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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6105 OF 2013
V. Venkata Prasad & Ors. ... Appellants
VERSUS
High Court of A.P. & Ors. ... Respondents
Dated:June 29, 2016
Dipak Misra, J.
The appellants were appointed as District Munsifs in
Andhra Pradesh Judicial Service in the years 1985-1987
through A.P. Public Service Commission and in due course
were promoted as Sub-Judges. Later on their names were
recommended for promotion to the post of District and
Sessions Judge, Grade II vide letter dated 23.4.2002 by the
Registrar General, High Court of A.P. and the said
recommendations were approved by the Government in
G.O.Ms. No. 64 (LA&J) (SC.F) Department dated 4.5.2002.
Their temporary appointments were notified in the said
Cadre in G.O.Rt. No. 542 dated 4.5.2002.
2. While the appellants were functioning as Sub-Judges,
the Ministry of Law and Justice, Government of India on
27.3.2001 sanctioned 86 additional posts to be established
as Fast Track Courts. Initially, the Registrar General, High
Court of A.P. recommended for appointments of 41
Additional District and Sessions Courts and three Senior
Civil Judge-cum-Assistant Sessions Court for a period of
five years w.e.f. 1.4.2001. The proposal for establishing the
rest of the Courts could not be fructified due to lack of
accommodation. On the basis of communication made by
the Registrar General, the Government accorded sanction of
44 additional courts with specific staffing pattern. Be it
stated, 41 Additional District and Sessions Courts were
sanctioned and three courts of Additional Senior Civil
Judges court were sanctioned.
3. After the posts were sanctioned, the Andhra Pradesh
State Higher Judicial Service Special Rules for Adhoc
Appointments, 2001 (for short, ‘2001 Rules’) were framed
which came into force with effect from 1.3.2001. Rule 1 of
2001 Rules deals with the constitution of service which
stipulates that it shall consist of District and Sessions
Judges on adhoc appointment. Rule 2 of 2001 Rules deals
with appointment. It reads as follows:-
“Appointment:
Notwithstanding anything contained in the
Special Rules for A.P. State Higher Judicial
Service 1958, the appointment of District and
Sessions Judges on ad hoc basis shall be made:
(i) by direct recruitment from the members of the
bar;
(ii) appointment by transfer from among Senior
Civil Judges in the State Judicial Service;
(iii) by re-employment of retired District Judges
provided that 33 1/3% of the total number of ad
hoc posts shall be filled by direct recruitment.
1. In the determination of 33 1/3% of total number
of ad hoc posts, fractions exceeding one half shall
be counted as one and other tractions shall be
disregarded.
2. Appointments under Rule 2 (ii) shall be on
grounds of merit and ability, seniority being
considered only when merit and ability are
approximately equal.
3. Appointments under Rule 2 (iii) shall be made on
grounds of merit, ability and fitness.
4. All appointments made from time to time under
Rule 2 shall cease on 31.03.2005.”
Rule 6 of 2001 Rules deals with seniority. It reads as
follows:-
3Page 4
“Inter-se seniority of the promotees from senior
Civil Judges to the cadre of District and Sessions
Judges shall be as per the seniority fixed at the
time of appointment”.
Rule 7 of 2001 Rules lays down the terms and
conditions. Sub-rule 2 of Rule 7 of 2001 Rules provides
that a person appointed under Rule 2(1) shall not be
regarded as a Member of permanent cadre covered under
Rule 2 of the 1958 Rules and shall not be entitled to any
preferential right to any other appointment to this service or
any other service and their service shall not be treated as
regular or permanent under the State Government nor shall
be a bar for appointment to the post covered by the 1958
Rules or the Andhra Pradesh State Judicial Service Rules,
1962.
4. After the posts were sanctioned, the Registrar,
Vigilance communicated to the State Government for
appointment of District & Sessions Judges Grade II by
transfer. The letter referred to 36 names. It stated that
under Rule 3 of the 1958 Rules appointment to Grade II (i.e.
District & Sessions Judge, Grade II) shall be made by
transfer from amongst the Senior Civil Judges in the
Andhra Pradesh Judicial Service. The concerned
communication further stated:-
“In this connection, I am to state that at present
there are 6 vacancies in the Cadre of District &
Sessions Judges and one more vacancy will also
arise consequent upon the retirement of Sri K.
Mahalakshmi Rao, District and Sessions Judge,
Anantapur, on the AN of 30.04.2002 and 24 Fast
Track Courts in the cadre of District and Sessions
Judges, are also vacant. Thus there are 31
vacancies in the Cadre of District & Sessions
Judges.”
5. The Government of Andhra Pradesh vide order dated
4.5.2002 approved 36 names for appointment as District &
Sessions Judges, Grade II by transfer. After the approval
was given by the State, the High Court of Andhra Pradesh
vide order dated 14.6.2002 issued posting orders. The
appellant nos. 1 to 5 were posted against vacancies in Fast
Track Courts temporarily. Thereafter, appellant nos. 6 and
7 were posted against the vacancies to Fast Track Courts
temporarily. The aforesaid narration reflects how the
appellants had come to hold the post.
6. The respondent nos. 3 to 7 were appointed as District
& Sessions Judge, Grade II by direct recruitment vide
G.O.Ms. No. 108 (LA&J) (SC-F) Department dated 4.8.2002.
Their posting orders were issued on 3.1.2003 and they were
directed to undergo training in the Judicial Academy. On
completion of training, posting orders were issued vide ROC
No. 73/2003 B.Spl dated 3.1.2003 and accordingly they
took charge as District and Sessions Judge, Grade-II at
their respective places of postings in January, 2003. As the
facts would reveal, the said respondents submitted a
representation on 13.11.2003 to the High Court, the first
respondent herein, to fix their seniority over and above the
District and Sessions Judges promoted by way of transfer
from the cadre of Senior Civil Judge. The High Court, vide
ROC No. 207/04-B.Spl dated 24.2.2004 communicated the
seniority list fixing their seniority after one Sh. Mohan
Gandhi whose name was at serial no.5. The final seniority
list was published vide G.O.Rt. No. 1748 (LA&J SC.F)
Department dated 18.9.2008.
7. At this juncture, a slight digression is necessary. After
the High Court had prepared a draft seniority list, objections
were received and thereafter a Sub-Committee of three
Judges was constituted which considered the objections
and found that there were six regular vacancies in the
category of District & Sessions Judge, Grade II and one was
to arise on the retirement of one Mr. K. Mahalakshmi Rao,
District & Sessions Judge, Ananthapur on 30.4.2002. The
committee made a distinction about the incumbents who
had been posted on the post that were created vide letter
dated 4.5.2002. The relevant part of the report of the
Sub-Committee is as follows:-
“F) On a true and fair construction of the
provisions of the 2001 Ad Hoc Rules, the
conclusion is irresistible that the ad hoc posts of
District and Sessions judges to man the FTCs are
direct posts outside the cadre of the AP Higher
Judicial Services. These posts are not part of nor
are composed within the AP Higher Judicial
Services. The fixed tenure of the posts and of the
appointments, the specification under Rule 7(3)
that persons appointed as District and Sessions
Judges under Rule 2 (ii) shall be eligible to salary
and allowances as permissible to District and
Sessions Judges Grade II and the scheme of the
FTC being funded on an Adhoc basis apart from
the title of the rules which specify the adhoc
nature of the scheme of the FTC all at least to
these positions.
G) The 2001 Adhoc rules came into force w.e.f.
5.3.2002. On that day 24 posts of District and
Sessions Judges FTC were vacant. The registry
should have proposed Adhoc appointments to
these vacant posts by transfer from amongst the
members of A.P. State Judicial Service (Senior
Civil Judge) and under Rule 2(ii) of the 2001
Adhoc Rules. Erroneously however, it addressed
a D.O. letter dated 23.04.2002 to the Government
proposing temporary appointments of 30 Senior
Civil Judges as District and Sessions Judges
Grade II. This letter clearly shows that statistical
position viz., that there are six regular vacancies
in the category of District & Sessions Judge Grade
II (within the cadre of the AP State Higher Judicial
Service) with one more vacancy to arise on the
retirement of Sri. K. Mahalakshmi Rao, District &
Sessions Judge, Anantapur, on the Afternoon of
30.04.2002. The D.O. letter dated 23.04.2002
clearly intimated to the State that 24 FTCs in the
cadre of District & Sessions Judge were vacant, in
all 31 vacancies. In conclusion, the letter
addressed the Government to approve the panel
and notify initial temporary appointments of the
30 Senior Civil Judges proposed as District &
Sessions Judge, Grade II, by transfer. Proposal for
30 posts were made against the 31 vacancies set
out, since there was an earlier recommendation
for one Sri. K. David Wilson for temporary
appointment as District & Sessions Judge, Grade
II. The State Government equally oblivious of the
legal position issued G.O. Ms. No. 64 approving
36 Senior Civil Judges starting from Sri.C.
Vachaspathi to Sr. D. Prabhakara Rao for
appointment as District & Sessions Judges Grade
II by transfer, without stipulating the mandated
distinction between appointments to posts within
the cadre of the AP State Higher Judicial Service
and the ad hoc posts in the FTC stream.”
