Supreme Court of India
BRIJ MOHAN LALversusUNION OF INDIA & ORS.
- Citation
- 2012 INSC 178
- Decided
- 19 April 2012
- Disposal
- Case Partly allowed
- Bench
- A K PATNAIK
Holding
Ad‑hoc FTC judges have no indefeasible right to regularisation; the Union's decision to stop financing the Scheme is not struck down, but the Court may issue mandamus and directions to protect the right to speedy trial and judicial independence.
Summary
The Supreme Court examined the status of judges appointed on an ad‑hoc basis under the Fast Track Courts (FTC) Scheme and whether they were entitled to regularisation or absorption into the permanent judicial cadre. It held that the appointments were expressly temporary, terminable at will, and did not confer any indefeasible right to a permanent post. The Court also considered the Union Government's decision to cease financing the FTC Scheme after 31 March 2011 and found the policy decision not arbitrary enough to be struck down, though it recognised the need for directions to safeguard the right to speedy trial and judicial independence. The Court affirmed its power to issue mandamus in matters where a policy decision threatens fundamental rights, particularly under Article 21. It clarified that restrictions on former FTC judges' right to practice under the Bar Council of India Rules are a partial, permissible limitation, not an absolute bar. Finally, the Court issued comprehensive directions for the regularisation of FTC judges, re‑allocation of funds, and procedural safeguards for future appointments.
Issues considered
- The nature of ad‑hoc FTC appointments and whether they create a legal right to regularisation or absorption in the permanent judicial cadre.
- Whether the Union of India's policy to discontinue financing the FTC Scheme violates Articles 21 and 19(1)(g) of the Constitution.
- The scope of judicial review over policy decisions and the Court's authority to issue mandamus in such contexts.
- The validity of the restrictions imposed by Bar Council of India Rules on former FTC judges' right to practice.
- The applicability of the Gujarat, Orissa, Andhra Pradesh, Rajasthan and other State Rules governing FTC appointments.
Legislation cited
- Advocates Act, 1961s. 7
- Bar Council of India Ruless. 7
- Constitution of Indias. 112, s. 139, s. 141, s. 142, s. 144, s. 19(1)(g), s. 21, s. 233, s. 235, s. 264, s. 275, s. 280, s. 281, s. 309, s. 310, s. 311
Subjects
Fast Track Courtsad hoc appointmentjudicial independencepolicy decisionmandamusright to practiceArticle 21Article 19(1)(g)regularisationjudicial reviewFinance Commissioncourt backlog
Judgment
[2012] 5 S.C.R. 305
BRIJ MOHAN LAL A
v.
UNION OF INDIA & ORS.
(Transfer Case No. 23 of 2001)
APRIL 19, 2012
B
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Judiciary:
Fast Track Court Scheme - Appointment to the posts of c
FTC judges under the Scheme as ad hoc judges - Vacancies
in the regular judicial cadre of States - Absorption and
regularisation against such post - Entitlement to - Held: On
analysis of the Rules relating to the different States, the
appointment letters issued and methodology adopted for
0
appointment of the FTC judges, appointees cannot have any
legal, much less an indefeasible right to the posts - Financing
of the FTC Scheme has already been stopped by Central
Government with effect from 31st March, 2011 - Relevant
Rules of the States, and the Notifications state that appointees E
have been appointed not only on ad hoc and temporary basis
but the entire FTC Scheme itself was ad hoc and for a
duration of five years only - No permanent post was created
- Thus, appointees do not have any absolute right to the post
- Service Law - Constitution of India, 1950 - Articles 233 and
235. F
FTC Scheme by the Central Government - Financed for
limited period - Some States continuing with the Scheme
while others forced to discontinue it because of non-
availability of funds - Scope of judicial review - Held: It is the G
constitutional duty of the Government to provide the citizens
of the country with such judicial infrastructure and means of
access to justice so that every person is able to receive an
expeditious, inexpensive and fair trial - Financial limitations
305 H
306 SUPREME COURT REPORTS [2012] 5 S.C.R.
A or constraints cannot be justified as a valid excuse - Policy
of State has to be in larger public interest and free of
arbitrariness - Adhocism and uncertainty adversely affect any
State policy and its results - Though the Central Government
took a decision to stop financing and consequently to wind
B up the FTC Scheme however, at the same time it allocated
substantial funds for starting morning, evening and shift
courts - Thus, not appropriate to decide upon a comparative
analysis of the policy decisions but whichever policy is taken
up has to be fair in public interest - Constitution of India, 1950
c - Article 21 and 39 - Administrative law - Policy decision.
