Andhra HC (Pre-Telangana)
Jinka Venkata Ramana, Occ: Advocate ... vs The High Court Of Judicature At ... on 27 April, 2017
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.4754 of 2015
27-4-2017
Jinka Venkata Ramana, Occ: Advocate [Earlier worked as III ADJ (FTC), Nizamabad], Cuddapah, A.P. Petitioner
The High Court of Judicature at Hyderabad for the State of Telangana and the State of A.P., Rep. by its Registrar (Vigilanc
Counsel for the Petitioners: Mr. A.K. Jayaprakash Rao, Representing Mr. B.Harinath Rao
Counsel for Respondents:Mr. Posani Venkatewarlu, Standing Counsel for High Court
<Gist:
>Head Note:
? Cases referred:
1. 2015 (3) ALT 628
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.4754 of 2015
Order: (per V.Ramasubramanian, J.)
The petitioner has come up with the above writ petition
challenging the refusal of the respondents to absorb him in the
post of District and Sessions Judge (Entry Level) on par with
other candidates, who were so absorbed.
2. Heard Mr. A.K. Jayaprakash Rao, learned counsel,
representing Mr. B.Harinath Rao, learned counsel for the
petitioner and Mr. Posani Venkateswarlu, learned Standing
Counsel for the respondents.
3. The petitioner was appointed as a Fast Track Court
Judge in the category of District and Sessions Judge (Entry
Level), on 14-10-2003, pursuant to a selection conducted by
the High Court as per the notification dated 13-8-2002. After
working for nearly about 10 months as the 3rd Additional
District Judge (FTC), Nizamabad, up to 24-8-2004, the
petitioner resigned. Pursuant to the directions issued by the
Supreme Court in TC (C) No.22 of 2001, dated 19-4-2012,
reported in Brij Mohan Lal v. Union of India [(2012) 6 SCC 502],
the High Court issued a notification dated 13-8-2012 for
absorption of ad hoc Fast Track Court Judges in the regular
vacancies. The petitioner applied and appeared for a written
examination on 16-9-2012.
4. The notification stipulated that the qualifying marks in
the written examination would be 40% aggregate for General
Category candidates and 35% for SC/ST/BC candidates.
5. Out of 19 candidates who appeared in the written
examination, 17 candidates secured the qualifying marks. The
petitioner was one among them.
6. All candidates who secured qualifying marks in the
written examination were invited for interview on 17th and 18th
December, 2012. When the results were declared on
28-3-2013 it was found that only 12 candidates got selected.
Therefore, the Government issued G.O.Ms.No.68, Law
Department, dated 02-7-2013 absorbing 12 Fast Track Court
District Judges as District Judges (Entry Level) under the
quota reserved for direct recruitment.
7. Three of the unselected candidates filed a writ petition
in W.P.No.38252 of 2014 and one unselected candidate filed
W.P.No.38687 of 2013 on the file of this Court contending that
the prescription of minimum qualifying marks in the viva voce
was illegal and that therefore their non-selection on the ground
of not securing minimum marks either in the viva voce or in
the aggregate was illegal.
8. By a judgment reported in P.Murali Mohan Reddy v.
State of Andhra Pradesh , a Division Bench of this Court
upheld the aforesaid contention and allowed the writ petitions,
directing the High Court to appoint the petitioners as well as
everyone who had qualified in the written examination and also
appeared for the viva voce.
9. For reasons which we are unable to decipher, the
present writ petition did not form part of the said batch, though
this writ petition was filed on 16-02-2015 and notice was
ordered on 27-02-2015. The decision in P.Murali Mohan Reddy
was pronounced on 25-3-2015. But nevertheless, the
petitioner was not extended the benefit of the said judgment
also.
10. It is admitted on both sides that the decision of the
Division Bench of this Court in P.Murali Mohan Reddy, has
been taken on appeal to the Supreme Court and the Supreme
Court has ordered notice in the special leave petition. Since
there was no stay, the petitioners in those cases have been
appointed by the High Court as District Judges and they are
now working.
11. Therefore, the claim of the petitioner in the present
writ petition is that admittedly he had secured the minimum
qualifying marks in the written examination and that his non-
selection was only due to his not securing minimum qualifying
marks in the viva voce. Therefore, the petitioner claims that he
should be extended the benefit of the judgment in P.Murali
Mohan Reddy.
12. There is no dispute about the fact that the petitioner
belongs to BC-B category and that he had secured 61.5 marks
out of the maximum of 150 marks in the written examination.
It means he had secured little more than 40%, as against the
qualifying marks of 35% for BC candidates. His contention is
that he was not selected only due to the fact that he was
awarded 10.2 marks out of a maximum of 100 marks in the
viva voce. Therefore, the petitioner claims that his case would
squarely fall within the dicta of the Division Bench of this Court
in P.Murali Mohan Reddy. Since the decision in P.Murali Mohan
Reddy was not stayed by the Supreme Court, the petitioner,
seeks appointment on par with his colleagues.
