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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 22 OF 2001
Brij Mohan Lal …
Petitioner
Versus
Union of India & Ors. …Respondents
With
Transferred Case (C) No. 23 of 2001,
Writ Petition (C) No. 140 of 2005,
Writ Petition (C) No. 28 of 2005,
Writ Petition (C) No. 152 of 2011,
Writ Petition (C) No. 250 of 2008,
Writ Petition (C) No. 254 of 2008,
Writ Petition (C) No. 261 of 2008,
CA No.3635 of 2012 @ SLP(C) No. 26148 of 2010
CA No.3636 of 2012 @ SLP(C) No. 26209 of 2010
CA No.3637 of 2012 @ SLP(C) No. 26318 of 2010
CA No.3638 of 2012 @ SLP(C) No. 26363 of 2010
CA No.3639 of 2012 @ SLP(C) No. 26364 of 2010
CA No.3640 of 2012 @ SLP(C) No. 26432 of 2010
CA No.3641 of 2012 @ SLP(C) No. 26444 of 2010
CA No.3642 of 2012 @ SLP(C) No. 26446 of 2010
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CA No.3643 of 2012 @ SLP(C) No. 26448 of 2010
CA No.3644 of 2012 @ SLP(C) No. 26634 of 2010
CA No.3645 of 2012 @ SLP(C) No. 26660 of 2010
CA No.3646 of 2012 @ SLP(C) No. 27437 of 2010
CA No.3647 of 2012 @ SLP(C) No. 27682 of 2010
CA No.3648 of 2012 @ SLP(C) No. 28019 of 2010
CA No.3649 of 2012 @ SLP(C) No. 28130 of 2010
CA No.3650 of 2012 @ SLP(C) No. 28353 of 2010
CA No.3651 of 2012 @ SLP(C) No. 30500 of 2010
CA No.3652 of 2012 @ SLP(C) No. 30577 of 2010
CA No.3653 of 2012 @ SLP(C) No. 30599 of 2010
CA No.3654 of 2012 @ SLP(C) No. 30912 of 2010
CA No.3655 of 2012 @ SLP(C) No. 31485 of 2010
CA No.3656 of 2012 @ SLP(C) No. 2485 of 2011
CA Nos.3657-3658 of 2012 @ SLP(C) Nos. 1412-1413 of 2011
CA Nos.3659-3662 of 2012 @ SLP(C) Nos. 32624-32627 of 2011
Writ Petition (C) No. 203 of 2010
Civil Appeal No. 1276 of 2005
J U D G M E N T
Swatanter Kumar, J.
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1. Leave granted in the all the above SLPs..
2. The Writ Petition being CWP No. 5740 of 2001 titled Brij
Mohan Lal v. Union of India and Ors. was filed in the High Court of
Punjab and Haryana at Chandigarh under Article 226/227 of the
Constitution of India praying for issuance of a writ in the nature of
quo warranto and prohibition, requiring the respondents to stop the
scheme and policy of appointment of the retired District and
Sessions Judges as ad hoc Judges of the Fast Track Courts
(hereinafter referred to as the ‘FTCs’) in the State Judicial Services.
It was also prayed in that petition that in order to maintain the
standards of judicial system, the scheme of appointing the retired
Judges, as opposed to the regular appointment of Judges to the
posts of District and Sessions Judges from the members of the Bar
or from the lower judiciary, should be given up. The principal
submission made in the writ petition was that the constitutional
scheme contained under Articles 233 to 235 read with Articles 308
and 309 of the Constitution do not contemplate and permit
appointment of retired judges as ad hoc District and Sessions
Judges. Even otherwise, there is no constitutional provision which
empowers the authorities concerned to make such appointments.
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The purpose of this petition obviously was to ensure that only the
members of the Bar are appointed by direct recruitment to the post
of ad hoc District and Sessions Judges.
3. A writ petition being Writ Petition No.8903 of 2001 titled Bar
Council of Andhra Pradesh v. Union of India also came to be filed
before the High Court of Andhra Pradesh at Hyderabad praying that
the Court may issue appropriate order, writ or direction declaring
that constitution of the FTCs and 32 presiding officers in the State
of Andhra Pradesh and the G.O.M. Nos. 38 Law (LA & J. Courts.C)
Department, dated 27
th March, 2001 and G.O. Rt. No. 412, Law (LA
& J. SC.F) Department dated 27
th March, 2001 was
unconstitutional and consequently should be set aside.
4. The Union of India filed two transfer petitions before this Court
being Transfer Petition Nos.331-332 of 2001 for transfer of both the
Brij Mohan Lal case and the Bar Council of Andhra Pradesh case
(supra) from the High Courts of Punjab and Haryana and Andhra
Pradesh respectively, to the Supreme Court. These petitions came
to be allowed vide order dated 3
rd
August, 2001. By the same
order, a Bench of this Court even permitted the intervention by
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other parties who might have filed similar petitions in different High
Courts of the country.
5. Both these writ petitions upon transfer to this Court were
numbered as Transferred Cases Nos. 22 and 23 of 2001,
respectively.
6. On 6
th May, 2002, a detailed order was passed by this Court in
Transferred Case No.22 of 2001 and the directions issued therein
read as under :
“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.
2. The second preference in appointments to
Fast Track Courts shall be given to retired
judges who have good service records with no
adverse comments in their ACRs, so far as
judicial acumen, reputation regarding honesty,
integrity and character are concerned. Those
who were not given the benefit of two years
extension of the age of superannuation, shall
not be considered for appointment. It should
be ensured that they satisfy the conditions laid
down in Article 233(2) and 309 of the
Constitution. The concerned High Court shall
take a decision with regard to the minimum-
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maximum age of eligibility to ensure that they
are physically fit for the work in Fast Track
Courts.
3. No Judicial Officer who was dismissed or
removed or compulsorily retired or made to
seek retirement shall be considered for
appointment under the Scheme. Judicial
Officers who have sought voluntary retirement
after initiation of Departmental
proceedings/inquiry shall not be considered
for appointment.
4. The third preference shall be given to
members of the Bar for direct appointment in
these Courts. They should be preferably in
the age group of 35-45 years, so that they
could aspire to continue against the regular
posts if the Fast Track Courts cease to
function. The question of their continuance
in service shall be reviewed periodically by the
High Court based on their performance. They
may be absorbed in regular vacancies, if
subsequent recruitment takes place and their
performance in the Fast Track Courts is found
satisfactory. For the initial selection, the High
Court shall adopt such methods of selection as
are normally followed for selection of members
of the Bar as direct recruits to the
Superior/Higher Judicial Services.
5. Overall preference for appointment in
Fast Track Courts shall be given to eligible
officers who are on the verge of retirement
subject to they being physically fit.
6. The recommendation for selection shall
be made by a Committee of at least three
Judges of the High Court, constituted by the
Chief Justice of the concerned High Court in
this regard. The final decision in the matter
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shall be taken by the Full Court of the High
Court.
7. After ad-hoc promotion of judicial officers
to the Fast Track Courts, the consequential
vacancies shall be filled up immediately by
organizing a special recruitment drive. Steps
should be taken in advance to initiate process
for selection to fill up these vacancies much
before the judicial officers are promoted to the
Fast Track Courts, so that vacancies may not
be generated at the lower levels of the
subordinate judiciary. The High Court and
the State Government concerned shall take
prompt steps to fill up the consequential as
well as existing vacancies in the subordinate
Courts on priority basis. Concerned State
Government shall take necessary directions
within a month from the receipt of the
recommendations made by the High Court.
8. Priority shall be given by the Fast Track
Courts for disposal of those Sessions cases
which are pending for the longest period of
time, and/or those involving under-trials.
Similar shall be the approach for Civil cases
i.e. old cases shall be given priority.
9. While the staff of a regular Court of
Additional District and Sessions Judge
includes a Sessions Clerk and an office Peon,
work in Fast Track Courts is reported to be
adversely affected due to shortage of staff as
compared to regular Courts performing same
or similar functions. When single Orderly or
Clerk proceeds on leave, work in Fast Track
Courts gets held up. The staff earmarked for
each such Court are a Peshkar/
Superintendent, a Stenographer and an
Orderly. If the staff is inadequate, the High
Court and the State Government shall take
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appropriate decision to appoint additional staff
who can be accommodated within the savings
out of the existing allocations by the Central
Government.
10. Provisions for the appointment of Public
Prosecutor and Process Server have not been
made under the Fast Track Courts Scheme. A
Public Prosecutor is necessary for effective
functioning of the Fast Track Courts.
Therefore, a Public Prosecutor may be
earmarked for each such Court and the
expenses for the same shall be borne out of the
allocation under the head ‘Fast Track Courts’.
Process service shall be done through the
existing mechanism.
11. A State Level Empowered Committee
headed by the Chief Secretary of the State
shall monitor the setting up of earmarked
number of Fast Track Courts and smooth
functioning of such Courts in each State, as
per the guidelines already issued by the
Government of India.
12. The State Governments shall utilize the
funds allocated under the Fast Track Courts
Scheme promptly and will not withhold any
such funds or divert them to other uses. They
shall send the utilization certificates from time
to time to the Central Government, who shall
ensure immediate release of funds to the State
Governments on receipt of required utilization
certificates.
13. At least one Administrative Judge shall be
nominated in each High Court to monitor the
disposal of cases by Fast Track Courts and to
resolve the difficulties and shortcomings, if
any, with the administrative support and
cooperation of the concerned State
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Government. State Government shall ensure
requisite cooperation to the Administrative
Judge.
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.
15. The retired Judicial Officers who are
appointed under the Scheme shall be entitled
to pay and allowances equivalent to the pay
and allowance they were drawing at the time of
their retirement, minus total amount of
pension drawn/payable as per rules.
16. Persons appointed under the Scheme
shall be governed, for the purpose of leave,
reimbursement of medical expenses, TA/DA
and conduct rules and such other service
benefits, by the rules and regulations which
are applicable to the members of the Judicial
Services of the State of equivalent status.
17. The concerned High Court shall
periodically review the functioning of the Fast
Track Courts and in case of any deficiencies
and/or shortcoming, take immediate remedial
measures, taking into account views of the
Administrative Judge nominated.
18. The High Court and the State
Government shall ensure that there exists no
vacancy so far as the Fast Track Courts are
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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.”
7. As is evident from the above directions, the appointments to
FTCs were to be made on ad hoc basis. Primarily, there were 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. It was also considered desirable that the eligible officers
on the verge of retirement, be appointed with overall preference,
subject to their physical fitness and as recommended by a
Committee of at least three judges, constituted by the Chief Justice
of the concerned High Court and as approved by the Full Court of
that High Court. This Court had foreseen the possibility of the
closure of the Fast Track Courts Scheme (FTC Scheme). It directed
that the service in the FTCs will be deemed as service of promoted
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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
dependant 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 utilization of funds and monitoring of smooth
functioning of the 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 while disposing of both these
transferred cases. However, this Court still directed regular filing of
quarterly status reports before this Court and held that the matter
would remain alive to that extent.
8. The quarterly status reports have been filed from time to time
about the functioning of the FTCs in the entire country. In the
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meanwhile, some writ petitions came to be filed directly before this
Court under Article 32 of the Constitution and some special leave
petitions were also filed against various judgments of different High
Courts. Thus, it will be useful for us to at least take a note of all
the cases which are pending before this Court.
9. As opposed to the prayer made in the cases of Brij Mohan Lal
(supra) and Bar Council of Andhra Pradesh (supra), two separate
writ petitions were filed in this Court being Writ Petition (Civil) No.
152 of 2011, All India Judges’ Association Through V.N. Shah,
Working President v. Union of India & Ors. and Writ Petition (Civil)
No. 140 of 2005, All Media Journalists Association v. Union of India
with the prayer that the Court should issue appropriate writ or
direction to the respondents to extend the FTC Scheme for another
five years or even till 31.03.2015 and to release the necessary funds
for that purpose.
10. It was also prayed in the latter petition that five years’ time to
utilize the funds should be considered from the date of actual
starting of the first FTC and also that a Committee should be
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appointed to make suggestions with respect to further
strengthening the FTC Scheme to get better results.
11. In both these writ petitions, the prayer was similar that the
FTC Scheme should be continued for a further period of five years,
from 2005 in one and from 2011 in the other.
12. It is the case of the petitioners in these writ petitions that the
FTC Scheme has proven a success in Tamil Nadu and even in other
States and, therefore, the extension of the FTC Scheme is
necessary. Another issue that has been raised in these petitions is
that the persons who were appointed as direct recruits from the Bar
were, at the relevant time, in the age group of 35-45 years and
while serving in the FTCs have become overage for re-employment
in permanent posts. Also, as per the Bar Council of India Rules
(Rule 7), they would now be ineligible to practice in any Court lower
than the High Court. Therefore, this would seriously jeopardize the
interests of the persons appointed as ad hoc judges of the FTCs and
it would be an additional and appropriate reason for further
continuing the FTC Scheme.
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13. On somewhat similar lines is another writ petition filed in this
Court, being Writ Petition (Civil) No. 28 of 2011 titled Roshan Lal
Ahuja v. Union of India & Ors., wherein the petitioner has raised a
challenge to a part of the letter dated 11
th March, 2010. Vide this
letter, though the extension of the petitioner as FTC Judge was
recommended by the Chief Justice of the High Court of Punjab and
Haryana, yet it was said that if the recommendation to continue the
FTC Scheme is accepted, the services of the officer would be liable
to be terminated only on 7
th March, 2011 and if the scheme was
discontinued, he would be terminated on 31
st March, 2010 itself.
14. In that very Writ Petition, challenge was also raised to the
decision of the Union of India to discontinue the FTC Scheme
beyond 31
st March, 2011. This decision was said to be arbitrary,
discriminatory and violative of the fundamental rights under Article
21 of the Constitution.
15. The appointment of the judicial officers in that case had been
made under Rules 8 and 9 of the Punjab Superior Judicial Service
Rules, 1963 and selections were made under Rule 5 of the Haryana
Additional District and Sessions Judges Ad hoc Services Rules,
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2001. The petitioners, therefore, claimed a right to the post and
prayed that the FTC Scheme be continued.
16. There are a bunch of Special Leave Petitions which are
directed against the judgments of the Gujarat High Court. All the
petitioners before the High Court were direct recruits from the Bar
and were appointed to the posts of ad hoc Additional District
Judges under the FTC Scheme on different dates, all between 2002
to 2004. The term of some of them had initially been extended but
later their services were terminated. For example, vide order dated
25
th
September, 2009 their services were extended but vide order
dated 14
th
December, 2009, services of the same officers stood
terminated. For either of these orders, one hardly finds any reason
recorded on the file.
17. As per the facts noticed by the High Court in the impugned
judgment, services of 53 FTC Judges came to be terminated. By
orders dated 12
th
October, 2006 services of six Judicial Officers
were terminated on the ground of ‘having not been found suitable’,
by orders dated 8
th
February, 2007, services of seven other officers
were terminated on the same ground, by orders dated 28
th
April,
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2008, the services of 2 FTC Judges were discontinued again on the
same ground. Still vide order dated 25
th
September, 2009, the
services of 12 directly recruited FTC ad hoc Additional District
Judges were terminated by the State with effect from 30
th
September, 2009, on the recommendation of the High Court. Vide
order dated 8
th
October, 2009, services of another 11 Judicial
Officers working under the FTC Scheme were terminated by the
State on the recommendation of the High Court, w.e.f 15
th
October,
2009 and, lastly, vide order dated 14
th
December, 2009, services of
13 officers were terminated on the recommendation of the High
Court on the ground of ‘having not been found suitable’. By these
orders, services of only the direct recruits were terminated. Out of
the 66 persons appointed as direct recruits, some persons had
either left or died and only these 53 remained in service. The High
Court, vide its judgment dated 11
th
August, 2010 dismissed the writ
petition as far as 18 officers were concerned, returning a finding
that in the face of the service record of these officers, the
recommendation of the High Court and the consequent order issued
by the State Government cannot be faulted with. With regard to the
six Judicial Officers whose services were terminated vide order
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dated 12
th
October, 2006, the High Court came to the conclusion
that they had no right to the post and those petitioners could not
derive any benefit from the provisions of Article 311(2) of the
Constitution of India and declined to interfere with the order of
termination. Thus, only with respect to 12 officers did the High
Court remand the matter to the administrative side of the High
Court for reconsideration with reference to the service records of
these officers. The High Court also noticed that certain complaints
which had been received against these officers had been dropped,
after conducting fact finding enquiry or because the allegations
were found to be vague. For these reasons, the High Court
concluded that the decision on the administrative side of the High
Court was not based on record and was prima facie illogical and,
therefore, referred the matter back to the High Court. Rest of the
writ petitions also came to be dismissed by the High Court.
18. In furtherance to the judgment of the High Court, the Full
Court of the Gujarat High Court reconsidered the matter on the
administrative side. It found that only the cases of six petitioners
deserved favourable reconsideration, while the remaining six were
without merit and its earlier decision, in recommending termination
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of their services needed to be reiterated. The six officers who were
dismissed being dissatisfied with the order of the High Court as
communicated to them by the Principal District Judge vide order
dated 5
th March, 2011, again approached the Gujarat High Court on
its judicial side, praying for quashing the said order and
continuation of their services under the FTC Scheme. When these
writ petitions came up before the High Court for hearing, the
argument was that there was no adverse remarks against these
officers and, therefore, they were entitled to continue in
employment on the basis of the decision of this Court in the case of
Smt. Madhumita Das & Ors. v. State of Orissa & Ors. [2008 AIR
SCW 4274], wherein this Court had held that yardstick for
assessing the performance of direct recruit FTC Judges on the one
hand and the members of the regular judicial services on the other,
could not be different as they discharge similar functions.
19. The High Court, while declining the relief prayed for,
concluded as under :
“10. Having heard the learned counsel for the
parties, as we find that the central
Government Scheme for Fast Track Court has
come to an end from 1.4.2011 and the
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petitioners cannot be accommodated against
the regular post in the regular cadre of the
District Judges, including the 100 Courts of
Additional District Judges created for one year
in the regular cadre, which are to be filled up
on the basis of a separate rules, we are of the
view that no relief can be granted in favour of
the petitioners, the scheme of Fast Track
Court having abolished.
11. So far as their appointment in the regular
service post of the Additional District Judge
including 100 posts of Additional District
Judge is concerned, we may only mention that
as per the earlier judgment rendered in the
case of the petitioners dated 11.8.2010 in SCA
No.148 of 2010 and analogous cases, it having
observed that the petitioners cannot be
absorbed in the regular service of the State
and in absence of any provision made in the
Gujarat Judicial Services Rules for
appointment by way of absorption from
amongst the Fast Track Court Judge, as they
cannot be absorbed, we hold that the
petitioners cannot even claim straightway
absorption in the regular service of Gujarat
Judicial Services including the temporary
posts of Additional District Judges created by
resolution dated 30.3.2011. However, as per
the decision of the Supreme Court in the case
of Brij Mohanlal (Supra) (AIR 2002 SC 2096),
the petitioners may apply for appointment by
selection, if normal rule is followed for
selection of members from Bar as direct
recruits to the Superior/Higher Judicial
services, subject to their eligibility.”
