Full Judgment Text
C.A .@ S.L.P(C) No.20990/17 etc. etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6296 OF 2019
[Arising out of S.L.P.(C)No.20990 of 2017]
Kum C. Yamini ...Appellant
Versus
The State of Andhra Pradesh & Anr. ...Respondents
WITH
CIVIL APPEAL NO.6297 OF 2019
[Arising out of S.L.P.(C)No.12535 of 2018];
CIVIL APPEAL NO.6298 OF 2019
[Arising out of S.L.P.(C)No.13046 of 2018];
AND
CIVIL APPEAL NO.6299 OF 2019
[Arising out of S.L.P.(C)No.28302 of 2018]
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. Relief claimed in these matters is same, as such
they are heard together and disposed of by this common
Signature Not Verified
judgment and order. For the purpose of disposal, we
Digitally signed by
ANITA MALHOTRA
Date: 2019.08.16
17:12:56 IST
Reason:
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
refer to the facts stated in the civil appeal arising
out of S.L.P.(C)No.20990 of 2017.
3. This civil appeal is filed, aggrieved by the
impugned judgment and final order dated 17.04.2017
passed by the High Court of Judicature at Hyderabad for
the State of Telangana and the State of Andhra Pradesh
whereby writ petition filed by the appellant in Writ
Petition No.13022 of 2017 was dismissed. In the writ
petition, appellant has questioned paragraph nos.5 and 6
of G.O.MS. No.68 dated 02.07.2013 of Law (LA & J-SC.F)
Department as unconstitutional and illegal.
4. The appellant was appointed to a Fast Track Court,
as an ad hoc District Judge in the year 2003. The
appellant was practising as an advocate at the relevant
time, and the appointment was made pursuant to
selections made for appointment to the post of ad hoc
District Judges. Pursuant to her selection to preside
over a Fast Track Court, she joined duty on 25.10.2003.
On 28.05.2004, the second respondent-High Court issued
notification, inviting applications for regular
appointments to the posts of District & Sessions Judges
in the A.P. Higher Judicial Service. A set of ad hoc
District Judges appointed to the Fast Track Courts filed
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
writ petition in W.P.No.11273 of 2004 questioning such
notification. In the aforesaid writ petition all the
ad hoc District Judges who were selected to preside over
the Fast Track Courts, prayed for absorption against
regular vacancies. The writ petition was dismissed by
the High Court by order dated 13.07.2004. Aggrieved by
the aforesaid judgment, a Special Leave Petition
(C)No.17338 of 2004 was filed by the ad hoc District
Judges. While granting leave, this Court, by interim
order dated 09.03.2006 passed in Civil Appeal No.1276 of
2005, has observed that any appointments that would be
made in regular selections, will be subject to the
result of the civil appeal. Subsequently, the above
said civil appeal was disposed of along with a batch of
matters, which were decided on 19.04.2012 which is
reported as Brij Mohan Lal (2) v. Union of India &
1
Ors. . While considering the validity of notification
dated 28.05.2004, which was issued for making
appointments to the posts of District & Sessions Judges
and the claim of absorption made by the ad hoc District
Judges, who are appointed to preside over Fast Track
Courts, this Court in paragraph 175 has observed as
under :
1
(2012) 6 SCC 502
3
C.A .@ S.L.P(C) No.20990/17 etc. etc.
“ 175. The petitioners from the State of
Andhra Pradesh have also prayed for identical
relief claiming that the advertisement dated
28-5-2004 issued for filling up the vacancies
in the regular cadre should be quashed and
not processed any further and the petitioners
instead should be absorbed against those
vacancies. In view of the above discussion,
we find no merit even in these submissions.”
5. In the aforesaid judgment, while considering their
claim for absorption in the regular cadre, while
declining to grant the relief of absorption certain
directions were issued as contained in paragraph 207.9.
The directions issued in the aforesaid paragraph read as
under :
“207.9. All the persons who have been
appointed by way of direct recruitment from
the Bar as Judges to preside over FTCs under
the FTC Scheme shall be entitled to be
appointed to the regular cadre of the Higher
Judicial Services of the respective States
only in the following manner :
(a) The direct recruits to FTCs who
opt for regularisation 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.
(b) Thereafter, they shall be
subjected to an interview by a Selection
Committee consisting of the Chief Justice
and four seniormost Judges of that High
Court.
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
(c) There shall be 150 marks for the
written examination and 100 marks for the
interview. The qualifying marks shall be
40% aggregate for general candidates and
35% 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, 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 aforeindicated
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 Governments 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
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relaxation. No application shall be
rejected on the ground of age of the
applicant being in excess of the
prescribed age.”
