Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4782 OF 2018
[Arising out of SLP(C) No.31167 of 2015]
MAHESH CHANDRA VERMA ….APPELLANT
Versus
THE STATE OF JHARKHAND
Through: ITS CHIEF SECRETARY & ORS. ….RESPONDENTS
WITH
Civil Appeal No.4784 of 2018
[Arising out of SLP(C) No.32438/2015]
Civil Appeal No.4783 of 2018
[Arising out of SLP(C) No.31857/2015]
Civil Appeal Nos.4786-4790 of 2018
[Arising out of SLP(C) Nos.34869-34873/2015]
Civil Appeal No.4785 of 2018
[Arising out of SLP(C) No.34695/2015]
Civil Appeal No.4791 of 2018
[Arising out of SLP(C) No.10555/2016]
Civil Appeal No.4792 of 2018
[Arising out of SLP(C) No.19639/2016]
Civil Appeal Nos.4794-4795 of 2018
[Arising out of SLP(C) Nos.23978-23979/2016]
Civil Appeal No.4793 of 2018
[Arising out of SLP(C) No.23977/2016]
Signature Not Verified
Digitally signed by
DEEPAK MANSUKHANI
Date: 2018.05.11
16:11:25 IST
Reason:
1
J U D G M E N T
SANJAY KISHAN KAUL, J .
1. The sole question, which arises for consideration in these
appeals is whether the services rendered by the appellants/Judicial
Officers as Fast Track court Judges is liable to be counted for their
pensionary and other benefits, the appellants having joined the regular
judicial service thereafter.
2. The question of law arising as aforesaid, it is not necessary to
delve into the facts of each case. Thus, only the facts which are
relevant for the determination of this question are being set out. The
Jharkhand State was carved out from the State of Bihar under the Bihar
Reorganisation Act, 2000 on 25.11.2000. Soon thereafter the
Jharkhand High Court, respondent No.2, issued an advertisement on
23.5.2001 to fill up the vacancies for the post of Additional District
Judges in the Jharkhand Superior Judicial Service. The appellants also
took part in the recruitment process and post conduct of examination
and interview, a select list was prepared of 27 candidates, who were
eligible for appointment to the Superior Judicial Service. None of the
appellants, however, figured in the final select list. A parallel
2
th
development was the allocation by the 11 Finance Commission of
Rs.502.90 crores under Article 275 of the Constitution of India, for the
establishment of courts described as the Fast Track courts.1,734 courts
in various States were envisaged to deal with long-pending cases,
specifically, Sessions cases. The funds allocated by the Finance
Commission were to be utilized in a time bound schedule of five years,
and the State Governments were required to take necessary steps to
establish such courts.
3. A challenge was laid to this Scheme, known as the Fast Track
Courts Scheme, in various High Courts primarily on the ground that
there was no constitutional sanction for employment of retired Judges,
nor were there effective guidelines in operation. These matters were
transferred to the Supreme Court and all these matters were dealt with
1
in the judgment in Brij Mohan Lal v. Union of India & Ors. - [1] .
The Scheme was analysed by the Supreme Court and keeping in mind
the laudable objects with which the Fast Track Courts Scheme was set
up, the constitution of these courts was upheld but with certain
directions. In terms of these directions, the first preference for
appointment to these courts was to be given by ad hoc promotions
1 (2002) 5 SCC 1
3
from amongst eligible Judicial Officers, while the second preference
was to be given to retired Judges who had good service records. The
third preference envisaged was to the members of the Bar for direct
appointment to these courts. The fourth direction in this behalf is as
under:
“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 . ”
4. It is in furtherance of the aforesaid Fast Track Courts Scheme
that the State of Jharkhand/respondent No.1 is stated to have
constituted more than 80 such Fast Track courts at the level of
Additional District Judges vide Notification dated 29.11.2001. In order
to fill these posts expeditiously, the process of examination having
been conducted immediately before this Notification, a decision was
taken to accommodate the persons from the select list, who could not
4
be accommodated in the regular cadre of Superior Judicial Service, to
the Fast Track courts. The first 17 candidates out of the 27 candidates
in the select list were appointed to the regular cadre on 15.12.2001,
while the remaining 10 candidates were appointed to the Fast Track
courts on 2.2.2002. Since the Fast Track court’s vacancies could not be
filed in by this process, 15 more candidates, under the category of
direct recruitment from the Bar, were appointed from amongst the
candidates who participated in the selection process pursuant to the
advertisement dated 23.5.2001, but were not on the select list. This
process was followed strictly in accordance with the merit of the
candidates beyond the select list. These 15 candidates were appointed
on 23.9.2002.
