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Andhra Pradesh State Higher Judicial Service Special Rules for Adhoc Appointments, 2001 =Senior list basing on what ? = The appellants were appointed as District Munsifs in Andhra Pradesh Judicial Service in the years 1985-1987 through A.P. Public Service Commission and in due course were promoted as Sub-Judges. Later on their names were recommended for promotion to the post of District and Sessions Judge, Grade II vide letter dated 23.4.2002 by the Registrar General, High Court of A.P. and the said recommendations were approved by the Government in G.O.Ms. No. 64 (LA&J) (SC.F) Department dated 4.5.2002. Their temporary appointments were notified in the said Cadre in G.O.Rt. No. 542 dated 4.5.2002.= It is simply so because the appellants were not appointed to substantive vacancies.-The appellants who are aspirant to structure the case solely on the basis of the words used in the letter of appointment ignoring the letter of posting, we are constrained to say, they are bound to remain in the realm of unnecessary undiminished hope. Their promotion came because of the introduction of the Fast Track Court Scheme and under the 2001 Rules framed by the High Court. They were the beneficiaries of a Scheme. While continuing in the post under the scheme, the regular posts in the cadre fell vacant and they were regularised but prior to that, the respondents were appointed as direct recruits in respect of substantive posts in their quota. The appellants, in our considered opinion, should have been in a position to accept the distinction. But the inter se dispute between the promotees and the direct recruits seems to be a ceaseless affair. In O.P. Singla (supra), Y.V. Chandrachud, C.J. had observed:- “There are many decisions bearing upon the familiar controversy between promotees and direct recruits and this will be one more. Perhaps, just another.”

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6105 OF 2013


V. Venkata Prasad & Ors.                     ...  Appellants

                                VERSUS

High Court of A.P. & Ors.              ... Respondents



                               J U D G M E N T



Dipak Misra, J.


      The appellants were appointed as District Munsifs  in  Andhra  Pradesh
Judicial  Service  in  the  years  1985-1987  through  A.P.  Public  Service
Commission and in due course were promoted as Sub-Judges.   Later  on  their
names were recommended for promotion to the post of  District  and  Sessions
Judge, Grade II vide letter dated 23.4.2002 by the Registrar  General,  High
Court of A.P. and the said recommendations were approved by  the  Government
in G.O.Ms. No. 64 (LA&J) (SC.F) Department dated 4.5.2002.  Their  temporary
appointments were notified in the  said  Cadre  in  G.O.Rt.  No.  542  dated
4.5.2002.

2.    While the appellants were functioning as Sub-Judges, the  Ministry  of
Law and Justice, Government of India on 27.3.2001 sanctioned  86  additional
posts to be established as Fast  Track  Courts.   Initially,  the  Registrar
General, High Court of A.P. recommended for appointments  of  41  Additional
District and Sessions Courts  and  three  Senior  Civil  Judge-cum-Assistant
Sessions Court for a period of five years  w.e.f.  1.4.2001.   The  proposal
for establishing the rest of the Courts could not be fructified due to  lack
of accommodation.  On the basis  of  communication  made  by  the  Registrar
General, the Government accorded  sanction  of  44  additional  courts  with
specific staffing  pattern.   Be  it  stated,  41  Additional  District  and
Sessions Courts were sanctioned and three courts of Additional Senior  Civil
Judges court were sanctioned.

3.    After the posts were  sanctioned,  the  Andhra  Pradesh  State  Higher
Judicial Service Special Rules for  Adhoc  Appointments,  2001  (for  short,
‘2001 Rules’) were framed which came into force with effect  from  1.3.2001.
Rule  1  of  2001  Rules  deals  with  the  constitution  of  service  which
stipulates that it shall consist of District and Sessions  Judges  on  adhoc
appointment.  Rule 2 of 2001 Rules deals  with  appointment.   It  reads  as
follows:-

“Appointment:

Notwithstanding anything contained in  the  Special  Rules  for  A.P.  State
Higher Judicial Service 1958,  the  appointment  of  District  and  Sessions
Judges on ad hoc basis shall be made:

(i) by direct recruitment from the members of the bar;

(ii) appointment by transfer from among Senior Civil  Judges  in  the  State
Judicial Service;

(iii) by re-employment of retired District Judges provided that 33  1/3%  of
the total number of ad hoc posts shall be filled by direct recruitment.

In the determination of 33 1/3% of total number of ad hoc  posts,  fractions
exceeding one half shall be counted as one  and  other  tractions  shall  be
disregarded.

Appointments under Rule 2 (ii) shall be on grounds  of  merit  and  ability,
seniority being considered only when merit  and  ability  are  approximately
equal.

Appointments under Rule 2 (iii) shall be made on grounds of  merit,  ability
and fitness.

All appointments made from  time  to  time  under  Rule  2  shall  cease  on
31.03.2005.”



      Rule 6 of 2001 Rules deals with seniority.  It reads as follows:-

“Inter-se seniority of the promotees from senior Civil Judges to  the  cadre
of District and Sessions Judges shall be as per the seniority fixed  at  the
time of appointment”.