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20. Thus, the petitioners whose writ petitions were originally
dismissed by the Gujarat High Court vide its judgment dated 11
th
August, 2010 and those whose petitions were subsequently
dismissed vide judgment dated 21
st
June, 2011, have challenged
the same before this Court in the above-mentioned Special Leave
Petitions.
21. Now, we may notice another group of cases where the prayer
made is diametrically opposite to that made in the case of Brij
Mohan Lal (supra). The petitioners in Writ Petition (C) No.261 of
2008 titled Sovan Kumar Dash & Ors. v. State of Orissa & Anr. have
approached this Court directly under Article 32 of the Constitution
with a prayer that they should be absorbed against vacant posts in
the regular cadre as per the directions contained in Brij Mohan Lal
Case (supra). They further made a prayer that the notification
dated 11
th
April, 2008 issued by the State of Orissa calling for
applications from eligible candidates for direct recruitment from the
Bar to the cadre of the District Judge be quashed. These
petitioners have taken the plea that they have already crossed the
eligibility condition of age. Similarly, another set of petitioners have
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also filed Writ Petition (C) No.250 of 2008 titled Madhumita Das &
Ors v. State of Orissa & Ors. The petitioners therein were working
as FTC Judges. While invoking the writ jurisdiction of this Court
under Article 32 of the Constitution, they prayed that they be
absorbed against the regular vacancies of the State cadre of District
Judges. They further prayed that the abovementioned
advertisement dated 11
th
April, 2008, inviting applications for all
the posts of District Judges including the posts against which the
petitioners were working, be quashed. It is the contention of the
petitioners in this petition that they have already attained an age
more than the higher age limit prescribed while working as ad hoc
Judges of the FTCs. Also, while judging the performance of the FTC
Judges, the condition of completion of eight sessions trials per
month cannot be imposed as it has not so been imposed against the
judges who are forming the regular cadre of the State services.
22. In this petition, no final order has been passed by this Court.
However, at the interim stage, when the Writ Petition came up for
hearing on 11
th
June, 2008, this Court passed the following order :
“Issue notice.
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Challenge in these writ petitions is to the
Advertisement No.1 of 2008 issued by the
Orissa High Court. The petitioners have been
selected to function as ad hoc Additional
District Judges in terms of the judgment of
this Court in Brij Mohan Lal vs. Union of India
and Ors. [(2002) 5 SCC 1]. It is their grievance
that 16 posts advertised also include the 9
posts presently held by the petitioners in the
two writ petitions. It is pointed out that the
eligibility criterion fixed in the advertisement
rules out the present petitioners. Firstly, some
of them are above the maximum age of 45
years and secondly, being Judicial Officers,
they cannot apply for posts advertised for
members of the Bar. It is also pointed out that
in terms of what has been stated by this Court
in Brij Mohan’s case (supra), at paragraph 10,
direction No.4, they are to be continued (in the
ad hoc posts) belonging to Fast Track Courts,
and, thereafter, in respect of regular posts
available, after the Fast Track Courts cease to
function. Their cases are to be considered
subject to their performance being found
satisfactory. Their stand is that they have
been continued from time to time. Obviously,
their performance was found to be satisfactory.
Presently, we are not concerned with that
question which may have relevance only at the
time of considering their absorption in respect
of the regular vacancies. It is submitted by
Mr. Uday U. Lalit, learned senior counsel that
while assessing the performance, there cannot
be different yardsticks, i.e. same parameters
have to be adopted while judging the
performance of the petitioners viz-a-viz those
which are recruited from another source, i.e.
from amongst the Judicial Officers. We find
substance in this plea also. Therefore, we
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direct that the process of selection pursuant to
the Advertisement No.1 of 2008 may continue
but that shall only be in respect of 7 posts,
and not in respect of 9 posts presently held by
the petitioners. It is pointed out that the High
Court, after the advertisement has been issued
has issued certain letters regarding the nondisposal of adequate number of cases. The
petitioners have given reasons as to why there
could not be adequate disposal of the cases.
Needless to say, the High Court shall consider
the stand taken in the responses while judging
their suitability for appointment on regular
basis. The petitioners shall continue to hold
the posts until further orders, for which
necessary orders shall be passed by the High
Court. It is made clear that as and when
regular vacancies arise, cases of the petitioners
shall be duly considered. There shall not be
any need for them to appear in any
examination meant for recruitment to the
cadre of District Judge.”
23. As is evident from the above order, the cases of the petitioners
were directed to be considered as and when the regular vacancies
arose and they did not need to appear in any examination meant for
recruitment to that post. This order of the Court has been relied
upon by all the petitioners in different matters before this Court
who are or were working as FTC Judges and are praying for their
regularization in the service. This was an interim order subject to
23Page 24
the final order that the Court would pass while disposing of the writ
petition finally.
24. Writ Petition (C) No. 254 of 2008 titled Prakash Kumar Rath v.
State of Orissa is again a petition invoking the writ jurisdiction of
this Court under Article 32 of the Constitution, wherein the
petitioner’s case is that he had been selected as per the Judicial
Services Rules of the State but had later been appointed as ad hoc
Additional District and Sessions Judge to the FTC. Having been
selected in the regular cadre and as per the regular process, his
services could not be dispensed with and the communication dated
4
th
April, 2008 and the advertisement dated 11
th
April, 2008 seeking
to fill up vacancies in the regular cadre, are liable to be quashed
and the petitioner is entitled to be absorbed regularly in the State
service cadre.
25. Writ Petition (C) No. 203 of 2010 titled M.K. Sharma & Ors. v.
Rajasthan High Court & Anr. involves the cases where the members
of the regular service cadre, i.e., Civil Judge, Senior Division, had
been promoted as ad hoc FTC Judges and had worked for more
than five years in that post. The State of Rajasthan issued a
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Notification dated 15
th
April, 2010 inviting applications for
promotion to 22 posts in the cadre of District Judges, by limited
competitive examination, in accordance with the provisions of the
Rajasthan Judicial Services Rules, 2010. The respondents, vide
this notification, required the petitioners also to appear in the
limited competitive examination for promotion to the cadre.
According to the petitioners, they had already been promoted in
accordance with the 2010 Rules as Additional District Judges and,
therefore, they are not liable to take the limited competitive
examination. It is the case of the petitioners that they be treated as
regular members of the State Judicial Service and be given equal
treatment with other Judicial Officers as in the case of Smt.
Madhumita Das (supra).
26. Civil Appeal No. 1276 of 2005 titled Smt. G.V.N. Bharatha
Laxmi & Ors. v. State of Andhra Pradesh & Ors. is an application
questioning the correctness of the judgment of the High Court of
Andhra Pradesh dated 13
th
July, 2004, passed in Writ Petition (C)
No.11273 of 2004, wherein the High Court declined to grant the
prayer of the petitioners, who were appointed as the Presiding
Officers in the FTC under the Andhra Pradesh State Higher Judicial
25Page 26
Service Special Rules for Ad hoc Appointments, 2001, that they be
granted absorption in the regular cadre of District and Sessions
Judges created in the State of Andhra Pradesh. The plea of the
petitioners was that they had been appointed under the Rules and
have gained sufficient experience as ad hoc Judges under the FTC
Scheme and are liable to be regularized in that scale.
27. It is appropriate for us to refer to the Rules before we venture
to discuss the merits of various cases. It is undisputed that there
are Rules in place in all the States, with which we are concerned,
for appointment to the Superior Judicial Services, as for example,
the Punjab Superior Judicial Services Rules, 2007 in the State of
Punjab. Besides these Rules, some of the States like, Andhra
Pradesh, Gujarat, Orissa and Jharkhand had enacted separate sets
of Rules for appointment as ad hoc Judges under the FTC Scheme
or otherwise. The State of Andhra Pradesh framed the Rules which
were called as The Andhra Pradesh State Higher Judicial Service
Special Rules for Adhoc Appointments, 2011 (Andhra Rules).
Orissa enacted Orissa Judicial Service (Special Scheme) Rules,
2001 (Orissa Rules), Jharkhand enacted Jharkhand Superior
Judicial Service (Recruitment, Appointment and Conditions of
26Page 27
Service) Rules 2001 (Jharkhand Rules) and Gujarat framed Gujarat
State Judicial Service Rules, 2005 (Gujarat Rules) which were
applicable only to the officers in service.
28. Appointments to the post of ad hoc Judges under the FTC
Scheme have been made by different States in different manners
either with the aid of the regular Rules for appointment to the
Higher Judicial Services/Superior Judicial Services without
following the due and complete process under those Rules or under
the temporary rules enacted by the respective States for this
purpose. Some of the States have not taken recourse to any of
these Rules, but have made appointments by issuing general
orders.
29. It will be useful to refer to the Rules solely enacted for this
purpose and relating to temporary appointments. In the case of
Orissa, Rule 3 of the Orissa Rules provides that notwithstanding
anything contained in the Orissa Superior Judicial Service Rules,
1963 and Orissa Judicial Service Rules, 1994, the appointment of
Additional District Judges on ad hoc and purely temporary basis for
implementation of the FTC Scheme will be made under these Rules.
27Page 28
Rule 4 contemplates that the appointment made under these Rules
shall be purely on ad hoc and temporary basis and was liable to be
terminated at any time without any prior notice. This was amended
by the Orissa Judicial Service (Special Scheme) Amendment Rules,
2003 to permit the selection of members from the Bar by way of
direct recruitment. The amendments of 2003 were necessitated by
virtue of the directions issued by this Court on 6
th May, 2002 in the
-case of Brij Mohan Lal (supra). According to all these Rules, the
retired District Judges, retired Additional District Judges, in-service
Chief Judicial Magistrates having three years of service remaining
and the members from the Bar who were eligible to be considered
for appointment as FTC Judges by direct recruitment or judicial
officers eligible for promotion, as the case may be may be,
appointed to the FTCs. All these Rules provided that the
appointment shall be purely on ad hoc and temporary basis. Rule 7
clearly stated that in-service judicial officers shall not claim regular
promotion in the regular cadre on the basis of his/her appointment
made under the FTC Scheme. These Rules also provided for
disqualification, pay and other allowances payable to the FTC
Judges.
28Page 29
30. These Rules clearly indicate that the appointment to the post
of FTC Judges under the FTC Scheme was purely ad hoc and
temporary, without giving any right to the persons so appointed.
31. Similarly, the Legal Department of the State of Gujarat also
issued a notification bringing into force the Rules for ad hoc and
purely urgent temporary appointment of Judicial Officers and the
members of staff in the State of Gujarat for implementing the FTC
Scheme. The committee for selection of such officers was, again, a
committee of Judges constituted by the Chief Justice of the
concerned High Court. The nature of the appointment and
eligibility criteria were provided for under this Notification as
follows:
“4. The appointment made under these Rules
shall be purely on ad hoc and urgent
temporary basis and such appointments shall
be liable to be terminated at any time without
any notice.
5. (i) The appointments on ad hoc basis
for the posts of District and Sessions
Judges as the Presiding Officer of the
Fast Track Courts shall be made by the
Governor on recommendation of the High
29Page 30
Court either by promotion or transfer or
by recruitment from amongst—
(a) Retired District & Sessions or
retired Assistant Judges/retired City
Civil and Sessions Judges or
(b) Judicial Officers eligible to be
appointed as Assistant Judges, or
(c) Advocates eligible to be appointed as
District and Sessions Judges,
(ii) District and Sessions udges or City Civil
and Sessions judges or Assistant Judges,
who retired on attaining the age of
superannuation or who took voluntary
retirement in normal course but have not
attained the age of 63 years at the time of
appointment shall be eligible to be
considered for such ad hoc appointment
subject to fitness and suitability.
6. No right is conferred on any Judicial
officer in service for claiming any regular
promotion on the basis of his appointment on
ad hoc basis under the Scheme and these
Rules.”
32. The State of Andhra Pradesh, in exercise of the powers
conferred under Article 233 and proviso to Article 309 of the
Constitution, framed Rules which were called the Andhra Pradesh
State Higher Judicial Service Special Rules for Ad hoc
30Page 31
Appointments, 2001 (Andhra Rules). In terms of Rule 2,
notwithstanding anything contained in the Special Rules of Andhra
Pradesh State Higher Judicial Services, 1958, the appointment of
District and Sessions Judges on ad hoc basis shall be made by
direct recruitment from the members of the Bar, by transfer from
amongst Senior Civil Judges in the State Service or by reemployment of retired District Judges, provided that 33¹/3 per cent
of the total number of ad hoc posts shall be filled by direct
recruitment. The rule of reservation of posts was to apply to direct
recruitment. The qualification prescribed for appointment of
persons from the Bar to category II post under Rule 3 of the Special
Rules for Andhra Pradesh State Higher Judicial Services, 1958 was
to apply mutatis mutandis to the direct recruitment from the Bar
under the Andhra Rules. Nevertheless, in terms of Rule 7(1)(b), a
person appointed under Rule 2(i) shall not be regarded as a member
of the 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. The
31Page 32
Andhra Pradesh Civil Services (CC&A) Rules, 1991 were applicable
to all the services under these Rules.
33. In the case of State of Rajasthan, this Court is primarily
concerned with the officers who were members of the Judicial
Services of the State and who had been appointed as Additional
District Judges in terms of Rule 22 of the Rajasthan Higher Judicial
Services Rules, 1969 (Rajasthan Rules). These Rules provided for
temporary or officiating appointments. Relying upon the Rajasthan
Rules, the petitioners claim regularization without taking the
written examination.
34. We may also notice the challenge to the various Rules by the
petitioners from different States. As is evident, the petitioners are
praying for absorption and regularization of their services as
members of the regular service cadre of that State with reference to
the Rules of the respective States. However, there is also a
challenge raised to the constitutional validity of Rules 4 and 6 of the
Gujarat Rules, under which the candidates were appointed as ad
hoc Judges for the FTC Scheme. Rule 4 provided for the pure ad
hoc and urgent temporary nature of these posts and specified that
32Page 33
their services were terminable without any notice while Rule 6 put
an embargo upon the petitioners from claiming any regularization
on the basis of such ad hoc service. The High Court had repelled
the challenge to both these provisions and, in fact, had come to a
positive conclusion that the petitioners had no right to these posts.
35. We may now summarise the contentions which have been
raised before us in this bunch of cases by the petitioners, States
and the Union of India. Wherever the services of the petitioners
have been terminated, they have argued that such termination is
arbitrary and without any basis. The contention by the petitioners
from the State of Gujarat is that, in fact, the termination is
stigmatic inasmuch as their services have been dispensed with on
the ground of their ‘having not been found suitable’. Such
discontinuation in the service, therefore, amounts to termination
which itself is punitive in nature. It is also the contention of these
petitioners that there was nothing adverse in their record which
could justify the taking of such decision. Besides acting in such an
arbitrary manner, the State Government and the High Court have
added insult to the injury, as the Bar Council of India Rules debar
the petitioners from practicing in the District Courts and Courts
33Page 34
equivalent or lower to the FTCs where they had been practicing
prior to their appointment as ad hoc Judges under the FTC
Scheme. Now, except in the High Courts and the Supreme Court,
all doors of practicing law are closed for them. To demonstrate
their plea of arbitrariness in termination, they argued that the chart
of confidential report shown at page 31 to 32 of SLP (C) No.26148 of
2011 against the name of P.D. Gupta has been marked as ‘good’
under the column ‘knowledge of law and procedure’ but then a note
has been made that she should improve. Similarly, the remarks
recorded against others also do not tally with what has been stated
in the main chart. There appear to be some mistakes,
typographical or otherwise, in relation to entries in the Confidential
Reports and even the grades of the persons to whom they refer.
36. In other cases, the contention is that the advocates had been
appointed by following the due procedure prescribed under the
Rules/Notification and, therefore, keeping in view the judgments of
this Court in the cases of Brij Mohan and Madhumita Das (supra),
the petitioners are entitled to continue in service and to be
regularized in the service. In fact, their rights under Articles 14 and
16 of the Constitution have been violated. It is also contended that
34Page 35
as a one-time exercise, the regularization can take place, as was
directed by this Court in the case of Secretary, State of Karnataka &
Ors. v. Uma Devi (3) & Ors. [(2006) 4 SCC 1].
37. In addition to these contentions raised on the factual matrix of
the case, challenge to the constitutional validity of Rules 4 and 6 of
the Gujarat Rules was made by the appointees whose cases, even
upon reconsideration by the Full Court of the Gujarat High Court,
were not favourably considered.
38. The State of Gujarat and other States have taken the stand
that they are not prepared to take upon themselves the financial
burden of continuation of the FTC Scheme, particularly when the
Central Government has decided not to extend the Scheme any
further beyond 31
st March, 2011. Though they conceded that
provision of fair and expeditious trial is the obligation of the State,
which nevertheless is subject to financial limitations of the State.
On behalf of the State of Gujarat, the main contender, it has been
argued that the petitioners have no right to the post and in terms of
the Gujarat Rules also, no right is vested in the petitioners.
Discontinuation of services of these petitioners had not caused any
35Page 36
stigma upon the petitioners as they have not been held guilty of any
misconduct.
39. The stand of the Union of India is that it had initially created
the FTCs for a limited period of five years. However, subsequently
with the intervention of this Court, it was extended by another five
years and finally, it stood extended upto March, 2011. Till that
date, the Central Government has discharged all its liabilities
relating to infrastructure and finances. In fact, the Central
Government has principally taken these financial liabilities on its
shoulders while the appointments and all the other matters fall in
the domain of the State Governments. The 13
th
Finance
Commission has provided Rs.5,000 crores under different heads
relating to the Judiciary. This amount is inclusive of allocations for
Gram Nyayalayas and Evening Courts. Under the 11
th
Finance
Commission, 1734 FTCs were created and there has been a
successful reduction in total number of cases. Nevertheless,
because of more legislations, there has been an increase in
pendency. The Finance Commission and its functions are duly
provided under Articles 264, 280 and 281 of the Constitution. The
36Page 37
sharing of expenditure at the end of every five years is to be
declared by the Finance Commission.