Administration of justice in States - Decision/
recommendations of the conference of the Chief Ministers of
the States and Chief Justices of the High Courts -
Implementation of - Held: Decision/recommendations of the
D Conference should form the basis of the policy decisions by
the State or the Central Government relating to the
administration of justice - Due weightage should be attached
to these recommendations - On facts, decision taken by the
Government, Union of India who participated in the
E Conference to extend FTC Scheme for the period of 5 years
beyond 31st March 2010 i.e. till 31st March 2015 as a/so
other measures taken to tackle the problem of arrear of cases
- However, decision of the Conference not implemented and
the decision contrary to the minutes taken and placed before
F the Supreme Court that the FTC Scheme would not be
financed by the Central Government beyond 31st March, 2011
- Thus, the Central Government not justified in brushing aside
the minutes and recommendations of such a high level
meeting in a most casual manner.
G
Fast Track Courts (FTC) Scheme by Central Government
- Implementation of, by various States - Ad hoc appointment
of District and Session Judges in FTCs made by different
States in different manner - Subsequently Central
Government agreeing to finance the FTC Scheme uptil 30th
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 307
March, 2011 - Challenge to the decision of, various State A
Governments and praying for continuation of scheme and
absorption in regular cadre - Held: As regards State of
Gujarat, appointment of persons as Judicial Officers to preside
over the FTCs by way of direct recruitment from the Bar were
made purely on ad hoc basis and urgent temporary basis for 8
a pen'od of 2 years terminable without notice, thus, cannot vest
or confer any right upon the appointees to be absorbed in the
permanent cadre - These appointments were to come to an
end by lapse of time - In case of State of Orissa prayer for
quashing of the caution letter issued to some officers to C
dispose of eight Session Trials every month, misconceived -
Appointees in the State of Orissa as a/so State of Punjab and
Haryana cannot claim any indefeasible right either to
regularization or absorption against regular vacancies as the
posts were temporary and were bound to come to an end by
efflux of time - As regards the State of Andhra Pradesh, FTC D
Judges were appointed under a separate set of Rules than
the Rules governing the regular appointment to the State
Higher Judicial Services, thus, such appointments would be
ad hoc and temporary and the appointees shall not derive any
benefit from such appointments - As regards State of E
Rajasthan, the Judicial Officers promoted as FTC Judges who
had not taken any written competitive examination before their
promotion to the post under the Higher Judicial Service, have
to undertake written examination for absorption in the regular
cadre of Higher Judicial Service - Gujarat State Judicial F
Service Rules, 2005 - Orissa Judicial Service (Special
Scheme) Rules, 2001 - Punjab Superior Judicial Services
Rules, 2007 - Rajasthan Higher Judicial Service Rules, 1969
- Andhra Pradesh State Higher Judicial Service Special Rules
for Adhoc Appointments, 2011 - Administrative Law. G
Policy decision as regard Fast Track Courts (FTC) by
Central Government for an initial period of five years - FTCs
Scheme implemented by various States - Subsequently with
the intervention of this Court, Scheme extended by another H
308 SUPREME COURT REPORTS [2012] 5 S.C.R.
A five years and it stood extended upto March, 2011 - Decision
of Central Government to discontinue the Scheme beyond
31st March 2011 - Some States continuing with the Scheme
and some discontinuing with it due to non-availability of funds
- Directions sought for extension of the Scheme - Interference
B with - Held: Normally courts do not interfere with the policy
decisions taken by the Government but, to protect the
guarantees of Article 21, to improve the Justice Delivery
System, to fortify the independence ofjudiciary, while ensuring
attainment of constitutional goals as well as to do complete
C justice, certain orders and directions issued - Directions
issued for creation of additional courts and 10 per cent of the
total regular cadre of the State as additional posts - Persons
appointed by way of direct recruitment from the Bar as FTCs
Judges entitled to be appointed to the regular cadre of the
Higher Judicial Services of the respective State in the manner
0
stated - Candidates promoted as FTC Judges having
requisite experience in service, to be absorbed and promoted
to the Higher Judicial Services of that State subject to the
given conditions - Policy decision not to finance the FTC
Scheme beyond 31st March, 2011 not struck down since it
E has already taken effect - However, the States having taken
a policy decision to continue the FTC Scheme beyond 31st
March 2011 to adhere to the same - States free to take a
policy decision whether or not to continue the FTC Scheme
as a permanent feature - Hereafter, all the States, shall not
F take a decision to continue the FTC Scheme on ad hoc and
temporary basis - Union of India and the State Governments
to re-allocate and utilize the funds apportioned by the 13th
Finance Commission to regularize FTC judges -
Recommendations made at the Chief Justices and Chief
G Ministers Conference to be placed before the Cabinet of the
Centre or the State for consideration and not be rejected at
bureaucratic level - Constitution of India, 1950 - Articles 21
and 142.