5. We may also notice that the existing system of pension and
General Provident Fund ceased to exist for Government servants who
joined in service on or after 1.12.2004 and in lieu of the same a new
Contributory Pension Scheme was introduced for Government
officials, who joined service on or after 1.12.2004. These Government
officials joining on or after 1.12.2004 were mandatorily required to
procure a new Permanent Retirement Account Number (‘PRAN’).
5
6. In the year 2008, the High Court issued a new selection process
for 34 posts of Additional District Judges through a limited competitive
examination to be held on 31.8.2008. Thereafter began a legal battle
between the persons who were working in the Fast Track courts and
those who would be beneficiaries under the limited competitive
examination. The challenge laid before the Jharkhand High Court
impugning the aforesaid selection process succeeded on 29.8.2008 but
in the Special Leave Petition (‘SLP’) filed, the judgment of the
Jharkhand High Court was set aside in Srikant Roy v. State of
2
Jharkhand . The Judicial Officers assailed the appointment of persons
to the post of Fast Track courts and suffice to say that the contest was
carried right till this Court, decided in Mahesh Chandra Verma v.
3
State of Jharkhand .
4
7. Prior to the judgment in Mahesh Chandra Verma the issue of
what is to be done with the Judges appointed to the Fast Track court
after the funding was stopped by the Central Government, and when
2(2017) 1 SCC 457
3(2012) 11 SCC 656
4(supra)
6
the State Government also had a problem of funding, formed subject
5
matter of directions in Brij Mohan Lal v. Union of India - [II] . The
relevant paragraphs are 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
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%
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
5(2012) 6 SCC 502
7
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 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 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 relaxation. No application shall be rejected on the
ground of age of the applicant being in excess of the prescribed
age.
207.10. 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 against whom, on any other ground, disciplinary action
had been taken, shall not be eligible to the benefits stated in para
207.9 of the judgment.”
8. The aforesaid judgment was taken note of in Mahesh Chandra
6
Verma and it was, thus, observed in para 63 as under:
“63. The State of Jharkhand will now have to take steps to
7
comply with directions issued in Brij Mohan Lal -[II] , if it has
not complied with them so far. The State of Jharkhand and the
High Court will have to work in sync to ensure that the
directions to appoint the appellants in the regular cadre in Higher
6(supra)
7(supra)
8
Judicial Service are complied with strictly in the manner laid
8
down in Brij Mohan Lal -[II] .”
9. The effect of the aforesaid judgment was that an examination for
regularization and absorption was conducted and the appellants before
this Court were successful and were thus, appointed to the Jharkhand
Superior Judicial Service. However, they were treated as fresh
recruits.
10. The appellants were aggrieved on account of them being treated
as fresh recruits and requested for benefits of pay protection and other
benefits of continuance of service. This request was, however, rejected
by the State Government. This resulted in the writ petitions being filed
in the High Court where some interim protection was granted but
ultimately, the writ petitions have been dismissed by the common
impugned order dated 14.10.2015.
11. A perusal of the impugned order shows that other than the
reference to the judgments referred to aforesaid, the only aspect
examined is that the initial appointment was temporary on the ex-cadre
post, the appointment being so made for the temporary scheme for
speedy disposal of cases. However, in view of the judgment in Brij
8(supra)
9
9 10
Mohan Lal -[II] and Mahesh Chandra Verma they were appointed
through a process to the regular post. The High Court reasoned that
since these two judgments have not dealt with the post appointment
situation of the appellants, the High Court would not be able to give
anything which has not been granted by the Supreme Court under
Article 142 of the Constitution of India. The Supreme Court had taken
recourse to Article 142 of the Constitution of India to deal with the
issue of the methodology for recruitment of the Fast Track court Judges
to the regular posts.
12. In the course of arguments, learned counsel appearing for the
State Government sought to emphasise that by its very nature, the Fast
Track courts were constituted for a limited period of time and, thus, the
persons so appointed were conscious of the fact that they would have a
limited tenure. Since the funding from the Central Government
stopped, the State Governments did continue these courts for some
years, but that again would not give any right to the appellants to claim
the benefit of the service rendered as Fast Track court Judges for the
purposes of computation of pensionary and retiral benefits. He also
9(supra)
10(supra)
10
sought to emphasise that this Court has taken recourse to Article 142 of
the Constitution of India to issue directions and the High Court had
rightly observed that what was not done by the Supreme Court under
Article 142 of the Constitution of India could not be done by the High
Court.
13. We put a specific query to the learned counsel as to whether this
Court had, in the two judgments in question, prohibited any such
grant? Learned counsel after some initial hesitation could not dispute
the position that there was no such prohibition. We also put to the
learned counsel whether the existing cadre strength was sufficient to
sub-serve the justice delivery process, i.e., could it be said that there
were enough courts in existence to try the relevant cases? The only
answer, which came forth was that the State had been carved out
recently and had taken immediate steps to fill the vacancies. However,
to our mind, the important aspect is that the State was no exception to
the general position prevalent of inadequate judicial posts to deal with
the existing inflow of cases. It is only through subsequent directions
that a periodic increase in judicial strength has been envisaged. In Brij
11
11
Mohan Lal -[II] , it was observed as under:
“207.11. 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% 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.”