      Rule 7 of 2001 Rules lays down the terms and conditions.   Sub-rule  2
of Rule 7 of 2001 Rules provides that a person  appointed  under  Rule  2(1)
shall not be regarded as a Member of permanent cadre covered  under  Rule  2
of the 1958 Rules and shall not be entitled to  any  preferential  right  to
any other appointment to  this  service  or  any  other  service  and  their
service shall not be  treated  as  regular  or  permanent  under  the  State
Government nor shall be a bar for appointment to the  post  covered  by  the
1958 Rules or the Andhra Pradesh State Judicial Service Rules, 1962.

4.     After  the  posts   were   sanctioned,   the   Registrar,   Vigilance
communicated to the State Government for appointment of District &  Sessions
Judges Grade II by transfer.  The letter referred to 36  names.   It  stated
that under Rule 3 of the 1958 Rules appointment to Grade II  (i.e.  District
& Sessions Judge, Grade II) shall be  made  by  transfer  from  amongst  the
Senior Civil Judges in the Andhra Pradesh Judicial Service.   The  concerned
communication further stated:-

“In this connection, I am to state that at present there are 6 vacancies  in
the Cadre of District & Sessions Judges  and  one  more  vacancy  will  also
arise consequent upon the retirement of Sri  K.  Mahalakshmi  Rao,  District
and Sessions Judge, Anantapur, on the AN of 30.04.2002  and  24  Fast  Track
Courts in the cadre of District and Sessions Judges, are also vacant.   Thus
there are 31 vacancies in the Cadre of District & Sessions Judges.”



5.    The Government of Andhra Pradesh vide order  dated  4.5.2002  approved
36 names for  appointment  as  District  &  Sessions  Judges,  Grade  II  by
transfer.  After the approval was given by the  State,  the  High  Court  of
Andhra Pradesh vide  order  dated  14.6.2002  issued  posting  orders.   The
appellant nos. 1 to 5 were posted against vacancies  in  Fast  Track  Courts
temporarily.  Thereafter, appellant nos. 6 and 7  were  posted  against  the
vacancies  to  Fast  Track  Courts  temporarily.   The  aforesaid  narration
reflects how the appellants had come to hold the post.

6.    The respondent nos. 3 to 7  were  appointed  as  District  &  Sessions
Judge, Grade II by direct recruitment vide G.O.Ms.  No.  108  (LA&J)  (SC-F)
Department dated 4.8.2002.  Their posting orders  were  issued  on  3.1.2003
and they were directed to undergo training  in  the  Judicial  Academy.   On
completion of training, posting orders were  issued  vide  ROC  No.  73/2003
B.Spl dated 3.1.2003 and  accordingly  they  took  charge  as  District  and
Sessions Judge, Grade-II at their respective places of postings in  January,
2003.   As  the  facts  would  reveal,  the  said  respondents  submitted  a
representation on  13.11.2003  to  the  High  Court,  the  first  respondent
herein, to fix their seniority over and  above  the  District  and  Sessions
Judges promoted by way of transfer from the cadre  of  Senior  Civil  Judge.
The High Court, vide ROC No. 207/04-B.Spl dated 24.2.2004  communicated  the
seniority list fixing their seniority after one Sh. Mohan Gandhi whose  name
was at serial no.5.  The final seniority list  was  published  vide  G.O.Rt.
No. 1748 (LA&J SC.F) Department dated 18.9.2008.

7.    At this juncture, a slight digression is necessary.   After  the  High
Court had prepared a draft seniority  list,  objections  were  received  and
thereafter a Sub-Committee of three Judges was constituted which  considered
the objections and found that  there  were  six  regular  vacancies  in  the
category of District & Sessions Judge, Grade II and one was to arise on  the
retirement of one  Mr.  K.  Mahalakshmi  Rao,  District  &  Sessions  Judge,
Ananthapur on  30.4.2002.   The  committee  made  a  distinction  about  the
incumbents who had been posted on the post that  were  created  vide  letter
dated 4.5.2002.  The relevant part of the report of the Sub-Committee is  as
follows:-

“F) On a true and fair construction of the provisions of  the  2001  Ad  Hoc
Rules, the conclusion is irresistible that the ad hoc posts of District  and
Sessions judges to man the FTCs are direct posts outside the  cadre  of  the
AP Higher Judicial Services.  These posts are not part of nor  are  composed
within the AP Higher Judicial Services.  The fixed tenure of the  posts  and
of  the  appointments,  the  specification  under  Rule  7(3)  that  persons
appointed as District and  Sessions  Judges  under  Rule  2  (ii)  shall  be
eligible to salary and allowances as permissible to  District  and  Sessions
Judges Grade II and the scheme of the FTC being funded  on  an  Adhoc  basis
apart from the title of the rules which specify  the  adhoc  nature  of  the
scheme of the FTC all at least to these positions.