6. In compliance of directions issued in the judgment
in the case of Brij Mohan Lal (2) v. Union of India &
Ors. (supra) as referred above, the second respondent-
High Court has issued notification dated 13.08.2012
inviting applications, to fill up the posts of District
Judges in regular cadre from the working/former ad hoc
Fast Track Court District Judges. All the appellants
herein who responded to the aforesaid notification, were
selected and appointed by the Government to the posts of
regular District Judges (Entry Level) vide G.O.MS. No.68
dated 02.07.2013 issued by Law (LA & J-SC.F) Department.
Paragraphs 4,5 and 6 of the aforesaid Order read as
under :
“4 . The appointments ordered above will take
effect from the dates on which the respective
officers assume charge.
5. The probation of the officers will be
governed by rule 9 of the A.P. State Judicial
Service Rules, 2007, and they will be on
probation for a period of two years from the
date of joining duty as decided by the High
Court of Andhra Pradesh.
6. The seniority of the persons appointed to
the category of District Judges by direct
recruitment as well as recruitment by
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
transfer shall be fixed as per the roster
prescribed in schedule A appended to the
Andhra Pradesh State Judicial Service Rules,
2007.”
The appellant availed the benefit of such appointment
and completed probation of two years from the date of
joining duty. Nearly after four years of her
appointment, she has filed the present writ petition,
before the High Court questioning paragraphs 5 and 6 of
the notification dated 02.07.2013, which resulted in the
impugned order rejecting claim of her seniority from the
date of her initial appointment as ad hoc District
Judge. In the impugned order, the High Court has
observed that the appellant very conveniently took up
the appointment subject to conditions and after getting
a declaration of successful completion of probation and
after ensuring berth in the judiciary, has chosen to
come up with a challenge to the very Government Order by
which she was appointed. Further, taking note of the
rejection of the claim of the appellant and similarly
placed persons for their absorption and their challenge
to the notification dated 28.05.2004 for selection to
the regular cadre of District Judges, the High Court has
opined that in view of the rules which govern the
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
appointment to the post of ad hoc District Judge, the
appellant is not entitled to claim seniority from the
date of initial appointment.
7. We have heard Kum. C. Yamini, appellant-in-person
in civil appeals arising out of S.L.P.(C)Nos.20990 of
2017 and 12535 of 2018; Sri R. Venkataramani, learned
senior counsel appearing for the appellant in civil
appeal arising out of S.L.P.(C)No.13046 of 2018; Sri
Sridhar Potaraju, learned counsel appearing for the
appellants in civil appeal arising out of S.L.P.
(C)No.28302 of 2018; and Ms. Uttara Babbar, learned
counsel appearing for the then High Court of Judicature
at Hyderabad for the State of Telangana and the State of
Andhra Pradesh.
8. Kum. C. Yamini, appellant appearing in person has
mainly contended that when the appellant was appointed
to the very same post of District Judge in the year 2003
by following the procedure as applicable to the regular
appointments and when the appellant was selected and
appointed pursuant to the notification issued on
02.07.2013, there is no reason or justification for
denying her seniority in the cadre of District Judges
from initial date of appointment in the year 2003. She
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
has relied on a judgment of this Court in the case of
2
Rudra Kumar Sain & Ors. v. Union of India & Ors. .
Learned senior counsel Sri R. Venkataramani, by
referring to the directions issued by this Court in the
3
case of Brij Mohan Lal (1) v. Union of India & Ors. ,
has submitted that, when the appellants were appointed
to the post of District Judges by following the
procedure akin to that of regular District Judges, there
is no reason or justification for denying seniority to
them from the date of initial appointment. Learned
senior counsel also relied on the judgment of this Court
in the case of Debabrata Dash & Anr. v. Jatindra Prasad
4
Das & Ors. and also the judgment in the case of Brij
Mohan Lal (2) v. Union of India & Ors. (supra).
9. On the other hand, learned counsel Ms. Uttara
Babbar, appearing for the High Court has submitted that
the very appointment of the appellants as ad hoc
District Judges was only to preside over the Fast Track
Courts under the special rules framed for recruitment of
ad hoc Judges. It is submitted that in the very same
rules, it is made clear that they have no claim against
regular vacancies. Further it is contended that when
2
(2000) 8 SCC 25
3
(2002) 5 SCC 1
4
(2013) 3 SCC 658
9
C.A .@ S.L.P(C) No.20990/17 etc. etc.
their claim for absorption is rejected by the High Court
and confirmed by this Court, it is not open for the
appellants to claim seniority from the date of initial
appointment. It is further submitted that all the
persons who will be affected, in the event of grant of
relief as claimed by the appellants are not even made
party respondents. Learned counsel has submitted that
similar issue i.e. claim of seniority over persons who
are appointed against the substantive posts is
considered and rejected by this Court in the case of V.