“J. Pursuant to the recommendation of the High
Court, orders were issued in GO Rt No. 542 dated
04.05.2002 for initial temporary appointments of
30 Senior Civil Judges and District & Sessions
Judges Grade- II and 24 FTC were vacant. In the
circumstances Sarvasri C V Vachiaspathi to G
Mohan Gandhi (Serial No 1 to 6 in GO Rt No.542)
were appointed to the cadre vacancies in the AP
8Page 9
State Higher Judicial Services. The other 24
officers Sarvasri E Radhakrishna to T Pathabhi
Ramarao were posted to FTC vacancies in the
notification of the High Court No. 654 B. Special
dated 14.06.2000.
K. In GO Rt No.1192 dated 3.08.2002 the
remaining 6 officers Sarvasri G Chakradhara Rao
to D Prabhkar Rao were issued initial temporary
appointments as District & Sessions Judge Grade
– II by transfer. By this date 4 cadre vacancies in
the AP State Higher Judicial Services and 2 FTC
vacancies were factually vacant. Therefore 4
officers working in the FTC’s Savasri E
Radhakrishna, L. Ravi Babu, M.A. Sharif & V.
Venkat Prasad were posts to function in the cadre
vacancies and the 6 officers specified in GO Rt
No.1192 were posted to the available FTC
vacancies, by the notification of High Court
No.855 B- Special dated 08.08.2002.
L. After 04.01.2003 on completion of training the
direct recruit officers (Smt T Rajani & four others)
were given posting orders. At this point of time
three cadre vacancies and two FTC vacancies were
available. Therefore Sri M A Sharif and Sri V
Venkata Prasad working in the cadre vacancies
were posted to FTC vacancies and the five direct
recruitees were given posting orders in the cadre
vacancies.
M. The Seniority of the five direct recruit officers
will have to be reckoned w.e.f. 21.08.2002 the
date they reported for training consequent on
appointment.”
8. The aforesaid report was accepted by the full Court of
the High Court and a final seniority list was published on
18.9.2008 which featured the names of respondent nos. 3 to
7 above the appellants.
9. After publication of the final seniority list, the same
was challenged before the High Court of Andhra Pradesh
invoking the writ jurisdiction and the Division Bench
analysing the rule position came to hold that they cannot be
conferred the benefit of seniority on the basis of continuous
length of service. The Court arrived at the said conclusion
that the officers who were appointed by promotion/transfer
from Civil Judges to the cadre of District and Sessions
Judges, Grade – II cannot claim seniority from the date of
initial appointment but can only claim so from the date
when they were regularly appointed in the cadre vacancies
as they could only be appointed in the said vacancies as
and when the vacancies arose. Being of this view the
Division Bench dismissed the writ petition. Hence, the
present appeal by special leave.
10. Criticizing the judgment and order passed by the High
Court it is submitted by Mr. P.P. Rao, learned senior
counsel appearing for the appellants that appointments
were made by the Governor under Rule 5(1) on the
recommendations of the High Court and, therefore, they are
to be treated as regular appointees. It is urged by him that
the posting orders issued by the High Court under Rule 5(2)
of the 1958 Rules cannot take away the right conferred by
the order of appointment issued by the Governor, for the
nature of posting order has to be determined with reference
to the terms and conditions mentioned in the order of
appointment.
11. Learned senior counsel would submit that the order of
approval of the Governor is a common order consisting of 36
names including the appellants herein and it does not
mention that any one of them has been approved for
appointment as an ad hoc Judge in a Fast Track Court. It is
his further submission that the appellants were appointed
by the Governor under the Rules to the post of
District/Sessions Judges, Grade II of the service on transfer
and posted by the High Court to Fast Track Courts. It is
argued by Mr. Rao, that when orders are passed in exercise
of statutory authority, it cannot be constituted otherwise in
the light of the explanation subsequently given by the officer
making the order of what he meant or of what was in his
mind, or what he intended to do. For the said purpose, he
has placed reliance on Commissioner of Bombay v.
Goverdhandas Bhanji1and M.S. Gill v. Chief Election
Commissioner2
It has been further argued that it was open
to the appointing authority to appoint some of the Senior
Civil Judges as ad hoc Additional District & Session Judges
for the Fast Track Courts on a consolidated salary of Rs.
10,000/- per month as against the posts sanctioned vide
the Govt. order dated 27.03.2001 read with 2001 rules on
ad hoc basis. It was also open to the appointing authority
to recruit by transfer Senior Civil Judges to regular cadre of
District and Sessions Judges, Category II of the service and
thereafter post some of them in the Fast Track Courts, but
the appointing authority in its wisdom availed the second
option of appointment of appellants to the cadre of District
and Sessions Judges, Category II by transfer and posted
some of them to regular posts in the cadre and others in the
Fast Track Court and hence, they are entitled to the benefit
of seniority of continuous service. In essence, the
submission is that the nature of appointment is under the
1
(1952) SCR 135
2
(1978) 1 SCC 405
12Page 13
1958 Rules and not under 2001 Rules as a result of which
concept of ad hoc appointment does not arise.
12. Mr. Rao, would further submit that a stop-gap
arrangement of this nature would not have been continued
for such a long span and the material brought on record
clearly show that it was not a temporary arrangement. For
the said purpose he has commended us to the Constitution
Bench decision in D.R. Nim v. Union of India3
. It is his
further submission that if an appointment is made to meet
the contingency arising on account of delay in completing
the process of regular recruitment to the post due to any
reason and it is not possible to leave the post vacant till
then, and to meet this contingency an appointment is made
then it can appropriately be called as a stop-gap
arrangement and appointment in the post as ad hoc
appointment. To substantiate the said stand he has placed
reliance on Rudra Kumar Sain v. Union of India4
.
Highlighting the language employed in Rule 6, learned
senior counsel would contend that seniority has to be
determined with reference to the date from which an officer
3
(1967) 2 SCR 325
4
(2000) 8 SCC 25
13Page 14
is continuously in service in Category II and as the
appellants have continued without any break prior to
Respondent Nos. 3 to 7, the High Court has erred in not
granting the relief to the appellants. In this regard, he has
drawn inspiration from V. Bhasker Rao & Ors v. State of
A.P. & Ors5
and Direct Recruitment Class II Engineering
Officers’ Association v. State of Maharashtra6
.
13. Mr. Parasaran, learned senior counsel appearing for
the respondent no.1, would submit that the appellants are
not entitled to seniority over the respondents who are direct
recruits in regular vacancies because they were appointed
in ad hoc capacity in respect of the vacancies created in
Fast Track Courts. It is urged by him that the controversy
is covered by the decision in Direct Recruitment Class II
Engineering Officers’ Association (supra) and Debabrata
Dash v. Jatindra Prasad Das7
and the principle laid down
in V. Bhasker Rao (supra) does not apply to the case at
hand. It is because, submits Mr. Parasaran, the appellants
were not substantially appointed against any vacancy in
their cadre and hence, their case would be governed by the
5
(1993) 3 SCC 307
6
(1990) 2 SCC 715
7
(2013) 3 SCC 658
14Page 15
Constitution Bench decision in the Direct Recruitment
Class II Engineering Officers’ Association (supra) and
the pronouncement in Debabrata Dash (supra). It is his
submission that six vacancies came to be filled up by way of
transfer/promotion from amongst Sub-Judges in the
Andhra Pradesh State Judicial Service and the respondent
nos. 3 to 7 were appointed as direct recruits when the
vacancies had arisen in their quota but the appellants were
never appointed in respect of a substantial post prior to the
point in respect of the said vacancies and, therefore, the
claim of seniority over them is misconceived. The learned
senior counsel has seriously opposed the stand of the
appellants to claim benefit under Rule 6 which postulates
for seniority on the basis of continuous service. It has been
argued that the Fast Track Courts were of a different
character and were constituted for a specific purpose and
appointments in respect of the said courts cannot confer the
benefit of seniority on the appellants. He has supported the
findings of the report of the sub-committee which has been
brought on record and the judgment and order passed by
the High Court.