G) The 2001 Adhoc rules came into force w.e.f.  5.3.2002.  On  that  day  24
posts of District and Sessions Judges FTC were vacant.  The registry  should
have proposed Adhoc appointments to these  vacant  posts  by  transfer  from
amongst the members of A.P. State Judicial Service (Senior Civil Judge)  and
under  Rule  2(ii)  of  the  2001  Adhoc  Rules.   Erroneously  however,  it
addressed a  D.O.  letter  dated  23.04.2002  to  the  Government  proposing
temporary appointments of 30 Senior Civil Judges as  District  and  Sessions
Judges Grade II. This letter clearly shows that statistical  position  viz.,
that there are six regular vacancies in the category of District &  Sessions
Judge Grade II (within the cadre of the AP State  Higher  Judicial  Service)
with one more vacancy to arise on the  retirement  of  Sri.  K.  Mahalakshmi
Rao, District & Sessions Judge, Anantapur, on the Afternoon  of  30.04.2002.
The D.O. letter dated 23.04.2002 clearly intimated  to  the  State  that  24
FTCs in the cadre of District &  Sessions  Judge  were  vacant,  in  all  31
vacancies.  In conclusion, the letter addressed the  Government  to  approve
the panel and notify initial temporary appointments of the 30  Senior  Civil
Judges proposed as  District  &  Sessions  Judge,  Grade  II,  by  transfer.
Proposal for 30 posts were made against the  31  vacancies  set  out,  since
there was an earlier  recommendation  for  one  Sri.  K.  David  Wilson  for
temporary appointment as District & Sessions  Judge,  Grade  II.  The  State
Government equally oblivious of the legal position issued G.O.  Ms.  No.  64
approving 36 Senior Civil Judges starting from Sri.C. Vachaspathi to Sr.  D.
Prabhakara Rao for appointment as District & Sessions  Judges  Grade  II  by
transfer, without stipulating the mandated distinction between  appointments
to posts within the cadre of the AP State Higher Judicial  Service  and  the
ad hoc posts in the FTC stream.”


          x   x  x     x    x     x    x     x    x

“J. Pursuant to the recommendation of the High Court, orders were issued  in
GO Rt No. 542 dated 04.05.2002 for  initial  temporary  appointments  of  30
Senior Civil Judges and District & Sessions Judges  Grade-  II  and  24  FTC
were vacant.  In the circumstances Sarvasri C  V  Vachiaspathi  to  G  Mohan
Gandhi (Serial No 1 to 6 in GO  Rt  No.542)  were  appointed  to  the  cadre
vacancies in the AP State Higher Judicial Services. The  other  24  officers
Sarvasri E Radhakrishna to T Pathabhi Ramarao were posted to  FTC  vacancies
in the notification of the High Court No. 654 B. Special dated 14.06.2000.


K. In GO Rt No.1192 dated  3.08.2002 the remaining  6  officers  Sarvasri  G
Chakradhara  Rao  to  D  Prabhkar  Rao   were   issued   initial   temporary
appointments as District & Sessions Judge Grade – II by transfer.   By  this
date 4 cadre vacancies in the AP State Higher Judicial Services  and  2  FTC
vacancies were factually vacant.  Therefore 4 officers working in the  FTC’s
Savasri E Radhakrishna, L. Ravi Babu, M.A. Sharif & V.  Venkat  Prasad  were
posts to function in the cadre vacancies and the 6 officers specified in  GO
Rt No.1192 were posted to the available FTC vacancies, by  the  notification
of High Court No.855 B- Special dated 08.08.2002.

L. After 04.01.2003 on completion of training the  direct  recruit  officers
(Smt T Rajani & four others) were given posting orders.  At  this  point  of
time three cadre vacancies and two FTC vacancies were available.   Therefore
Sri M A Sharif and Sri V Venkata Prasad working in the cadre vacancies  were
posted to FTC vacancies and the five direct recruitees  were  given  posting
orders in the cadre vacancies.


M. The Seniority of the  five  direct  recruit  officers  will  have  to  be
reckoned w.e.f. 21.08.2002 the date they reported  for  training  consequent
on appointment.”



8.    The aforesaid report was accepted by the full Court of the High  Court
and a final seniority list was published on  18.9.2008  which  featured  the
names of respondent nos. 3 to 7 above the appellants.

9.     After  publication  of  the  final  seniority  list,  the  same   was
challenged before the  High  Court  of  Andhra  Pradesh  invoking  the  writ
jurisdiction and the Division Bench analysing  the  rule  position  came  to
hold that they cannot be conferred the benefit of seniority on the basis  of
continuous length of service.  The Court  arrived  at  the  said  conclusion
that the officers  who  were  appointed  by  promotion/transfer  from  Civil
Judges to the cadre of District and  Sessions  Judges,  Grade  –  II  cannot
claim seniority from the date of initial appointment but can only  claim  so
from the date when they were regularly appointed in the cadre  vacancies  as
they could only  be  appointed  in  the  said  vacancies  as  and  when  the
vacancies arose. Being of this view the Division Bench  dismissed  the  writ
petition.  Hence, the present appeal by special leave.

10.   Criticizing the judgment and order passed by  the  High  Court  it  is
submitted by  Mr.  P.P.  Rao,  learned  senior  counsel  appearing  for  the
appellants that appointments were made by the Governor under  Rule  5(1)  on
the recommendations of the  High  Court  and,  therefore,  they  are  to  be
treated as regular appointees. It is urged by him that  the  posting  orders
issued by the High Court under Rule 5(2) of the 1958 Rules cannot take  away
the right conferred by the order of appointment issued by the Governor,  for
the nature of posting order has to  be  determined  with  reference  to  the
terms and conditions mentioned in the order of appointment.

