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.
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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.
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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.
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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
4
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
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[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
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REPORTABLE
4