Venkata Prasad & Ors. v. High Court of Andhra Pradesh &
5
Ors. . It is submitted that in the aforesaid judgment
Rules 2, 6 and 7 of Andhra Pradesh State Higher Judicial
Service Special Rules for Ad Hoc Appointments, 2001 were
considered. In the aforesaid judgment, this Court has
categorically held that appointments in respect of Fast
Track Courts are ad hoc in nature and no right accrues
to such appointees.
10. Having heard the appellant appearing in person and
learned senior counsel appearing for the appellant in
Civil Appeal arising out of S.L.P(C) No.13046 of 2018
and other counsels, we have perused the written
submissions and other material placed on record.
5
(2016) 11 SCC 656
10
C.A .@ S.L.P(C) No.20990/17 etc. etc.
11. When the Fast Track Courts were established in the
State of Andhra Pradesh out of the grants made available
th
by the 11 Finance Commission, for making appointments
to preside over such courts, a separate set of rules,
namely, Andhra Pradesh State Higher Judicial Service
Special Rules for Ad Hoc Appointments, 2001 were issued.
The said rules were framed in exercise of powers
conferred by Article 233 and the proviso to Article 309
of the Constitution of India. The appellant was
initially appointed as per the aforesaid Rules. Rule 1
of the said Rules deals with the constitution of service
and Rule 7 lays down the terms and conditions of the
appointment. Rule 7(1)(B) states that a person
appointed under Rule 2(i) shall not be regarded as a
member of permanent cadre covered under Rule 2 of
Special Rules and is not entitled to any preferential
right to any other appointment. The said Rules are
framed only for the purpose of selecting District Judges
on ad hoc posts for presiding over Fast Track Courts.
The Fast Track Courts were established initially for a
limited period of five years as per the grant provided
th
in the 11 Finance Commission. All these selections
which were made on ad hoc basis, are not for any posts
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
in the regular cadre of A.P. Higher Judicial Service.
After the appointment of the appellant in the year 2003,
when the second respondent has issued notification
inviting applications for recruitment to the posts in
regular vacancies of District Judges, certain Fast Track
Court Judges have questioned the very notification by
claiming absorption in the regular vacancies. Such plea
of the appellants was rejected and confirmed by this
Court, in clear terms, while disposing of the matter in
Brij Mohan Lal (2) (supra) para 175. Their challenge to
the notification issued in the year 2004 for recruitment
to the regular cadre posts of District Judges is also
rejected.
12. While rejecting the claim for their absorption and
challenge to the notification issued for the recruitment
in the regular cadre posts, certain directions were
issued in Brij Mohan Lal (2) (supra) for considering the
claims of ad hoc judges appointed to Fast Track Courts
into regular cadre posts. Following the directions
only, the second respondent has issued notification
inviting applications for appointments to the regular
cadre of District Judges and appellants and others
responded to such notification and totally 12 of them
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
were selected for regular vacancies. In the appointment
order dated 02.07.2013 in G.O.MS. No.68 issued by Law
(LA & J-SC.F) Department, they were put on probation for
a period of two years and after the declaration of
successful probation and nearly after four years of
appointment, the present claim is made claiming
seniority from the date of their initial appointment, as
ad hoc District Judges.
13. The claim of the appellants that they were
appointed as ad hoc District Judges by following the
procedure which is similar to the procedure for
appointments to the sanctioned posts in the regular
cadre, is no ground to accede to their request to reckon
their seniority in the permanent cadre of District
Judges, from their initial appointment as the District
Judges for the Fast Track Courts. The appointments which
came to be made for selecting District Judges for Fast
th
Track Courts sanctioned under the 11 Finance Scheme
are totally different and distinct, compared to
appointments which are to be made for regular vacant
posts of District Judges covered under A.P. Higher
Judicial Service. If a person is not appointed to any
post in the cadre, such person cannot claim any
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
seniority over the persons who are appointed in vacant
posts in the cadre. The Fast Track Courts which were
sanctioned initially for five years from the grants of
th
11 Finance Commission, were continued in some States
beyond such period with the assistance, from States and
such Fast Track Courts were discontinued in some other
States. Merely on the ground that they were selected by
following the same procedure akin to that of regular
selections, is no ground to consider their claim for
grant of seniority from the date of initial appointment.