11.   Learned senior counsel would submit that the order of approval of  the
Governor is a common order consisting of 36 names including  the  appellants
herein and it does not mention that any one of them has  been  approved  for
appointment as an ad hoc Judge in a Fast Track  Court.  It  is  his  further
submission that the appellants were appointed  by  the  Governor  under  the
Rules to the post of District/Sessions Judges, Grade II of  the  service  on
transfer and posted by the High Court to Fast Track Courts.   It  is  argued
by Mr. Rao, that when orders are passed in exercise of statutory  authority,
it  cannot  be  constituted  otherwise  in  the  light  of  the  explanation
subsequently given by the officer making the order of what he  meant  or  of
what was in his mind, or what he intended to do.  For the said  purpose,  he
has placed reliance on Commissioner of Bombay v.  Goverdhandas  Bhanji[1]and
M.S. Gill v. Chief Election Commissioner[2].  It  has  been  further  argued
that it was open to the appointing authority to appoint some of  the  Senior
Civil Judges as ad hoc Additional District & Session  Judges  for  the  Fast
Track Courts on a consolidated salary of Rs. 10,000/- per month  as  against
the posts sanctioned vide the Govt. order dated 27.03.2001  read  with  2001
rules on ad hoc basis.  It was also open  to  the  appointing  authority  to
recruit by transfer Senior Civil Judges to regular  cadre  of  District  and
Sessions Judges, Category II of the service  and  thereafter  post  some  of
them in the Fast Track Courts, but the appointing authority  in  its  wisdom
availed the second option of appointment  of  appellants  to  the  cadre  of
District and Sessions Judges, Category II by transfer  and  posted  some  of
them to regular posts in the cadre and others in the Fast  Track  Court  and
hence, they are entitled to the benefit of seniority of continuous  service.
In essence, the submission is that the nature of appointment  is  under  the
1958 Rules and not under 2001 Rules as a result of which concept of  ad  hoc
appointment does not arise.

12.   Mr. Rao, would further submit that  a  stop-gap  arrangement  of  this
nature would not have been continued for such a long span and  the  material
brought on record clearly show that it  was  not  a  temporary  arrangement.
For the said purpose he has commended us to the Constitution Bench  decision
in D.R. Nim v. Union of India[3].  It is his further submission that  if  an
appointment is made to meet the contingency arising on account of  delay  in
completing the process of regular recruitment to the post due to any  reason
and it is not possible to leave the post vacant till then, and to meet  this
contingency an appointment is made then it can appropriately be called as  a
stop-gap arrangement and appointment in the post as ad hoc  appointment.  To
substantiate the said stand he has placed reliance on Rudra  Kumar  Sain  v.
Union of India[4]. Highlighting the language employed  in  Rule  6,  learned
senior counsel would contend  that  seniority  has  to  be  determined  with
reference to the date from which an officer is continuously  in  service  in
Category II and as the appellants have continued without any break prior  to
Respondent Nos. 3 to 7, the High Court has erred in not granting the  relief
to the appellants.  In  this  regard,  he  has  drawn  inspiration  from  V.
Bhasker Rao & Ors v. State of A.P. & Ors[5] and Direct Recruitment Class  II
Engineering Officers’ Association v. State of Maharashtra[6].

13.   Mr. Parasaran, learned senior counsel  appearing  for  the  respondent
no.1,  would submit that the appellants are not entitled to  seniority  over
the respondents who are direct recruits in regular  vacancies  because  they
were appointed in ad hoc capacity in respect of  the  vacancies  created  in
Fast Track Courts.  It is urged by him that the controversy  is  covered  by
the  decision  in  Direct  Recruitment  Class   II   Engineering   Officers’
Association (supra) and Debabrata Dash v. Jatindra  Prasad  Das[7]  and  the
principle laid down in V. Bhasker Rao  (supra) does not apply  to  the  case
at hand.  It is because, submits Mr.  Parasaran,  the  appellants  were  not
substantially appointed against any vacancy in their cadre and hence,  their
case would be governed by the Constitution  Bench  decision  in  the  Direct
Recruitment Class II  Engineering  Officers’  Association  (supra)  and  the
pronouncement in Debabrata Dash (supra).  It  is  his  submission  that  six
vacancies came to be filled up by way  of  transfer/promotion  from  amongst
Sub-Judges in the Andhra Pradesh State Judicial Service and  the  respondent
nos. 3 to 7 were appointed as direct recruits when the vacancies had  arisen
in their quota but the appellants were  never  appointed  in  respect  of  a
substantial post prior to the point in respect of the  said  vacancies  and,
therefore, the claim of seniority over them is  misconceived.   The  learned
senior counsel has seriously opposed the stand of the  appellants  to  claim
benefit under Rule  6  which  postulates  for  seniority  on  the  basis  of
continuous service.  It has been argued that the Fast Track Courts  were  of
a different character and  were  constituted  for  a  specific  purpose  and
appointments in respect of the said courts  cannot  confer  the  benefit  of
seniority on the appellants.  He has supported the findings  of  the  report
of the sub-committee which has been brought on record and the  judgment  and
order passed by the High Court.

