K VENKATARAO Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(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 26-06-2000 by the District Court, Vizianagarain. In the notification, it was stated that candidates who have at least one 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 31-5-2002. 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 proceedings 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 on 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 II Class Magistrate. Though the petitioner requested the authorities to pass orders continuing him as a Special Judicial Second Class Magistrate, up to 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 Qourt 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 power of Special Judicial Second Class Magistrate, Bobbili till 24-3-2003 on which date he completes the total service of 2 years.