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 309
Constitution of India, 1950: A
Articles 32 and 226 - Issuance of mandamus in policy
decision - Decision by the Central Government not to finance
the FTC Scheme beyond 31st March 2011 - Power of court
to issue mandamus - Held: Any policy or decision of the
8
Government which would undermine or destroy the .
independence of the judiciary would not only be opposed to
public policy but would also impinge upon the basic structure
of the Constitution - Thus, the Government should not frame
any policies or do any acts which shall derogate from the very
ethos of the stated basic principle of judicial independence - C
If the policy decision is likely to prove counter-productive and
increase the pendency of cases it would tantamount to
infringement of their basic rights and constitutional protection
- Thus, the Court is competent to issue a writ of mandamus -
Administrative Law - Policy decision. D
Articles 19(1)(g), 19(6), 233 to 235 - Right to practice law
- Reasonable restriction - Appointment of retired District and
Session Judges as ad hoc judges in Fast Track Courts
(FTCs) - Discontinuance of FTCs - Appointees on ceasing E
to be judges debarred from practicing in District and
Subordinate Courts- Challenge to - Held: Right to practice law
is not an absolute right - It is subject to possession of requisite
qualifications as contemplated under the Advocates Act, 1961
and to the limitations prescribed in the Bar Council of India F
Rules - Appointee's right to practice is abridged with respect
to the courts in which they acted as judges and courts of the
equivalent or lower grade - They can still practice in higher
courts - It does not amount to complete and absolute
restriction on their right to practice but is only a partial G
restriction - It cannot be a consideration for compelling the
Government to continue their appointments, if they are
otherwise not entitled under law to continue - Judiciary -
Administrative law - Advocates Act, 1961 - Bar Council of
India Rules.
H
310 SUPREME COURT REPORTS [2012) 5 S.C.R.
.A The Central Government took a decision to
implement the Fast Track Courts Scheme (FTCs) for a
limited period particularly to deal with the arrears of
criminal cases in the country. The entire scheme was to
be financed by the Central Government. The policy
B decision was accepted by various State Governments. It
was implemented by appointing ad hoc Judges to
preside over FTCs, from amongst the retired Judges, by
promotion from Civil Judges (Senior Division), and by
direct recruitment from the Bar. Thereafter, the Central
c Government took a decision not to finance the FTC
Scheme beyond 31st March, 2011. However, some of the
State Governments took a decision at their own level to
continue with the FTC Scheme, for the time being.
Writ petition was filed in the High Court of Punjab and
D Haryana challenging inter alia the scheme and policy of
appointment of the retired District and Sessions Judges
as ad hoc Judges of the FTCs in the State Judicial
Services; and in the High Court of Andhra Pradesh
seeking the direction that the constitution of the FTCs
E and 32 presiding officers in the State of Andhra Pradesh
and the G.O.Ms. be declared as unconstitutional and
should be set aside. These writ petitions were transferred
to this Court and were taken up as Transferred Cases.
Other parties who had filed similar petitions in different
F High Courts also intervened. Transferred Cases were
disposed of with certain directions. The directions were
also issued for filing quarterly status reports regularly
from time to time about the functioning of the FTCs in the
entire country and the same were filed. Meanwhile,
G instant writ petitions and special leave petitions were
filed against various judgments of different High Courts
seeking inter alia issuance of appropriate writ or direction
to the respondents to extend the FTC Scheme for another
five years or even till 31.03.2015 and to release the
necessary funds for that purpose; that the decision of the
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 311
Union of India to discontinue the FTC Scheme beyond A
31st March, 2011 be declared as arbitrary, discriminatory
and violative of the fundamental rights under Article 21
of the Constitution; that the direct recruits from the Bar,
appointed as ad hoc Additional District Judge under the
FTC Scheme whose services were terminated be B
continued in employment; that they should be absorbed
against vacant posts in the regular cadre; that the
notification issued calling for applications from eligible
candidates for direct recruitment from the Bar to the cadre
of the District Judge be quashed; and that they are not c
liable to take the limited competitive examination for
promotion to the cadre of District Judges and be treated
as regular members of the State Judicial Service.
Partly allowing the appeals and the writ petitions, the
Court D
HELD:
Whether any of the appointees to the post of ad hoc
judges under the FTC Scheme have a right to the post in
context of the facts of the instant case:
E
1.1 Upon an analysis of the Rules relating to the
different States, the appointment letters issued to the
appointees and the methodology that was adopted for
appointment of the Fast Track Court Judges, it becomes
clear that the appointees cannot be said to have any legal, F
much less an indefeasible, right to the posts in question.