14. Mr. Gurukrishna Kumar, learned senior counsel
appearing for respondent nos. 3 to 7 has contended that if
2001 Rules are scrutinised in proper perspective, it is quite
vivid that the ad hoc posts of District & Sessions Judges to
man the Fast Track Courts are posts outside the cadre of
the A.P. Higher Judicial Services and are neither part of nor
composed within the A.P. Higher Judicial Services and
hence, the appellants cannot claim benefits of being
appointed under the said rules. It is his further submission
that assuming there as an erroneous proposal of the
Registry of the High Court to fill up the posts on temporary
basis from amongst the Senior Civil Judges as District &
Sessions Judges, Grade-II, that really does not help, for the
said proposal also clearly indicates that there are six regular
vacancies in the category of District & Sessions Judge,
Grade-II with one more vacancy to arise on retirement of
another officer. Thus, submits Mr. Gurukrishna Kumar,
the appellants were appointed on the Fast Track Courts
under 2001 Rules and the respondents were appointed
under the 1958 Rules and, therefore, the seniority of the
respondents, who are direct recruits, has to be reckoned
16Page 17
w.e.f. 21.8.2002, the date they reported for training
consequent upon their appointment. It is canvassed by him
that as per the authority in Brij Mohanlal – II v. Union of
India8
, the Fast Track Court Judges were appointed on ad
hoc basis and they would not derive any benefit from such
appointment. Lastly, it is submitted that the
pronouncement in Debabrata Dash (supra) is the last nail
in the coffin in the submission advanced by the appellants
and, the judgment rendered by the High Court deserves to
be accepted.
15. To appreciate the rivalised submissions raised at the
Bar which have been astutely canvassed, it is extremely
essential to project the real plinth of the litigation. The 11th
Finance Commission allocated Rs.502.90 crores under
Article 275 of the Constitution for the purpose of setting up
1734 courts in various States to deal with long pending
cases, particularly sessions cases. The funds were to be
allocated by the Finance Commission which stipulated a
time-bound utilisation within a period of five years and the
State Governments were required to take necessary steps to
8
(2012) 6 SCC 502
17Page 18
establish such courts. The Finance Commission had stated
that States may consider re-employment of retired Judges
for limited period since these courts were ad hoc in the
sense that there would be no permanent addition of courts
within a particular State. The High Courts framed Fast
Track Courts Scheme for employment of retired Judges.
Certain litigations were filed in various High Courts and
eventually the matter travelled to this Court after cases
being transferred and also otherwise in Brij Mohan Lal v.
Union of India - I9
. It was highlighted before this Court
that infrastructural facilities were not available so as to
make the scheme a reality. It was also pleaded that instead
of retired officers, eligible members of the Bar should be
considered for appointment. Be it stated, the constitutional
validity of the Fast Track Court Scheme was also
challenged. The Court negatived the said plea. After
referring to the authorities in All India Judges’ Assn. v.
Union of India10
, P. Ramachandra Rao v. State of
Karnataka11
, All India Judges’ Assn. v. Union of India12
9
(2002) 5 SCC 1
10 (2002) 4 SCC 247
11 (2002) 4 SCC 578
12 (1992) 1 SCC 119
18Page 19
and All India Judges’ Assn. v. Union of India13, the
three-Judge Bench issued certain directions. Some of the
relevant directions are necessitous to be reproduced:-
1. The first preference for appointment of judges
of the Fast Track Courts is to be given by ad hoc
promotions from amongst eligible judicial officers.
While giving such promotion, the High Court
shall follow the procedures in force in the matter
of promotion to such posts in Superior/Higher
Judicial Services.
14. No right will be conferred on judicial officers
in service for claiming any regular promotion on
the basis of his/her appointment on ad hoc basis
under the Scheme. The service rendered in Fast
Track Courts will be deemed as service rendered
in the parent cadre. In case any judicial officer is
promoted to higher grade in the parent cadre
during his tenure in Fast Track Courts, the service
rendered in Fast Track Courts will be
deemed to be service in such higher grade.
18. The High Court and the State Government
shall ensure that there exists no vacancy so far
as the Fast Track Courts are concerned, and necessary
steps in that regard shall be taken within
three months from today. In other words, steps
should be taken to set up all the Fast Track
Courts within the stipulated time.
16. The directions given in the Brij Mohanlal –I (supra)
13 (1993) 4 SCC 288
19Page 20
were further analysed in Brij Mohanlal –II (supra). The
two-Judge Bench scrutinising the directions observed that
appointment to FTCs were to be made on ad hoc basis. It
has been observed therein that there are three sources of
recruitment. Firstly, by promotion from amongst the
eligible judicial officers, secondly by appointment of retired
Judges with good service records and lastly by direct
recruitment from amongst the members of the Bar between
the age group of 35 to 45 years. In the last category, the
selection was to be made in the manner similar to that of
direct recruitment to the Higher Judicial Services. The
Court further observed:-
“This Court had foreseen the possibility of the
closure of the Fast Track Courts Scheme (FTC
Scheme). It directed that the service in FTCs will
be deemed as service of the promoted judicial officers
rendered in the parent cadre. However, no
right would accrue to such recruits
promoted/posted on ad hoc basis from the lower
judiciary for regular promotion on the basis of
such appointment. For direct recruits, continuation
in service will be dependent on review by the
High Court and there could be possibility of absorption
in the regular vacancy if their performance
was found to be satisfactory. Besides
these two aspects, the directions also dealt with
the management of FTCs, timely and appropriate
utilisation of funds and monitoring of smooth
functioning of FTCs by the State-Level Empow-
ered Committee headed by the Chief Secretary of
the State; the disposal of cases was to be monitored
by one Administrative Judge, nominated by
the High Court. It was expected that each FTC
will at least have one Public Prosecutor earmarked.
This was the sum and substance of the
directions issued by this Court in Brij Mohan Lal
case while disposing of both these transferred
cases”.
17. The basic prayer in the said case pertained to
extension of FTC scheme. The Court adverting to various
precedents and facets relating to scope of interference in
policy matters in exercise of power of judicial review and
many other aspects, came to hold that:-
“172. The prayer for regularisation of service and
absorption of the petitioner appointees against
the vacancies appearing in the regular cadre has
been made not only in cases involving the case of
the State of Orissa, but even in other States. Absorption
in service is not a right. Regularisation
also is not a statutory or a legal right enforceable
by the persons appointed under different rules to
different posts. Regularisation shall depend upon
the facts and circumstances of a given case as
well as the relevant rules applicable to such class
of persons.
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 ab-
sorbed against those vacancies. In view of the
above discussion, we find no merit even in these
submissions.
176. We have already noticed that the FTC
Judges were appointed under a separate set of
Rules than the Rules governing the regular appointment
to the State Higher Judicial Services.
It has been clearly stipulated that such appointments
would be ad hoc and temporary and that
the appointees shall not derive any benefit from
such appointments”.
18. The two-Judge Bench issued certain directions for
regularisation of the direct recruits from the Bar as Judges
to preside over FTCs on certain terms and conditions.
Certain directions were also given in respect of candidates
who were promoted as FTC Judges from the post of Civil
Judges (Senior Division) having requisite experience in
service to be entitled to be absorbed and remain promoted
to the Higher Judicial Service subject to the rule position
and certain other conditions.
19. From the aforesaid two authorities, it is quite clear
that the appointments in respect of Fast Track Courts are
ad hoc in nature and no right is to accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary
for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules
governing the regular appointment in the State Higher
Judicial Services.
20. Now we shall focus on the relevant Rules that governs
the appointments to judicial service in the State of Andhra
Pradesh. The Andhra Pradesh Higher Judicial Service is
governed by the Andhra Pradesh State Higher Judicial
Service Rules, 1958 (for short, ‘the 1958 Rules’) framed by
the Governor of Andhra Pradesh in consultation with the
High Court and the said Rules have come into force w.e.f.
10.10.1958. According to Rule 1, the service shall consist of
two categories. Category 1st deals with District & Sessions
Judge, First Grade and category 2nd deals with District &
Sessions Judge, Second Grade. Rule 2 provides for
appointment. The said Rule which is required to be
deliberated upon is reproduced below:-
“Rule 2 : Appointment:
(a) Appointment to Category I shall be made by
promotion from Category II and appointment to
Category II shall be made:-
23Page 24
(i) by transfer from among:
Sub-Judges in the Andhra State Judicial
Service; or in the Hyderabad State Judicial
Service; and
(ii) by direct recruitment from the Bar:
Provided that 33 1/3% of the total number of
permanent posts shall be filled or reserved to be
filled by direct recruitment.
Explanation: In the determination of 33 1/3% of
the total number of permanent posts, fractions
exceeding one-half shall be counted as one and
other fractions shall be disregarded.
(b) All promotions shall be made of grounds of
merit and ability, seniority being considered only
when merit and ability are approximately equal.”
21. Rule 3 provides for qualification. Rule 4 deals with
probation. Rule 5(1) stipulates that all first appointments,
and reappointments of persons under reversion to the
category of District & Sessions Judge, Second Grade, shall
be made by the Governor in consultation with the High
Court. Rule 5(2) provides that all postings, other than first
appointments or reappointments to the service, and
transfers in the service shall be made by the High Court.
Rule 6 deals with seniority. It reads as follows:-
“The seniority of a person appointed to Category I
or Category II shall be determined with reference
to the dated from which he may continuously be
on duty in that category”.