40. The fact that this financial aid and the responsibility of the
Central Government to run the FTC Scheme would eventually come
to an end was a fact known to all the State Governments and the
High Courts right from the inception of the FTC Scheme and as
such, the action of the Central Government in not continuing the
FTC Scheme cannot be faulted with. The Cabinet Note was
prepared on 7
th
July, 2010 in relation to continuation of the Scheme
of Central assistance to the States for FTCs for another one year
and the same was approved vide letter dated 9
th
August, 2010 and
the said letter read as under :
“I am directed to say that the matter of
continuation of central assistance to the State
Governments for the operation of the Fast
Track Courts was under consideration of
Government. In this regard, attention is
invited to Shri S.C. Srivastava, Joint
Secretary’s D.O. letter No.15017/5/2008-
JUS(M) dated 31.3.2010 to Law Secretaries of
all the State Governments.
2. Government has now decided to continue
providing central assistance for funding the
Fast Track Courts all over the country for one
more year beyond 31.3.2010 i.e. up to
31.3.2011 at the rate of Rs.4.80 lakh per court
37Page 38
for meeting the recurring expenditure on these
courts. Any expenditure in excess of this
amount will have to be borne by the State
Government out of their own resources.
3. It has also been decided that there will be
no central funding for Fast Track Courts
beyond 31.3.2011.
4. The central assistance for Fast Track
Courts for 2010-11 will be made available to a
maximum of 1562 Fast Track Courts that were
reported operational on 31.3.2005 when the
scheme of central assistance was continued
beyond 31.3.2005 for a further period of five
years. Accordingly, the maximum number of
Fast Track Courts for which central assistance
will be provided to Arunachal Pradesh will be
3.”
41. Having taken this decision, the Union of India does not wish to
continue the FTC Scheme beyond the specified period. The two
important aspects which emerge from the submissions of the
parties, with particular reference to the Union of India, are, firstly,
that the Ministry of Law and Justice, Union of India declared a
Vision Statement on 24
th
October, 2009. In that statement, it was
declared publicly that the Ministry of Law and Justice shall ensure
that 15,000 judge positions are established within two years to
dispose of the cases expeditiously and to provide speedy trial.
Secondly, one aspect which has been heavily relied upon by the
38Page 39
petitioners is that even in the Chief Justices and Chief Ministers
Conference held on August 16, 2009 at New Delhi, the work of
expeditious disposal of cases by the FTCs under the FTC Scheme
was highly appreciated and it was assured that the said Scheme
shall continue till 2015 and neither any of the States nor the Centre
raised the plea of financial limitations at that time. Once this was
the definite view of such a high level meeting, it was expected of the
Central Government as well as the State Governments, to follow the
said directive. But, on the contrary, they have taken a decision to
discontinue the Scheme with effect from 31
th March, 2011. Some of
the States have urged before this Court that they can continue with
the FTC Scheme only if the Central Government continues to
provide 100 per cent funding for the same. In response, the Union
of India has also stated that it has no objection, if, within their own
means, each State Government carries on with the FTCs already
established in the respective States. Consequently, there is a state
of impasse, which has emerged from these opposing stands taken
by the State Governments, on the one hand and the Central
Government, on the other.
39Page 40
42. However, the State and the Centre, both, have taken the stand
that it is not permissible for this Court to issue a mandamus
directing either the State Governments or the Central Government
to either continue the FTC Scheme or to provide the funds for the
FTC Scheme. Articles 112, 264, 280 and 281 of the Constitution
detail the budgeting provisions and presentation of annual financial
statements before the Parliament. Thus, it will not be appropriate
for this Court to step into the functions of the Executive, as specific
powers under the Constitution are vested with the latter in relation
to finances of the States.
43. Learned Amicus Curiae, Mr. P.S. Narsimha, Senior Advocate
contended with some vehemence that there are various decisions of
this Court to support the proposition that the writ of mandamus
could be issued by this Court in such circumstances. However, the
formulation of such directions would be a point of fine construction
by the Court. A large number of cases are pending, so this Court
would have to take judicial notice of such heavy pendency and it
will be well within its jurisdiction to pass orders and directions with
respect to reduction of pendency. What should be the strength of
judges in the country is again a matter where the Courts may not
40Page 41
directly comment as there may be many policy considerations that
would influence the Government’s decision. The Court can express
a hope that the Government of India will periodically review the
strength of Judges in each State and appoint as many Judges as
required for the purpose of disposing of the arrears of pending
cases. However, the Court, while exercising restraint, with
minimum encroachment on the Executive field and within the
contours of the reasonable extent of jurisdiction even in the given
circumstances, may issue mandamus directing the States to incur
expenditure in order to maintain the independence of judiciary and
to ensure fair trial. It is also contended by the learned amicus that
even under the American justice delivery system, the Courts have
gone to the extent of passing such directions, for example, in the
case of Commonwealth ex rel. Carroll v. Tate et al. (442 Pa.45; 274
A.2d 193) where Judge Montgomery issued a mandamus order
against the defendants therein to appropriate and pay an amount of
US $2,458,000 and made final his injunctive order dated 27
th
July,
1970 against adjustment. The Court took the above view in
exercise of its inherent powers, it being a basic precept of the
Constitutional form of Republic Government that the Judiciary is
41Page 42
an independent and co-equal branch of Government along with the
Executive and Legislative Branches. On the strength of this
American case and various judgments of this Court in the cases of
All India Judges’ Association v. Union of India & Ors. [(1992) 1 SCC
119]; All India Judges’ Association v. Union of India & Ors. [(1993) 4
SCC 288]; Record Association v. Union of India & Ors. [(1993) 4 SCC
441]; and All India Judges’ Association v. Union of India & Ors.
[(2002) 4 SCC 247], the contention is that this Court should direct
continuation of the FTC Scheme as the expenses have already been
incurred and 1562 Courts are functional.
44. The First National Judicial Pay Commission, in the year 1999,
noticed the statistics of pending cases in the country. It mentioned
that nearly 1.30 crore cases are disposed of while 1.45 crore fresh
cases are filed every year. Thus, the backlog of cases increases
every year. To put it simply, the existing backlog was stated to be
two crores, increased by nearly 12 to 15 lakh cases per year. This
Commission took note of the fact that there were nearly 340 Central
legislations which created offences and matters allied thereto,
triable by the Court of Magistrate. These legislations were also
increasing with the passage of time. It was felt desirable that, at
42Page 43
the minimum, double the present number of judicial officers were
required to handle the problem of pendency of cases in the country.
45. The 120
th
Report of the Law Commission, 1987 brought out
another very significant drawback in the justice administration
system of the country. In terms of this report, the proportion of
judicial officers in India was 10.5 officers per million population, in
the year 1987. This percentage, in comparison to other developed
countries in the world, was probably the lowest. Australia had 41.6
judicial officers per million population, Canada 75.2, England 50.9
and the United States of America 107 per million population.
46. The National Crime Record Bureau, Ministry of Home Affairs,
also published a Report on Crime in India. According to this report,
approximately 49 lakh criminal cases under the IPC and 36 lakh
criminal cases under the special or local laws were pending at the
end of the year 2000. Realizing the gravity of the problem, the then
Minister of Law and Justice, Government of India had evolved the
FTC Scheme, primarily to deal with the pendency of sessions cases.
This was termed as a “long-term road map” for judicial reforms that
was being chattered out by the Government. The FTC Scheme
43Page 44
originally contemplated establishment of five Courts per district in
approximately 600 districts, thus making a total of 3000 Courts in
the country. Instead of employing new Judges, services of retired
Judges were to be utilised. The supporting staff was to be
appointed on re-employment basis and it was estimated that Rs.
2.16 lakhs annual expenditure was likely to be incurred while
taking only 50 per cent of the normal salary for the serving
employees. The recurring cost per Court per year was Rs.3.32
lakhs and non-recurring cost was Rs.4.6 lakh per court per year.
However, this proposed FTC Scheme was curtailed to some extent,
by the 11
th
Finance Commission which only recommended 1,734
Courts at the rate of Rs.29 lakh expenditure per court. Out of this,
non-recurring expenditure per Court was estimated at
Rs.5,00,000/- and recurring expenditure at Rs.4.8 lakhs. The total
expenditure estimated for the period of five years was Rs.509
crores. The purpose primarily was to reduce the pendency of
criminal cases pending in the respective courts. The anticipated
benefits of the FTC Scheme, as projected, were – speedy trial,
elimination of pendency in the district courts, enormous saving of
expenses incurred on under-trials, etc. There was a further
44Page 45
possibility of saving of funds on account of public prosecutors,
manpower for running jails and even on behalf of the under-trials
with regard to fees that they spend on advocates. In the case of
All India Judges Association v. Union of India (1993) 4 SCC 288, this
Court took note of the fact that the Judiciary had been included as
a plan subject by the Planning Commission. The Court directed
that the infrastructure, including the Courts and residential
complexes for the Judges should be built in consultation with the
respective High Courts and the High Courts should take due
interest in such construction. In compliance with the said
judgment, the Eighth, Ninth and Tenth Plan earmarked Rs.110
crores, Rs.385 crores and Rs.700 crores, respectively, for
infrastructure for the Judiciary. It may be usefully noticed here
that on the one hand, the Central Government has taken the
decision to discontinue the FTC Scheme for reasons best known to
it and, on the other hand, it has sanctioned funds of Rs.2500 crores
as per the 13
th
Finance Commission Report for commencement and
running of Morning/Evening/Special/Judicial/Metropolitan/Shift
Courts for the period 2010-11 to 2014-15, amongst other heads of
45Page 46
expenditure. But no funds appear to have been allocated for judicial
infrastructure.
47. The 11
th
Finance Commission under Article 275 of the
Constitution allocated Rs.502.90 crores in the year 2000 for the
FTC Scheme. It was stipulated that there shall be a time-bound
utilization of these funds within the five years of the FTC Scheme,
the term of which was to end on 31
st March, 2005.
48. The FTC Scheme was challenged by different persons before
various High Courts. The Union of India took a clear stand that
appointment of retired judges was not a mandatory requirement
and additionally, the FTC Scheme also contemplated ad hoc
appointment of Judicial Officers, as well as direct recruitment from
the Bar. Though the FTC Scheme was contemplated to be for a
definite period of five years, it came to be extended and remained
into force under the judgment of this Court in the case of Brij
Mohan Lal (supra) and even under certain other directions passed
in the case of Madhumita Das (supra). It is the conceded position
before us that the Central Government had decided not to finance
the FTC Scheme beyond 31
st March, 2011. Out of the funds of
46Page 47
Rs.502.90 crores, which were allocated by the 11
th
Finance
Commission, a balance of Rs. 83.87 crores was lying with the
Central Government, as only Rs. 420.03 crores had been disbursed
as on 31
st March, 2005. It was ordered by this Court that this
amount will not lapse and will be disbursed for the implementation
of the FTC Scheme. But from the record before us, it appears that
neither the amount has been disbursed nor spent under the FTC
Scheme. On the recommendation made by the Chief Justices and
the Chief Ministers Conference, the Cabinet Committee on
Economic Affairs vide its decision dated 7
th
April, 2005 extended the
FTC Scheme for a period of another five years with 100 per cent
Central funding. Again, the FTC Scheme was extended by the
decision of the Central Government till 31
st March, 2011 but
thereafter the Union of India had taken a conscious decision not to
extend the financing of FTC Scheme beyond 31
st March, 2011.
49. Despite discontinuation of the FTC Scheme by the Union of
India, a number of States have decided to continue with the FTC
Scheme, at least for the present. This decision of the concerned
States needs to be noticed with appreciation. In the State of Orissa,
the State Government has taken a decision to keep the FTC Scheme
47Page 48
in force till 31
st March, 2013, however, the State has not taken any
decision as to what would happen thereafter. The State of Gujarat,
on the other hand, has decided not to continue with the Scheme
beyond 31
st March, 2011 and the Judicial Officers appointed
directly from the Bar on a temporary basis have been relieved. As
already noticed, a number of writ petitions have been filed
challenging the above-mentioned actions of the State.
50. The State of Andhra Pradesh, on the recommendation of the
High Court, has also taken a conscious decision to continue the
FTC Scheme till 31
st March, 2012. State of Haryana has taken a
tentative view to continue the FTC Scheme till March 2016, subject
to a final decision to be taken by the competent authority in the
State hierarchy. The State of Rajasthan has decided to continue
the FTC Scheme till 29
th
February, 2013.
Whether any of the appointees to the post of ad hoc judges
under the FTC Scheme have a right to the post in context of
the facts of the present case?
51. The first and foremost question that requires the consideration
of this Court at this very stage is whether the appointees have a
right to the post. In order to answer this question, we must first
48Page 49
refer to the letters of appointment which were issued to the
appointees, particularly the appointees in the States of Gujarat,
Rajasthan, Orissa, Andhra Pradesh and, on somewhat similar lines,
even in other States.
52. In the State of Gujarat, the Notification dated 12
th
November,
2003 and other notifications vide which advocates were appointed
directly as ad hoc Judges, FTCs under the FTC Scheme, are
similarly worded. The relevant part of the Notification dated 12th
November, 2003 reads as under:-
“No. Fast Track Court/102002/270/ 270/D :-
Following practicing Advocates who are
selected for the appointment of Ad-hoc basis
under rule 5(1) (C) of “The ad-hoc and purely
urgent temporary appointment of Judicial
Officers and members of the Staff in the State
of Gujarat for implementing the Special
Scheme of Fast Track Courts (Sponsored by
Central (Govt.) for elimination of arrears Rule,
201 are appointment for a period of two years
from the day they over charge of the said posts
as on Ad-hoc and purely temporary basis as
Joint District Judges to preside over the Fast
Track Courts.”
53. A bare reading of the above Notification clearly shows that
they were appointed under the FTC Rules, on ad hoc basis and on
49Page 50
purely urgent temporary appointment, for a period of two years
from the date they took over the charge of the said posts. The
entire emphasis of the Notification was on the appointments being
temporary, ad hoc and terminable at any time. These appointments
were made under the “Ad hoc and purely urgent temporary
appointment of Judicial Officers and the members of staff in the
State of Gujarat for implementing the Special Scheme of Fast Track
Courts (sponsored by the Central Government) for elimination of
arrears Rules 2001”. These Rules, in turn, referred to the
expression “Committee” which means the Committee of the Judges
of the High Court constituted by the High Court or the Chief
Justice. ‘Fast Track Court’ means the Court created under the
FTC Scheme as sponsored by the Central Government and for all
other words and definitions, one has to refer to the Gujarat Judicial
Services Recruitment Rules, 1961. Rule 3 of the said Rules
prescribed that the appointments were on ad hoc and on purely
urgent temporary basis for implementing the FTC Scheme and the
Rules were notwithstanding the Gujarat Judicial Service
Recruitment Rules, 1961. These appointments were made by the
Governor on the recommendation of the High Court either by
50Page 51
promotion or transfer of Judicial Officers or by recruitment from
amongst retired District and Sessions Judges/Judicial Officers and
advocates eligible to be directly appointed as District and Sessions
Judges. The selection of the candidates for such ad hoc
appointment was to be made by the Committee on the basis of the
procedure and criteria laid down. Rule 6 of the Gujarat Rules
clearly stated that no right is conferred on any Judicial Officer in
service for claiming any regular promotion on the basis of his
appointment on ad hoc basis under the Scheme. Further, Rule 4 of
the Gujarat Rules provided for termination of their services.
54. For all other conditions of service, these officers were to be
governed by the conditions of service applicable to the Judicial
Officers of the State.
55. In the State of Orissa, advocates were appointed temporarily
as ad hoc Additional District Judges in the pay scale of Rs. 10,650-
325-15350 by direct recruitment to the FTCs which had been
established under the grant of 11
th
Finance Commission. In terms
of the notification of appointment, their service conditions were to
be governed by the Orissa Rules, as amended from time to time.
51Page 52
All other appointees were appointed by similar notification of
different dates. Therefore, reference to the Orissa Rules becomes
necessary.
56. These Rules were pari materia to the Judicial Service Rules
framed by the Orissa State except that the appointments were
initially for a period of one year and subject to termination without
notice. Clause 4 of the said Rules reads as under :-
“4(1) The appointment made under these rules
shall be on ad hoc and temporary basis.
(2) The appointment shall be made initially for
a period of one year and shall be liable to be
terminated at any time without any prior
notice.
(3) During the term of such appointment the
appointees will be under the administrative
and disciplinary control of the High Court.”
57. These Rules were framed by the State of Orissa
notwithstanding the Orissa Superior Judicial Services Rules, 1963
and the Orissa Judicial Service Rules, 1994. Any right to regular
promotion in the regular cadre was also specifically denied under
Rule 7 of the Orissa Rules.
52Page 53
58. In the State of Andhra Pradesh also, under Rule 2 of the
Andhra Rules, the advocates were directly appointed as Additional
District Judges to preside over FTCs vide Notification dated 6th
October, 2003. These appointments were also ad hoc and
temporary, for a limited period. These Rules were framed
notwithstanding anything contained in the Special Rules for Andhra
Pradesh State Higher Judicial Service, 1958 and provided the same
categories of recruitment to the FTCs as were provided under the --
Rules of two above-mentioned States. It duly prescribed for the
qualifications, seniority, posting and transfer of the appointees.
Under the terms and conditions of service, Rule 7(1)(b) specifically
contemplated that a person appointed under the Andhra Rules
shall not be entitled to any preferential right to any other
appointment to this service or any other service. It was also
contemplated that their services shall neither be treated as regular
or permanent under the State Government nor shall it be a bar for
the appointment to posts covered by the other Rules in that State.
Under Rule 2(4), all appointments made from time to time under
the Andhra Rules were to cease on 31st March, 2005, i.e., the
period for which the FTC Scheme was created at the first instance.
53Page 54
59. All the petitioners/candidates in the State of Rajasthan were
members of the regular Judicial Services of that State. They were
promoted on ad hoc basis to officiate as Additional District Judges
(Fast Track) and they had been functioning as such for a
considerable period. They were given extension of service vide
Notification issued by the State. Now, they have been asked to
take the Limited Competitive Examination for being promoted on
regular basis to the Higher Judicial Services of the State. This has
been challenged by them on different grounds, as already noticed
above. But, we must notice that initially when they were appointed
as Additional District Judges, they had not taken any written
examination as prescribed under the Rules and the judgment of
this Court in the case of All India Judges Association (supra).
Further, in fact, they have not taken such an examination till date.
60. Upon an analysis of the above-stated Rules relating to the
different States, the appointment letters issued to the appointees
and the methodology that was adopted for appointment of the FTC
Judges, it becomes clear that the appointees cannot be said to have
any legal, much less an indefeasible, right to the posts in question.
