Brij Mohan Lal Petitioner Vs. Union of India & Ors.
[CASE (CIVIL) NO. 22 OF 2001
[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]
[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.
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 Punjaand Haryanaat Chandigarh under Article 226/227 of the Constitution of India prayingfor 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 to235 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. 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 27th March, 2001and G.O. Rt. No. 412, Law (LA & J. SC.F) Department dated 27th March, 2001was 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 3rdAugust, 2001. By the same order, a Bench of this Court even permitted the intervention by other parties who might have filed similar petitions indifferent 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 6th May, 2002, a detailed order was passed by this Court in Transferred Case No.22 of 2001 and the directions issued therein read asunder :
a. 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.
b. 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-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts.
c. 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.
d. 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.
e. 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.
f. 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 shall be taken by the Full Court of the High Court.
g. 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.
h. 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.
i. 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 appropriate decision to appoint additional staff who can be accommodated within the savings out of the existing allocations by the Central Government.
j. 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.
k. 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.
l. 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.
m. 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 Government. State Government shall ensure requisite cooperation to the Administrative Judge.
n. 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.
o. 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.
p. 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.
q. 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.
r. The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time.
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 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 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 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.
13. On somewhat similar lines is another writ petition filed in this Court, being Writ Petition (Civil) No. 28 of 2011 titled Roshan Lal Ahujav. Union of India & Ors., wherein the petitioner has raised a challenge to a part of the letter dated 11th 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 7th March, 2011 and if the scheme was discontinued, he would be terminated on 31st March, 2010itself.
14. In that very Writ Petition, challenge was also raised to the decision of the Union of India to discontinue the FTC Scheme beyond 31st 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, 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 25th September, 2009 their services were extended but vide order dated 14th 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 12thOctober, 2006 services of six Judicial Officers were terminated on the ground of having not been found suitable, by orders dated 8th February,2007, services of seven other officers were terminated on the same ground, by orders dated 28th April, 2008, the services of 2 FTC Judges were discontinued again on the same ground. Still vide order dated 25thSeptember, 2009, the services of 12 directly recruited FTC ad hoc Additional District Judges were terminated by the State with effect from30th September, 2009, on the recommendation of the High Court. Vide order dated 8th 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 15th October, 2009 and, lastly, vide order dated 14thDecember, 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 11th 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 dated 12th 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 of their services needed to be reiterated. The six officers who were dismissed being dissatisfied withthe order of the High Court as communicated to them by the Principal District Judge vide order dated 5th 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 asunder : 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 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.
20. Thus, the petitioners whose writ petitions were originally dismissed by the Gujarat High Court vide its judgment dated 11th August, 2010]and those whose petitions were subsequently dismissed vide judgment dated 21stJune, 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 11th 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 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 11th 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 11th June, 2008, this Court passed the following order : Issue notice. 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 Mohans 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 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 non-disposal 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 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 petitioners 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 4th April, 2008 and the advertisement dated 11th 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 Notification dated 15th 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 13thJuly, 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 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 Punja 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 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 adhoc and purely temporary basis for implementation of the FTC Scheme will be made under these Rules. 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 6th 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.
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 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 judges 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 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 re-employment of retired District Judges, provided that 33B9/3 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 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 Rule22 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 4provided for the pure ad hoc and urgent temporary nature of these posts and specified that their services were terminable without any notice while Rule6 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 summa rise 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 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.26148of 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 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 SCC1].
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 the yare 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 31st 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 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 13thFinance 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 11th 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 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 7th 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 9th 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 Secretarys
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 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 .
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 24th 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 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 31th 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.
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, 280and 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 directly comment as there may be many policy considerations that would influence the Governments 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 Judg