24Page 25
22. In the instant case, we are not concerned with any
other Rule. The 2001 Rules are specific rules for ad hoc
appointments. Rule 7(1)(b) of the 2001 Rules lays down as
follows:-
“ A person appointed under Rule 2 (i) shall not be
regarded as a Member of permanent cadre
covered under Rule 2 of the Special Rules for
Andhra Pradesh State Higher Judicial Service,
1958, and shall not be entitled to any preferential
right to any other appointment to this service or
any other service and their service shall not be
treated as regular or permanent under the State
Government nor shall be a bar for appointment to
the posts covered by the Special Rules for Andhra
Pradesh Higher Judicial Service, 1958 or the
Andhra Pradesh State Judicial Service Rules,
1962.”
As the fact situation would exposit, there were six
vacancies in the regular cadre. Because of introduction of
the Fast Track Court Scheme, the promotional avenues on
ad hoc basis became available. The conditions in Brij
Mohanlal –I (supra) and Brij Mohanlal –II (supra) make it
absolutely clear. The submission of Mr. Rao, learned senior
counsel for the appellants is that the appellants were
appointed under the 1958 Rules as the letter of
appointment would show and whole thing would depend
upon the letter of appointment and not the posting orders
issued by the High Court. According to the learned senior
counsel, if a candidate is appointed on ad hoc basis in
respect of a vacancy, he would be regarded as senior to the
direct recruit. Both the submissions, as we perceive, are
interwoven but the singular answer to the same would be
“fundamentally fallacious”.
23. In Debabrata Dash (supra), almost in a similar
situation, the three-Judge Bench reproduced a passage
from O.P. Singla v. Union of India14:-
“21. … This Rule shows that two conditions must
co-exist in order that a person can become a
‘Member of the Service’. Firstly, his appointment
has to be in a substantive capacity and secondly,
the appointment has to be to the Service, that is,
to a post in the Service. Persons who hold posts
bearing designations similar to the designations
of posts comprised in the Service cannot, for that
reason alone, become members of the Service. It
is only when they are appointed in a substantive
capacity to a post in the Service, that they become
members of the Service.”
24. After referring to the said paragraph, the Court
observed that:-
14 (1984) 4 SCC 450
26Page 27
“Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules
leave no manner of doubt that a person can become
a member of the Senior Branch of the Superior
Judicial Service only if his appointment
has been made to a post in the service. If there is
no vacancy to be filled in by promotion in the
cadre of Senior Branch service, there is no question
of any appointment being made to the service.
The membership of service is limited to the
persons who are appointed within the cadre
strength by direct recruitment and by
promotion”.
25. Thereafter, the Court referred to the Constitution
Bench judgment in Direct Recruitment Class II
Engineering Officers’ Association (supra) and after
adverting to the legal position (Clauses A, B and C) stated
thus:-
“The essence of direction in Clause (A) is that the
seniority of an appointee has to be counted from
the date of his appointment and not according to
the date of his confirmation once a recruitee is
appointed to a post according to the rules. In
other words, where initial appointment is only ad
hoc and not according to the rules and made as a
stopgap arrangement, the officiation in such post
cannot be taken into account for considering the
seniority”.
26. Be it noted, the three-Judge Bench referred to the
authority in Rudra Kumar Sain (supra), reproduced a
passage therefrom and opined that though the High Court
27Page 28
had quoted the relevant paragraph, yet had applied it
wrongly.
27. Be it noted, in State of West Bengal v. Aghore Nath
Dey15 the Court perceived an apparent contradiction in
Conclusions A and B and while clarifying stated thus:-
“19. The Constitution Bench in Direct Recruit
case, while dealing with Narender Chadha v.
Union of India16 emphasised the unusual fact that
the promotees in question had worked continuously
for long periods of nearly fifteen to twenty
years on the posts without being reverted, and
then proceeded to state the principle thus:
‘13. … We, therefore, confirm the principle
of counting towards seniority the period
of continuous officiation following an appointment
made in accordance with the
rules prescribed for regular substantive appointments
in the service.’
20. The Constitution Bench having dealt with
Narender Chadha in this manner, to indicate the
above principle, that decision cannot be construed
to apply to cases where the initial appointment
was not according to rules.
* * *
22. There can be no doubt that these two conclusions
have to be read harmoniously, and Conclusion
(B) cannot cover cases which are expressly
excluded by Conclusion (A). We may, therefore,
first refer to Conclusion (A). It is clear from Conclusion
(A) that to enable seniority to be counted
from the date of initial appointment and not according
to the date of confirmation, the incumbent
of the post has to be initially appointed ‘according
to rules’. The corollary set out in Conclu-
15 (1993) 3 SCC 371
16 (1986) 2 SCC 157
28Page 29
sion (A), then is, that ‘where the initial appointment
is only ad hoc and not according to rules
and made as a stopgap arrangement, the officiation
in such posts cannot be taken into account
for considering the seniority’. Thus, the corollary
in Conclusion (A) expressly excludes the category
of cases where the initial appointment is only ad
hoc and not according to rules, being made only
as a stopgap arrangement. The case of the writ
petitioners squarely falls within this corollary in
Conclusion (A), which says that the officiation in
such posts cannot be taken into account for
counting the seniority.”
* * *
“26. … Admittedly, this express requirement in
Rule 11 was not followed or fulfilled subsequently,
and, therefore, the initial ad hoc appointments
cannot be treated to have been made
according to the applicable rules. These ad hoc
appointments were clearly not in accordance with
the rules, and were made only as a stopgap arrangement
for fixed period, as expressly stated in
the appointment order itself.”
28. In State of Haryana v. Vijay Singh17, the issue
emerged with regard to determination of seniority in the
backdrop of ad hoc initial appointment made dehors the
seniority rules which were regularised by the State
Government. The Court appreciating the fact situation held
that ad hoc period would not be counted for the purpose of
fixation of seniority.
29. We will be failing in our duty if we do not refer to the
17 (2012) 8 SCC 633
authorities cited by Mr. Rao, learned senior counsel for the
appellants. He has commended us to a passage from O.P.
Singla (supra). It reads as follows:-
“It is however difficult to appreciate how, in the
matter of seniority, any distinction can be made
between direct recruits who are appointed to substantive
vacancies in the Service on the recommendation
of the High Court under Rule 5(2) and
the promotees who are appointed in consultation
with the High Court to posts in the Service under
Rules 16 and 17. Rule 16 provides for the appointment
of promotees to temporary posts in the
Service, while Rule 17 provides for appointment
of promotees to substantive vacancies in the Service
on a temporary basis. Promotees who are appointed
to the Service under either of these two
Rules must be considered as belonging to the
same class as direct recruits appointed under
Rule 5(2). They perform similar functions, discharge
identical duties and bear the same responsibilities
as direct recruits. They are appointed
on a regular basis to posts in the Service
in the same manner as direct recruits are appointed,
the only distinction being that whereas
the latter are appointed on the recommendation
of the High Court, promotees are appointed in
consultation with the High Court. Therefore, no
distinction can be made between direct recruits
on one hand and promotees appointed to the Service
on the other, in the matter of their placement
in the seniority list. Exclusion from the seniority
list of those promotees who are appointed to
posts in the Service, whether such appointment
is to temporary posts or to substantive vacancies
in a temporary capacity, will amount to a violation
of the equality rule since, thereby, persons
who are situated similarly shall have been treated
30Page 31
dissimilarly in a matter which constitutes an important
facet of their career”.
30. The principle stated in the aforesaid paragraph, we are
afraid, does not assist learned senior counsel for the
appellants. It is simply so because the appellants were not
appointed to substantive vacancies. That has also been
clearly stated in the majority opinion in O.P. Singla (supra)
which has been placed reliance upon by the three-Judge
Bench in Debabrata Dash (supra). Learned senior counsel,
as has been indicated earlier, heavily relied on the decision
in Rudra Kumar Sain (supra). On a perusal of the same,
we do not find it to be remotely helpful to the issue that has
arisen here. The appellants who are aspirant to structure
the case solely on the basis of the words used in the letter of
appointment ignoring the letter of posting, we are
constrained to say, they are bound to remain in the realm of
unnecessary undiminished hope. Their promotion came
because of the introduction of the Fast Track Court Scheme
and under the 2001 Rules framed by the High Court. They
were the beneficiaries of a Scheme. While continuing in the
post under the scheme, the regular posts in the cadre fell
vacant and they were regularised but prior to that, the
respondents were appointed as direct recruits in respect of
substantive posts in their quota. The appellants, in our
considered opinion, should have been in a position to accept
the distinction. But the inter se dispute between the
promotees and the direct recruits seems to be a ceaseless
affair. In O.P. Singla (supra), Y.V. Chandrachud, C.J. had
observed:-
“There are many decisions bearing upon the
familiar controversy between promotees and
direct recruits and this will be one more.
Perhaps, just another.”
31. We share the said fond hope.
32. Consequently, the appeal, being devoid of merit,
stands dismissed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
............................J.
(Dipak Misra)
.............................J.
(Shiva Kirti Singh)
New Delhi.