14. The need to set up Fast Track courts arose on account of delays
in the judicial process, targeting certain priority areas for quicker
adjudication. In fact, had there been adequate cadre strength, there
would have been no need to set up these Fast Track courts.
15. The appellants were not appointed to the Fast Track courts just
at the whim and fancy of any person, but were the next in line on the
merit list of a judicial recruitment process. They were either part of the
select list, who could not find a place given the cadre strength, or those
next in line in the select list. Had there been adequate cadre strength,
the recruitment process would have resulted in their appointment. We
do believe that these Judges have rendered services over a period of
nine years and have performed their role as Judges to the satisfaction,
otherwise there would have been no occasion for their appointment to
11(supra)
12
the regular cadre strength. Not only that, they also went through a
second process for such recruitment. We believe that it is a matter of
great regret that these appellants who have performed the functions of
a Judge to the satisfaction of the competent authorities should be
deprived of their pension and retiral benefits for this period of service.
The appellants were not pressing before us any case of seniority over
any person who may have been recruited subsequently, nor for any
other benefit. In fact, we had made it clear to the appellants that we are
only examining the issue of giving the benefits of their service in the
capacity of Fast Track court Judges to be counted towards their length
of service for pensionary and retiral benefits. To deny the same would
be unjust and unfair to the appellants. In any case, keeping in mind the
spirit of the directions made under Article 142 of the Constitution of
12 13
India in Brij Mohan Lal -[II] and in Mahesh Chandra Verma , the
necessary corollary must also follow, of giving benefit of the period of
service in Fast Track courts for their pension and retiral benefits. The
methodology of non-creation of adequate regular cadre posts and the
consequent establishment of Fast Track courts manned by the
appellants cannot be used as a ruse to deny the dues of the appellants.
12(supra)
13(supra)
13
16. In a different factual context but on the principle laid down, we
take note of the judgment in Nihal Singh & Ors. v. State of Punjab &
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Ors. of a Bench of this court to which one of us was a member. The
State of Punjab in the 1980s was faced with large scale disturbance and
was not in a position to handle the prevailing law and order situation
with the available police personnel and, hence, resorted to recruitment
under Section 17 of the Police Act, 1861 (hereinafter referred to as the
‘Act’) for appointing Special Police Officers (‘SPOs’). The SPOs were
assigned the duty of providing security to banks, for which the
financial burden was to be borne by the banks, with the clear
understanding that, as per the provisions of the Act, such police
officers were to be under the discipline and control of the Senior
Superintendent of Police of the District concerned. Such SPOs
provided yeoman service in difficult times but when their case was
considered for regularization subsequently, it met with an unfavourable
response by an order passed in the year 2002. This Court while
recognizing that the creation of a cadre or sanctioning of posts was
exclusively within the authority of the State, opined that if the State did
14(2013) 14 SCC 65
14
not choose to create a cadre but chose to make appointments of persons
creating contractual relationship only, such action would be
categorized as arbitrary nature of exercise of power. In this context, it
was observed by the Bench, thus : “Sanctioned posts do not fall from
heaven. The State has to create them by a conscious choice on the basis
of some rational assessment of the need.” Thus, the facts found
showed that there was the existence of a need for creation of posts and
the failure to create such posts or having a stop gap arrangement,
which lasted for years cannot be used to deny in an arbitrary manner,
the absorption benefit to people who had worked for long years. A
direction was issued to regularise the services of such SPOs and they
were held entitled to the benefits of service similar in nature to the
existing cadre of police service of the State.
17. The position in respect of the appellants is really no different on
the principle enunciated, as there was need for a regular cadre strength
keeping in mind the inflow and pendency of cases. The Fast Track
Court Scheme was brought in to deal with the exigency and the
appellants were appointed to the Fast Track courts and continued to
work for almost a decade. They were part of the initial select list/merit
15
list for recruitment to the regular cadre strength but were not high
enough to be recruited in the existing strength. Even at the stage of
absorption in the regular cadre strength, they had to go through a
defined process in pursuance of the judgment of this court and have
continued to work thereafter.
18. We are, thus, unhesitatingly and unequivocally of the view that
all the appellants and Judicial Officers identically situated are entitled
to the benefit of the period of service rendered as Fast Track court
Judges to be counted for their length of service in determination of
their pension and retiral benefits.
19. The appeals are accordingly allowed leaving the parties to bear
their own costs.
..….….…………………….J.
[J. Chelameswar]
...……………………………J.
[Sanjay Kishan Kaul]
New Delhi.
May 11, 2018.
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