Firstly, the posts themselves were temporary, as they were created
54Page 55
under and within the ambit and scope of the FTC Scheme
sponsored by the Union of India, which was initially made only for a
limited period of five years. Now, financing of the FTC Scheme has
already been stopped by the Central Government with effect from
31
st March, 2011. No permanent posts were ever created. In other
words, their appointments were temporary appointments against
temporary posts. The relevant Rules of the States clearly postulate
that the appointments made under the Rules were purely on ad hoc
basis and urgent temporary basis and were terminable without
notice. The Rules as well as the respective notifications of
appointment issued to these appointees, unambiguously stated that
no right would be conferred upon the appointees for regular
promotion on the basis of working on ad hoc basis under the FTC
Scheme. The notifications vide which the
judges/candidates/petitioners were appointed, particularly in the
State of Gujarat, clearly specified these appointments to be
temporary and for a period of two years on ad hoc basis. The
cumulative effect of the notifications appointing the petitioners to
the said posts under the FTC Scheme and the relevant Rules
governing them clearly demonstrate that these were temporary and,
55Page 56
in some cases, even time-bound appointments, terminable without
prior notice. It is difficult for the Court to accept the contention of
these petitioners that there was any indication, in the above noted
Rules or otherwise, that the said appointments were permanent and
that the appointees were entitled to be absorbed regularly in those
posts.
61. Normally, there are three kinds of posts that may exist in a
cadre – (1) permanent posts; (2) temporary posts; and (3) quasi
permanent posts. Accordingly, there can be a temporary employee,
a permanent employee or an employee in quasi permanent capacity.
In the case of Indian Drugs and Pharmaceuticals Ltd. v. Workmen
[(2007) 1 SCC 408], this Court, while elucidating upon the
distinction between temporary and permanent employees stated
that such distinction is well settled. Whereas a permanent
employee has a right to the post, a temporary employee has no right
to the post. It is only the permanent employee who has a right to
continue in service till the age of superannuation. As regards a
temporary employee, there is no age of superannuation because he
has no right to the post at all. Thus, it follows that for a person to
have a right to the post, the post itself has to be a permanent post
56Page 57
duly sanctioned in the cadre. The person should be permanently
appointed to that post. Normally, it is only under these
circumstances that such an employee gets a right to the post, but
even when a temporary employee is appointed against a permanent
post, he could get a right to the post provided he had at least
acquired the status of a quasi permanent employee under the
relevant Rules. Where neither the post is sanctioned nor is
permanent and, in fact, the entire arrangement is ad hoc or is for
an uncertain duration, it cannot create any rights and obligations
in favour of the appointees, akin to those of permanent employees.
The appointees in the present case had been appointed not only on
ad hoc and temporary basis but the entire FTC Scheme itself was
ad hoc and for a duration of five years only as declared by the
Central Government. Despite that, some of the States declared the
FTC Scheme for two years only. In these circumstances, it is not
possible for this Court to hold that the appointees had any right to
the post.
62. Decades ago, this Court, in the case of Parshotam Lal Dhingra
v. Union of India [AIR 1958 SC 36], was seized with a matter where
the appellant had been granted promotion from Class III Service in
57Page 58
the Indian Railways to Class II, but, in view of the adverse remarks
in his Confidential Report, the same was not effected. The action of
the State was challenged before the High Court. The learned Single
Judge took the view that this action of the State was punitive.
However, the judgment was reversed by the Division Bench of the
High Court. A Constitution Bench of the Supreme Court allowed
the appeal, while holding as under :
“12. In the absence of any special contract the
substantive appointment to a permanent post
gives the servant so appointed a right to hold
the post until, under the rules, he attains the
age of superannuation or is compulsorily
retired after having put in the prescribed
number of years’ service or the post is
abolished and his service cannot be terminated
except by way of punishment for misconduct,
negligence, inefficiency or any other
disqualification found against him on proper
enquiry after due notice to him. An
appointment to a temporary post for a certain
specified period also gives the servant so
appointed a right to hold the post for the entire
period of his tenure and his tenure cannot be
put an end to during that period unless he is,
by way of punishment, dismissed or removed
from the service. Except in these two cases the
appointment to a post, permanent or
temporary, on probation or on an officiating
basis or a substantive appointment to a
temporary, on probation or on an officiating
basis or a substantive appointment to a
58Page 59
temporary post gives to the servant so
appointed no right to the post and his service
may be terminated unless his service had
ripened into what is, in the service rules,
called a quasi-permanent service…”
63. In the case of Champaklal Chimanlal Shah v. Union of India
[AIR 1984 SC 1854], this Court held that where a Government
servant had completed three years service and the Rules provided
for declaration of his service thereafter as a quasi-permanent
employee, the Government servant would become a quasipermanent employee only if such declaration was actually made.
Similar view was also taken earlier in the case of Jaswant Singh v.
State of Haryana [(1979) 4 SCC 440].
64. Therefore, the above principles clearly show that there should
be a right vested in an employee, which is duly recognized and
declared in accordance with the Rules governing the conditions of
service of such employee before such relief is granted. Unless the
Government employee holds any status as afore-indicated, it may
not be possible to grant relief to the Government employee,
particularly, when such relief is not provided under the relevant
Rules.
59Page 60
65. We may even consider this from a different point of view.
These Rules had been framed under Article 309 of the Constitution
and had the force of law. Of course, in some of the petitions, i.e., in
some of the matters relating to the State of Gujarat, there is
challenge raised to the constitutional validity of Rules 4 and 6 of the
Gujarat Rules, which we shall shortly proceed to discuss, but in all
other cases arising from different States, there is no challenge to
the validity of the Rules governing these appointments.
66. Right to a post is not a fundamental right but is a civil or a
statutory right. That the creation of a post, absorption and
payment of salaries on regular pay scales are purely Executive
functions and under the Doctrine of Separation of Powers well left
are these functions to the Executive, was the view expressed by this
Court in the case of P.U. Joshi v. Accountant General [(2003) 2 SCC
632]. To take another example, where a person is sent on
deputation to a post even after consultation with the Union Public
Service Commission but for a limited period, after the expiry of the
said period, the deputationist can neither claim a right to continue
in that post, nor can he claim absorption on permanent basis as he
had no right to the post. This view was stated by this Court, in the
60Page 61
case of Union of India v. S.N. Panicker [(2001) 10 SCC 520]. It is
primarily the nature of the post, the method and manner of
appointment to the said post and the Rules governing the
conditions of service of that post which would be the precepts to
deal with such situations.
67. Article 310 of the Constitution is concerned with the tenure of
office of persons serving the Union or a State. Except as expressly
provided by the Constitution, every person who is a member of a
defence service or a civil service of the Union or State or an all-India
service or holds any post connected with defence or any civil post
under the Union, holds such office during the pleasure of the
President or during the pleasure of the Governor of the State, as the
case may be. However, Article 311 of the Constitution carves out
an exception to Article 310 and states that no person who is a
member of a civil service of the Union shall be dismissed or
removed by an authority subordinate to that by which he was
appointed and then, only after holding of an enquiry and
opportunity of being heard and making a representation in respect
of those charges and on penalty proposed. Proviso to Articles
311(2) and 311(3) provide further exceptions to the operation of
61Page 62
Article 311 itself. The doctrine of pleasure, under our Constitution,
deals with three different categories of posts. First, offices which
are held during the pleasure of the President or Governor, as the
case may be; second, offices held during pleasure of the President
or Governor but subject to some restrictions against removal; and
third, offices held for a specified term but with immunity against
removal, except by impeachment. The third category of posts is not
subject to the doctrine of pleasure. Having regard to the
Constitutional scheme, it is not possible to extend the type of
protection against removal granted to one category of officers, to
another category. In India, contrary to the law in England, even the
doctrine of pleasure has limitations and restrictions.
68. It is believed that, where Rule of Law prevails, there can be
nothing like unfettered discretion or unaccountable action. The
degree of reasoning required in support of the decision may vary.
The degree of scrutiny during judicial review may vary. But the
need for reasoning exists. As a result, when the Constitution of
India provides that some offices will be held during the pleasure of
the President, without any express limitations or restrictions, this
power should, however, necessarily be read as being subject to the
62Page 63
fundamentals of constitutionalism. {Refer B.P. Singhal v. Union of
India [(2010) 6 SCC 331]}. We must also notice another settled
position of law, stated by this Court in the case of Union of India &
Anr. v. Tulsiram Patel [(1985) 3 SCC 398], that the origin of
Government services is contractual. There is an offer and
acceptance in every case. But once appointed to his post or office,
the Government servant acquires a status and his rights and
obligations are no longer determined by the consent of both the
parties, but by statute or statutory rules as framed and unilaterally
altered by the Government. In other words, the legal position of a
Government servant is more one of status than that of contract.
69. Therefore, the appointees do not have an absolute right to the
post, but we would have to consider the effect of the judgments of
this Court in the cases of Madhumita Das (supra) and Brij Mohan
Lal (supra) to examine if the petitioners in these cases are entitled
to any relief or not. Before we enter into discussion upon that
aspect of the case, it will be necessary for us to deliberate on the
question whether writ of mandamus can at all be issued in this case
and, if so, its scope. Needless to say, the origin of the FTC Scheme
was in a policy decision by the Central Government. The Central
63Page 64
Government had taken a decision to implement the FTC Scheme,
particularly to deal with the arrears of criminal cases in the country
and it had taken unto itself the burden of financing the entire
scheme. It was to incur all infrastructural and recurring
expenditures for implementation of the FTC Scheme. Examined
from any point of view, it was a policy decision of the Union of
India, which was accepted by the various State Governments, which
in turn implemented this policy by appointing ad hoc Judges to
preside over FTCs. These appointments were made by three
different methods: from amongst the retired Judges, by promotion
from Civil Judges (Senior Division), and by direct recruitment from
the Bar.
70. The Central Government then has taken a decision not to
finance the FTC Scheme beyond 31
st March, 2011. However, some
of the State Governments have still taken a decision at their own
level to continue with the FTC Scheme, for the time being. None of
the States appearing before us have stated that, as a matter of
policy or otherwise, they have decided to continue the FTC Scheme
at their own expense as a permanent feature of Justice
Administration System. It is a settled principle of law that matters
64Page 65
relating to framing and implementation of policy primarily fall in the
domain of the Government. It is an established requirement of good
governance that the Government should frame policies which are
fair and beneficial to the public at large. The Government enjoys
freedom in relation to framing of policies. It is for the Government
to adopt any particular policy as it may deem fit and proper and the
law gives it liberty and freedom in framing the same. Normally, the
Courts would decline to exercise the power of judicial review in
relation to such matters. But this general rule is not free from
exceptions. The Courts have repeatedly taken the view that they
would not refuse to adjudicate upon policy matters if the policy
decisions are arbitrary, capricious or mala fide. In bringing out the
distinction between policy matters amenable to judicial review and
those where the Courts would decline to exercise their jurisdiction,
this Court, in Bennett Coleman & Co. and Others. v. Union of India
and Others [(1972) 2 SCC 788], held as under :
“100. The argument of the petitioners that
Government should have accorded greater
priority to the import of newsprint to supply
the need of all newspaper proprietors to the
maximum extent is a matter relating to the
policy of import and this Court cannot be
65Page 66
propelled into the unchartered ocean of
Government policy.”
71. We must examine the cases where this Court has stepped in
and exercised limited power of judicial review in matters of policy.
In Asif Hameed v. State of Jammu & Kashmir and Anr. [1989 Suppl.
(2) SCC 364], this Court noticed that, where a challenge is to the
action of the State, the Court must act in accordance with law and
determine whether the State has acted within the powers and
functions assigned to it under the Constitution. If not, it must
strike down the action, of course, with due caution. Normally, the
Courts do not give directions or advise in such matters. This Court
held as under: -
“19. When a State action is challenged, the
function of the court is to examine the action
in accordance with law and to determine
whether the legislature or the executive has
acted within the powers and functions
assigned under the Constitution and if not, the
court must strike down the action. While doing
so the court must remain within its selfimposed limits. The court sits in judgment on
the action of a coordinate branch of the
Government. While exercising power of judicial
review of administrative action, the court is not
an Appellate Authority. The Constitution does
not permit the court to direct or advise the
66Page 67
executive in matters of policy or to sermonize
qua any matter which under the Constitution
lies within the sphere of legislature or
executive, provided these authorities do not
transgress their constitutional limits or
statutory powers.”
(emphasis supplied)
72. It is also a settled cannon of law that the Government has the
authority and power to not only frame its policies, but also to
change the same. The power of the Government, regarding how the
policy should be shaped or implemented and what should be its
scope, is very wide, subject to it not being arbitrary or
unreasonable. In other words, the State may formulate or
reformulate its policies to attain its obligations of governance or to
achieve its objects, but the freedom so granted is subject to basic
Constitutional limitations and is not so absolute in its terms that it
would permit even arbitrary actions. Certain tests, whether this
Court should or not interfere in the policy decisions of the State, as
stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would
be unconstitutional.
67Page 68
(II) The change in policy must be made fairly and should not give
impression that it was so done arbitrarily on any ulterior
intention.
(III) The policy can be faulted on grounds of mala fide,
unreasonableness, arbitrariness or unfairness etc.
(IV) If the policy is found to be against any statute or the
Constitution or runs counter to the philosophy behind these
provisions.
(V) It is dehors the provisions of the Act or Legislations.
(VI) If the delegate has acted beyond its power of delegation.
73. Cases of this nature can be classified into two main classes:
one class being the matters relating to general policy decisions of
the State and the second relating to fiscal policies of the State. In
the former class of cases, the Courts have expanded the scope of
judicial review when the actions are arbitrary, mala fide or contrary
to the law of the land; while in the latter class of cases, the scope of
such judicial review is far narrower. Nevertheless,
unreasonableness, arbitrariness, unfair actions or policies contrary
68Page 69
to the letter, intent and philosophy of law and policies expanding
beyond the permissible limits of delegated power will be instances
where the Courts will step in to interfere with government policy.
74. In the case of Mohd. Abdul Kadir and Anr. v. Director General
of Police, Assam and Ors. [(2009) 6 SCC 611], this Court, while
declining regularization of the persons employed in a particular
project under a temporary Scheme, though the same had been
continued for a long time, commented upon the scope of
interference in the policy relating to Prevention of Infiltration of
Foreigners Additional Scheme, 1987 and considered it appropriate
to draw the attention of the authorities to the issues involved in the
case by directing as under: -
“22. We are conscious of the fact that the issue
is a matter of policy having financial and other
implications. But where an issue involving
public interest has not engaged the attention
of those concerned with policy, or where the
failure to take prompt decision on a pending
issue is likely to be detrimental to public
interest, courts will be failing in their duty if
they do not draw attention of the authorities
concerned to the issue involved in appropriate
cases. While courts cannot be and should not
be makers of policy, they can certainly be
69Page 70
catalysts, when there is a need for a policy or a
change in policy.”
75. The correct approach in relation to the scope of judicial review
of policy decisions of the State can hardly be stated in absolute
terms. It will always depend upon the facts and circumstances of a
given case. Furthermore, the Court would have to examine any
elements of arbitrariness, unreasonableness and other
Constitutional facets in the policy decision of the State before it can
step in to interfere and pass effective orders in such cases. A
challenge to the formation of a State policy or its subsequent
alterations may be raised on very limited grounds. Again, the scope
of judicial review in such matters is a very limited one. One of the
most important aspects in adjudicating such a matter is that the
State policy should not be opposed to basic Rule of Law or the
statutory law in force. This is what has been termed by the courts
as the philosophy of law, which must be adhered to by valid policy
decisions.
76. The independence of the Indian Judiciary is one of the most
significant features of the Constitution. Any policy or decision of
the Government which would undermine or destroy the
70Page 71
independence of the judiciary would not only be opposed to public
policy but would also impinge upon the basic structure of the
Constitution. It has to be clearly understood that the State policies
should neither defeat nor cause impediment to discharge of judicial
functions. To preserve the doctrine of separation of powers, it is
necessary that the provisions falling in the domain of judicial field
are discharged by the Judiciary and that too, effectively.
77. This Court has consistently held that the writ of mandamus
can be issued, perhaps not as regards the manner of discharge of
public duty but with respect to the due exercise of discretion in the
course of such duty. In the case of S.P. Gupta v. Union of India
[(1981) Supp. SCC 87], this Court issued directions to the Union of
India to determine, within a reasonable time, the strength of
permanent Judges required for disposal of cases instituted in the
High Courts and to take tests to fill up the vacancies after making
such determination. While stating that the appointment of judges
was considered to be a power coupled with duty, the Court in held
as under: -
“In a parliamentary democracy with a written
Constitution in which three organs of the
71Page 72
Governments are clearly marked out, it
becomes a primary duty of the State to provide
for fair and efficient administration of justice.
Justice must be within the easy reach of the
lowest of the lowliest. Rancour of injustice
hurts an individual leading to bitterness,
resentment and frustration and rapid
evaporation of the faith in the institution of
judiciary. Two vital limbs of the Justice system
are that Justice must be within the easy reach
of the weaker sections of the society and that it
must be attainable within a reasonably shorttime, in other words, speedily. Leaving aside
other factors contributing to the arrears in
courts, it cannot be gainsaid that in each High
Court adequate number of Judges must be
appointed and the situation in each High
Court must be regularly reviewed by the
President so as to efficiently discharge the duty
cast on him by Article 216. In the course of
hearing a statement was made on behalf of the
Union of India that the Government is taking
steps to review the strength of each High Court
to determine the adequate strength of each
High Court and then to take steps to make
appointments according to the targets so
devised. As this statement is a solemn
undertaking to this Court, it may be
reproduced in extenso:
The Union Government has decided to
increase the number of posts of permanent
judges in the various High Courts keeping in
view the load of work, the guidelines
prescribed and other relevant considerations.
In fact in 1980 itself, on the basis of
institution, disposal and arrears of cases and
the guidelines prescribed, the Governments of
seven States where the problem was more
72Page 73
acute, had been addressed to consider
augmentation of the Judge strengths of their
High Courts. It has been decided that where
necessary the guidelines prescribed will be
suitably relaxed by taking into account local
circumstances the trend of litigation and any
other special or relevant factors that may need
consideration. The Union Government will take
up the matter with the various State
Governments so that after consulting the Chief
Justices of the High Courts, they expeditiously
send proposals for the conversion of a
substantial number of posts of Additional
Judges into those of permanent judges.
2. The Union Government has also decided
that ordinarily further appointments of
Additional Judges will not be made for periods
of less than one year.
But to say that a litigant who wants his case to
be disposed of as early as possible being
convinced that his case is not handled by the
Court for want of adequate number of judges
can bring an action to issue a mandamus to
the Government to appoint adequate number
of judges requires more elaborate arguments
and in view of the statement it is not necessary
to deal with the submission.