14.    Mr.  Gurukrishna  Kumar,  learned  senior   counsel   appearing   for
respondent nos. 3 to 7 has contended that if 2001 Rules are  scrutinised  in
proper perspective, it is quite vivid that the ad hoc posts  of  District  &
Sessions Judges to man the Fast Track Courts are posts outside the cadre  of
the A.P. Higher Judicial Services and  are  neither  part  of  nor  composed
within the A.P. Higher Judicial Services and hence,  the  appellants  cannot
claim benefits of being appointed under the said rules.  It is  his  further
submission that assuming there as an erroneous proposal of the  Registry  of
the High Court to fill up the posts on  temporary  basis  from  amongst  the
Senior Civil Judges as District & Sessions  Judges,  Grade-II,  that  really
does not help, for the said proposal also clearly indicates that  there  are
six regular vacancies in the category of District & Sessions  Judge,  Grade-
II with one more vacancy to arise on retirement of another  officer.   Thus,
submits Mr. Gurukrishna Kumar, the appellants were  appointed  on  the  Fast
Track Courts under 2001 Rules and the respondents were appointed  under  the
1958 Rules and, therefore, the seniority of the respondents, who are  direct
recruits, has to be reckoned w.e.f. 21.8.2002, the date  they  reported  for
training consequent upon their appointment.  It is canvassed by him that  as
per the authority in Brij Mohanlal – II  v.  Union  of  India[8],  the  Fast
Track Court Judges were appointed on ad hoc basis and they would not  derive
any benefit  from  such  appointment.  Lastly,  it  is  submitted  that  the
pronouncement in Debabrata Dash (supra) is the last nail in  the  coffin  in
the submission advanced by the appellants and, the judgment rendered by  the
High Court deserves to be accepted.

15.   To appreciate the rivalised submissions raised at the Bar  which  have
been astutely canvassed, it is  extremely  essential  to  project  the  real
plinth of the litigation.  The 11th Finance Commission  allocated  Rs.502.90
crores under Article 275 of the Constitution for the purpose of  setting  up
1734 courts in various States to deal with long pending cases,  particularly
sessions cases.  The funds were to be allocated by  the  Finance  Commission
which stipulated a time-bound utilisation within a period of five years  and
the State Governments were required to take  necessary  steps  to  establish
such courts.  The Finance Commission had stated that States may consider re-
employment of retired Judges for limited period since these courts  were  ad
hoc in the sense that there would be no permanent addition of courts  within
a particular State.  The High Courts framed Fast  Track  Courts  Scheme  for
employment of retired Judges.   Certain litigations were  filed  in  various
High Courts and eventually the matter travelled to this  Court  after  cases
being transferred and also otherwise in Brij Mohan Lal v. Union of  India  -
I[9].  It was highlighted before this Court that infrastructural  facilities
were not available so as to make the scheme a reality.  It was also  pleaded
that instead of retired officers, eligible members  of  the  Bar  should  be
considered for appointment.  Be it stated, the  constitutional  validity  of
the Fast Track Court Scheme was also challenged.  The  Court  negatived  the
said plea.  After referring to the authorities in All  India  Judges’  Assn.
v. Union of India[10], P. Ramachandra Rao v.  State  of  Karnataka[11],  All
India Judges’ Assn. v. Union of India[12] and All  India  Judges’  Assn.  v.
Union of India[13], the three-Judge Bench issued certain  directions.   Some
of the relevant directions are necessitous to be reproduced:-

1. The first preference for appointment of judges of the Fast  Track  Courts
is to  be  given  by  ad  hoc  promotions  from  amongst  eligible  judicial
officers. While giving such promotion,  the  High  Court  shall  follow  the
procedures  in  force  in  the  matter  of  promotion  to  such   posts   in
Superior/Higher Judicial Services.

                                 xxxxxxxxxx

14. No right will be conferred on judicial officers in service for  claiming
any regular promotion on the basis of his/her appointment on  ad  hoc  basis
under the Scheme. The service rendered in Fast Track Courts will  be  deemed
as service rendered in the parent cadre. In case  any  judicial  officer  is
promoted to higher grade in the parent  cadre  during  his  tenure  in  Fast
Track Courts, the service rendered in Fast Track Courts will  be  deemed  to
be service in such higher grade.

                                 xxxxxxxxxx

18. The High Court and the State Government shall ensure that  there  exists
no vacancy so far as the Fast Track  Courts  are  concerned,  and  necessary
steps in that regard shall be taken  within  three  months  from  today.  In
other words, steps should be taken to set  up  all  the  Fast  Track  Courts
within the stipulated time.



16.   The directions given in the Brij  Mohanlal  –I  (supra)  were  further
analysed in Brij Mohanlal –II (supra).   The  two-Judge  Bench  scrutinising
the directions observed that appointment to FTCs were to be made on  ad  hoc
basis.  It has been observed   therein  that  there  are  three  sources  of
recruitment.  Firstly, by  promotion  from  amongst  the  eligible  judicial
officers, secondly by  appointment  of  retired  Judges  with  good  service
records and lastly by direct recruitment from amongst  the  members  of  the
Bar between the age group of 35 to 45 years.   In  the  last  category,  the
selection  was  to  be  made  in  the  manner  similar  to  that  of  direct
recruitment to the Higher Judicial Services.   The Court further observed:-

“This Court had foreseen the possibility of the closure of  the  Fast  Track
Courts Scheme (FTC Scheme). It directed that the service  in  FTCs  will  be
deemed as service of the promoted judicial officers rendered in  the  parent
cadre. However, no right would accrue to such  recruits  promoted/posted  on
ad hoc basis from the lower judiciary for regular promotion on the basis  of
such appointment. For direct  recruits,  continuation  in  service  will  be
dependent on review by the High Court and  there  could  be  possibility  of
absorption in the regular vacancy if  their  performance  was  found  to  be
satisfactory. Besides these two aspects, the directions also dealt with  the
management  of  FTCs,  timely  and  appropriate  utilisation  of  funds  and
monitoring of smooth  functioning  of  FTCs  by  the  State-Level  Empowered
Committee headed by the Chief Secretary of the State; the disposal of  cases
was to be monitored by one  Administrative  Judge,  nominated  by  the  High
Court. It was  expected  that  each  FTC  will  at  least  have  one  Public
Prosecutor earmarked. This was the  sum  and  substance  of  the  directions
issued by this Court in Brij Mohan Lal case while disposing  of  both  these
transferred cases”.