When their claim for regularisation/absorption and
challenge to notification issued in the year 2004 for
making selections to the vacant regular posts of
District Judges is rejected by the High Court and
confirmed by this Court, we are of the view that the
appellants have no basis to claim seniority from the
date of initial appointment. In any event, having
applied in response to the notification issued by the
High Court in the year 2013 after availing the benefit
of appointment, it is not open to the appellants to
question the conditions imposed in the order which is in
conformity with rules. Undisputedly, appellant was
appointed as ad hoc District Judges to preside over the
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
Fast Track Courts only. Initially when she was not
appointed to a post or category of posts, forming part
of cadre strength in such category, appellant cannot
claim any seniority over the persons regularly appointed
in the category of posts forming part of cadre strength.
There is yet another ground to reject the claim of the
appellant. Though the appellant claims seniority over
the persons who are appointed in regular vacant posts
forming part of cadre strength but they are not even
made parties. On this ground also, the claim of the
appellants deserves rejection.
14. We have perused the judgment relied on by the
appellant party in person, in the case of Rudra Kumar
Sain & Ors. v. Union of India & Ors. (supra). In the
aforesaid case, issue relates to claim of seniority
between direct recruits and promotees. Learned senior
counsel Sri Venkataramani, has also relied on the
judgments of this Court in the case of Brij Mohan Lal
(1) v. Union of India & Ors. (supra); in the case of
Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors.
(supra); in the case of V. Venkata Prasad & Ors. v. High
Court of Andhra Pradesh & Ors. (supra) and in the case
of Brij Mohan Lal (2) v. Union of India & Ors. (supra).
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C.A .@ S.L.P(C) No.20990/17 etc. etc.
We have looked into the judgments referred above by the
learned senior counsel Sri Venkataramani and the party
in person. Having regard to issue involved in the
present appeals, we are of the view that the ratio
decided in the aforesaid cases would not render any
assistance in support of their claim in these cases.
The claim of seniority will depend upon several factors,
nature of appointment, rules as per which the
appointments are made and when appointments are made,
were such appointments to the cadre posts or not etc.
When the appellants were not appointed to any regular
posts in the A.P. Judicial Service, appellants cannot
claim seniority based on their ad hoc appointments to
preside over Fast Track Courts. We are of the view that
the ratio decided in the said judgments relied on by the
appellants would not render any assistance in support of
their case.
15. On the other hand, the judgment in the case of V.
Venkata Prasad & Ors. v. High Court of Andhra Pradesh &
Ors. (supra), this Court has, in clear terms, while
considering A.P. State Higher Judicial Service Special
Rules for Ad Hoc Appointments, 2001 held that such
appointments in respect of Fast Track Courts are ad hoc
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in nature and no right accrues to such appointees. The
aforesaid view of this Court clearly supports the case
of the respondents. Paragraph 25 of the said case which
is relevant for the purpose of these cases reads as
under :
“ 25. From the aforesaid two authorities, it
is quite clear that the appointments in
respect of Fast Track Courts are ad hoc in
nature and no right is to accrue to such
recruits promoted/posted on ad hoc basis from
the lower judiciary for the regular promotion
on the basis of such appointment. It has
been categorically stated that FTC Judges
were appointed under a separate set of rules
than the rules governing the regular
appointment in the State Higher Judicial
Services.”
16. In the civil appeal arising out of S.L.P.
(C)No.28302 of 2018, learned counsel for the appellants
has submitted that the appellants be at least given the
benefit of counting the service rendered by them in Fast
Track Courts for pensionary and other benefits. In
support of his claim, learned counsel placed reliance on
the judgment of this Court in Mahesh Chandra Verma v.
6
State of Jharkhand & Ors. wherein this Court has
considered the very same issue and held that the service
rendered as Fast Track Court Judges is to be counted for
6
(2018) 7 SCC 270
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their length of service, for the purpose of determining
their pension and other retiral benefits.
17. We have perused the aforesaid judgment and we are
in agreement with the view taken by a two Judge Bench of
this Court. Resultantly, while rejecting their claim
for grant of seniority from the date of their initial
appointment as Fast Track Court District Judges and
other reliefs, we direct that the appellants and all
others who are similarly placed are to be given benefit
of counting their service rendered as Fast Track Judges,
for the purpose of pensionary and other retiral
benefits. With the above directions and observations the
civil appeals are disposed of with no order as to costs.
...................J.
[S.A. Bobde]
...................J.
[R. Subhash Reddy]
...................J.
[B.R. Gavai]
New Delhi;
August 14, 2019
18