June 29, 2016
Print Page
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6105 OF 2013
V. Venkata Prasad & Ors. ... Appellants
VERSUS
High Court of A.P. & Ors. ... Respondents
Dated:June 29, 2016
Dipak Misra, J.
The appellants were appointed as District Munsifs in
Andhra Pradesh Judicial Service in the years 1985-1987
through A.P. Public Service Commission and in due course
were promoted as Sub-Judges. Later on their names were
recommended for promotion to the post of District and
Sessions Judge, Grade II vide letter dated 23.4.2002 by the
Registrar General, High Court of A.P. and the said
recommendations were approved by the Government in
G.O.Ms. No. 64 (LA&J) (SC.F) Department dated 4.5.2002.
Their temporary appointments were notified in the said
Cadre in G.O.Rt. No. 542 dated 4.5.2002.
2. While the appellants were functioning as Sub-Judges,
the Ministry of Law and Justice, Government of India on
27.3.2001 sanctioned 86 additional posts to be established
as Fast Track Courts. Initially, the Registrar General, High
Court of A.P. recommended for appointments of 41
Additional District and Sessions Courts and three Senior
Civil Judge-cum-Assistant Sessions Court for a period of
five years w.e.f. 1.4.2001. The proposal for establishing the
rest of the Courts could not be fructified due to lack of
accommodation. On the basis of communication made by
the Registrar General, the Government accorded sanction of
44 additional courts with specific staffing pattern. Be it
stated, 41 Additional District and Sessions Courts were
sanctioned and three courts of Additional Senior Civil
Judges court were sanctioned.
3. After the posts were sanctioned, the Andhra Pradesh
State Higher Judicial Service Special Rules for Adhoc
Appointments, 2001 (for short, ‘2001 Rules’) were framed
which came into force with effect from 1.3.2001. Rule 1 of
2001 Rules deals with the constitution of service which
stipulates that it shall consist of District and Sessions
Judges on adhoc appointment. Rule 2 of 2001 Rules deals
with appointment. It reads as follows:-
“Appointment:
Notwithstanding anything contained in the
Special Rules for A.P. State Higher Judicial
Service 1958, the appointment of District and
Sessions Judges on ad hoc basis shall be made:
(i) by direct recruitment from the members of the
bar;
(ii) appointment by transfer from among Senior
Civil Judges in the State Judicial Service;
(iii) by re-employment of retired District Judges
provided that 33 1/3% of the total number of ad
hoc posts shall be filled by direct recruitment.
1. In the determination of 33 1/3% of total number
of ad hoc posts, fractions exceeding one half shall
be counted as one and other tractions shall be
disregarded.
2. Appointments under Rule 2 (ii) shall be on
grounds of merit and ability, seniority being
considered only when merit and ability are
approximately equal.
3. Appointments under Rule 2 (iii) shall be made on
grounds of merit, ability and fitness.
4. All appointments made from time to time under
Rule 2 shall cease on 31.03.2005.”
Rule 6 of 2001 Rules deals with seniority. It reads as
follows:-
3Page 4
“Inter-se seniority of the promotees from senior
Civil Judges to the cadre of District and Sessions
Judges shall be as per the seniority fixed at the
time of appointment”.
Rule 7 of 2001 Rules lays down the terms and
conditions. Sub-rule 2 of Rule 7 of 2001 Rules provides
that a person appointed under Rule 2(1) shall not be
regarded as a Member of permanent cadre covered under
Rule 2 of the 1958 Rules and shall not be entitled to any
preferential right to any other appointment to this service or
any other service and their service shall not be treated as
regular or permanent under the State Government nor shall
be a bar for appointment to the post covered by the 1958
Rules or the Andhra Pradesh State Judicial Service Rules,
1962.
4. After the posts were sanctioned, the Registrar,
Vigilance communicated to the State Government for
appointment of District & Sessions Judges Grade II by
transfer. The letter referred to 36 names. It stated that
under Rule 3 of the 1958 Rules appointment to Grade II (i.e.
District & Sessions Judge, Grade II) shall be made by
transfer from amongst the Senior Civil Judges in the
Andhra Pradesh Judicial Service. The concerned
communication further stated:-
“In this connection, I am to state that at present
there are 6 vacancies in the Cadre of District &
Sessions Judges and one more vacancy will also
arise consequent upon the retirement of Sri K.
Mahalakshmi Rao, District and Sessions Judge,
Anantapur, on the AN of 30.04.2002 and 24 Fast
Track Courts in the cadre of District and Sessions
Judges, are also vacant. Thus there are 31
vacancies in the Cadre of District & Sessions
Judges.”
5. The Government of Andhra Pradesh vide order dated
4.5.2002 approved 36 names for appointment as District &
Sessions Judges, Grade II by transfer. After the approval
was given by the State, the High Court of Andhra Pradesh
vide order dated 14.6.2002 issued posting orders. The
appellant nos. 1 to 5 were posted against vacancies in Fast
Track Courts temporarily. Thereafter, appellant nos. 6 and
7 were posted against the vacancies to Fast Track Courts
temporarily. The aforesaid narration reflects how the
appellants had come to hold the post.
6. The respondent nos. 3 to 7 were appointed as District
& Sessions Judge, Grade II by direct recruitment vide
G.O.Ms. No. 108 (LA&J) (SC-F) Department dated 4.8.2002.
Their posting orders were issued on 3.1.2003 and they were
directed to undergo training in the Judicial Academy. On
completion of training, posting orders were issued vide ROC
No. 73/2003 B.Spl dated 3.1.2003 and accordingly they
took charge as District and Sessions Judge, Grade-II at
their respective places of postings in January, 2003. As the
facts would reveal, the said respondents submitted a
representation on 13.11.2003 to the High Court, the first
respondent herein, to fix their seniority over and above the
District and Sessions Judges promoted by way of transfer
from the cadre of Senior Civil Judge. The High Court, vide
ROC No. 207/04-B.Spl dated 24.2.2004 communicated the
seniority list fixing their seniority after one Sh. Mohan
Gandhi whose name was at serial no.5. The final seniority
list was published vide G.O.Rt. No. 1748 (LA&J SC.F)
Department dated 18.9.2008.
7. At this juncture, a slight digression is necessary. After
the High Court had prepared a draft seniority list, objections
were received and thereafter a Sub-Committee of three
Judges was constituted which considered the objections
and found that there were six regular vacancies in the
category of District & Sessions Judge, Grade II and one was
to arise on the retirement of one Mr. K. Mahalakshmi Rao,
District & Sessions Judge, Ananthapur on 30.4.2002. The
committee made a distinction about the incumbents who
had been posted on the post that were created vide letter
dated 4.5.2002. The relevant part of the report of the
Sub-Committee is as follows:-
“F) On a true and fair construction of the
provisions of the 2001 Ad Hoc Rules, the
conclusion is irresistible that the ad hoc posts of
District and Sessions judges to man the FTCs are
direct posts outside the cadre of the AP Higher
Judicial Services. These posts are not part of nor
are composed within the AP Higher Judicial
Services. The fixed tenure of the posts and of the
appointments, the specification under Rule 7(3)
that persons appointed as District and Sessions
Judges under Rule 2 (ii) shall be eligible to salary
and allowances as permissible to District and
Sessions Judges Grade II and the scheme of the
FTC being funded on an Adhoc basis apart from
the title of the rules which specify the adhoc
nature of the scheme of the FTC all at least to
these positions.
G) The 2001 Adhoc rules came into force w.e.f.
5.3.2002. On that day 24 posts of District and
Sessions Judges FTC were vacant. The registry
should have proposed Adhoc appointments to
these vacant posts by transfer from amongst the
members of A.P. State Judicial Service (Senior
Civil Judge) and under Rule 2(ii) of the 2001
Adhoc Rules. Erroneously however, it addressed
a D.O. letter dated 23.04.2002 to the Government
proposing temporary appointments of 30 Senior
Civil Judges as District and Sessions Judges
Grade II. This letter clearly shows that statistical
position viz., that there are six regular vacancies
in the category of District & Sessions Judge Grade
II (within the cadre of the AP State Higher Judicial
Service) with one more vacancy to arise on the
retirement of Sri. K. Mahalakshmi Rao, District &
Sessions Judge, Anantapur, on the Afternoon of
30.04.2002. The D.O. letter dated 23.04.2002
clearly intimated to the State that 24 FTCs in the
cadre of District & Sessions Judge were vacant, in
all 31 vacancies. In conclusion, the letter
addressed the Government to approve the panel
and notify initial temporary appointments of the
30 Senior Civil Judges proposed as District &
Sessions Judge, Grade II, by transfer. Proposal for
30 posts were made against the 31 vacancies set
out, since there was an earlier recommendation
for one Sri. K. David Wilson for temporary
appointment as District & Sessions Judge, Grade
II. The State Government equally oblivious of the
legal position issued G.O. Ms. No. 64 approving
36 Senior Civil Judges starting from Sri.C.
Vachaspathi to Sr. D. Prabhakara Rao for
appointment as District & Sessions Judges Grade
II by transfer, without stipulating the mandated
distinction between appointments to posts within
the cadre of the AP State Higher Judicial Service
and the ad hoc posts in the FTC stream.”