XXX XXX XXX
1251. Notwithstanding the principle of
separation of powers found entrenched in the
Constitution of the United States of America,
as can be seen from the last part of para 141
of Vol. 52 of the American Jurisprudence 2d.
under the title 'Mandamus' if it is the
constitutional or statutory duty of a governor
or the President to exercise his discretion with
73Page 74
respect to a certain matter he may be required
by mandamus to do so but the manner in
which he has to discharge that duty cannot be
directed by the courts. As observed in the
English decisions referred to above it is
manifest that a statutory discretion is not
necessarily or indeed usually absolute, it may
be qualified by express and implied legal
duties to comply with substantive and
procedural requirements before a decision . is
taken, whether to act and how to act. I am of
the view that the power conferred on the
President by Article 216 of the Constitution to
appoint sufficient number of Judges is a power
coupled with a duty and is not merely a
political function. In the instant case
ordinarily the court would have been reluctant
to issue any mandamus to the Government to
comply with the duty of determination of the
strength of Judges of High Courts. But having
regard to the undisputed total inadequacy of
the strength of Judges in many High Courts, it
appears to be inevitable that the Union
Government should be directed to determine
within a reasonable time the strength of
permanent Judges required for the disposal of
cases instituted in them and to take steps to
fill up the vacancies after making such
determination.”
78. Thereafter, even in the case of All India Judges’ Association v.
Union of India & Ors. (1992) 4 SCC 288, this Court not only issued
74Page 75
a mandamus but even directed the acceptance of the Justice Shetty
Commission Report and consequently ordered the State
Governments to fix grades of pay, grant appropriate pay scales as
well as make amendments in the age of retirement and other
conditions of service, as necessary, in order to maintain the
independence of judiciary. Again, in a subsequent judgment taken
up in the year 2002, in the same case All India Judges’ Association
v. Union of India [(2002) 4 SCC 247], this Court held as under :
“21. The next question which arose for
consideration is whether the Shetty
Commission was justified in recommending
that 50 per cent of the expense should be
borne by the Central Government. It has been
contended by the learned Advocate-General for
the State of Karnataka as well as on behalf of
the other States that the judicial officers
working in the States deal not only with the
State laws but also with the federal laws. They,
therefore, submitted that, in fairness of things,
the Central Government should bear half of
the expenses of the judiciary.
XXX XXX XXX
25. An independent and efficient judicial
system is one of the basic structures of our
Constitution. If sufficient number of Judges
are not appointed, justice would not be
available to the people, thereby undermining
the basic structure. It is well known that
justice delayed is justice denied. Time and
75Page 76
again the inadequacy in the number of Judges
has adversely been commented upon. Not only
have the Law Commission and the Standing
Committee of Parliament made observations in
this regard, but even the Head of the judiciary,
namely, the Chief Justice of India has had
more occasion than one to make observations
in regard thereto. Under the circumstances, we
feel it is our constitutional obligation to ensure
that the backlog of the cases is decreased and
efforts are made to increase the disposal of
cases. Apart from the steps which may be
necessary for increasing the efficiency of the
judicial officers, we are of the opinion that time
has now come for protecting one of the pillars
of the Constitution, namely, the judicial
system, by directing increase, in the first
instance, in the Judge strength from the
existing ratio of 10.5 or 13 per 10 lakh people
to 50 Judges per 10 lakh people. We are
conscious of the fact that overnight these
vacancies cannot be filled. In order to have
additional Judges, not only will the posts have
to be created but infrastructure required in the
form of additional courtrooms, buildings, staff
etc., would also have to be made available. We
are also aware of the fact that a large number
of vacancies as of today from amongst the
sanctioned strength remain to be filled. We,
therefore, first direct that the existing
vacancies in the subordinate courts at all
levels should be filled, if possible latest by 31-
3-2003, in all the States. The increase in the
Judge strength to 50 Judges per 10 lakh
people should be effected and implemented
with the filling up of the posts in a phased
manner to be determined and directed by the
Union Ministry of Law, but this process should
be completed and the increased vacancies and
76Page 77
posts filled within a period of five years from
today. Perhaps increasing the Judge strength
by 10 per 10 lakh people every year could be
one of the methods which may be adopted
thereby completing the first stage within five
years before embarking on further increase if
necessary.”
79. Such is not the practice in India alone, but it is prevalent even
in the United States of America. In the case of Commonwealth ex
rel. Carroll v. Tate et al. (supra), Judge Montgomery of the Supreme
Court of Pennsylvania upheld the order of mandamus issued
against the defendants for appropriation and payment of the
amounts needed for infrastructure and other requirements for
proper running of the Courts. The Court held that it is a basic
precept of the Constitutional form of Republican Government that
the Judiciary is an independent and co-equal Branch of the
Government along with Executive and Legislative Branches and the
amount that had been recommended by the Mayor for utilization by
the Judiciary was found to be inadequate to meet the reasonable
needs of the Court for the fiscal year. Thus, the Court, while
reducing the amount originally ordered by Judge Montgomery,
nevertheless upheld the issue of mandamus, affirming the earlier
order earlier with some modification.
77Page 78
80. It is, thus, clear that it is the constitutional duty of this Court
to ensure maintenance of the independence of Judiciary as well as
the effectiveness of the Justice Delivery System in the country. The
data and statistics placed on record, of which this Court can even
otherwise take judicial notice, show that certain and effective
measures are required to be taken by the State Governments to
bring down the pendency of cases in the lower Courts. It
necessarily implies that the Government should not frame any
policies or do any acts which shall derogate from the very ethos of
the stated basic principle of judicial independence. If the policy
decision of the State is likely to prove counter-productive and
increase the pendency of cases, thereby limiting the right to fair and
expeditious trial to the litigants in this country, it will be
tantamount to infringement of their basic rights and constitutional
protections. Thus, we have no hesitation in holding that in these
cases, the Court could issue a mandamus. The extent of such
power, we shall discuss shortly hereinafter.
81. Thus, we have no hesitation in coming to the conclusion that
in the cases at hand, this Court is possessed of the jurisdiction and
is competent to issue a writ of mandamus and/or appropriate
78Page 79
directions. However, the scope and dimensions of such directions
is a matter of further deliberation, which we shall shortly proceed to
discuss.
Right to Practice
82. Article 19(1)(g) of the Constitution provides a fundamental
right to practice any profession or to carry on any occupation, trade
or business. This right is subject to the limitations contained
under Article 19(6) of the Constitution. The State is empowered to
make any law imposing, in the interest of general public, reasonable
restrictions on the exercise of the rights conferred by the said subclause. This power specifically refers to the professional or
technical qualifications necessary for practicing any profession or
carrying on any occupation. The right to practice law is not an
absolute right and is subject to the possession of requisite
qualifications as contemplated under the Advocates Act, 1961.
This right to practice is further subject to the limitations prescribed
in and the regulatory regime of the Bar Council of India Rules.
Therefore, the argument that once a lawyer possesses the requisite
79Page 80
qualifications, he has an unrestricted and unregulated right to
practice, is not tenable.
83. The appointees in the present case argued that in terms of the
Bar Council of India Rules, after they cease to be judges of the FTCs
for any reason whatsoever, they shall be debarred from practicing
in the district and subordinate courts. Their right to practice is
abridged with respect to the courts in which they acted as judges
and courts of the equivalent or lower grade. They can still practice
in the higher courts, i.e., permissible Tribunals, High Courts and
the Supreme Court of India. Thus, there is no complete and
absolute restriction on their right to practice. It is only a partial
restriction which is based upon securing the larger public interest
and the interest of ensuring transparency in the administration of
justice. This by itself, therefore, cannot be a consideration for
compelling the Government to continue their appointments, if they
are otherwise not entitled under law to continuation. This question,
in somewhat similar circumstances, came up for consideration of
this Court when the retired members of the Custom, Excise and
Service Tax Appellate Tribunal (for short “the CESTAT”) were not
permitted to practice before the same Tribunal on the strength of
80Page 81
Rule 7 Chapter III, Part VI of the Bar Council of India Rules. This
Court not only upheld the validity of the said Rules, but also held
that this did not amount to an absolute and unreasonable bar on
the right to practice of the past members of the Tribunal. Upon an
objective analysis of the principles stated therein, this Court held
that except where a challenge is made on the grounds of legislative
incompetence or the restriction imposed is ex facie unreasonable,
arbitrary and violative of Part III of the Constitution, the restriction
would be held to be valid and enforceable. We may refer to the
following paragraph of the judgment of this Court, in the case of
N.K. Bajpai v. Union of India & Anr. (CA No. 2850 of 2012 arising
out of SLP(C) No. 8479 of 2010), to which one of us, Swatanter
Kumar, J was a member, decided on 15
th March, 2012, which reads
as under:-
“29. An objective analysis of the above
principles makes it clear that except where
the challenge is on the grounds of legislative
incompetence or the restriction imposed was
ex facie unreasonable, arbitrary and violative
of Part III of the Constitution of India, the
restriction would be held to be valid and
enforceable.”
81Page 82
84. For the reasons afore-noticed and the law indicated above, we
do not find any merit in the contention raised on behalf of the
appointees/petitioners that they would suffer an irreparable loss by
termination of their services as FTC judges and that the restriction
contained in Rule 7 of the Bar Council of India Rules amounts to an
absolute unreasonable restriction upon their right to practice in the
event of such termination.
Scope of Judicial Review
85. The power of judicial review to examine the validity of a
legislation falls within a very limited compass. It is treated by the
Courts with greater restraint and on a much higher pedestal than
examination of the correctness or validity of State policies. In the
present case, the Union of India had framed a policy, which was
termed as the FTC Scheme. This was a conscious policy decision
taken by the appropriate Government, the implementation whereof
in regard to financial infrastructure, capital or recurring
expenditure was primarily that of the Union of India. Some of the
State Governments framed Rules to fill up the posts of Judges who
were to preside over the FTCs, while others just took a policy
82Page 83
decision with respect to the existing statutory Rules for recruitment
to the regular Higher Judicial Services cadre of that State. As
already noticed, the FTC Scheme contemplated three different
sources for recruitment of judges, i.e. by direct recruitment,
promotion and appointment of retired Judges. The work done by
the FTCs over long period had been appreciated by all concerned.
To demonstrate this aspect, we may refer to certain statistics which
have been placed on record by different States.
86. As per the latest data placed on record, the State of Andhra
Pradesh had sanctioned 108 posts of FTC Judges, out of which 72
are stated to be in place as on the financial year 2010-2011. These
courts disposed of 20,696 cases in the period from 01.01.2011 to
30.11.2011 and the pendency as on 30.11.2011 in these courts was
35,290 cases. In Bihar, 183 posts were created and 138 judges are
presently in position. 18,222 cases have been disposed of in the
period from 01.01.2011 to 31.12.2011, and 13,149 cases
transferred to regular courts leaving arrears of 75,868. The State
of Gujarat has claimed, for the same year, that 166 judicial posts
were sanctioned and functioning, and they had disposed of 38,426
83Page 84
cases in the period from 01.01.2011 to 31.12.2011 leaving arrears/
pendency of 86,755 cases.
87. In Himachal Pradesh, there were nine judicial posts, out of
which five are presently filled and 8607 cases were disposed of in
the period from 01.01.2011 to 31.12.2011 leaving pendency of 5852
cases. Jharkhand had 39 presiding officers in place out of the 89
sanctioned posts and they had disposed of 1406 cases in the period
from 01.01.2011 to 31.03.2011, leaving a pendency of 22,238 cases
as on 31.03.2011.
88. In Kerala, 25 posts out of 38 sanctioned posts were
functioning. 9,925 cases were disposed of in the period from
01.01.2011 to 31.12.2011, leaving a pendency of 13,809 cases.
89. In Karnataka, 92 out of 93 sanctioned posts are functioning.
They have disposed of 39,800 cases in the period from 01.01.2011
to 31.12.2011, leaving a pendency of 33,661 cases. In Madhya
Pradesh, 44 out of 59 judicial posts are filled and they have
disposed of 61,866 cases in the period from 01.01.2011 to
31.12.2011, leaving a pendency of 36,284 cases. In Maharashtra,
out of 100 sanctioned posts, 91 judicial officers have been
84Page 85
appointed. They have disposed of 25235 cases, leaving a balance of
54398 in the year 2010-2011. In Orissa, 34 courts out of 72 are
functioning. They have disposed of 7007 cases leaving a balance of
5275 upto the year 2010-2011.
90. In Punjab and Haryana, out of 18 courts, 15 courts and out of
16 courts, seven courts are working. They have disposed of 7376
cases leaving a balance of 13202 cases. In Rajasthan, 42 courts
out of 43 are functioning. They have disposed of 9680, having a
total pendency of 17,474 cases upto the year 2010-2011. In Tamil
Nadu, 43 out of 49 posts are functional. They have disposed of
65,877 cases in the period from 01.01.2011 to 31.12.2011 leaving
arrears of 50,386. In Uttar Pradesh, 153 posts, out of the
sanctioned 156 were functioning. They have disposed of 16,640
cases in the period from 01.01.2011 to 31.03.2011 leaving a
pendency of 53,117 cases as on 31.08.2011. In West Bengal, 150
posts out of 151 sanctioned are in place and have disposed of
10,499 cases in the period from 01.01.2011 to 31.12.2011 leaving a
pendency of 32,648 cases upto the year 2010-2011.
85Page 86
91. There were 1734 FTCs under the FTC Scheme out of which
1281 Courts are in place in the entire country. They have disposed
nearly 32.34 lakh cases right from the date of their establishment
till the year 2010-2011. The above stated pendency details of
criminal cases in the country as on 30 March, 2011 is only with
regard to Sessions cases. If we take the total figure of pendency of
criminal cases before the Sessions Courts, as well as the Magisterial
Courts, there shall be a total pendency of approximately 6.56 lakh
cases.
92. The above data clearly shows that the pendency of criminal
cases in the country has increased at a rapid pace, despite a good
rate of disposal of cases being maintained by the FTCs. This
experiment has been tried over a long period, i.e., it was started in
the year 2001 for an initial period of five years. However, it was
subsequently extended and the Central Government agreed to
finance the FTC Scheme uptil 30
th March, 2011. Thereafter, the
various State Governments have either decided to wind up the FTC
Scheme or have extended the FTC Scheme at their own expense.
Thus, there is no unanimity between the Union Government and
the States either on continuation or the closure of the FTC Scheme.
86Page 87
93. The Union of India, of course, has stated that it would not, in
any case, finance expenditure of the FTC Scheme beyond 30
th
March, 2011 but some of the States have resolved to continue the
FTC Scheme upto 2012, 2013 and even 2016. A few States are
even considering the continuation of the FTC Scheme as a
permanent feature in their respective States. This, to a large
extent, has created an anomaly in the administration of Justice in
the States and the entire country. Some of the States would
continue with the FTC Scheme while others have been forced to
discontinue or close it because of non-availability of funds.
94. On the one hand, the Central Government has communicated
its decision not to finance the FTC Scheme to the State
Governments, but on the other hand and quite strangely, it has
provided substantial funds for the starting of Evening Courts and
Gram Nyalayas, etc. Again, this is a policy decision and though the
Government has the jurisdiction to decide on such policy matters,
there has to be some rationale and reasonableness in the same.
They cannot be so arbitrary and patently erroneous that it becomes
necessary for the Court to interfere with the same.
87Page 88
95. Some of the States, like the State of Gujarat, have decided to
terminate the services of the appointees directly recruited from the
Bar. However, in some cases, the High Court on its judicial side
has quashed the notice of termination. In the case of Orissa,
although the FTC Scheme is continuing upto 30
th March, 2013,
they have still dispensed with the services of some of the direct
recruits from the Bar.
96. In Chhatisgarh, the FTC Scheme itself has been discontinued
with effect from 1
st
April, 2011.
97. In some of the other States, the appointees have prayed for
regularization of their services.
98. In some of the States, the FTC Scheme is being continued on
ad hoc basis and without any final decision being taken in that
behalf. The appointees have therefore, prayed for continuation of
the FTC Scheme as well as regularization of their services in the
regular cadre of the State Judicial Services.
99. The policy decision of the State should be in public interest
and taken objectively. Adhocism or uncertainty in the State policy
particularly relating to vital factors of governance, may not bring
88Page 89
the requisite dividend. Reasons for taking a policy decision would
squarely fall in the domain of the State, but it should be free from
element of arbitrariness and mala fide. There are three basic pillars
of our constitutional governance i.e. the Executive, the Legislature
and the Judiciary. The doctrine of separation of powers
demarcates the area of their respective operation. Normally, the
Government exercises various controls over its instrumentalities
and the organizations involved in the governance of the State. This
would be through financial, administrative or managerial and
functional controls. These parameters of control may be applied to
determine whether or not a particular organization or a body is a
State within the meaning of Article 12 of the Constitution. We
have noticed these aspects primarily with the purpose of
demonstrating that judicial functions and judicial powers are one of
the essential attributes of a sovereign State and on considerations
of policy, the State transfers its judicial functions and powers,
mainly to the courts established by the Constitution, but that does
not affect competence of the State to, by appropriate measures,
transfer a part of its judicial functions or powers to Tribunals or
other such bodies. This view is expressed by this Court, in the
89Page 90
case of Associated Cements Co. Ltd. v. P.N. Sharma [AIR 1965 SC
1595]. However, as far as functioning of the courts, i.e.,
dispensation of justice by Courts is concerned, the Government has
no control whatsoever over the courts. Further, in relation to
matters of appointments to the Judicial Services of the States and
even to the Higher Judiciary in the country, the Government has
some say, however, the finances of Judiciary are entirely under the
control of the State. It is obvious that these controls should be
minimized to maintain the independence of the Judiciary. The
courts should be able to function free of undesirable administrative
and financial restrictions in order to achieve the constitutional goal
of providing social, economic and political justice and equality
before law to its citizens.
100. Article 21 of the Constitution of India takes in its sweep the
right to expeditious and fair trial. Even Article 39A of the
Constitution recognizes the right of citizens to equal justice and free
legal aid. To put it simply, it is the constitutional duty of the
Government to provide the citizens of the country with such judicial
infrastructure and means of access to Justice so that every person
is able to receive an expeditious, inexpensive and fair trial. The plea
90Page 91
of financial limitations or constraints can hardly be justified as a
valid excuse to avoid performance of the constitutional duty of the
Government, more particularly, when such rights are accepted as
basic and fundamental to the human rights of citizens.
101. In the case of High Court of Judicature at Bombay, Through its
Registrar v. Shirishkumar Rangrao Patil and Anr. [(1997) 6 SCC
339], this Court articulated the above-mentioned principles
unambiguously in the following words:-
“13. The question then is whether the High
Court is justified in recommending to the
Governor the respondent's dismissal from
service on the basis of the material on record
and whether the evidence on record was not
sufficient to conclude the misconduct of
having demanded illegal gratification. In a
democracy governed by rule of law, under a
written constitution, judiciary is the sentinel
on the qui vive to protect the fundamental
rights and poised to keep even scales of justice
between the citizens and the States or the
States inter se. Rule of law and judicial review
are basic features of the Constitution. As its
integral constitutional structure, independence
of the judiciary is an essential attribute of rule
of law. Judiciary must, therefore, be free from
pressure or influence from any quarter. The
Constitution has secured to them, the
independence. The concept of “judicial
independence” is a wider concept taking within
its sweep independence from any other
91Page 92
pressure or prejudice. It has many
dimensions, namely, fearlessness of other
power centres, economic or political, and
freedom from prejudices acquired and
nourished by the class to which the Judge
belongs. Independent judiciary, therefore, is
most essential to protect the liberty of citizens.
