Andhra HC (Pre-Telangana)
Kum C.Yamini, D/O.C.R. Krishna, Aged 45 ... vs 1. The State Of A.P., Law (La&Jscf) ... on 17 April, 2017
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.13022 of 2017
17-4-2017
Kum C.Yamini, D/o.C.R. Krishna, Aged 45 years, Mahila Sessions Judge cum V Addl. Dist. & Sessions Judge, Vijayawada,
1. The State of A.P., Law (LA&JSCF) Dept.,Rep. by its Chief Secretary,Secretariat, Velagapudi, Amaravathi,Guntur District
2.High Court of Judicature at Hyderabad,Rep. by its Registrar General,High Court Buildings, Hyderabad Respondents
Counsel for the Petitioner:Mr. Ram Kumar,representing Smt. Kota Kalpana
Counsel for Respondents:Mr. Abhinand Kumar Shavili,Standing Counsel for High Court
<Gist:
>Head Note:
? Cases referred:
1.(2012) 6 SCC 502
2.(2013) 3 SCC 658
3.2002 (5) Bom. C.R. 221
4.AIR 1993 SC 267
5.(2002) 4 SCC 247
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.13022 of 2017
Order: (per V. Ramasubramanian, J.)
Challenging 2 conditions subject to which she was
appointed regularly to the post of District Judge, the petitioner
has come up with the above writ petition.
2. Heard Mr. Ram Kumar, representing Smt. Kota
Kalpana, learned counsel for the petitioner.
3. The petitioner was appointed as an ad hoc District
Judge in the year 2003 to a Fast Track Court. The petitioner
was practising as an Advocate at that time and the
appointment was pursuant to a process of selection.
4. After the petitioner joined duty on 25-10-2003 as
a Fast Track Court Judge, the High Court issued
a notification on 28-5-2004 inviting applications for regular
appointment to the post of District and Sessions Judge.
The notification was challenged by a set of ad hoc Judges
appointed to Fast Track Courts in a writ petition W.P.No.
11273 of 2004. All the ad hoc Judges who were the petitioners
in the said writ petition prayed for absorption againste regular
vacancies. But the writ petition was dismissed by an order
dated 13-7-2004.
5. As against the dismissal of the writ petition, the
petitioners in the said writ petition filed a special leave petition
in S.L.P.(Civil).No.17338 of 2004. The Supreme Court granted
leave and passed an interim order on 09-3-2006 in Civil
Appeal No.1276 of 2005 to the effect that any appointments
made pursuant to the regular selection, will be subject to the
result of the writ petition.
6. In its decision in Brij Mohan Lal v. Union of India
(known as Brij Mohan Lal-II) filed by the ad hoc Fast Track
Court District Judges, the Supreme Court issued certain
directions on 19-4-2012. In accordance with those directions,
a process of selection was conducted and the High Court
recommended the appointment of about 12 persons including
the petitioner herein as a regular District Judge. Accordingly,
the Government issued G.O.Ms.No.68, Law Department, dated
02-7-2013, appointing the petitioner along with 11 others as
District Judges on regular basis under the quota for direct
recruitment. Paragraphs 4 to 6 of the order of appointment
under G.O.Ms.No.68, dated 02-7-2013, read as follows:
4. The appointments ordered above will take effect from
the dates on which the respective officers assume charge.
5. The probation of the officers will be governed by
rule 9 of the A.P. State Judicial Service Rules, 2007, and
they will be on probation for a period of two years from
the date of joining duty as decided by the High Court of
Andhra Pradesh.
6. The seniority of the persons appointed to the
category of District Judges by direct recruitment as well
as recruitment by transfer shall be fixed as per the roster
prescribed in schedule A appended to the Andhra
Pradesh State Judicial Service Rules, 2007.
7. Realising, after 4 years of the issue of the Order of
appointment that the service rendered by her as a Fast Track
Court Judge may not be counted for the purpose of fixation of
seniority, the petitioner has come up with the above writ
petition challenging paragraphs 5 and 6 of the Government
Order.
8. The grounds on which the petitioner challenges
paragraphs-5 and 6 of the impugned Government Order are as
follows:
(i) that as per the decision of the Supreme Court in Brij
Mohan Lal-II, persons working as ad hoc District Judges were
only to be absorbed and not appointed and hence the seniority
has to be automatically counted from the date of appointment;
(ii) that even as per the judgment of the Supreme Court in
Debabrata Dash v. Jatindra Prasad Das , the seniority of ad hoc
Judges has to be considered as and when regular vacancies
arose and hence the seniority of the petitioner should be
counted at least from the year 2004 when regular vacancies
arose;
(iii) that the seniority of the petitioner cannot be
determined on the basis of the Special Rules issued in 2007,
which took effect only prospectively and not from the date of
the appointment of the petitioner in the year 2003;
(iv) that the decision of the Supreme Court in
Maharashtra State Judicial Service Association v. High Court of
Judicature at Bombay is not applicable to the case of ad hoc
Judges appointed in this State, since the Maharashtra Rules
were completely different;
(v) that the Special Rules for A.P. State Judicial Service
do not contain any prescription with regard to the fixation of
seniority of ad hoc District Judges, after their absorption;
(vi) that as per the decision of the Supreme Court in M.B.