“J. Pursuant to the recommendation of the High
Court, orders were issued in GO Rt No. 542 dated
04.05.2002 for initial temporary appointments of
30 Senior Civil Judges and District & Sessions
Judges Grade- II and 24 FTC were vacant. In the
circumstances Sarvasri C V Vachiaspathi to G
Mohan Gandhi (Serial No 1 to 6 in GO Rt No.542)
were appointed to the cadre vacancies in the AP
8Page 9
State Higher Judicial Services. The other 24
officers Sarvasri E Radhakrishna to T Pathabhi
Ramarao were posted to FTC vacancies in the
notification of the High Court No. 654 B. Special
dated 14.06.2000.
K. In GO Rt No.1192 dated 3.08.2002 the
remaining 6 officers Sarvasri G Chakradhara Rao
to D Prabhkar Rao were issued initial temporary
appointments as District & Sessions Judge Grade
– II by transfer. By this date 4 cadre vacancies in
the AP State Higher Judicial Services and 2 FTC
vacancies were factually vacant. Therefore 4
officers working in the FTC’s Savasri E
Radhakrishna, L. Ravi Babu, M.A. Sharif & V.
Venkat Prasad were posts to function in the cadre
vacancies and the 6 officers specified in GO Rt
No.1192 were posted to the available FTC
vacancies, by the notification of High Court
No.855 B- Special dated 08.08.2002.
L. After 04.01.2003 on completion of training the
direct recruit officers (Smt T Rajani & four others)
were given posting orders. At this point of time
three cadre vacancies and two FTC vacancies were
available. Therefore Sri M A Sharif and Sri V
Venkata Prasad working in the cadre vacancies
were posted to FTC vacancies and the five direct
recruitees were given posting orders in the cadre
vacancies.
M. The Seniority of the five direct recruit officers
will have to be reckoned w.e.f. 21.08.2002 the
date they reported for training consequent on
appointment.”
8. The aforesaid report was accepted by the full Court of
the High Court and a final seniority list was published on
18.9.2008 which featured the names of respondent nos. 3 to
7 above the appellants.
9. After publication of the final seniority list, the same
was challenged before the High Court of Andhra Pradesh
invoking the writ jurisdiction and the Division Bench
analysing the rule position came to hold that they cannot be
conferred the benefit of seniority on the basis of continuous
length of service. The Court arrived at the said conclusion
that the officers who were appointed by promotion/transfer
from Civil Judges to the cadre of District and Sessions
Judges, Grade – II cannot claim seniority from the date of
initial appointment but can only claim so from the date
when they were regularly appointed in the cadre vacancies
as they could only be appointed in the said vacancies as
and when the vacancies arose. Being of this view the
Division Bench dismissed the writ petition. Hence, the
present appeal by special leave.
10. Criticizing the judgment and order passed by the High
Court it is submitted by Mr. P.P. Rao, learned senior
counsel appearing for the appellants that appointments
were made by the Governor under Rule 5(1) on the
recommendations of the High Court and, therefore, they are
to be treated as regular appointees. It is urged by him that
the posting orders issued by the High Court under Rule 5(2)
of the 1958 Rules cannot take away the right conferred by
the order of appointment issued by the Governor, for the
nature of posting order has to be determined with reference
to the terms and conditions mentioned in the order of
appointment.
11. Learned senior counsel would submit that the order of
approval of the Governor is a common order consisting of 36
names including the appellants herein and it does not
mention that any one of them has been approved for
appointment as an ad hoc Judge in a Fast Track Court. It is
his further submission that the appellants were appointed
by the Governor under the Rules to the post of
District/Sessions Judges, Grade II of the service on transfer
and posted by the High Court to Fast Track Courts. It is
argued by Mr. Rao, that when orders are passed in exercise
of statutory authority, it cannot be constituted otherwise in
the light of the explanation subsequently given by the officer
making the order of what he meant or of what was in his
mind, or what he intended to do. For the said purpose, he
has placed reliance on Commissioner of Bombay v.
Goverdhandas Bhanji1and M.S. Gill v. Chief Election
Commissioner2
It has been further argued that it was open
to the appointing authority to appoint some of the Senior
Civil Judges as ad hoc Additional District & Session Judges
for the Fast Track Courts on a consolidated salary of Rs.
10,000/- per month as against the posts sanctioned vide
the Govt. order dated 27.03.2001 read with 2001 rules on
ad hoc basis. It was also open to the appointing authority
to recruit by transfer Senior Civil Judges to regular cadre of
District and Sessions Judges, Category II of the service and
thereafter post some of them in the Fast Track Courts, but
the appointing authority in its wisdom availed the second
option of appointment of appellants to the cadre of District
and Sessions Judges, Category II by transfer and posted
some of them to regular posts in the cadre and others in the
Fast Track Court and hence, they are entitled to the benefit
of seniority of continuous service. In essence, the
submission is that the nature of appointment is under the
1
(1952) SCR 135
2
(1978) 1 SCC 405
12Page 13
1958 Rules and not under 2001 Rules as a result of which
concept of ad hoc appointment does not arise.
12. Mr. Rao, would further submit that a stop-gap
arrangement of this nature would not have been continued
for such a long span and the material brought on record
clearly show that it was not a temporary arrangement. For
the said purpose he has commended us to the Constitution
Bench decision in D.R. Nim v. Union of India3
. It is his
further submission that if an appointment is made to meet
the contingency arising on account of delay in completing
the process of regular recruitment to the post due to any
reason and it is not possible to leave the post vacant till
then, and to meet this contingency an appointment is made
then it can appropriately be called as a stop-gap
arrangement and appointment in the post as ad hoc
appointment. To substantiate the said stand he has placed
reliance on Rudra Kumar Sain v. Union of India4
.
Highlighting the language employed in Rule 6, learned
senior counsel would contend that seniority has to be
determined with reference to the date from which an officer
3
(1967) 2 SCR 325
4
(2000) 8 SCC 25
13Page 14
is continuously in service in Category II and as the
appellants have continued without any break prior to
Respondent Nos. 3 to 7, the High Court has erred in not
granting the relief to the appellants. In this regard, he has
drawn inspiration from V. Bhasker Rao & Ors v. State of
A.P. & Ors5
and Direct Recruitment Class II Engineering
Officers’ Association v. State of Maharashtra6
.
13. Mr. Parasaran, learned senior counsel appearing for
the respondent no.1, would submit that the appellants are
not entitled to seniority over the respondents who are direct
recruits in regular vacancies because they were appointed
in ad hoc capacity in respect of the vacancies created in
Fast Track Courts. It is urged by him that the controversy
is covered by the decision in Direct Recruitment Class II
Engineering Officers’ Association (supra) and Debabrata
Dash v. Jatindra Prasad Das7
and the principle laid down
in V. Bhasker Rao (supra) does not apply to the case at
hand. It is because, submits Mr. Parasaran, the appellants
were not substantially appointed against any vacancy in
their cadre and hence, their case would be governed by the
5
(1993) 3 SCC 307
6
(1990) 2 SCC 715
7
(2013) 3 SCC 658
14Page 15
Constitution Bench decision in the Direct Recruitment
Class II Engineering Officers’ Association (supra) and
the pronouncement in Debabrata Dash (supra). It is his
submission that six vacancies came to be filled up by way of
transfer/promotion from amongst Sub-Judges in the
Andhra Pradesh State Judicial Service and the respondent
nos. 3 to 7 were appointed as direct recruits when the
vacancies had arisen in their quota but the appellants were
never appointed in respect of a substantial post prior to the
point in respect of the said vacancies and, therefore, the
claim of seniority over them is misconceived. The learned
senior counsel has seriously opposed the stand of the
appellants to claim benefit under Rule 6 which postulates
for seniority on the basis of continuous service. It has been
argued that the Fast Track Courts were of a different
character and were constituted for a specific purpose and
appointments in respect of the said courts cannot confer the
benefit of seniority on the appellants. He has supported the
findings of the report of the sub-committee which has been
brought on record and the judgment and order passed by
the High Court.