In times of grave danger, it is the
constitutional duty of the judiciary to poise the
scales of justice unmoved by the powers
(actual or perceived), undisturbed by the
clamour of the multitude. The heart of judicial
independence is judicial individualism. The
judiciary is not a disembodied abstraction. It is
composed of individual men and women who
work primarily on their own. (Vide C.
Ravichandran Iyer v. Justice A.M.
Bhattacharjee) The Constitution of India has
delineated distribution of sovereign power
between the legislature, executive and
judiciary. The judicial service is not service in
the sense of employment. The Judges are not
employees. As members of the judiciary, they
exercise the sovereign judicial power of the
State. They are holders of public offices in the
same way as the members of the Council of
Ministers and the members of the legislature.
It is an office of public trust and in a
democracy, such as ours, the executive, the
legislature and the judiciary constitute the
three pillars of the State. What is intended to
be conveyed is that the three essential
functions of the State are entrusted to the
three organs of the State and each one of them
in turn represents the authority of the State.
The Judges, at whatever level they may be,
represent the State and its authority, unlike
the bureaucracy or the members of the other
service. [Vide All India Judges' Assn. v. Union
92Page 93
of India [SCC paras 7 and 9] (second case).]
The Judges do not do an easy job. They
repeatedly do what the rest of us seek to avoid,
i.e., make decisions. Judges, though are
mortals, they are called upon to perform a
function that is utterly divine in character. The
trial Judge is the kingpin in the hierarchical
system of administration of justice. He directly
comes in contact with the litigant during the
day-to-day proceedings in the court. On him
lies the responsibility to build a solemn
atmosphere in the dispensation of justice. The
personality, knowledge, judicial restraint,
capacity to maintain dignity, character,
conduct, official as well as personal and
integrity are the additional aspects which
make the functioning of the court successful
and acceptable. Law is a means to an end and
justice is that end. But in actuality, law and
justice are distant neighbours; sometimes even
strangely hostile. If law shoots down justice,
the people shoot down the law and lawlessness
paralyses development, disrupts order and
retards progress. [Vide All India Judges' Assn.
v. Union of India9) which quoted with approval
the statement of law by Krishna Iyer, J.]
Fourteenth Report of the Law Commission,
extracted and approved by this Court in the
above judgment (SCC p. 134, para 44),
postulates thus:
“If the public is to give profound
respect to the judges the judges should
by their conduct try and observe it; not
by word or deed should they give cause
for the people that they do not deserve
the pedestal on which we expect the
public to place them. It appears to us
that not only for the performance of his
93Page 94
duties but outside the court as well a
judge has to maintain an aloofness
amounting almost to self-imposed
isolation.”
14. Therein also, it was further observed
that what is required of a Judge is “a form of
life and conduct far more severe and restricted
than that of ordinary people” and though
unwritten, it has been most strictly observed.
The judicial officers are at once privileged and
restricted; they have to present a continuous
aspect of dignity and conduct. If the rule of law
is to efficiently function under the aegis of our
democratic society, Judges are expected to
nurture an efficient, strong and enlightened
judiciary. To have it that way, the nation has
to pay the price, i.e., to keep them above
wants, provide infrastructural facilities and
services. There was a time when a Judge
enjoyed a high status in society. A Government
founded on anything except liberty and justice
cannot stand and no nation founded on
injustice can permanently stand. Therefore,
dispensation of justice is an essential and
inevitable feature in the civilized democratic
society. Maintenance of law and order requires
the presence of an efficient system of
administration of criminal justice. A sense of
confidence in the court is essential to maintain
the fabric of ordered liberty for free people and
it is for the subordinate judiciary by its action
and the High Court by its appropriate control
of subordinate judiciary and its own selfimposed judicial conduct, on and off the
bench, to ensure it. If one forfeits the
confidence in the judiciary of its people, it can
never regain its lost respect and esteem. The
conduct of every judicial officer, therefore,
94Page 95
should be above reproach. He should be
conscientious, studious, thorough, courteous,
patient, punctual, just, impartial, fearless of
public clamour, regardless of public praise,
and indifferent to private, political or partisan
influences; he should administer justice
according to law, and deal with his
appointment as a public trust; he should not
allow other affairs or his private interests to
interfere with the prompt and proper
performance of his judicial duties, nor should
he administer the office for the purpose of
advancing his personal ambitions or
increasing his popularity. If he tips the scales
of justice, its rippling effect would be
disastrous and deleterious. Obviously,
therefore, this Court in All India Judges' Assn.
attempted to ensure better uniform conditions
of service for subordinate judiciary throughout
the country, it recommended the
superannuation of the subordinate judicial
officers at the age of 60 years; and ensured
amelioration of their service conditions by
giving diverse directions. In 2nd All India
Judges' Assn. this Court dealt with the status
of the judicial officers as a class and held that
they are above the personnel working in other
constitutional functionaries, viz., the executive
and the legislature. Directions were issued by
this Court for ensuring due implementation for
their better service conditions. Three years'
minimum service at the Bar was recommended
to be eligible to be a judicial officer in All India
Judges' Assn. v. Union of India (third case). In
All India Judges' Assn. v. Union of India
(fourth case), direction was issued to ensure
accommodation.”
95Page 96
102. As is evident from the above extract, which makes reference to
a number of other judgments of this Court, judicial review is
recognized as a basic feature of the Constitution and independence
of judiciary is integral to the constitutional structure, as an
essential attribute of the Rule of law. Judiciary must, therefore, be
free from pressure and influences from any quarter. The heart of
judicial independence is judicial individualism. The judiciary is not
a disembodied abstraction. It is composed of men and women who
work primarily on their own. Thus, it can be stated with certainty
that any impediments to the continued and independent
functioning of the Judiciary would result in damaging the
institution of Justice as well as adversely affecting the faith of the
public in the functioning of the Courts/Tribunals. Only if
continued judicial independence is assured, would the
Courts/Tribunals be able to discharge their functions in an
impartial manner. It is fundamental that members of the
Courts/Tribunal be independent persons. They should resemble
the courts and not bureaucratic Boards {Ref. Union of India v. R.
Gandhi, President, Madras Bar Association [(2010) 11 SCC 1]}.
96Page 97
103. In the above-mentioned case, this Court also expressed the
view that persons exercising quasi-judicial powers should be vested
and possessed with the independence, security and capacity as is
associated with the courts.
104. It is a frequently stated principle that making the Judiciary
free from control of the Executive and the Legislature is essential,
as there exists a right to have claims decided by Judges who are
free from domination by other branches of the Government.
105. These principles have withstood the test of time and have been
frequently applied by the courts. Even in the case of Union of India
& Ors. v. Pratibha Bonnerjea & Anr. [(1995) 6 SCC 765], this Court
stated that the Judicial Officers belonging to the subordinate
services are placed under the protective umbrella of the High Court
and that it had no hesitation in concluding that the relationship
between the Government and the High Court is not that of master
and servant. The Judicial Officers cannot be said to be holding a
post under the Union or the State.
106. It is in this context that this Court, in the case of Ashoka
Kumar Thakur v. Union of India & Ors. [(2008) 6 SCC 1], while
97Page 98
dealing with Right to Education in terms of Article 21A of the
Constitution, held that financial constraints upon the State cannot
be a ground to deny fundamental rights to citizens.
107. On a proper examination of the above principles, it can be
stated without hesitation that wherever the right which is being
affected is a basic or a fundamental right, the State cannot be
permitted to advance an argument of financial constraints in such
matters. The policy of the State has to be in the larger public
interest and free of arbitrariness. Adhocism and uncertainty are
the twin factors which are bound to adversely affect any State policy
and its results. The State cannot in, an ad hoc manner, create new
systems while simultaneously giving up or demolishing the existing
systems when the latter have even statistically shown achievement
of results.
108. In reference to the cases at hand, the Central Government had
taken a decision to stop financing and consequently to wind up the
FTC Scheme. However, at the same time, it has allocated Rs.2500
crores for operation of the Morning, Evening and Shift Courts in the
country besides providing funds under other heads, as per the 13
th
98Page 99
Finance Commission Report for the period 2010-2011 to 2014-
2015.
109. It may not be appropriate for this Court to decide upon a
comparative analysis of the policy decisions as to which policy has
greater merit and which policy the Government should adopt, but
certainly whichever policy is eventually taken up by the State, it has
to be fair, in public interest and also satisfy the constitutional
limitation of ensuring independence of Judiciary.
110. Another very important aspect, which has often been noticed
by this Court, is that the Legislature, in exercise of its power, has
enacted various Central and State laws. The disputes arising
under these laws are to be adjudicated upon by the Courts. It is a
known fact that such legislations are not preceded by Judicial
Impact Assessment by the concerned authorities.
111. To take an example, in 1988 the Legislature amended the
provisions of the Negotiable Instruments Act, 1881, inserting
Chapter XVII (Section 138 to Section 142) by the Amending Act 66
of 1988. Again, vide the Amending Act 55 of 2002, the punishment
prescribed under Section 138 of that Act was amended and the
99Page 100
period of notice was also reduced to 15 days from the one month
period prescribed earlier. These amendments resulted in filing of
unexpected number of cases in the courts of the learned Magistrate.
As per the 213
th
Law Commission Report, the pendency in 2008 of
Section 138 cases alone in the country is 3.8 million cases in the
trial courts.
112. Similarly, with the passage of time, owing to the tremendous
growth in the population of the country and greater awareness
among citizens of their rights, civil and criminal litigation before the
Courts have increased manifold, without there being an equivalent
increase in the strength of Judges and enhancement in the
infrastructure of the Courts. Thus, it is essential that some kind of
consistent and systematized approach is adopted by all the
concerned Governments, including the Union of India, so as to take
effective measures to remedy this situation as well as to prevent
further undesirable increase in the pendency of cases before the
Courts. Expeditious disposal of cases is obviously the first answer
to this multifarious problem.
The Conference of the Chief Ministers of the States and the
Chief Justices of the High Courts
100Page 101
113. In order to resolve various administrative and allied issues
relating to the administration of justice in the States, it has been
the practice to hold the Chief Justices and Chief Ministers
Conference, which is presided over by the Chief Justice of India. In
these meetings, various steps are discussed, for which an agenda is
circulated and suggestions from the High Courts as well as the
State Governments are invited. This Conference is normally
attended by the Chief Ministers and/or the Law Ministers of the
State, Chief Justices of the High Courts and various other
authorities from the bureaucracy and the High Courts. Upon due
deliberations, decisions are taken, whereafter Minutes of the same
are prepared and circulated. The decisions are recorded and
circulated to the States and the Union of India specifically for their
information and further action. Unfortunately, the practice has
shown that these decisions have hardly been implemented by the
concerned authorities.
114. One such Conference was held on 16
th
August, 2009 in which
various matters were discussed. Item 3 of the Agenda and the
decision taken thereunder reads as follows:-
101Page 102
“3. Progress made in setting-up of fast
track courts of magistrates and fast track
civil courts and continuation of fast track
courts.
There was unanimity amongst all the
participants that Fast Track Courts of
Magistrates and Fast Track Civil Courts be set
up on the lines of Fast Track Courts of
Sessions for the purpose of expeditious
disposal of cases pending in the Magisterial
Courts. They were unanimous on the aspect
that huge accumulation of arrears of cases
cannot be arrested unless strength of Judicial
Officers is raised. All the speaker were ad
idem with the proposal of continuing Fast
Track Courts of Sessions for a further period
of five years beyond 31
st March, 2010, as they
were set-up with a laudable object and a large
number of cases have been disposed of by
these courts. However, the speakers cited
financial constraints and desired that the
allocation of funds for this purpose be made
by the Central Government.
DECISION
a] Fast Track Civil Courts and Fast Track
Courts of Magistrates be set-up in order to
arrest accumulation of arrears of cases in
such courts.
b] Fast Track Courts of Sessions be
continued for a further period of five years
beyond 31
st March, 2010.
c] Priority be given to the retired Judicial
Officers for appointment to the Fast Track
Courts having unblemished service record of
integrity, probity and ability as also on the
102Page 103
basis of physical and mental fitness. A
reasonable amount of remuneration be paid to
the retired Judicial Officers appointed for the
purpose.”
115. The matter in regard to setting up of Evening, Morning and
Shift Courts was also discussed and it was required that the State
Government shall set up at least one Family Court in each district.
Other items which may have some bearing on the matter before us
are Item nos. 8 and 13 which read as under:-
“8] Steps required to be taken for reduction
of arrears and ensuring the speedy trial
There was complete unanimity amongst
the participants that cases are not being
disposed of within a reasonable time-schedule
and they were of the view that strength of
Judges at all levels need to be enhanced in
order to arrest accumulation of arrears of
cases and to provide speedy, efficient and
effective justice to the citizens. The speakers
also stressed upon the need to evolve methods
to arrest arrears of cases and to ensure speedy
disposal of cases. The participants also
impressed upon the fact that unfilled
vacancies be filled up at the earliest which will
contribute to reducing the backlog of cases.
DECISION
The High Courts will make scientific and
rational analysis as regards accumulation of
arrears and devise a roadmap for itself and
jurisdictional courts to arrest arrears of cases
103Page 104
taking into account average institution,
pendency and disposal of cases and to ensure
speedy trial within a reasonable time-schedule.
13] Judicial Impact Assessment
The proposal of ‘Judicial Impact Assessment’
was welcomed at the Conference and need was
felt that it be assessed on a continual basis.
It was suggested that a scientific study be
made to estimate the additional case-load on
the courts on account of a new legislation.
DECISION
A judicial impact office at the National and
State levels on continual basis for making
assessment of impact of legislations on judicial
work load be constituted.”
116. There is nothing placed on record before us to show that the
FTCs at the level of the Magistrate Courts have no further efficacy.
All the concerned governments, including the Union of India, which
duly participated in the Conference, had decided to extend the FTCs
for a period of five years beyond 31
st March, 2010 i.e. till 31
st March,
2015. It was further contemplated in the above decisions that other
measures should also be taken by the respective State
Governments and Union of India to tackle the problem of arrear of
cases. Hardly any decision in that regard was implemented, but on
104Page 105
the other hand, a decision contrary to the minutes has been taken
with certainty and has been placed before us that the FTC Scheme
would not be financed by the Central Government beyond 31
st
March, 2011. The question that arises is whether it is justified for
the Central Government, or any other Government, to brush aside
the above Minutes and recommendations of such a high level
meeting in a most casual manner or whether such Minutes require
favourable consideration by all concerned and proper and complete
policy decisions taken in furtherance thereto and such minutes
form the foundation for major policy decisions relating to judiciary.
117. The latter perspective demands an affirmative answer as these
decisions and recommendations should be favourably considered by
all concerned. Rather, they should form the basis of the policy
decisions relating to the administration of justice. The Chief
Justices and the Chief Ministers are the constitutional heads of the
Judiciary and the Executive, respectively. The matters are
discussed by all States, Union of India and Judiciary. The
decisions are taken on the basis of the collective wisdom. One can
hardly comprehend a constitutional body of a higher normative
significance than the Chief Justices and the Chief Ministers of the
105Page 106
respective High Courts/States to take such policy decisions at the
National level. The meeting is held under the umbrella of the
Union of India and is presided over by the Chief Justice of India,
Union Minister for Law and Justice and other high dignitaries to
deliberate upon issues which relate to the justice delivery system,
ultimately affecting the basic and fundamental rights of the citizens
of this country at large.
118. It will not only be unfair but unacceptable that these Minutes
be placed in the shelves of the Government archives without
attaching any significance to them. In our considered view, it will
neither be fair nor proper for any level in the bureaucratic hierarchy
of the Government to reject such suggestions at the threshold, that
too, without any proper reasoning in support thereof. At least, the
Cabinet of the Government of India or the State Government, as the
case may be should take into consideration the decisions and
recommendations of this meeting. We hasten to add that due
weightage should be attached to these recommendations and
preferably, they should form the basis of the policy decision by the
State or the Central Government in relation to the matters
concerning Judicial administration.
106Page 107
Merits of the Respective Cases
119. We have already noticed that in the case of the State of
Gujarat, a number of persons were appointed as Judicial Officers to
preside over the FTCs by way of direct recruitment from the Bar.
Their services have been terminated on the ground of unsatisfactory
performance. The High Court had, vide its judgment dated 1
st
August, 2010, declined to set aside the termination of services of
most officers, except 12 officers whose cases were remanded to the
High Court for reconsideration on the administrative side. Out of
these 12 officers, the High Court reinstated six officers and declined
reinstatement of six others. In this way, 47 officers have challenged
their termination orders. In the impugned judgment, the High
Court has noted unsatisfactory performance as the cause for
termination of their services. Entries of their service records have
been reproduced in the judgment. All these officers had been
appointed as ad hoc and temporary FTC Judges. At no point of
time was anything done, directly or indirectly, by the State to give
rise to a legitimate expectation of the appointees that their services
will be regularized and they will be absorbed in the regular cadre.
107Page 108
On the basis of the Confidential Records referred to by the High
Court, in its judgment, it is difficult for us to take any different
view, particularly when these judicial officers were only temporary
and ad hoc appointees with no vested right to the post. Certainly,
this is not a case of mala fide termination. In the subsequent writ
petitions before the High Court only one reason has been given for
the termination, i.e., the Central Government has refused to extend
the FTC Scheme and so, the State Government of Gujarat has also
decided not to extend the FTC Scheme beyond 31
st March, 2011.
This probably was not a valid reason to dismiss the Writ Petitions
because the Court ought to have examined the prayer of those
officers for regularization of their services and absorption against
the regular cadre posts. This aspect of the Writ Petition was not
even discussed by the High Court and the writ petitions were
dismissed. However, the High Court, while noticing that 100 posts
of Additional District Judges have been created, concluded that the
FTC Judges would not be adjusted or absorbed against those
vacancies and that the they could not claim absorption against
those posts. The High Court merely granted leave to the petitioners
108Page 109
to apply for selection to the new posts or the regular posts, in light
of the judgment of this Court in the case of Brij Mohan Lal (supra).