Joshi v. Satish Kumar Pandey , the seniority of persons holding
the same post in the same cadre has to be determined on the
basis of the length of service in the absence of any Rules to the
contrary; and
(vii) that therefore the seniority of the petitioner should be
fixed from the date of her appointment as ad hoc Judge.
9. We have carefully considered the above submissions.
10. At the outset, it should be pointed out that what the
petitioner challenges in this writ petition is a Government
Order by which she was regularly appointed as District Judge,
subject to the terms and conditions contained therein. The
petitioner very conveniently took up the appointment subject to
those conditions and in fact underwent probation for two years
in terms of para-5 of the impugned Government Order. After
getting a declaration of successful completion of probation and
after ensuring a berth in the Judiciary, the petitioner has
chosen to come up with a challenge to the very Government
Order by which she was appointed. Therefore, the challenge
cannot be sustained.
11. In any case, the petitioner has come up nearly after 4
years of the issue of the impugned Government Order.
The impugned Government Order was issued on 02-7-2013.
The petitioner has come up with a challenge to the order in
April, 2017. It is well settled that in matters relating to
seniority, persons who sleep over their rights, will not be
granted any relief. Therefore, the writ petition is liable to be
dismissed even on the ground of delay and laches.
12. The question as to whether the persons appointed as
ad hoc Judges in Fast Tract Courts are entitled to count such
service for the purpose of seniority, is no longer
res integra. Even in Brij Mohan Lal-I, the Supreme Court made
it clear that no right will be conferred on judicial officers, for
claiming regular promotion, on the basis of his or her
appointment on ad hoc basis. In Brij Mohan Lal-II, the Supreme
Court made it clear that absorption in service is not a right and
regularisation also is neither a statutory right nor a legal right
enforceable in law. In para-175 of its decision in Brij Mohan
Lal-II, the very claim of persons appointed on
ad hoc basis for absorption against regular vacancies and for
quashing the notification for direct recruitment was rejected by
the Supreme Court.
13. After considering in detail the ratio laid down in all
such cases especially with reference to the category of Judicial
Officers, the Supreme Court finally clinched the issue in
V.Venkata Prasad v. High Court of A.P. in Civil Appeal No.6105
of 2013 by holding in paragraph-19 of its decision dated 29-6-
2016 as follows:
From the aforesaid two authorities, it is quite clear that
the appointments in respect of the 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 Fast
Track Court Judges were appointed under a separate set
of rules than the rules governing the regular appointment
in the State Higher Judicial Services.
14. Interestingly, an argument was advanced before the
Supreme Court in V.Venkata Prasad, to the effect that Rule 2 of
the A.P. State Higher Judicial Services Rules would clinch the
issue. While rejecting the said contention, as fundamentally
fallacious in paragraph-22 of its decision in V.Venkata Prasad,
the Supreme Court cited a passage from its decision in O.P.
Singla v. Union of India [(1984) 4 SCC 450] that was relied
upon by the Supreme Court in Debabrata Dash. In the said
passage, the Supreme Court had pointed out clearly that to
have the benefit of seniority, a person should first become a
member of the service. To become
a member of the service, 2 conditions are to be satisfied,
namely, (a) the appointment should have been made in
a substantive capacity and (b) the appointment should have
been to a post in the service. In the case of ad hoc appointment
to Fast Track Courts, the appointees do not become members
of the service. Therefore, the question of their getting seniority
from the date of appointment as ad hoc Judges would not
arise.
15. As a matter of fact, one of the directions contained in
the decision of the Supreme Court in Brij Mohan Lal-I created a
little space for persons promoted on ad hoc basis to claim
seniority with effect from the date of such ad hoc promotion, if
such ad hoc service was followed by the regular service.
Direction No.14 contained in para-10 of the decision in Brij
Mohan Lal-I reads as follows:
No right will be conferred on judicial officers in service
for claiming 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.
16. But the aforesaid direction No.14 contained in
para-10 of the decision in Brij Mohan Lal-I came to be
explained in Debabrata Dash. Paragraphs-46 and 47 of the
decision in Debabrata Dash read as follows:
46. In Brij Mohan Lal-1, a three-Judge Bench of this Court, inter alia,
considered the Fast Track Courts scheme. In paragraph 10 of the
judgment, this Court gave various directions. Direction no. 14 in that
para is relevant which can be paraphrased as follows:
(i) 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.
(ii) The service rendered in Fast Track Courts will be deemed as
service rendered in the parent cadre.
(iii) 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.
47. Learned senior counsel for the writ petitioner heavily relied upon
the third part of direction no. 14. As a matter of fact, this part has been
relied upon in the impugned judgment as well. It is submitted on behalf
of the writ petitioner that on promotion to the Senior Branch cadre of
Superior Judicial Service during his tenure in the Fast Track Courts,
the writ petitioner is entitled to the counting of the service rendered by
him in the Fast Track Court as a service in Superior Judicial Service
(Senior Branch). The submission overlooks the first two parts of
direction no. 14, one, no right will be conferred in judicial service for
claiming any regular promotion on the basis of his/her appointment on
ad hoc basis under the scheme; and two, the service rendered in Fast
Track Courts will be deemed as service rendered in the parent cadre.