13. But the High Court has taken a stand that the case of
the petitioner stands on a different footing than the others, for
2 reasons, namely (i) that he worked only for 10 months and
resigned and (ii) that he did not secure 35% marks in the
aggregate as required by the decision of the Supreme court.
Therefore, the respondents claim that the benefit of the
decision in P.Murali Mohan Reddy cannot be extended to the
petitioner.
14. On the first issue raised by the Registry, it is
contended by the petitioner in his reply affidavit that one
T.Srinivasa Rao who worked for one and half years and
resigned and another person Smt. B.Swapna who worked for 4
years and resigned, have all been appointed. Therefore, the
contention of the petitioner is that resignation cannot per se be
put against him. On the second issue raised by the Registry,
the petitioner places reliance upon the observations of this
court in paragraphs 21 and 22 of the decision in P.Murali
Mohana Reddy.
15. In the light of the rival contentions, 2 issues arise for
consideration in the present writ petition. They are:
(a) whether a candidate who had already resigned is entitled to
the benefit of the decision in P.Murali Mohan Reddy and
(b) whether a candidate who failed to secure 35% marks in the
aggregate in the written examination and viva voce, is entitled
to be selected.
16. Let us first take up the first issue, which could be
disposed of without much ado. In para-4 of the reply affidavit,
the petitioner has submitted that one Mr. T.Srinivasa Rao who
worked for 1 years and one Smt. B.Swapna who worked for 4
years and who later resigned, were selected as regular District
Judges. Therefore, he claims parity of treatment with those two
persons.
17. Admittedly, the petitioner, who was a member of the
Bar was appointed as a Fast Track Court Judge on
14-10-2003. He resigned on 24-08-2004 within 10 months of
his appointment. Therefore, we have to see whether such
a person can suddenly take advantage of the decision of the
Supreme Court in Brij Mohan Lal II [(2012) 6 SCC 502]
and seek absorption, despite his resignation 8 years before.
18. In order to find an answer to the above question,
it is necessary to look into the historical background. Under
the 11th Finance Commission, the Government of India allotted
a sum of Rs.502.90 crores under Article 275 of the
Constitution for the establishment of 1734 Courts in various
States to deal with long pending cases. The Finance
Commission suggested the reemployment of the retired Judges
for a limited period, since these Courts were to be
ad hoc. But this scheme came to be challenged before various
Courts and eventually all those cases were transferred by the
Supreme Court to itself in what came to be known as
Brij Mohan Lal-I.
19. By a decision rendered on 06-05-2002, a 3 Member
Bench of the Supreme Court issued about 18 directions in Brij
Mohan Lal-I. In sum and substance, the directions were to the
following effect:
1) first preference for appointment as Fast Track Court Judges
shall be given by way of ad hoc promotions;
2) second preference shall be given for the appointment of
retired Judges;
3) third preference shall be given to members of the Bar, for
direct recruitment.
20. Direction No.4 contained in Brij Mohan Lal-I was to
the effect that the members of the Bar appointed by way of
direct recruitment as Fast Track Court Judges, may be in the
age group of 35 to 45 years, so that they could aspire to
continue against regular posts, if the Fast Track Courts cease
to function. The question of their continuance in service was to
be reviewed periodically.
21. Though the transferred case was disposed of in Brij
Mohan Lal-I, the Supreme Court nevertheless directed
quarterly status reports to be filed from time to time about the
functioning of Fast Track Courts. Therefore, in effect the
transferred case was treated as alive, if not pending. While so, a
couple of writ petitions came to be filed in the year 2005 and
2007 before the Supreme Court seeking the extension of the
Fast Track Courts scheme for another 5 years. A group of
Special Leave Petitions also came to be filed as against the
judgments of some of the High Courts challenging the
termination of the services of persons appointed as Fast Track
Court Judges. Similarly, one set of writ petitions were filed
seeking absorption against the regular vacancies. Therefore, all
of them were grouped together, heard and disposed of by the
Supreme Court by a decision which came to be known as Brij
Mohan Lal-II, reported in (2012) 6 SCC 502. In the said
decision, the Supreme Court issued certain directions in para-
207 of the decision. Direction No.9 contained in Para 207 of
the decision in Brij Mohan Lal-II is extracted as follows:
9. All the persons who have been appointed by way of direct
recruitment from the Bar as Judges to preside over the FTCs
under the FTC Scheme shall be entitled to be appointed to the
regular cadre of the Higher Judicial Services of the respective
State only in the following manner :
(a) The direct recruits to the FTCs who opt for regularization shall
take a written examination to be conducted by the High Courts of
the respective States for determining their suitability for absorption
in the regular cadre of Additional District Judges.