17.   The basic prayer in the  said  case  pertained  to  extension  of  FTC
scheme.  The Court adverting to various precedents and  facets  relating  to
scope of interference in policy matters in exercise of  power  of   judicial
review and many other aspects, came to hold that:-

“172. The prayer  for  regularisation  of  service  and  absorption  of  the
petitioner appointees against the vacancies appearing in the  regular  cadre
has been made not only in cases involving the case of the State  of  Orissa,
but  even  in  other  States.  Absorption  in  service  is  not   a   right.
Regularisation also is not a statutory or a legal right enforceable  by  the
persons appointed under different rules to different  posts.  Regularisation
shall depend upon the facts and circumstances of a given  case  as  well  as
the relevant rules applicable to such class of persons.

                                 xxxxxxxxxx
175. The petitioners from the State of Andhra Pradesh have also  prayed  for
identical relief claiming that the advertisement dated 28-5-2004 issued  for
filling up the vacancies in the regular cadre  should  be  quashed  and  not
processed any  further  and  the  petitioners  instead  should  be  absorbed
against those vacancies. In view of the above discussion, we find  no  merit
even in these submissions.

176. We have already noticed that the FTC  Judges  were  appointed  under  a
separate set of Rules than the Rules governing the  regular  appointment  to
the State Higher Judicial Services. It  has  been  clearly  stipulated  that
such appointments would be ad hoc and  temporary  and  that  the  appointees
shall not derive any benefit from such appointments”.



18.   The two-Judge Bench issued certain directions  for  regularisation  of
the direct recruits from the Bar as Judges to preside over FTCs  on  certain
terms and conditions.  Certain directions were  also  given  in  respect  of
candidates who were promoted as FTC Judges from the  post  of  Civil  Judges
(Senior Division) having requisite experience in service to be  entitled  to
be absorbed and remain promoted to the Higher Judicial  Service  subject  to
the rule position and certain other conditions.

19.   From the aforesaid  two  authorities,  it  is  quite  clear  that  the
appointments in respect of Fast Track Courts are ad hoc  in  nature  and  no
right is to accrue to such recruits promoted/posted on  ad  hoc  basis  from
the lower  judiciary  for  the  regular  promotion  on  the  basis  of  such
appointment.   It  has  been  categorically  stated  that  FTC  Judges  were
appointed under a separate  set  of  rules  than  the  rules  governing  the
regular appointment in the State Higher Judicial Services.

20.    Now  we  shall  focus  on  the  relevant  Rules  that   governs   the
appointments to judicial service in the State of Andhra Pradesh. The  Andhra
Pradesh Higher Judicial Service is governed  by  the  Andhra  Pradesh  State
Higher Judicial Service Rules, 1958 (for short, ‘the 1958 Rules’) framed  by
the Governor of Andhra Pradesh in consultation with the High Court  and  the
said Rules have come into force w.e.f. 10.10.1958.   According  to  Rule  1,
the service shall consist  of  two  categories.   Category  1st  deals  with
District & Sessions Judge, First Grade and category 2nd deals with  District
& Sessions Judge, Second Grade.  Rule 2 provides for appointment.  The  said
Rule which is required to be deliberated upon is reproduced below:-

“Rule 2 : Appointment:

(a) Appointment to Category I shall be made by promotion  from  Category  II
and appointment to Category II shall be made:-

      (i) by transfer from among:

Sub-Judges in the Andhra State Judicial Service; or in the  Hyderabad  State
Judicial Service; and

      (ii) by direct recruitment from the Bar:

Provided that 33 1/3% of the  total  number  of  permanent  posts  shall  be
filled or reserved to be filled by direct recruitment.

Explanation: In the  determination  of  33  1/3%  of  the  total  number  of
permanent posts, fractions exceeding one-half shall be counted  as  one  and
other fractions shall be disregarded.

(b) All promotions shall be made of grounds of merit and ability,  seniority
being considered only when merit and ability are approximately equal.”



21.   Rule 3 provides for  qualification.   Rule  4  deals  with  probation.
Rule 5(1) stipulates that all  first  appointments,  and  reappointments  of
persons under reversion to  the  category  of  District  &  Sessions  Judge,
Second Grade, shall be made by the Governor in consultation  with  the  High
Court.  Rule 5(2) provides that all postings, other than first  appointments
or reappointments to the service, and transfers  in  the  service  shall  be
made by the High Court.  Rule 6 deals with seniority.  It reads as follows:-


“The seniority of a person appointed to Category I or Category II  shall  be
determined with reference to the dated from which he may continuously be  on
duty in that category”.