In our opinion, until the vacancy occurred in the cadre of Superior
Judicial Service (Senior Branch) which was to be filled up by
promotion, the service rendered by the writ petitioner in the Fast Track
Court cannot be deemed to be service rendered in the Superior Judicial
Service, Senior Branch. Rather until then, he continued to be a member
of the parent cadre, i.e., Superior Judicial Service (Junior Branch). The
third part of direction no. 14, in our view, does not deserve to be read
in a manner that overrides the 1963 Rules.
17. Therefore, the issue is now clinched once and for all
and the petitioner, after 4 years of accepting appointment on
the terms and conditions contained in the appointment order,
cannot come up with a challenge to the same.
18. As we have indicated earlier, the petitioner challenges
paragraphs 5 and 6 of the impugned order. Paragraph-5 of the
impugned Government order deals with probation in terms of
the 2007 Special Rules. The claim of the petitioner is that she
was appointed under the Special Rules for A.P. Higher Judicial
Service in the year 2003 and that therefore, the 2007 Special
rules will not apply to her case. But this contention is
completely misconceived for 2 reasons. They are: (i) the
appointment of the petitioner in the year 2003 was not to be
considered as an appointment as a member of the service to a
substantive vacancy and (ii) Under rule 26(2) of the Special
Rules for A.P. Judicial Service, 2007, all appointments made
prior to the issue of the 2007 Rules are deemed to have made
in terms of the 2007 Rules. Therefore, her appointment to a
substantive vacancy took place only under the impugned
Government order dated 2-7-2013 and hence she was actually
or at least deemed to have been appointed only under the 2007
Rules.
19. The challenge of the petitioner to paragraph 6 of the
impugned order has no iota of any legal basis. Paragraph-6 of
the impugned order merely states that the seniority of a person
appointed there under shall be determined as per the roster
found in Schedule-A of the 2007 Rules. The roster in Schedule-
A to the 2007 Rules was incorporated only in pursuance of a
direction issued by the Supreme court in paragraph 29 of its
decision in All India Judges Association v. Union of India .
Paragraph-29 of the said decision reads as follows:
29. Experience has shown that there has been a
constant discontentment amongst the members of the
Higher Judicial Service in regard to their seniority in
service. For over three decades a large number of cases
have been instituted in order to decide the relative
seniority from the officers recruited from the two different
sources, namely, promotes and direct recruits. As a
result of the decision today, there will, in a way, be three
ways of recruitment to the Higher Judicial Service. The
quota for promotion which we have prescribed is 50 per
cent by following the principle merit-cum-seniority, 25
per cent strictly on merit by limited departmental
competitive examination and 25 per cent by direct
recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system
in recruitment exists, insofar as seniority is concerned,
is where a roster system is followed. For example, there
is, as per the rules of the Central Government, a 40-point
roster which has been prescribed which deals with the
quotas for Scheduled Castes and Scheduled Tribes.
Hardly, if ever, there has been a litigation amongst the
members of the service after their recruitment as per the
quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited.
When roster system is followed, there is no question of
any dispute arising. The 40-point roster has been
considered and approved by this Court in R.K. Sabharwal
v. State of Punjab (1995) 2 SCC 745. One of the methods of
avoiding any litigation and bringing about certainty in
this regard is by specifying quotas in relation to posts
and not in relation to the vacancies. This is the basic
principle on the basis of which the 40-point roster works.
We direct the High Courts to suitably amend and
promulgate seniority rules on the basis of the roster
principle as approved by this Court in R.K. Sabharwal
case as early as possible. We hope that as
a result thereof there would be no further dispute in the
fixation of seniority. It is obvious that this system can
only apply prospectively except where under the relevant
rules seniority is to be determined on the basis of quota
and rotational system. The existing relative seniority of
the members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the future.
Appropriate rules and methods will be adopted by the
High Courts and approved by the States, wherever
necessary by 31-3-2003.
20. It is only pursuant to the above directives of the
Supreme Court in All India Judges Association case, that the
Government of Andhra Pradesh issued under G.O.Ms.No.119,
Law Department, dated 02-8-2008, a new set of Special Rules
known as Andhra Pradesh State Judicial Service Rules, 2007,
incorporating Rule 13. Rule 13 (a) of these Rules reads as
follows:
13. Seniority:
(a) District Judges: Seniority of the persons appointed to
the category of District Judges by direct recruitment
as well as recruitment by transfer shall be fixed as
per the forty point roster prescribed in Schedule-A.
21. Therefore, the petitioner cannot challenge paragraph-
6 of the impugned order, as the same is nothing but a
reproduction of Rule 13(a) of the 2007 Rules, whose genesis
can be traced to the decision of the Supreme court. Hence
none of the grounds of challenge are sustainable in law and the
writ petition is liable to be dismissed. Accordingly, it is
dismissed. The miscellaneous petitions, if any, pending in this
writ petition shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________ J.UMA DEVI, J. 17th April, 2017