(b) Thereafter, they shall be subjected to an interview by a
Selection Committee consisting of the Chief Justice and four
senior-most Judges of that High Court.
(c) There shall be 150 marks for the written examination and 100
marks for the interview. The qualifying marks shall be 40 per cent
aggregate for general candidates and 35 per cent for SC/ST/OBC
candidates. The examination and interview shall be held in
accordance with the relevant Rules enacted by the States for
direct appointment to Higher Judicial Services.
(d) Each of the appointees shall be entitled to one mark per year of
service in the FTCs, which shall form part of the interview marks.
(e) Needless to point out that this examination and interview
should be conducted by the respective High Courts keeping in
mind that all these applicants have put in a number of years as
FTC Judges and have served the country by administering Justice
in accordance with law. The written
examination and interview module, should, thus, be framed
keeping in mind the peculiar facts and circumstances of these
cases.
(f) The candidates who qualify the written examination and obtain
consolidated percentage as afore-indicated shall be appointed to
the post of Additional District Judge in the regular cadre of the
State.
(g) If, for any reason, vacancies are not available in the regular
cadre, we hereby direct the State Governments to create such
additional vacancies as may be necessary keeping in view the
number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly
appointed from the Bar and are desirous of taking the examination
and interview for regular appointment shall be given age relaxation.
No application shall be rejected on the ground of age of the
applicant being in excess of the prescribed age.
22. It is only by virtue of the above direction that persons
working as Fast Track Court Judges became eligible to be
absorbed/appointed. The very scheme formulated by the
Supreme Court in Brij Mohan Lal-II, was to ensure that persons
who had crossed over from the Bar to the Bench and who had
spent considerable length of time on the Bench, need not be
made to go back, but allowed to continue. This is why one of
the directions contained in direction No.9 extracted above, is to
award one mark for every year of service. Brij Mohan Lal-II
never contemplated a hop on and hop off facility to
enable a person who resigned in the year 2004, within 10
months of appointment, to bounce back in the year 2012
and seek absorption/appointment. Therefore, the
respondents were right in rejecting the claim of the petitioner
on the ground that he had resigned and gone back long long
ago.
23. It may be true that two persons by name Srinivasa
Rao and Swapna who had also resigned and gone, came back.
But the benefit granted to them was not in accordance with the
ratio in Brij Mohan Lal-II. If some one has been granted
a benefit, not flowing out of the ratio laid down by the Supreme
Court, the same cannot be cited as a precedent to follow.
There cannot be equality in illegality. Though we would not put
the appointment of those two persons as illegal appointments,
we certainly think that it was a benefit mistakenly conferred
upon them. Therefore, the same cannot be a ground for
extending the benefit to a person who just worked for 10
months and resigned way back in 2004, to come up with a
claim in 2012. Hence, the first question arising for
consideration has to be answered against the petitioner.
24. Let us now take up the second issue for
consideration. As can be seen from the Direction No.9 (c), the
Supreme Court prescribed 150 marks for the written
examination and 100 marks for the interview and stipulated
that the qualifying marks shall be 40% aggregate for General
Candidates and 35% for SC/ST/OBC candidates.
25. In other words the absorption of Fast Track Court
Judges against the regular vacancies was directed to be made
by the Supreme Court only through a process of selection
comprising of a written examination followed by interview and
the ultimate selection was directed to be made subject to the
candidates securing the qualifying marks stipulated in
Direction No.9 (c) of para 207 of Brij Mohan Lal-II. It must be
emphasized here that Direction No.9 (c) used the
expression aggregate.
26. But what happened in this Court in the year 2013,
which led to 4 candidates filing writ petitions challenging their
non-selection was that the Selection Committee prescribed
separate minimum qualifying marks for written examination
and viva voce. Therefore, in P. Murali Mohana Reddy (cited
supra), a Bench of this Court held that the prescription of
minimum qualifying marks in the viva voce after the written
test was over, was contrary to law. Instead of stopping with
that, this Court made an observation in paragraphs 21 and 22,
which has given rise to a claim by the writ petitioner herein.
Paragraphs 21 and 22 of the decision in P. Murali Mohana
Reddy read as follows:
21. Therefore, we are of the view that the Selection Committee
should not have adopted the norm of securing a minimum
qualifying mark in the viva voce test or for that matter, minimum
aggregate qualifying marks.
22. Moreover, it is rightly contended by the learned counsel for the
petitioners, relying on the aforesaid judgment of Supreme Court in
Umesh Chandra Shukla v. Union of India (3 supra) and A.A.
Calton v. Director of Education (2 supra), that the respondents and
each of them cannot act contrary to the norms as published in the
advertisement or the Rules and admittedly, the advertisement does
not stipulate a minimum qualifying mark for the viva voce test or
that of aggregate marks both in written and viva voce test. As the
petitioners and each of them, in terms of the advertisement as well
as the rules, have acted upon and that they acquired a vested right
to be considered in terms of the advertisement and the rules..