22.   In the instant case, we are not concerned with  any  other  Rule.  The
2001 Rules are specific rules for ad hoc appointments.  Rule 7(1)(b) of  the
2001 Rules lays down as follows:-

“ A person appointed under Rule 2 (i) shall not be regarded as a  Member  of
permanent cadre covered under  Rule  2  of  the  Special  Rules  for  Andhra
Pradesh State Higher Judicial Service, 1958, and shall not  be  entitled  to
any preferential right to any other  appointment  to  this  service  or  any
other service  and  their  service  shall  not  be  treated  as  regular  or
permanent under the State Government nor shall be a bar for  appointment  to
the posts covered by the Special Rules for Andhra  Pradesh  Higher  Judicial
Service, 1958 or the Andhra Pradesh State Judicial Service Rules, 1962.”



      As the fact situation would exposit, there were six vacancies  in  the
regular cadre.  Because of introduction of the Fast Track Court Scheme,  the
promotional avenues on ad hoc basis became  available.   The  conditions  in
Brij Mohanlal –I (supra) and Brij Mohanlal –II (supra)  make  it  absolutely
clear.   The  submission  of  Mr.  Rao,  learned  senior  counsel  for   the
appellants is that the appellants were appointed under  the  1958  Rules  as
the letter of appointment would show and whole thing would depend  upon  the
letter of appointment and not the posting orders issued by the  High  Court.
 According to the learned senior counsel, if a candidate is appointed on  ad
hoc basis in respect of a vacancy, he would be regarded  as  senior  to  the
direct recruit.  Both the submissions, as we perceive,  are  interwoven  but
the singular answer to the same would be “fundamentally fallacious”.

23.   In Debabrata Dash (supra), almost in a similar situation,  the  three-
Judge Bench reproduced a passage from O.P. Singla v. Union of India[14]:-

“21. … This Rule shows that two conditions must co-exist  in  order  that  a
person can become a ‘Member of the Service’. Firstly,  his  appointment  has
to be in a substantive capacity and secondly, the appointment has to  be  to
the Service, that is, to a post in  the  Service.  Persons  who  hold  posts
bearing designations similar to the designations of posts comprised  in  the
Service cannot, for that reason alone, become members of the Service. It  is
only when they are appointed in a substantive capacity  to  a  post  in  the
Service, that they become members of the Service.”


24.   After referring to the said paragraph, the Court observed that:-

“Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules leave  no  manner  of  doubt
that a person can become a member of  the  Senior  Branch  of  the  Superior
Judicial Service only if his appointment has been made  to  a  post  in  the
service. If there is no vacancy to be filled in by promotion  in  the  cadre
of Senior Branch service, there is no  question  of  any  appointment  being
made to the service. The membership of service is  limited  to  the  persons
who are appointed within the cadre strength by  direct  recruitment  and  by
promotion”.


25.   Thereafter, the Court referred to the Constitution Bench  judgment  in
Direct Recruitment Class II Engineering Officers’ Association  (supra)   and
after adverting to the legal position (Clauses A, B and C) stated thus:-

“The essence of direction  in  Clause  (A)  is  that  the  seniority  of  an
appointee has to be counted  from  the  date  of  his  appointment  and  not
according to the date of his confirmation once a recruitee is  appointed  to
a post according to the rules. In other words, where initial appointment  is
only ad  hoc  and  not  according  to  the  rules  and  made  as  a  stopgap
arrangement, the officiation in such post cannot be taken into  account  for
considering the seniority”.


26.   Be it noted, the three-Judge Bench referred to the authority in  Rudra
Kumar Sain (supra), reproduced a passage therefrom and  opined  that  though
the High Court had  quoted  the  relevant  paragraph,  yet  had  applied  it
wrongly.

27.   Be it noted, in State of West Bengal v. Aghore Nath Dey[15] the  Court
perceived an apparent  contradiction  in  Conclusions  A  and  B  and  while
clarifying stated thus:-

“19. The Constitution Bench in  Direct  Recruit  case,  while  dealing  with
Narender Chadha v. Union of India[16] emphasised the unusual fact  that  the
promotees in question had worked continuously for  long  periods  of  nearly
fifteen to twenty years on  the  posts  without  being  reverted,  and  then
proceeded to state the principle thus:
‘13. … We, therefore, confirm the principle of  counting  towards  seniority
the period of  continuous  officiation  following  an  appointment  made  in
accordance with the rules prescribed for  regular  substantive  appointments
in the service.’
20. The Constitution  Bench  having  dealt  with  Narender  Chadha  in  this
manner, to indicate the above principle, that decision cannot  be  construed
to apply to cases where the initial appointment was not according to rules.
                                *     *     *
22. There can be no doubt  that  these  two  conclusions  have  to  be  read
harmoniously, and Conclusion (B) cannot  cover  cases  which  are  expressly
excluded by Conclusion (A). We may, therefore,  first  refer  to  Conclusion
(A). It is clear from Conclusion (A) that to enable seniority to be  counted
from the date of initial appointment  and  not  according  to  the  date  of
confirmation, the incumbent of  the  post  has  to  be  initially  appointed
‘according to rules’. The corollary set out  in  Conclusion  (A),  then  is,
that ‘where the initial appointment is only ad  hoc  and  not  according  to
rules and made as a stopgap  arrangement,  the  officiation  in  such  posts
cannot be taken into account  for  considering  the  seniority’.  Thus,  the
corollary in Conclusion (A) expressly excludes the category of  cases  where
the initial appointment is only ad hoc and not  according  to  rules,  being
made only as a  stopgap  arrangement.  The  case  of  the  writ  petitioners
squarely falls within this corollary in Conclusion (A), which says that  the
officiation in such posts cannot be taken  into  account  for  counting  the
seniority.”
                                *     *     *
“26. … Admittedly, this express requirement in Rule 11 was not  followed  or
fulfilled subsequently, and, therefore,  the  initial  ad  hoc  appointments
cannot be treated to have been  made  according  to  the  applicable  rules.
These ad hoc appointments were clearly not in  accordance  with  the  rules,
and were made only as a stopgap arrangement for fixed period,  as  expressly
stated in the appointment order itself.”