Firstly, the posts themselves were temporary, as they
were created under and within the ambit and scope of the
FTC Scheme sponsored by the Union of India, which was
initially made only for a limited period of five years. Now, G
financing of the FTC Scheme has already been stopped
by the Central Government with effect from 31st March,
2011. No permanent posts were ever created. In other
words, their appointments were temporary appointments
against temporary posts. The relevant Rules of the States H
312 SUPREME COURT REPORTS [2012] 5 S.C.R.
A clearly postulate that the appointments made under the
Rules were purely on ad hoc basis and urgent temporary
basis and were terminable without notice. The Rules as
well as the respective notifications of appointment issued
to these appointees, unambiguously stated that no right
B would be conferred upon the appointees for regular
promotion on the basis of working on ad hoc basis under
the FTC Scheme. It clearly demonstrates that these were
temporary and, in some cases, even time-bound
appointments, terminable without prior notice. [Para 60]
c [376-E-H; 377-A-C]
1.2 Normally, there are three kinds of posts that may
exist in a cadre-(1) permanent posts; (2) temporary posts;
and (3) quasi-permanent posts. Accordingly, there can be
a temporary employee, a permanent employee or an
o employee in quasi-permanent capacity. Whereas a
permanent employee has a right to the post, a temporary
employee has no right to the post. Thus, it follows that
for a person to have a right to the post, the post itself has
to be a permanent post duly sanctioned in the cadre. The
E person should be permanently appointed to that post.
Normally, it is only under these circumstances that such
an employee gets a right to the post, but even when a
temporary employee is appointed against a permanent
post, he could get a right to the post provided he had at
F least acquired the status of a quasi-permanent employee
under the relevant Rules. Where neither the post is
sanctioned nor is permanent and, in fact, the entire
arrangement is ad hoc or is for an uncertain duration, it
cannot. create any rights and obligations in favour of the
G appointees, akin to those of permanent employees. [Para
61] (377-D-H; 378-A-B]
Indian Drugs and Pharmaceuticals Ltd. v. Workmen
(2007) 1 SCC 408: 2006 (9) Suppl. SCR 73; Parshotam Lal
Dhingra v. Union of India AIR 1958 SC 36: 1958 SCR 828;
H Champaklal Chimanlal Shah v. Union of India AIR 1984 SC
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 313
1854; Jaswant Singh v. State of Haryana (1979) 4 SCC 440: A
1980 (1) SCR 420 - referred to.
1.3 There should be a right vested in an employ~e,
which is duly recognized and declared in accordance
with the Rules governing the conditions of service of
such employee before such relief is granted. Unless the B
Government employee holds any status, it may not be
possible to grant relief to the Government employee,
particularly, when such relief is not provided under the
relevant Rules. These Rules had been framed under
Article 309 of the Constitution and had the force of law. C
[Paras 64 and 65] [379-E-G]
1.4 The doctrine of pleasure, under Constitution,
deals with three different categories of posts. First,
offices which are held during the pleasure of the
President or Governor, as the case may be; second, D
offices held during pleasure of the President or Governor
but subject to some restrictions against removal; and
third, offices held for a specified term but with immunity
against removal, except by impeachment. The third
category of posts is not subject to the doctrine of E
pleasure. Having regard to the Constitutional scheme, it
is not possible to extend the type of protection against
removal granted to one category of officers, to another
category. It is believed that, where Rule of Law prevails,
there can be nothing like unfettered discretion or F
unaccountable action. The degree of reasoning required
in support of the decision may vary. The degree of
scrutiny during judicial review may vary. But the need for
reasoning exists. As a result, when the Constitution of
India provides that some offices will be held during the G
pleasure of the President, without any express limitations
or restrictions, this power should, however, necessarily
be read as being subject to the fundamentals of
constitutionalism. [Paras 67, 68] [380-H; 381-A-E]
B.P. Singha/ v. Union of India (2010) 6 SCC 33; Union H
314 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of India & Anr. v. Tulsiram Patel (1985) 3 SCC 398 - referred
to.
1.5 Right to a post is not a fundamental right but is a
civil or a statutory right. That the creation of a post,
absorption and payment of salaries on regular pay
8
scales are purely Executive functions. It is primarily the
nature of the post, the method and manner of
appointment to the said post and the Rules governing the
conditions of service of that post which would be the
C precepts to deal with such situations. [Para 66] [380-B,
D]
P. U. Joshi v. Accountant General (2003) 2 SCC
632:2002 (5) Suppl. SCR 573; Union of India v. S.N.
