special Order under Sub-section (2) of Section 13 of the Code of Criminal Procedure. We, accordingly hold that the petitioner is not entitled to continue beyond the age of 65 years, which he had already completed as on 31-5-2002.
18. We have already reproduced the appointment order dated 4-12-2000 pertaining to the petitioner. The appointment order specifically provides that the appointment is for a period of two years from the date of assuming the charge of the post or till the petitioner attains the age of 65 years whichever is earlier. The appointment order is couched in a simple language. The petitioner having accepted the said appointment order without any protest and having served as the Special Judicial II Class Magistrate and having enjoyed the benefit of the said order as stipulated therein till he attained the age of 65 years now cannot turn round and say that the said order is illegal and inoperative and, therefore, he should be allowed to continue till the expiry of two years from the date of his appointment viz., 4-12-2000.
19. This apart, it is pertinent to notice in this context that the A.P. High Court has taken a policy decision to abolish the system of Special Judicial Magistrates of Second Class/Special Metropolitan Magistrates and for upgradation of the existing Courts and converting them as regular Courts of judicial First Class Magistrates/Metropolitan Magistrates. And in view of the said decision, the High Court has directed all the Unit Heads not to notify the vacancies of the Special Judicial Magistrate of Second Class/Special Metropolitan Magistrates in their respective units as and when they fall vacant. The Unit Heads were also requested that whenever any posts of Special Judicial Magistrate of Second Class fall vacant after the expiry of the term of the incumbent, the neighbouring Judicial Magistrates of First Class may be placed in Full Additional Charge of the posts till the posts are abolished by the Government. The High Court has directed all the authorities to strictly follow the above instruction. In fact this Circular was filed as Annexure P6 by the petitioner himself along with the writ petition.
20. In Support of the contentions advanced on behalf of the petitioner, the learned Counsel drew our attention to a judgment rendered by a learned single Judge of this Court in S. Lingappa v. Secretary to Government of A.P. (Home-Courts), 1994(1) ALT (Crl.) 238 (A.P.). The said judgment, in our considered opinion, has no application to the facts and circumstances of the case on hand since the attention of the learned single Judge therein was not invited to the then existing rules.
21. The Honourable Supreme Court of India, in Kadra Pahadiya v. State of Bihar, , while dealing with the constitutional validity of Sub-section (1) of Sections 13 and 18 of the Code of Criminal Procedure has observed that the choice of power to be conferred on the appointees under the provisions of Sub-section (1) of Sections 13 and 18 shall be left to the sole discretion of the High Court which shall specify the qualifications and experience of the appointee.
22. For the foregoing reasons, we are of the opinion that the writ petition has no merits and it is liable to be dismissed and accordingly we do so, however, we order no costs.