14. Mr. Gurukrishna Kumar, learned senior counsel
appearing for respondent nos. 3 to 7 has contended that if
2001 Rules are scrutinised in proper perspective, it is quite
vivid that the ad hoc posts of District & Sessions Judges to
man the Fast Track Courts are posts outside the cadre of
the A.P. Higher Judicial Services and are neither part of nor
composed within the A.P. Higher Judicial Services and
hence, the appellants cannot claim benefits of being
appointed under the said rules. It is his further submission
that assuming there as an erroneous proposal of the
Registry of the High Court to fill up the posts on temporary
basis from amongst the Senior Civil Judges as District &
Sessions Judges, Grade-II, that really does not help, for the
said proposal also clearly indicates that there are six regular
vacancies in the category of District & Sessions Judge,
Grade-II with one more vacancy to arise on retirement of
another officer. Thus, submits Mr. Gurukrishna Kumar,
the appellants were appointed on the Fast Track Courts
under 2001 Rules and the respondents were appointed
under the 1958 Rules and, therefore, the seniority of the
respondents, who are direct recruits, has to be reckoned
16Page 17
w.e.f. 21.8.2002, the date they reported for training
consequent upon their appointment. It is canvassed by him
that as per the authority in Brij Mohanlal – II v. Union of
India8
, the Fast Track Court Judges were appointed on ad
hoc basis and they would not derive any benefit from such
appointment. Lastly, it is submitted that the
pronouncement in Debabrata Dash (supra) is the last nail
in the coffin in the submission advanced by the appellants
and, the judgment rendered by the High Court deserves to
be accepted.
15. To appreciate the rivalised submissions raised at the
Bar which have been astutely canvassed, it is extremely
essential to project the real plinth of the litigation. The 11th
Finance Commission allocated Rs.502.90 crores under
Article 275 of the Constitution for the purpose of setting up
1734 courts in various States to deal with long pending
cases, particularly sessions cases. The funds were to be
allocated by the Finance Commission which stipulated a
time-bound utilisation within a period of five years and the
State Governments were required to take necessary steps to
8
(2012) 6 SCC 502
17Page 18
establish such courts. The Finance Commission had stated
that States may consider re-employment of retired Judges
for limited period since these courts were ad hoc in the
sense that there would be no permanent addition of courts
within a particular State. The High Courts framed Fast
Track Courts Scheme for employment of retired Judges.
Certain litigations were filed in various High Courts and
eventually the matter travelled to this Court after cases
being transferred and also otherwise in Brij Mohan Lal v.
Union of India - I9
. It was highlighted before this Court
that infrastructural facilities were not available so as to
make the scheme a reality. It was also pleaded that instead
of retired officers, eligible members of the Bar should be
considered for appointment. Be it stated, the constitutional
validity of the Fast Track Court Scheme was also
challenged. The Court negatived the said plea. After
referring to the authorities in All India Judges’ Assn. v.
Union of India10
, P. Ramachandra Rao v. State of
Karnataka11
, All India Judges’ Assn. v. Union of India12
9
(2002) 5 SCC 1
10 (2002) 4 SCC 247
11 (2002) 4 SCC 578
12 (1992) 1 SCC 119
18Page 19
and All India Judges’ Assn. v. Union of India13, the
three-Judge Bench issued certain directions. Some of the
relevant directions are necessitous to be reproduced:-
1. The first preference for appointment of judges
of the Fast Track Courts is to be given by ad hoc
promotions from amongst eligible judicial officers.
While giving such promotion, the High Court
shall follow the procedures in force in the matter
of promotion to such posts in Superior/Higher
Judicial Services.
14. No right will be conferred on judicial officers
in service for claiming any regular promotion on
the basis of his/her appointment on ad hoc basis
under the Scheme. The service rendered in Fast
Track Courts will be deemed as service rendered
in the parent cadre. In case any judicial officer is
promoted to higher grade in the parent cadre
during his tenure in Fast Track Courts, the service
rendered in Fast Track Courts will be
deemed to be service in such higher grade.
18. The High Court and the State Government
shall ensure that there exists no vacancy so far
as the Fast Track Courts are concerned, and necessary
steps in that regard shall be taken within
three months from today. In other words, steps
should be taken to set up all the Fast Track
Courts within the stipulated time.
16. The directions given in the Brij Mohanlal –I (supra)
13 (1993) 4 SCC 288
19Page 20
were further analysed in Brij Mohanlal –II (supra). The
two-Judge Bench scrutinising the directions observed that
appointment to FTCs were to be made on ad hoc basis. It
has been observed therein that there are three sources of
recruitment. Firstly, by promotion from amongst the
eligible judicial officers, secondly by appointment of retired
Judges with good service records and lastly by direct
recruitment from amongst the members of the Bar between
the age group of 35 to 45 years. In the last category, the
selection was to be made in the manner similar to that of
direct recruitment to the Higher Judicial Services. The
Court further observed:-
“This Court had foreseen the possibility of the
closure of the Fast Track Courts Scheme (FTC
Scheme). It directed that the service in FTCs will
be deemed as service of the promoted judicial officers
rendered in the parent cadre. However, no
right would accrue to such recruits
promoted/posted on ad hoc basis from the lower
judiciary for regular promotion on the basis of
such appointment. For direct recruits, continuation
in service will be dependent on review by the
High Court and there could be possibility of absorption
in the regular vacancy if their performance
was found to be satisfactory. Besides
these two aspects, the directions also dealt with
the management of FTCs, timely and appropriate
utilisation of funds and monitoring of smooth
functioning of FTCs by the State-Level Empow-
ered Committee headed by the Chief Secretary of
the State; the disposal of cases was to be monitored
by one Administrative Judge, nominated by
the High Court. It was expected that each FTC
will at least have one Public Prosecutor earmarked.
This was the sum and substance of the
directions issued by this Court in Brij Mohan Lal
case while disposing of both these transferred
cases”.
17. The basic prayer in the said case pertained to
extension of FTC scheme. The Court adverting to various
precedents and facets relating to scope of interference in
policy matters in exercise of power of judicial review and
many other aspects, came to hold that:-
“172. The prayer for regularisation of service and
absorption of the petitioner appointees against
the vacancies appearing in the regular cadre has
been made not only in cases involving the case of
the State of Orissa, but even in other States. Absorption
in service is not a right. Regularisation
also is not a statutory or a legal right enforceable
by the persons appointed under different rules to
different posts. Regularisation shall depend upon
the facts and circumstances of a given case as
well as the relevant rules applicable to such class
of persons.
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 ab-
sorbed against those vacancies. In view of the
above discussion, we find no merit even in these
submissions.
176. We have already noticed that the FTC
Judges were appointed under a separate set of
Rules than the Rules governing the regular appointment
to the State Higher Judicial Services.
It has been clearly stipulated that such appointments
would be ad hoc and temporary and that
the appointees shall not derive any benefit from
such appointments”.
18. The two-Judge Bench issued certain directions for
regularisation of the direct recruits from the Bar as Judges
to preside over FTCs on certain terms and conditions.
Certain directions were also given in respect of candidates
who were promoted as FTC Judges from the post of Civil
Judges (Senior Division) having requisite experience in
service to be entitled to be absorbed and remain promoted
to the Higher Judicial Service subject to the rule position
and certain other conditions.
19. From the aforesaid two authorities, it is quite clear
that the appointments in respect of Fast Track Courts are
ad hoc in nature and no right is to accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary
for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules
governing the regular appointment in the State Higher
Judicial Services.
20. Now we shall focus on the relevant Rules that governs
the appointments to judicial service in the State of Andhra
Pradesh. The Andhra Pradesh Higher Judicial Service is
governed by the Andhra Pradesh State Higher Judicial
Service Rules, 1958 (for short, ‘the 1958 Rules’) framed by
the Governor of Andhra Pradesh in consultation with the
High Court and the said Rules have come into force w.e.f.
10.10.1958. According to Rule 1, the service shall consist of
two categories. Category 1st deals with District & Sessions
Judge, First Grade and category 2nd deals with District &
Sessions Judge, Second Grade. Rule 2 provides for
appointment. The said Rule which is required to be
deliberated upon is reproduced below:-
“Rule 2 : Appointment:
(a) Appointment to Category I shall be made by
promotion from Category II and appointment to
Category II shall be made:-
23Page 24
(i) by transfer from among:
Sub-Judges in the Andhra State Judicial
Service; or in the Hyderabad State Judicial
Service; and
(ii) by direct recruitment from the Bar:
Provided that 33 1/3% of the total number of
permanent posts shall be filled or reserved to be
filled by direct recruitment.
Explanation: In the determination of 33 1/3% of
the total number of permanent posts, fractions
exceeding one-half shall be counted as one and
other fractions shall be disregarded.
(b) All promotions shall be made of grounds of
merit and ability, seniority being considered only
when merit and ability are approximately equal.”
21. Rule 3 provides for qualification. Rule 4 deals with
probation. Rule 5(1) stipulates that all first appointments,
and reappointments of persons under reversion to the
category of District & Sessions Judge, Second Grade, shall
be made by the Governor in consultation with the High
Court. Rule 5(2) provides that all postings, other than first
appointments or reappointments to the service, and
transfers in the service shall be made by the High Court.
Rule 6 deals with seniority. It reads as follows:-
“The seniority of a person appointed to Category I
or Category II shall be determined with reference
to the dated from which he may continuously be
on duty in that category”.