Pa nicker (2001) 10 SCC 520 - referred to.
D
1.6 The appointees in the instant case had been
appointed not only on ad hoc and temporary basis but
the entire FTC Scheme itself was ad hoc and for a
duration of five years only as declared by the Central
E Government. Despite that, some of the States declared
the FTC Scheme for two years only. In these
circumstances, it is not possible to hold that the
appointees had any right to the post. The submission
that there was indication, in the Rules or otherwise, that
the said appointments were permanent and that the
F appointees were entitled to be absorbed regularly in
those posts cannot be accepted. [Para 60, 61] [377-C-D;
378-B-C]
Whether writ of mandamus can at all be issued in the
G instant case:
2.1 The Central Government took a decision not to
finance the FTC Scheme beyond 31st March, 2011.
However, some of the State Governments have still taken
a decision at their own level to continue with the FTC
H Scheme, for the time being. None of the States have
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. . 315
stated that, as a matter of policy or otherwise, they have A
decided to continue the FTC Scheme at their own
expense as a permanent feature of Justice
Administration System. Matters relating to framing and
implementation of policy primarily fall in the domain of the
Government. It is an established requirement of good B
governance that the Government should frame policies
which are fair and beneficial to the public at large. The
Government enjoys freedom in relation to framing of
policies. It is for the Government to adopt any particular
policy as it may deem fit and proper and the law gives it c
liberty and freedom in framing the same. Normally, the
Courts would decline to exercise the power of judicial
review in relation to such matters. But this general rule
is not free from exceptions. The Courts have taken the
view that they would not refuse to adjudicate upon policy
0
matters if the policy decisions are arbitrary, capricious or
mala fide. [Para 70) [382-E-H; 383-A-B]
Bennett Coleman & Co. and Others. v. Union of India
and Others (1972) 2 SCC 788: 1973 (2) SCR 757; Asif
Hameed v. State of Jammu & Kashmir and Anr. 1989 E
Suppl.(2) SCC 364: 1989 (3) SCR 19 - referred to.
2.2 The Government has the authority and power to
not only frame its policies, but also to change the same.
The power of the Government, regarding how the policy F
should be shaped or implemented and what should be
its scope, is very wide, subject to it not being arbitrary
or unreasonable. In other words, the State may formulate
or reformulate its policies to attain its obligations of
governance or to achieve its objects, but the freedom so
granted is subject to basic Constitutional limitations and G
is not so absolute in its terms that it would permit even
arbitrary actions. The correct approach in relation to the
scope of judicial review of policy decisions of the State
can hardly be stated in absolute terms. It will always
depend upon the facts and circumstances of a given H
316 SUPREME COURT REPORTS [2012] 5 S.C.R.
A case. Furthermore, the Court would have to examine any
elements of arbitrariness, unreasonableness and other
Constitutional facets in the policy decision of the State
before it can step in to interfere and pass effective orders
in such cases. A challenge to the formation of a State
B policy or its subsequent alterations may be raised on very
limited grounds. Again, the scope of judicial review in
such matters is a very limited one. One of the most
important aspects in adjudicating such a matter is that the
State policy should not be opposed to basic Rule of Law
c or the statutory law in force. This is termed as the
philosophy of law, which must be adhered to by valid
policy decisions. [Para 72, 75] [384-C-E; 386-B-D]
Mohd. Abdul Kadir and Anr. v. Director General of Police,
D Assam and Ors. (2009) 6 SCC 611 - referred to.
2.3 The independence of the Indian Judiciary is one
of the most significant features of the Constitution. Any
policy or decision of the Government which would
undermine or destroy the independence of the judiciary
E would not only be opposed to public policy but would
also impinge upon the basic structure of the
Constitution. The State policies should neither defeat nor
cause impediment to discharge of judicial functions. To
preserve the doctrine of separation of powers, it is
F necessary that the provisions falling in the domain of
judicial field are discharged by the Judiciary and that too,
effectively. It is, thus, clear that it is the constitutional duty
of this Court to ensure maintenance of the independence
of Judiciary as well as the effectiveness of the Justice
G Delivery System in the country. The data and statistics
placed on record, of which this Court can even otherwise
take judicial notice, show that certain effective measures
are required to be taken by the State Governments to
bring down the pendency of cases in the lower courts. It
H necessarily implies that the Government should not frame
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 317
any policies or do any acts which shall derogate from the A
very ethos of the stated basic principle of judicial
independence. If the policy decision of the State is likely
to prove counter-productive and increase the pendency
of cases, thereby limiting the right to fair and expeditious
trial to the litigants in this country, it will tantamount to B
infringement of their basic rights and constitutional
protections. Thus, this Court is possessed of the
jurisdiction and is competent to issue a writ of mandamus
and/or appropriate directions. [Paras 76, 80 and 81] [386-
E-G; 391-G-H; 392-A-D] C
S.P. Gupta v. Union of India (1981) Supp. SCC 87; All
India Judges' Association v. Union of India & Ors. (1992) 4
SCC 288; All India Judges' Association v. Union of India
(2002) 4 SCC 247: 2002 (2) SCR 712 - referred to.