28.   In State of Haryana v. Vijay Singh[17], the issue emerged with  regard
to determination of seniority in the backdrop of ad hoc initial  appointment
made dehors  the  seniority  rules  which  were  regularised  by  the  State
Government.  The Court appreciating the fact  situation  held  that  ad  hoc
period would not be counted for the purpose of fixation of seniority.

29.   We will be failing in our duty if we do not  refer to the  authorities
cited by Mr. Rao,  learned  senior  counsel  for  the  appellants.   He  has
commended us to a passage from O.P. Singla (supra).  It reads as follows:-

“It is however difficult to appreciate how, in the matter of seniority,  any
distinction can be  made  between  direct  recruits  who  are  appointed  to
substantive vacancies in the Service  on  the  recommendation  of  the  High
Court under Rule 5(2) and the promotees who are  appointed  in  consultation
with the High Court to posts in the Service under Rules 16 and 17.  Rule  16
provides for  the  appointment  of  promotees  to  temporary  posts  in  the
Service, while Rule 17 provides for appointment of promotees to  substantive
vacancies in the Service on a temporary basis. Promotees who  are  appointed
to the Service under either  of  these  two  Rules  must  be  considered  as
belonging to the same class as direct recruits appointed  under  Rule  5(2).
They perform similar functions, discharge  identical  duties  and  bear  the
same responsibilities as direct recruits. They are appointed  on  a  regular
basis to posts in the Service in the same  manner  as  direct  recruits  are
appointed, the only distinction being that whereas the latter are  appointed
on the  recommendation  of  the  High  Court,  promotees  are  appointed  in
consultation with the High Court. Therefore,  no  distinction  can  be  made
between direct recruits on one hand and promotees appointed to  the  Service
on the other, in the matter  of  their  placement  in  the  seniority  list.
Exclusion from the seniority list of those promotees who  are  appointed  to
posts in the Service, whether such appointment is to temporary posts  or  to
substantive vacancies in a temporary capacity, will amount  to  a  violation
of the equality rule since, thereby,  persons  who  are  situated  similarly
shall have been treated  dissimilarly  in  a  matter  which  constitutes  an
important facet of their career”.

30.   The principle stated in the aforesaid paragraph, we are  afraid,  does
not assist learned senior counsel for  the  appellants.   It  is  simply  so
because the appellants were not appointed  to  substantive  vacancies.  That
has also been clearly stated in the majority opinion in O.P. Singla  (supra)
which has been placed reliance upon by the three-Judge  Bench  in  Debabrata
Dash (supra).  Learned  senior  counsel,  as  has  been  indicated  earlier,
heavily relied on the decision in Rudra Kumar Sain (supra). On a perusal  of
the same, we do not find it to be remotely helpful to  the  issue  that  has
arisen here.  The appellants who are aspirant to structure  the case  solely
on the basis of the words used in the letter  of  appointment  ignoring  the
letter of posting, we are constrained to say, they are bound  to  remain  in
the realm of unnecessary undiminished hope.  Their  promotion  came  because
of the introduction of the Fast Track Court Scheme and under the 2001  Rules
framed by the High Court.  They were the beneficiaries of a  Scheme.   While
continuing in the post under the scheme, the  regular  posts  in  the  cadre
fell vacant and they were regularised but prior  to  that,  the  respondents
were appointed as direct recruits in respect of substantive posts  in  their
quota.  The appellants, in our considered opinion, should  have  been  in  a
position to accept the distinction.  But the inter se  dispute  between  the
promotees and the direct recruits seems to be a ceaseless affair.   In  O.P.
Singla (supra), Y.V. Chandrachud, C.J. had observed:-

“There are many decisions bearing  upon  the  familiar  controversy  between
promotees and direct recruits and this will  be  one  more.   Perhaps,  just
another.”



31.   We share the said fond hope.

32.   Consequently, the appeal, being devoid  of  merit,  stands  dismissed.
However, in the facts and circumstances of  the  case,  there  shall  be  no
order as to costs.



                                              ............................J.
                                                               (Dipak Misra)


                                             .............................J.
                                                         (Shiva Kirti Singh)
New Delhi.
June 29, 2016
-----------------------
[1]    (1952) SCR 135
[2]    (1978) 1 SCC 405
[3]    (1967) 2 SCR 325
[4]    (2000) 8 SCC 25
[5]    (1993) 3 SCC 307
[6]    (1990) 2 SCC 715
[7]     (2013) 3 SCC 658
[8]     (2012) 6 SCC 502
[9]     (2002) 5 SCC 1
[10]    (2002) 4 SCC 247
[11]    (2002) 4 SCC 578
[12]    (1992) 1 SCC 119
[13]    (1993) 4 SCC 288
[14]    (1984) 4 SCC 450
[15]    (1993) 3 SCC 371
[16]    (1986) 2 SCC 157
[17]    (2012) 8 SCC 633

-----------------------
REPORTABLE

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