27. It appears from the decision of the Division Bench of
this Court in P. Murali Mohana Reddy that by and large this
Court proceeded on the basis of the stipulation contained in
the A.P. State Judicial Service Rules, 2007, which did not
speak about the minimum qualifying marks in the aggregate.
After extracting Rule 6 of the A.P. State Judicial Service Rules,
2007 in paragraph 16 of its judgment, the Division Bench of
this Court concluded in para 17 of the decision in
P. Murali Mohana Reddy that there was no stipulation either in
the advertisement or in the Rules, for securing minimum
qualifying marks in the viva voce. To this extent, the
observation in para 17 of Murali Mohana Reddy was correct.
But in the last line of para 17, the Division Bench stated in
P. Murali Mohan Reddy as follows:
Even in the Rules, there is no mention about
minimum aggregate qualifying marks.
28. The Division Bench drew support for its above
conclusion from the second part of Direction No.9 (c) contained
in para 207 of the decision in Brij Mohan Lal-II, overlooking the
fact that the second part of Direction No.9 (c) cannot eclipse or
swallow the first part. In the first part of Directions 9 (c), the
Supreme Court stipulated very clearly that qualifying marks
shall be 40% aggregate for General Candidates and 35% for
SC/ST/OBC candidates. What was prescribed in the second
part of Direction No.9 (c) was only procedural and it is confined
only to the method of conduct of examination and interview.
The A.P. State Judicial Service Rules, 2007 stipulate the
syllabus for examination and the procedure for conduct of
examination.
29. Therefore, the correct method of understanding
Direction No.9 (c) of Brij Mohan Lal-II is to spilt it into two, the
first part containing the substantive requirement and the
second part containing the procedural aspect.
30. If the intention behind Direction No.9 (c) of the
decision in Brij Mohan Lal-II was to allow the relevant Rules of
Recruitment to take precedence, then even the first part of the
Direction No.9 (c) would have to be given a go-bye. For
instance, under the 2007 Rules, the maximum marks for
written examination is 80 and the maximum marks for viva
voce is 20. Rule 6 of the 2007 Rules lays down the elaborate
methodology for conducting examination for selection.
Sub-rule (4) of Rule 6 States that the written examination shall
invariably carry 80 marks limiting viva voce to remaining 20
marks. Therefore, if the logic adopted in
P. Murali Mohana Reddy is accepted, there could not have been
a maximum of 150 marks for written examination and 100
marks for viva voce. Such an understanding will make the first
part of Direction No.9 (c) of Brij Mohan Lal-II a dead letter in
view of the second part.
31. It must be remembered that the process of
absorption/appointment of Fast Track Court Judges as
regular District Judges, was not strictly in accordance with the
Rules of Recruitment. All the Fast Track Court Judges
never had any right flowing out of the 2007 Rules for
absorption or regularisation. They acquired a right for
consideration for appointment only by virtue of the
directions issued by the Supreme Court in Brij Mohan
Lal-II. Therefore, once it is found that Direction No.9 (c)
of Brij Mohan Lal-II mandates a General Category
candidate to secure 40% marks in the aggregate and
other category candidates to secure 35% marks in the
aggregate, neither those candidates nor this Court can
give a go-bye to the said prescription, either on the basis
of the advertisement or on the basis of the Rules. When
the very right to be appointed/absorbed flowed only out of the
directions contained in Brij Mohan Lal-II, the exercise of the
right should also be only as per the directions contained in the
same decision and not as per the recruitment rules. Therefore,
we are of the considered view that securing 40% marks in the
aggregate for a general category candidate and 35% marks in
the aggregate for other candidates was
a mandatory requirement flowing out of direction No.9 (c) in
Brij Mohan Lal-II. The petitioner admittedly did not secure 35%
marks in the aggregate. The petitioner secured only 61.5
marks out of a maximum of 150 marks in the written
examination and he secured 10.2 marks out of a maximum of
100 marks in the viva voce. It works out to 71.7 out of
a maximum of 250. As a candidate belonging to the Backward
Class community, he must have secured at least 87.5% marks
in the aggregate. Since he did not secure the minimum
qualifying marks in the aggregate as stipulated by the Supreme
court, he is not entitled to be appointed.
32. It must be pointed out that the writ petitioner herein
served as ad hoc Judge only for a period of about 10 months
from 23-10-2003 to 24-8-2004. Therefore, to grant him the
benefit of absorption on the basis of a process of selection
adopted under special circumstances to benefit persons who
had rendered a particular length of service, would tantamount
to perverting the scheme.
33. Hence, the writ petition deserves 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. 27th April, 2017