D
Commonwealth ex rel. Carroll v. Tate et al. 442 Pa.45;
27 4 A.2d 193 - referred to.
Right to practice
3.1 Article 19(1 )(g) of the Constitution provides a E
fundamental right to practice any profession or to carry
on any occupation, trade or business. This right is
subject to the limitations contained under Article 19(6) of
the Constitution. The State is empowered to make any
law imposing, in the interest of general public, reasonable F
restrictions on the exercise of the rights conferred by the
said sub-clause. This power specifically refers to the
professional or technical qualifications necessary for
practicing any profession or carrying on any occupation.
The right to practice law is not an absolute right and is G
subject to the possession of requisite qualifications as
contemplated under the Advocates Act, 1961. This right
to practice is further subject to the limitations prescribed
in and the regulatory regime of the Bar Council of India
Rules. Therefore, the submission that once a lawyer
H
318 SUPREME COURT REPORTS [2012] 5 S.C.R.
A possesses the requisite qualifications, he has an
unrestricted and unregulated right to practice, is not
tenable. [Para 82] [392-E-H]
3.2 The appointees submitted that in terms of the Bar
Council of India Rules, after they cease to be judges of
B the FTCs for any reason whatsoever, they shall be
debarred from practicing in the district and subordinate
courts. Their right to practice is abridged with respect to
the courts in which they acted as judges and courts of
the equivalent or lower grade. They can still practice in
C the higher courts, i.e., permissible Tribunals, High Courts
and the Supreme Court of India. Thus, there is no
complete and absolute restriction on their right to
practice. It is only a partial restriction which is based
upon securing the larger public interest and the interest
D of ensuring transparency in the administration of justice.
This by itself, therefore, cannot be a consideration for
compelling the Government to continue their
appointments, if they are otherwise not entitled under law
to continuation. There is no merit in the submission that
E the appointees/petitioners would suffer an irreparable
loss by termination of their services as FTC judges and
that the restriction contained in Rule 7 of the Bar Council
of India Rules amounts to an absolute unreasonable
restriction upon their right to practice in the event of such
F termination. [Paras 83, 84] [393-A-D; 394-B-C]
N.K. Bajpai v. Union of India & Anr. CA No. 2850 of 2012
decided on 15th March 2012 - relied on.
Power of judicial review:
G 4.1 The FTC Scheme was started in the year 2001 for
an initial period of five years. However, it was
subsequently extended and the Central Government
agreed to finance the FTC Scheme uptil 30th March, 2011.
Thereafter, the various State Governments have either
H decided to wind up the FTC Scheme or have extended
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 319
the FTC Scheme at their own expense. A few States are A
even considering the continuation of the FTC Scheme as
a permanent feature in their respective States. This, to a
large extent, created an anomaly in the administration of
justice in the States and the entire country. Thus, there
is no unanimity between the Union Government and the 8
States either on continuation or the closure of the FTC
Scheme. Some of the States would continue with the
FTC Scheme while others have been forced to
discontinue or close it because of non-availability of
funds. [Paras 92, 93] [396-G-H; 397-A-C]
c
4.2 Judicial functions and judicial powers are one of
the essential attributes of a sovereign State and on
considerations of policy, the State transfers its judicial
functions and powers, mainly to the courts established
by the Constitution, but that does not affect competence D
of the State to, by appropriate measures, transfer a part
of its judicial functions or powers to Tribunals or other
such bodies. However, as far as functioning of the courts,
i.e., dispensation of justice by Courts is concerned, the
Government has no control whatsoever over the courts. E
In relation to matters of appointments to the Judicial
Services of the States and even to the Higher Judiciary
in the country, the Government has some say, however,
the finances of Judiciary are entirely under the control of
the State. These controls should be minimized to maintain F
the independence of the Judiciary. The courts should be
able to function free of undesirable administrative and
financial restrictions in order to achieve the constitutional
goal of providing social, economic and political justice
and equality before law to its citizens. [Para 99] [398-F- G
H; 399-A-B]
Associated Cements Co. Ltd. v. P.N. Sharma AIR 1965
SC 1595:1965 SCR 366 - referred to.