120. These petitioners have also raised a challenge to Rules 4 and 6
of the Gujarat Rules under which they were appointed, on the
ground that the same are arbitrary and discriminatory. Firstly, the
Rules under which the petitioners were appointed after 2001
themselves were to be in force only till 31
st
December, 2005. Till
2005, none of the appointees challenged these Rules. For these
four years, they, in fact, took full advantage of their appointment
under these Rules and received different service benefits
thereunder. We are unable to appreciate the contention that these
Rules were arbitrary or discriminatory. The Rules themselves were
temporary and were enacted to meet an emergency situation. The
appointments were made purely on ad hoc and urgent temporary
basis for a period of two years, terminable without any prior notice.
A temporary appointment, which itself was made for a period of two
years, can hardly be equated to a tenure appointment and must be
construed on such terms. These appointments were to come to an
end by lapse of time. Such an appointment obviously cannot vest
109Page 110
or confer any right upon the appointees to be absorbed in the
permanent cadre, as they were not appointed in accordance with
the provisions of the Gujarat Judicial Service Recruitment Rules,
1961. The expression ‘liable to be terminated at any time without
any notice’ could be susceptible to objections if it was used in the
case of a quasi permanent or permanent employee of a Government
servant. However, we have already noticed that there were no
permanent posts contemplated under the FTC Scheme. The entire
FTC Scheme was ad hoc and formulated to operate only until the
year 2005. It was continued beyond that period in accordance with
the directions of this Court but now a decision has been taken not
to continue the FTC Scheme beyond 31
st March, 2011. Even if, for
the sake of argument, we accept the contention that the expression
‘liable to be terminated at any time without any notice’ is arbitrary
and opposed to the basic Rule of Law, it still has to satisfy the twin
tests laid down in the case of Parshotam Lal Dhingra (supra), i.e.,
firstly, whether the Government servant being terminated or
reduced in rank thereby had a right to the post or to the rank, as
the case may be and, secondly, whether he had been visited with
evil consequences. Both of these tests have to be answered in the
110Page 111
negative, in the facts and circumstances of the present case. We
have already held above that these officers had no right to their
posts and, consequently, discontinuation of their services in the
facts of the present case cannot be construed as punitive or one
visiting the petitioners with civil consequences. This holds true
even though in some cases, it has been recorded that the
performance of these appointees was found to be unsatisfactory but
that is not the lone reason given by the High Court for dispensing
with their services. It is the discontinuation of the FTC Scheme
itself that is the principal reason for terminating the services of all
these officers. In the present case, the Rules themselves were
temporary and were bound to cease to have force of law after 2005.
The posts created were temporary and ad hoc. The appointments
were made on ad hoc and urgent temporary basis for a limited
period of two years and terminable without notice. In these
circumstances, neither can it be stated that there existed posts
which had permanent or quasi-permanent character and were the
duly sanctioned posts of the regular cadre of the State Government
nor that the appointees had any right to these posts. Similar views
were expressed by this Court in the case of Mohd. Abdul Kadir
111Page 112
(supra) holding that the appointments made under a scheme, which
was extended from time to time could still be terminated or
discontinued as the temporary or ad hoc engagements or
appointments were in connection with a particular project or a
specific scheme only. Such appointments would come to an end
with the scheme itself.
121. Writ Petitions have been filed by some of the appointees from
the State of Orissa praying for quashing of the caution dated 4
th
April, 2008 issued to some officers, including Smt. Madhumita Das,
which had informed them that they were required to dispose of
eight sessions trials every month which, so far, they had not been
able to achieve and that if they still failed to achieve the said target,
their services would be liable to be terminated. The State of Orissa
had issued an advertisement for direct recruitment to the Higher
Judicial Services of the State dated 11
th
April, 2008. The
appointees to the FTCs prayed that this advertisement be quashed
and they be absorbed against the regular vacancies. Amongst
others, one Shri Prakash Kumar Rath, petitioner in Writ Petition (C)
No.254 of 2008 has approached this Court under Article 32 of the
112Page 113
Constitution on the ground that he had earlier been placed in the
waiting list of the candidates selected for regular appointment to
the Higher Judicial Services of the State of Orissa under the Orissa
Superior Judicial Service Rules, 1963 though after sometime, his
appointment was made under the Orissa Judicial Service (Special
Scheme) Rules, 2001 relating to temporary appointment for FTCs.
According to this petitioner, he ought to be treated as a regular
candidate as his selection was under the regular service cadre and,
therefore, he should be absorbed against those vacancies.
122. The correctness of the above-mentioned caution is primarily
challenged on the ground that it is violative of Articles 14 and 16 of
the Constitution inasmuch as no such restriction or limitation of
disposing eight Session Trials every month is applied to the
members of the State Higher Judicial Services and that the same
yardstick should uniformly be applied to the direct recruits
appointed under the Rules as well as to the Judicial Officers
promoted/transferred to the FTCs. This argument is misconceived.
The Judicial Officers appointed under the regular cadre of the State
Higher Judicial Services are subject to various restrictions and
113Page 114
limitations of judicial conduct as imposed by the High Court and
under the relevant Rules in force. Without exception, unit system
for disposal of cases prevails and is applicable to the courts
presided over by such officers. They are required to dispose of
certain given number of cases as that is one of the main parameters
for recording the Annual Confidential Reports of the officers and
placing them in the categories of ‘Outstanding’, ‘Very Good’, ‘Good’,
‘Average’, etc. On the contrary, the FTC Judges are to deal only
with session trials. This was the very purpose for which the
Scheme was created and, as such, they cannot claim that the
imposition of such a condition is ex facie unreasonable, arbitrary or
discriminatory. In fact, in the writ petitions filed before us, no data
has been provided to substantiate that it is neither practicable nor
possible for these courts to dispose of eight Session Trials, as
contemplated under this caution letter dated 4
th
April, 2008. It is
not that every sessions trial requires examination of large number
of witnesses and other evidence. There are a considerable number
of sessions cases where the trial may not really take prolonged
period for disposal. In the absence of any specific data and even
otherwise, we are unable to accept this contention raised on behalf
114Page 115
of the petitioners-appointees. Similarly, we also find no merit in the
contention that this Court should quash the advertisement issued
by the State of Orissa for making selections to the Orissa Higher
Judicial Services on the basis of the claims for regularization of the
petitioners against such posts. There are two different sets of
Rules, applicable in different situations, to these two different
classes of officers and further they are governed by different
conditions of service. They cannot be placed at par. The process of
their appointments is distinct and different. These petitioners have
no right to the post. Thus, it would neither be permissible nor
proper for the Court to halt the regular process of selection on the
plea that these petitioners have a right to be absorbed against the
posts in the regular cadre.
123. The prayer for regularization of service and absorption of the
petitioners-appointees against the vacancies appearing in the
regular cadre has been made not only in cases involving case of
State of Orissa, but even in other States. Absorption in service is
not a right. Regularization also is not a statutory or a legal right
enforceable by the persons appointed under different rules to
115Page 116
different posts. Regularization shall depend upon the facts and
circumstances of a given case as well as the relevant Rules
applicable to such class of persons. As already noticed, on earlier
occasions also, this Court has declined the relief of regularization of
the persons and workmen who had been appointed against a
particular scheme or project. A Constitution Bench of this Court
has clearly stated the principle that in matters of public
employment, absorption, regularization or permanent continuance
of temporary, contractual or casual daily wage or ad hoc employees
appointed and continued for long in such public employment would
be de hors the constitutional scheme of public employment and
would be improper. It would also not be proper to stay the regular
recruitment process for the concerned posts. [refer Uma Devi (3)
(supra)].
124. It is not necessary for us to deliberate on this issue all over
again in view of the above discussion. Suffice it to notice that the
petitioner-appointees have no right to the posts in question as the
posts themselves were temporary and were bound to come to an
end by efflux of time. With reference to the letters of their
116Page 117
appointment and the Rules under which the same were issued, it is
clear that these petitioners cannot claim any indefeasible right
either to regularization or absorption. It may also be noticed that
under the Orissa Superior Judicial Services and Judicial Service
Rules, 2007, there is no provision for absorption or regularization of
ad hoc Judges.
125. The petitioners from the State of Andhra Pradesh have also
prayed for identical relief claiming that the advertisement dated 28
th
May, 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.
126. 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.
117Page 118
127. In the case of State of Rajasthan, it is the Judicial Officers
from the cadre of Civil Judge, Senior Division, who were promoted
as FTC Judges. They have continued to hold those posts for a
considerable period. According to these petitioners, they were
promoted to the Higher Judicial Services as per Rules and,
therefore, keeping in view the order of this Court in the case of
Madhumita Das (supra) as well as the very essence of the FTC
Scheme, they should be absorbed as members of the regular cadre
of Higher Judicial Services of the State of Rajasthan. The State
Government had issued a directive that they should undertake the
limited competitive examination for their regular
promotion/absorption in the higher cadre. These officers
questioned the correctness of this directive on the ground that they
were promoted as Additional Sessions Judges (FTC) under the
Rules and, therefore, there was no question of any further
requirement for them to take any written examination after the long
years of service that they have already put in in the Higher Judicial
Services.
118Page 119
128. The Rajasthan Higher Judicial Service Rules, 2010 are in force
for appointment to the Higher Judicial Services of the State. The
judgment of this Court in All India Judges’ Association case (2002)
(supra) as well as the relevant Rules contemplate that a person who
is to be directly appointed to the Higher Judicial Services has to
undergo a written examination and appear in an interview before he
can be appointed to the said cadre. As far as appointment by
promotion is concerned, the promotion can be made by two
different modes, i.e., on the basis of seniority-cum-merit or through
out of turn promotion wherein any Civil Judge, Senior Division who
has put in five years of service is required to take a competitive
examination and then to the extent of 25 per cent of the vacancies
available, such Judges would be promoted to the Higher Judicial
Services. It was admitted before us by the learned counsel
appearing for the petitioner that these officers who were promoted
as ad hoc FTC Judges had not taken any written competitive
examination before their promotion to this post under the Higher
Judicial Services. In other words, they were promoted on ad hoc
basis depending on the availability of vacancy in the FTCs. Once
the Rules required a particular procedure to be adopted for
119Page 120
promotion to the regular posts of the Higher Judicial Services, then
the competent authority can effect the promotion only by that
process and none other. In view of the admitted fact that these
officers have not taken any written examination, we see no reason
as to how the challenge made by these Judicial Officers to the
directive issued by the State Government for undertaking of written
examination may be sustained. Thus, the relief prayed for cannot
be granted in its entirety.
129. In the case of the States of Punjab and Haryana, the
appointees were directly appointed as FTC Judges by way of direct
recruitment from the Bar and they prayed for regularization of their
services and absorption in the regular cadre as well as for
continuation of the FTC Scheme till their absorption. For the
reasons already recorded by us in relation to other States
mentioned above, we do not think that the relief of
regularization/absorption can be granted to these petitioners also
in the manner in which they have prayed. They too have no right to
the post. Admittedly, these candidates also did not pass any
written competitive examination and were appointed solely on the
120Page 121
basis of an interview and must now undergo the requisite
examination.
The effect of Madhumita Das (supra) and Brij Mohan Lal (supra)
and the directions that this Court is required to issue in light
thereof
130. The issues arising for the consideration of this Court under
this head, though ancillary, are of significant importance. Having
held that the petitioners/appointees to the FTCs do not have any
right to the post and such appointments were temporary, ad hoc
and on urgent basis for a limited period, we have yet to examine
whether these petitioners would at all be entitled to some relief
within the framework of law, with particular reference to certain
constitutional provisions. The independence of the Judiciary forms
part of the basic structure of our Constitution. In the Indian
Democracy neither administration of justice nor functioning of the
courts can be rendered irrelevant by actions of other organs of the
State. Article 13 of the Constitution prescribes that if relevant laws
are inconsistent with Part III of the Constitution, when enacted,
they shall thereafter be held to be void to the extent of such
inconsistency. The power of the Legislature, thus, is limited by the
121Page 122
very fundamental restriction prescribing that it cannot enact laws
inconsistent with the fundamental rights of the citizens. With the
development of law, Article 21 has been given a very wide
connotation. It covers various facets of life. Right to life
encompasses the right to live with dignity. Life or personal liberty
cannot be taken away except according to the procedure
established by law. Such procedure established by law also has to
be reasonable, fair and just. On failure to satisfy these
parameters, such deprivation would be found violative of the
fundamental right guaranteed under Article 21 of the Constitution
and would be liable to be struck down. One such rudiment stated
by this Court is the right to fair and speedy trial.
131. The right to speedy trial is an essential ingredient of such
reasonable, fair and just procedure. The State cannot be permitted
to deny the constitutional right to speedy trial to the accused on the
ground that the State does not have adequate financial resources to
incur the necessary expenditure needed, for improving the
administrative and judicial apparatus to ensure speedy trial.
Usefully, we can refer to the words of Judge Blackmum in Jackson
v. Bishop [404 F Supp. 2d 571] who proclaimed that ‘humane
122Page 123
considerations and constitutional requirements are not, in this day,
to be measured by dollar considerations’. In the case of
Hussainara Khatoon and Others (IV) v. Home Secretary, State of
Bihar, Patna [(1980) 1 SCC 98], this Court held that:
“10. ….it is also the constitutional obligation of
this Court, as guardian of the fundamental
rights of the people, as a sentinel on the qui
vive, to enforce the fundamental right of the
accused to speedy trial by issuing the
necessary directions to the State which may
include taking of positive action such as
augmenting and strengthening investigative
machinery, setting up new courts, building
new court houses, providing, providing more
staff and equipment to the courts,
appointment of additional Judges and other
measures calculated to ensure speedy trial.”
132. This Court, in the case of Sheela Barse (II) and Ors. v. U.O.I.
and Ors. [(1986) 3 SCC 632], while expressing its anguish over
mounting arrears of criminal cases, particularly in relation to
retarded, abandoned or destitute children who were facing trial and
lodged in protection homes for years, issued various directions and
held as under:-
“3. ..We are, therefore, firmly of the view that
every State Government must take necessary
measures for the purpose of setting up
123Page 124
adequate number of courts, appointing
requisite number of judges and providing them
the necessary facilities. It is also necessary to
set up an institute or academy for training of
Judicial Officers so that their efficiency may be
improved and they may be able to regulate and
control the flow of cases in their respective
courts. The problem of arrears of criminal
cases in the courts of magistrates and
Additional Sessions Judges has assumed
rather disturbing proportions and it is a
matter of grave urgency to which no State
Government can afford to be oblivious. But,
here, we are not concerned with the question
of speedy trial for an accused who is not a
child below the age of 16 years. That is a
question which may have to be considered in
some other case where this Court may be
called upon to examine as to what is
reasonable length of time for a trial beyond
which the court would regard the right to
speedy trial as violated….”
133. It is a known fact that besides the above judgment, in a
number of decisions including all the cases titled All India Judges’
Association (supra), the Salem Advocate Bar Association v. Union of
India [(2003) 1 SCC 49] and various other public interest litigations,
this Court has used all legally permissible judicial tools, to pass
appropriate directions of a generic nature and required the
Governments to duly take requisite policy decisions, in furtherance
of public duties as would be the requirement of law and the
124Page 125
Constitution. {Ref. Prakash Singh Badal v. State of Punjab and
Others [(2006) 8 SCC 1]}. The Constitution confers certain rights
upon the citizens and they are entitled to full enforcement of such
rights.
134. The present case has two significant aspects with which the
Court is concerned. One relates to the grant or refusal of the relief
claimed by various writ petitioners in these petitions while the other
enjoins a duty upon the Court to test the merits or otherwise of the
policy decision taken by the Government as opposed to the rights of
the under trials or accused as well as the right of the public at large
to demand speedy and fair trial. The former may have limited but
the later certainly has far reaching consequences. This Court
would fail in its duty if it declines to exercise its jurisdiction in the
latter class of cases, solely on the ground that it was a policy
decision and, thus, is beyond the limits of judicial review, being a
matter primarily within the domain of the Government. Keeping in
view its constitutional duty, the constitutional rights of citizens of
this country at large and with reference to the facts of a given case,
this Court may be duty bound to amplify and extend the arm of
justice in accordance with the principle Est boni Judicls ampliare
125Page 126
Justiciary non-Jurisdictionem. The argument that matters of policy
are, as a rule, beyond the power of judicial review has to be
dispelled in light of the consistent view of this Court. This Court
would be required to take unto itself the task of issuing appropriate
directions to ensure that the Rule of Law prevails and the
constitutional goals are not defeated by inaction either when the
law requires action or when the policy in question is so arbitrary
that it defeats the larger public interest.
135. Now, we may examine certain essential features which have
compelled us to state the directions with candour :
(a) The right of the citizens, undertrials or convicts to a speedy
and fair trial.
(b) Persistent deadlock between the Union and the State
Governments in regard to continuation or otherwise of the FTC
Scheme .
(c) Uncertainty and adhocism in planning, implementation and
financing of the FTC Scheme.
126Page 127
(d) The legitimate expectation of the large number of FTC Judges,
that their services would be regularized in the Higher Judicial
Service of the respective State or that the FTC Scheme would
be made a permanent feature.
(e) The element of arbitrariness that appears to have crept into
the decision-making process of the Government and its
hierarchy.
(f) Why due weightage was not given to the decision and
recommendation of the Minutes of the Chief Justices and
Chief Ministers Conference held in the year, 2009 at New
Delhi?
(g) Whether the decision of the Government was data based and
taken objectively?
(h) There is an inbuilt contradiction in this policy decision
inasmuch as, on the one hand, lack of finances is one of the
grounds taken for discontinuance of the FTC Scheme, funds to
the tune of Rs.2500 crore have been allocated for starting of
the morning, evening and shift courts on the other.
127Page 128
136. These are the features of the case which stand out and oblige
the Government of India to clarify its stand. The Union of India
has failed to place any material on record to justify its decision
taken vide letter dated 14
th
September, 2010 deciding to stop
financing the FTC Scheme with effect from 31
st March, 2011. We
are quite prepared to accept the contention of the Union of India
that it will not be a case where this Court should venture to issue a
mandamus directing continuation of the Scheme and reverse the
policy decision taken by the Union of India. While we are not
oblivious of the principle that policy decisions should be interfered
with rarely by the court, we are fully conscious of the fact that the
present case is certainly one where the Court should issue certain
directions to ensure that the fundamental rights and protections
available to the citizens are not violated and at the same time, the
decision of the Government of India does not undermine the
independence of judiciary. It may not be mandatory, but is always
desirable that the policy decision in relation to administration of
justice should be made by Union of India in consultation with the
Supreme Court and/or the respective High Courts of the State.
The recommendation of bodies like the Law Commission of India or
128Page 129
other special commissions appointed in relation to administration
of justice delivery system ought to be taken into consideration.
But, we are unable to accept the view that the recommendations
given by one of the important organs of the State, the judiciary, are
not given effective consideration and due weightage in framing and
implementation of the policies making relating to matters of
administration of justice.