24Page 25
22. In the instant case, we are not concerned with any
other Rule. The 2001 Rules are specific rules for ad hoc
appointments. Rule 7(1)(b) of the 2001 Rules lays down as
follows:-
“ A person appointed under Rule 2 (i) shall not be
regarded as a Member of permanent cadre
covered under Rule 2 of the Special Rules for
Andhra Pradesh State Higher Judicial Service,
1958, and shall not be entitled to any preferential
right to any other appointment to this service or
any other service and their service shall not be
treated as regular or permanent under the State
Government nor shall be a bar for appointment to
the posts covered by the Special Rules for Andhra
Pradesh Higher Judicial Service, 1958 or the
Andhra Pradesh State Judicial Service Rules,
1962.”
As the fact situation would exposit, there were six
vacancies in the regular cadre. Because of introduction of
the Fast Track Court Scheme, the promotional avenues on
ad hoc basis became available. The conditions in Brij
Mohanlal –I (supra) and Brij Mohanlal –II (supra) make it
absolutely clear. The submission of Mr. Rao, learned senior
counsel for the appellants is that the appellants were
appointed under the 1958 Rules as the letter of
appointment would show and whole thing would depend
upon the letter of appointment and not the posting orders
issued by the High Court. According to the learned senior
counsel, if a candidate is appointed on ad hoc basis in
respect of a vacancy, he would be regarded as senior to the
direct recruit. Both the submissions, as we perceive, are
interwoven but the singular answer to the same would be
“fundamentally fallacious”.
23. In Debabrata Dash (supra), almost in a similar
situation, the three-Judge Bench reproduced a passage
from O.P. Singla v. Union of India14:-
“21. … This Rule shows that two conditions must
co-exist in order that a person can become a
‘Member of the Service’. Firstly, his appointment
has to be in a substantive capacity and secondly,
the appointment has to be to the Service, that is,
to a post in the Service. Persons who hold posts
bearing designations similar to the designations
of posts comprised in the Service cannot, for that
reason alone, become members of the Service. It
is only when they are appointed in a substantive
capacity to a post in the Service, that they become
members of the Service.”
24. After referring to the said paragraph, the Court
observed that:-
14 (1984) 4 SCC 450
26Page 27
“Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules
leave no manner of doubt that a person can become
a member of the Senior Branch of the Superior
Judicial Service only if his appointment
has been made to a post in the service. If there is
no vacancy to be filled in by promotion in the
cadre of Senior Branch service, there is no question
of any appointment being made to the service.
The membership of service is limited to the
persons who are appointed within the cadre
strength by direct recruitment and by
promotion”.
25. Thereafter, the Court referred to the Constitution
Bench judgment in Direct Recruitment Class II
Engineering Officers’ Association (supra) and after
adverting to the legal position (Clauses A, B and C) stated
thus:-
“The essence of direction in Clause (A) is that the
seniority of an appointee has to be counted from
the date of his appointment and not according to
the date of his confirmation once a recruitee is
appointed to a post according to the rules. In
other words, where initial appointment is only ad
hoc and not according to the rules and made as a
stopgap arrangement, the officiation in such post
cannot be taken into account for considering the
seniority”.
26. Be it noted, the three-Judge Bench referred to the
authority in Rudra Kumar Sain (supra), reproduced a
passage therefrom and opined that though the High Court
27Page 28
had quoted the relevant paragraph, yet had applied it
wrongly.
27. Be it noted, in State of West Bengal v. Aghore Nath
Dey15 the Court perceived an apparent contradiction in
Conclusions A and B and while clarifying stated thus:-
“19. The Constitution Bench in Direct Recruit
case, while dealing with Narender Chadha v.
Union of India16 emphasised the unusual fact that
the promotees in question had worked continuously
for long periods of nearly fifteen to twenty
years on the posts without being reverted, and
then proceeded to state the principle thus:
‘13. … We, therefore, confirm the principle
of counting towards seniority the period
of continuous officiation following an appointment
made in accordance with the
rules prescribed for regular substantive appointments
in the service.’
20. The Constitution Bench having dealt with
Narender Chadha in this manner, to indicate the
above principle, that decision cannot be construed
to apply to cases where the initial appointment
was not according to rules.
* * *
22. There can be no doubt that these two conclusions
have to be read harmoniously, and Conclusion
(B) cannot cover cases which are expressly
excluded by Conclusion (A). We may, therefore,
first refer to Conclusion (A). It is clear from Conclusion
(A) that to enable seniority to be counted
from the date of initial appointment and not according
to the date of confirmation, the incumbent
of the post has to be initially appointed ‘according
to rules’. The corollary set out in Conclu-
15 (1993) 3 SCC 371
16 (1986) 2 SCC 157
28Page 29
sion (A), then is, that ‘where the initial appointment
is only ad hoc and not according to rules
and made as a stopgap arrangement, the officiation
in such posts cannot be taken into account
for considering the seniority’. Thus, the corollary
in Conclusion (A) expressly excludes the category
of cases where the initial appointment is only ad
hoc and not according to rules, being made only
as a stopgap arrangement. The case of the writ
petitioners squarely falls within this corollary in
Conclusion (A), which says that the officiation in
such posts cannot be taken into account for
counting the seniority.”
* * *
“26. … Admittedly, this express requirement in
Rule 11 was not followed or fulfilled subsequently,
and, therefore, the initial ad hoc appointments
cannot be treated to have been made
according to the applicable rules. These ad hoc
appointments were clearly not in accordance with
the rules, and were made only as a stopgap arrangement
for fixed period, as expressly stated in
the appointment order itself.”
28. In State of Haryana v. Vijay Singh17, the issue
emerged with regard to determination of seniority in the
backdrop of ad hoc initial appointment made dehors the
seniority rules which were regularised by the State
Government. The Court appreciating the fact situation held
that ad hoc period would not be counted for the purpose of
fixation of seniority.
29. We will be failing in our duty if we do not refer to the
17 (2012) 8 SCC 633
authorities cited by Mr. Rao, learned senior counsel for the
appellants. He has commended us to a passage from O.P.
Singla (supra). It reads as follows:-
“It is however difficult to appreciate how, in the
matter of seniority, any distinction can be made
between direct recruits who are appointed to substantive
vacancies in the Service on the recommendation
of the High Court under Rule 5(2) and
the promotees who are appointed in consultation
with the High Court to posts in the Service under
Rules 16 and 17. Rule 16 provides for the appointment
of promotees to temporary posts in the
Service, while Rule 17 provides for appointment
of promotees to substantive vacancies in the Service
on a temporary basis. Promotees who are appointed
to the Service under either of these two
Rules must be considered as belonging to the
same class as direct recruits appointed under
Rule 5(2). They perform similar functions, discharge
identical duties and bear the same responsibilities
as direct recruits. They are appointed
on a regular basis to posts in the Service
in the same manner as direct recruits are appointed,
the only distinction being that whereas
the latter are appointed on the recommendation
of the High Court, promotees are appointed in
consultation with the High Court. Therefore, no
distinction can be made between direct recruits
on one hand and promotees appointed to the Service
on the other, in the matter of their placement
in the seniority list. Exclusion from the seniority
list of those promotees who are appointed to
posts in the Service, whether such appointment
is to temporary posts or to substantive vacancies
in a temporary capacity, will amount to a violation
of the equality rule since, thereby, persons
who are situated similarly shall have been treated
30Page 31
dissimilarly in a matter which constitutes an important
facet of their career”.
30. The principle stated in the aforesaid paragraph, we are
afraid, does not assist learned senior counsel for the
appellants. It is simply so because the appellants were not
appointed to substantive vacancies. That has also been
clearly stated in the majority opinion in O.P. Singla (supra)
which has been placed reliance upon by the three-Judge
Bench in Debabrata Dash (supra). Learned senior counsel,
as has been indicated earlier, heavily relied on the decision
in Rudra Kumar Sain (supra). On a perusal of the same,
we do not find it to be remotely helpful to the issue that has
arisen here. The appellants who are aspirant to structure
the case solely on the basis of the words used in the letter of
appointment ignoring the letter of posting, we are
constrained to say, they are bound to remain in the realm of
unnecessary undiminished hope. Their promotion came
because of the introduction of the Fast Track Court Scheme
and under the 2001 Rules framed by the High Court. They
were the beneficiaries of a Scheme. While continuing in the
post under the scheme, the regular posts in the cadre fell
vacant and they were regularised but prior to that, the
respondents were appointed as direct recruits in respect of
substantive posts in their quota. The appellants, in our
considered opinion, should have been in a position to accept
the distinction. But the inter se dispute between the
promotees and the direct recruits seems to be a ceaseless
affair. In O.P. Singla (supra), Y.V. Chandrachud, C.J. had
observed:-
“There are many decisions bearing upon the
familiar controversy between promotees and
direct recruits and this will be one more.
Perhaps, just another.”
31. We share the said fond hope.
32. Consequently, the appeal, being devoid of merit,
stands dismissed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
............................J.
(Dipak Misra)
.............................J.
(Shiva Kirti Singh)
New Delhi.
June 29, 2016
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