4.3 Article 21 of the Constitution of India takes in its H
320 SUPREME COURT REPORTS [2012] 5 S.C.R.
A sweep the right to expeditious and fair trial which is an
essential ingredient of such reasonable, fair and just
procedure. Even Article 39A of the Constitution
recognizes the right of citizens to equal justice and free
legal aid. Thus, it is the constitutional duty of the
B Government to provide the citizens of the country with
such judicial infrastructure and means of access to justice
so that every person is able to receive an expeditious,
inexpensive and fair trial. The State cannot be permitted
to deny the constitutional right to speedy trial to the
c accused on the ground that the State does not have
adequate financial resources to incur the necessary
expenditure needed, for improving the administrative and
judicial apparatus to ensure speedy trial. [Para 100, 131]
[399-C-D; 419-E-F]
D Hussainara Khatoon and Ors. (IV) v. Home Secretary,
State of Bihar, Patna (1980) 1 SCC 98: 1979 (3) SCR 532;
Sheela Barse (II) and Ors. v. U.0.1. and Ors. (1986) 3 SCC
632; Salem Advocate Bar Association v. Union of India (2003)
1 SCC 49: 2002 (3) Suppl. SCR 353; Prakash Singh Badal
E v. State of Punjab and Ors. (2006) 8 SCC 1: 2006 (6) Suppl.
SCR 473; High Court of Judicature at Bombay, Through its
Registrar v. Shirishkumar Rangrao Patil and Anr. (1997) 6
SCC 339: 1997 (3) SCR 1131 - referred to.
F Jackson v. Bishop 404 F Supp. 2d 571 - referred to.
4.4 Judicial review is recognized as a basic feature
of the Constitution and independence of judiciary is
integral to the constitutional structure, as an essential
attribute of the Rule of law. Judiciary must, therefore, be
G free from pressure and influences from any quarter. It can
be stated with certainty that any impediments to the
continued and independent functioning of the judiciary
would result in damaging the institution of justice as well
as adversely affecting the faith of the public in the
H functioning of the Courts/Tribunals. Only if continued
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 321
judicial independence is assured, the Courts/Tribunals A
would be able to discharge their functions in an impartial
manner. [Para 102] [403-0-G)
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 1: 2010 (6) SCR 857; Union of
India & Ors. v. Pratibha Bonnerjea & Anr. (1995) 6 SCC B
765:1995 (5) Suppl. SCR 511; Ashoka Kumar Thakur v.
Union of India & Ors. (2008) 6 SCC 1: 2008 (4) SCR 1 -
referred to.
4.5 Wherever the right which is being affected is a c
basic or a fundamental right, the State cannot be
permitted to advance an argument of financial constraints
in such matters. The policy of the State has to be in the
larger public interest and free of arbitrariness. Adhocism
and uncertainty are the twin factors which are bound to 0
adversely affect any State policy and its results. Reasons
for taking a policy decision would squarely fall in the
domain of the State, but it should be free from element of
arbitrariness and mala fide. The State cannot in, an ad hoc
manner, create new systems while simultaneously giving E
up or demolishing the existing systems when the latter
have even statistically shown achievement of results.
[Para 107] [404-G-H; 405-A]
4.6 In reference to the cases at hand, the Central
Government took a decision to stop financing and F
consequently to wind up the FTC Scheme. However, at
the same time, it allocated Rs.2500 crores for operation
of the Morning, Evening and Shift Courts in the country
besides providing funds under other heads, as per the
13th Finance Commission Report for the period 2010- G
2011 to 2014-2015. Again, this is a policy decision and
though the Government has the jurisdiction to decide on
such policy matters, there has to be some rationale and
reasonableness in the same. It may not be appropriate for
this Court to decide upon a comparative analysis of the H
322 SUPREME COURT REPORTS [2012] 5 S.C.R.
A policy decisions as to which policy has greater merit and
which policy the Government should adopt, but certainly
whichever policy is eventually taken up by the State, it
has to be fair, in public interest and also satisfy the
constitutional limitation of ensuring independence of
8 Judiciary. [Paras 94, 108 and 109) [397-D-E; 405-8-D]
4.7 With the passage of time, owing to the
tremendous growth in the population of the country and
greater awareness among citizens of their rights, civil
and criminal litigation before the Courts have increased
C manifold, without there being an equivalent increase in
the strength of Judges and enhancement in the
infrastructure of the Courts. Thus, it is essential that
some kind of consistent and systematized approach is
adopted by all the concerned Governments, including the
D Union of India, so as to take effective measures to remedy
this situation as well as to prevent further undesirable
increase in the pendency of cases before the Courts.