137. It will neither be appropriate nor logical for the Union of India
and/or the State Governments to raise an argument that this Court
may not issue any directions or mandamus to the concerned
Government, as it may have far reaching consequences. This
argument does not impress us at all. Firstly, the Union of India
and the State Governments are not expected to raise such issue
and secondly, it can hardly be disputed that the Governments have
not been able to successfully perpetrate any stable and resultoriented solution to reduce the huge pendency of criminal cases
before the courts. The finances, infrastructure and existence of
adequate posts are the prime considerations which would weigh
with any Authority or Court while taking any policy decisions or
passing necessary directions in that behalf.
129Page 130
138. What appears to have weighed with the Central Government
for not continuing the FTC Scheme after 31.03.2011 is that the 13
th
Finance Commission has recommended a grant of Rs. 5,000 Crores
to the States for improving the justice delivery system in the
country with a specific objective of reducing the arrears significantly
and out of this amount of Rs.5,000 crore a sum of Rs.2,500 crore
has been allotted for morning/evening/shift courts and no amount
has been allotted for FTCs. The recommendations of the 13
th
Finance Commission under the head “Improving Justice Delivery”
which are relevant are extracted hereinbelow:
“12.76 The improvement of justice delivery is a
critical component of the initiative to ensure better
outputs and outcomes. This can be done by
supporting the judiciary, while simultaneously
strengthening the capacity of the law enforcement
arm. We discuss here the support required to
improve judicial outcomes. There are over 3 crore
cases pending in various courts in the country
today. At the very least, current filings need to be
disposed off, to prevent accumulation of arrears.
The enormous delay in disposal of cases results not
only in immense hardship, including those borne
by the large number of under-trials, but also
hinders economic development.
12.77 The Department of Justice has identified a
number of initiatives which are part of this action
plan and need support. The first is increasing the
number of court working hours using the existing
130Page 131
infrastructure by holding morning/evening/shift
courts. The second entails enhancing support to
Lok Adalats to reduce the pressure on regular
courts. The third initiative involves providing
additional funding to State Legal Services
Authorities to enable them to enhance legal aid to
the marginalised and empower them to access
justice. The fourth is promoting the Alternate
Dispute Resolution (ADR) mechanism to resolve pat
of the disputes outside the court system. The fifth
is enhancing capacity of judicial officers and public
prosecutors through training programmes. The
sixth relates to supporting creation of a judicial
academy in every state to facilitate such training.
12.78 The department has also proposed creation
of the post of Court Managers in every judicial
district to assist the judiciary in their
administrative functions. A number of courts in
each state are housed in heritage buildings, which
reflect the cultural heritage of the arrears. It is
proposed that a grant be provided for maintaining
these buildings.
12.79 The Commission, after careful
consideration has agreed to support the proposals
made by the Department of Justice by approving a
grant of Rs.5,000 Crores to be allocated as describe
below. These allocations may be released in two
annual instalments subject to accounts being
maintained and Utilisation Certificates (UCs)/
Statements of Expenditure (SOEs) provided as per
General Financial Rules (GFR 2005).
12.80 Operation of morning/ evening/ special
judicial-metropolitan magistrate/ shift courts: The
present 14,000 district and subordinate courts in
the country are disposing off both important as well
as petty cases. The pressure on judicial time on
account of the petty cases can be relieved by
allotting them to morning/evening courts/ courts
131Page 132
of special judicial/metropolitan magistrates. These
courts will be staffed either by the regular judiciary
on payment of additional compensation, or by
retired officers. The morning courts in Andhra
Pradesh and the evening courts in Gujarat have
demonstrated the feasibility of such models. It is
expected that about 14,825 such courts can
dispose off 225 lakh pending as well as freshly filed
-cases of a minor nature within a year. This
aggregates to 1125 lakh cases over the period
2010-2015. An amount of Rs.2,500 crore is being
provided to facilitate setting up of such courts,
which has been allocated to each state in
accordance with the number of sanctioned courts. “
139. It will be clear from the aforesaid extracts from the
recommendations of the 13
th
Finance Commission that the
recommendations were based on the proposals of the Department of
Justice, Government of India for setting up morning/evening and
shift courts because the morning courts in Andhra Pradesh and the
evening courts in Gujarat had demonstrated the feasibility of
morning and evening courts. The morning and evening courts,
however, may not be feasible in the other States in India due to
various local conditions prevailing in the States. Moreover, as
mentioned in paragraph 12.77 of the recommendations of the 13
th
Finance Commission, the idea behind having morning/evening/
shift courts is that sufficient infrastructure such as court rooms
132Page 133
were not available for regular courts and with the same
infrastructure more hours of judicial work could be done through
morning/evening and shift courts. The fact, however, remains that
with the help of funds allotted by the 11
th
Finance Commission, the
States have already established additional court rooms for the
FTCs. These relevant aspects have not been considered by the
Central Government while rejecting the recommendations in the
Conference of Chief Ministers of the States and Chief Justices of the
High Courts for continuing the FTC Scheme after 31.03.2010. The
State Governments and the High Courts of different States should
have been consulted and their views should have been taken before
the Central Government took the final decision to reject the
proposal at the Conference of the Chief Ministers of States and
Chief Justices of the High Courts to continue the FTC Scheme. We,
however, find that the policy-decision of the Central Government to
discontinue the FTC Scheme beyond 31.03.2011 in its letter dated
14.09.2010 has already been given effect to and for this reason we
are not inclined to strike down the aforesaid policy-decision of the
Union of India to discontinue the FTC scheme beyond 31.03.2011.
133Page 134
140. Nonetheless, it will be clear from paragraph 12.76 of the
recommendations of the 13
th
Finance Commission that there are
over 3 crores pending cases in various courts in the country and
there is enormous delay in disposing of the cases resulting in
immense hardship, including those borne by large number of
under-trials. If the FTC ad hoc direct recruits who have over the
years gained a lot of judicial experience are regularised and
absorbed in the regular cadre of Additional District Judges in
different States, the problem of arrear of cases can be handled to
some extent. The State Governments, however, may not have the
funds to bear the salary and allowances of additional posts of
Additional District Judges and therefore may not be in a position to
regularise the ad hoc FTC Judges. To meet the cost disability of
some of the State Governments, the 13
th
Finance Commission has
provided funds for different projects, grant-in-aid and
infrastructural expenditure relating to establishment and running
of courts. This will be clear from paragraphs 12.1 and 12.2 of the
recommendations of the 13
th
Finance Commission which are quoted
hereinbelow:
134Page 135
“12.1 Our terms of Reference (ToR) require
us to make recommendations on the principles
that should govern the grants-in-aid of the
revenues of states out of the Consolidated Fund
of India and the sums to be paid to states which
are in need of assistance by way of grants-in-aid
of their revenues under Article 275 of the
Constitution, for purposes other than those
specified in the provisos to Clause (1) of that
article.
12.2 Grants-in-aid are an important component
of Finance Commission transfers. The size of the
grants has varied from 7.7 per cent of total
transfers under FC-VII to 26.1 per cent of total
transfers under FC-VI. Grants recommended by
FC-XII amounted to 18.9 per cent of total
transfers. In their memoranda to us, a few states
have argued that grants should be restricted to
only a small portion of the states’ share in FC
transfers. They have argued that grants have
been directed to particular sectors and with
conditionalities that restrict the expenditure
options of the states. In our assessment, grantsin-aid are an important instrument which enable
the Commission to make its scheme of transfers
more comprehensive and address various issues
spelt out in the ToR. Grants also allow us to
make corrections for cost disabilities faced by
many states which are possible to address only to
a limited extent in any devolution formula. The
Commission has accordingly suggested several
categories of grants-in-aid amounting in
aggregate to Rs.3,18,581 crore which constitutes
18.03 per cent of total transfers. ”
135Page 136
141. To meet the expenses of the State Government for improving
the Justice Delivery System, the 13
th
Finance Commission has,
therefore, recommended a total grant of Rs.5,000 crores under the
following specific heads:
(i) Operation of morning/ evening/ special judicialmetropolitan magistrate/ shift courts – Rs.2,500 crores
(ii) Establishing ADR Centres and training of
mediators/conciliators – Rs.750 crores
(iii) Lok Adalat – Rs.100 crores
(iv) Legal Aid – Rs.200 crores
(v) Training of Judicial Officers – Rs.250 crores
(vi) State Judicial Academies – Rs.300 crores
(vii) Training of Public Prosecutors – Rs.150 crores
(viii) Creation of posts of Court Managers – Rs.300 crores
(ix) Maintenance of heritage court buildings – Rs.450 crores
142. On account of the aforesaid allocations of grants-in-aid to
specific heads, the State Governments will not be able to utilise the
allocations made in their favour for additional posts of Additional
136Page 137
District Judges for regularising the FTC Judges. We are, thus, of
the considered opinion that the Central Government should, in
consultation with the State Governments and the High Courts of
the different States, reconsider allocating some amount out of the
grant of Rs.5000 crores and for such additional amount for meeting
the initial expenses of increase in cadre strength of Additional
District Judges for absorbing the direct recruits of the FTC Scheme
by way of regularisation.
143. In terms of Articles 141 and 144 of the Constitution, the law
declared by the Supreme Court of India is binding on all Courts and
all authorities which are to act in aid of the law so declared. The
framers of the Constitution, in no uncertain terms, declared that
the judgments of this Court are binding on all. In fact, there is a
duty upon the Authorities and all other Courts to act in aid of such
decisions. In the case of Brij Mohan Lal (supra), this Court vide its
judgment dated 6
th May, 2002 after noticing various judgments of
this Court, issued number of directions in relation to establishment
and functioning of the FTCs. It referred to the Report of the
Eleventh Finance Commission. While repelling the challenge to the
FTC Scheme, this Court directed that steps should be taken within
137Page 138
three months from the date of that judgment. The modes of
appointment of Judges to the FTCs were also provided in this
judgment. The judgment itself said that no right will be conferred
on the Judicial Officers in service for claiming any regular
promotion on the basis of serving as FTC Judges. While stating the
order of preference for appointment to these Courts, this Court held
that the first preference would be given to judges from amongst the
eligible judicial officers by ad hoc promotion, the second preference
would be given to the retired judges with good service records and
the third preference would be given to the members of the Bar by
direct recruitment.
144. Thereafter, this Court passed a detailed order in the case of
Madhumita Das (supra), finding some substance in the plea that
while assessing the performance, there cannot be different
yardsticks, i.e. the same parameters have to be adopted while
judging the performance of the petitioners viz-a-viz. those which are
recruited from another source, i.e. from amongst the Judicial
Officers. However, in the interim order, this Court made a specific
direction that the petitioners will continue to hold the post until
further orders, which it directed the High Court to pass. It was
138Page 139
also stated therein that as and when regular vacancies would arise,
the cases of the petitioners shall be duly considered and there shall
not be any need for them to appear in any examination meant for
recruitment to the cadre of District Judge.
145. Thus, these two orders must be seen in light of the fact that
the Union of India, as well as the State Governments of their own,
extended the FTC Scheme for another five years i.e. till 2010 and
thereafter, by another year. The Central Government ultimately
took the decision not to finance the FTC Scheme with effect from
30
th March, 2011. Even thereafter, a number of States have taken
the decision to continue the FTC Scheme while retaining the
appointees thereto till 2012, 2013 and even till 2016. The State of
Haryana has even thought of making it as a permanent feature of
dispensation of justice in the State. The cumulative effect of all
these factors is that the petitioners had a legitimate expectation
that either their services would be continued as the FTC Scheme
would be made a permanent feature of the justice administration in
the concerned State or they would be absorbed in the regular cadre.
But mere expectation or even legitimate expectation of absorption
cannot be a cause of action for claiming the relief of regularization,
139Page 140
particularly when the same is contrary to the Rules and letters of
appointment. In Madhumita Das (supra), the protection was
granted in an interim order and we also feel that such directions
cannot be issued, if they are contrary to the enacted statute. When
all these facts, circumstances and the judgments of this Court are
harmoniously construed with an intention to do complete justice as
well as to protect the fundamental rights and protections available
to the public at large, it would appear necessary that this Court
passes certain directions.
146. Without any intent to interfere with the policy decision taken
by the Governments but, unmistakably, to protect the guarantees of
Article 21 of the Constitution, improve the Justice Delivery System
and fortify the independence of judiciary, while ensuring attainment
of constitutional goals as well as to do complete justice to the lis
before us, in terms of Article 142 of the Constitution, we pass the
following orders and directions :
1. Being a policy decision which has already taken effect, we
decline to strike down the policy decision of the Union of India
140Page 141
vide letter dated 14
th
September, 2010 not to finance the FTC
Scheme beyond 31
st March, 2011.
2. All the States which have taken a policy decision to continue
the FTC Scheme beyond 31
st March 2011 shall adhere to the
respective dates as announced, for example in the cases of
States of Orissa (March 2013), Haryana (March 2016), Andhra
Pradesh (March 2012) and Rajasthan (February 2013).
3. The States which are in the process of taking a policy decision
on whether or not to continue the FTC Scheme as a
permanent feature of administration of justice in the
respective States are free to take such a decision.
4. It is directed that all the States, henceforth, shall not take a
decision to continue the FTC Scheme on ad hoc and temporary
basis. The States are at liberty to decide but only with regard
either to bring the FTC Scheme to an end or to continue the
same as a permanent feature in the State.
5. The Union of India and the State Governments shall reallocate and utilize the funds apportioned by the Thirteenth
Finance Commission and/or make provisions for such
141Page 142
additional funds to ensure regularization of the FTC judges in
the manner indicated and/or for creation of additional courts
as directed in this judgment.
6. All the decisions taken and recommendations made at the
Chief Justices and Chief Ministers Conference shall be placed
before the Cabinet of the Centre or the State, as the case may
be, which alone shall have the authority to finally accept,
modify or decline, implementation of such decisions and, that
too, upon objective consideration and for valid reasons. Let
the Minutes of the Conference of 2009, at least now, be placed
before the Cabinet within three months from the date of
pronouncement of this judgment for its information and
appropriate action.
7. No decision, recommendation or proposal made by the Chief
Justices and Chief Ministers Conference shall be rejected or
declined or varied at any bureaucratic level, in the hierarchy of
the Governments, whether in the State or the Centre.
8. We hereby direct that it shall be for the Central Government to
provide funds for carrying out the directions contained in this
142Page 143
judgment and, if necessary, by re-allocation of funds already
allocated under the 13
th
Finance Commission for Judiciary.
We further direct that for creation of additional 10 per cent
posts of the existing cadre, the burden shall be equally shared
by the Centre and the State Governments and funds be
provided without any undue delay so that the courts can be
established as per the schedule directed in this judgment.
9. All the persons who have been appointed by way of direct
recruitment from the Bar as Judges to preside over the FTCs
under the FTC Scheme shall be entitled to be appointed to the
regular cadre of the Higher Judicial Services of the respective
State only in the following manner :
(a) The direct recruits to the FTCs who opt for regularization
shall take a written examination to be conducted by the
High Courts of the respective States for determining their
suitability for absorption in the regular cadre of
Additional District Judges.
143Page 144
(b) Thereafter, they shall be subjected to an interview by a
Selection Committee consisting of the Chief Justice and
four senior-most Judges of that High Court.
(c) There shall be 150 marks for the written examination
and 100 marks for the interview. The qualifying marks
shall be 40 per cent aggregate for general candidates and
35 per cent for SC/ST/OBC candidates. The
examination and interview shall be held in accordance
with the relevant Rules enacted by the States for direct
appointment to Higher Judicial Services.
(d) Each of the appointees shall be entitled to one mark per
year of service in the FTCs, which shall form part of the
interview marks.
(e) Needless to point out that this examination and interview
should be conducted by the respective High Courts
keeping in mind that all these applicants have put in a
number of years as FTC Judges and have served the
country by administering Justice in accordance with law.
The written examination and interview module, should,
144Page 145
thus, be framed keeping in mind the peculiar facts and
circumstances of these cases.
(f) The candidates who qualify the written examination and
obtain consolidated percentage as afore-indicated shall
be appointed to the post of Additional District Judge in
the regular cadre of the State.
(g) If, for any reason, vacancies are not available in the
regular cadre, we hereby direct the State Goverments to
create such additional vacancies as may be necessary
keeping in view the number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly
appointed from the Bar and are desirous of taking the
examination and interview for regular appointment shall
be given age relaxation. No application shall be rejected
on the ground of age of the applicant being in excess of
the prescribed age.
10. The members of the Bar who have directly been appointed but
whose services were either dispensed with or terminated on
the ground of doubtful integrity, unsatisfactory work or
145Page 146
against whom, on any other ground, disciplinary action had
been taken, shall not be eligible to the benefits stated in
clause 5 of the judgment.
11. Keeping in view the need of the hour and the Constitutional
mandate to provide fair and expeditious trial to all litigants
and the citizens of the country, we direct the respective States
and the Central Government to create 10 per cent of the total
regular cadre of the State as additional posts within three
months from today and take up the process for filling such
additional vacancies as per the Higher Judicial Service and
Judicial Services Rules of that State, immediately thereafter.
12. These directions, of course, are in addition to and not in
derogation of the recommendations that may be made by the
Law Commission of India and any other order which may be
passed by the Courts of competent jurisdiction, in other such
matters.
13. The candidates from any State, who were promoted as FTC
Judges from the post of Civil Judge, Senior Division having
requisite experience in service, shall be entitled to be absorbed
146Page 147
and remain promoted to the Higher Judicial Services of that
State subject to :
(a) Such promotion, when effected against the 25 per cent
quota for out-of-turn promotion on merit, in accordance
with the judgment of this Court in the case of All India
Judges’ Association (2002) (supra), by taking and being
selected through the requisite examination, as
contemplated for out-of-turn promotion.
(b) If the appointee has the requisite seniority and is entitled
to promotion against 25 per cent quota for promotion by
seniority-cum-merit, he shall be promoted on his own
turn to the Higher Judicial Services without any written
examination.
(c) While considering candidates either under category (a) or
(b) above, due weightage shall be given to the fact that
they have already put in a number of years in service in
the Higher Judicial Services and, of course, with
reference to their performance.
147Page 148
(d) All other appointees in this category, in the event of
discontinuation of the FTC Scheme, would revert to their
respective posts in the appropriate cadre.
147. In view of these orders, Writ Petition (Civil) No. 152 of 2011
has been rendered infructuous and is dismissed as such.
148. We appreciate the valuable and able assistance rendered by
learned Amicus Curiae and all other senior counsel and assisting
counsel appearing in the present writ petition.
149. All interim orders passed in any of the above petitions shall
automatically stand vacated in terms of this order. With the above
directions, all the appeals and other writ petitions are partially
allowed while leaving the parties to bear their own costs.
…………………………….,J.
[A.K. Patnaik]
…………………………….,J.
[Swatanter Kumar]
148Page 149
New Delhi;
April 19, 2012
149