Expeditious disposal of cases is obviously the first
answer to this multifarious problem. [Para 112) [406-8-
E D)
The conference of the Chief Ministers of the States and
the Chief Justices of the High Courts.
5.1 In order to resolve various administrative and
F allied issues relating to the administration of justice in the
States, it has been the practice to hold the Chief Justices
and Chief Ministers Conference, which is presided over
by the Chief Justice of India. In these meetings, various
steps are discussed, for which an agenda is circulated
G and suggestions from the High Courts as well as the
State Governments are invited. This Conference is
normally attended by the Chief Ministers and/or the Law
Ministers of the State, Chief Justices of the High Courts
and various other authorities from the bureaucracy and
H the High Courts. Upon due deliberations, decisions are
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 323
taken, whereafter Minutes of the same are prepared and
circulated. The decisions are recorded and circulated to
the States and the Union of India specifically for their
information and further action. Unfortunately, the practice
has shown that these decisions have hardly been
implemented by the concerned authorities. One such 8
Conference was held and the matter in regard to setting
up of Evening, Morning and Shift Courts was also
discussed and it was required that the State Government
shall set up at least one Family Court in each district.
[Paras 113 and 115) [406-E-H; 408-A-B] c
5.2 There is nothing placed on record to show that
the FTCs at the level of the Magistrate Courts have no
further efficacy. All the concerned governments,
including the Union of India, which duly participated in
the Conference, had decided to extend the FTCs for a D
period of five years beyond 31st March, 2010 i.e. till 31st
March, 2015. It was further contemplated that other
measures should also be taken by the respective State
Governments and Union of India to tackle the problem of
arrear of cases. Hardly any decision in that regard was E
implemented, but on the other hand, a decision contrary
to the minutes was taken with certainty and was placed
before this Court that the FTC Scheme would not be
financed by the Central Government beyond 31st March,
2011. [Para 116) [409-B-E] F
5.3 As regards the question whether it is justified for
the Central Government, or any other Government, to
brush aside the Minutes and recommendations of such
a high level meeting in a most casual manner or whether G
such Minutes require favourable consideration by all
concerned and proper and complete policy decisions
taken in furtherance thereto and such minutes form the
foundation for major policy decisions relating to judiciary,
the latter perspective demands an affirmative answer as H
324 SUPREME COURT REPORTS [2012] 5 S.C.R.
A these decisions and recommendations should be
favourably considered by all concerned. Rather, they
should form the basis of the policy decisions relating to
the administration of justice. The Chief Justices and the
Chief Ministers are the constitutional heads of the
B Judiciary and the Executive, respectively. The matters are
discussed by all States, Union of India and Judiciary. The
decisions are taken on the basis of the collective wisdom.
One can hardly comprehend a constitutional body of a
higher normative significance than the Chief Justices and
c the Chief Ministers of the respective High Courts/States
to take such policy decisions at the National level. The
meeting is held under the umbrella of the Union of India
and is presided over by the Chief Justice of India, Union
Minister for Law and Justice and other high dignitaries
to deliberate upon issues which relate to the justice
0
delivery system, ultimately affecting the basic and
fundamental rights of the citizens of this country at large.
[Para 116, 117) [409-D-H; 410-A-B]
5.4 It would not only be unfair but unacceptable that
E these Minutes be placed in the shelves of the Government
archives without attaching any significance to them. It
would neither be fair nor proper for any level in the
bureaucratic hierarchy of the Government to reject such
suggestions at the threshold, that too, without any proper
F reasoning in support thereof. At least, the Cabinet of the
Government of India or the State Government, as the
case may be should take into consideration the decisions
and recommendations of this meeting. Due weightage
should be attached to these recommendations and
G preferably, they should form the basis of the policy
decision by the State or the Central Government in
relation to the matters concerning Judicial administration.
[Para 118) [410-C-E]
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 325
Merits of respective cases: A
6.1 In the case of the State of Gujarat, a number of
persons were appointed as Judicial Officers to preside
over the FTCs by way of direct recruitment from the Bar.
Their services have been terminated on the ground of
unsatisfactory performance. The High Court declined to B
set aside the termination of services of most officers. In
the impugned judgment, the High Court noted
unsatisfactory performance as the cause for termination
of their services. Entries of their service records has been
reproduced. All these officers had been appointed as ad C
hoc and temporary FTC Judges. At no point of time was
anything done, directly or indirectly, by the State to give
rise to a legitimate expectation of the appointees that
their services would be regularized and they would be
absorbed in the regular cadre. On the basis of the D
Confidential Records referred to by the High Court, in its
judgment, it is difficult to take any different view,
particularly when these judicial officers were only
temporary and ad hoc appointees with no vested right to
the post. Certainly, this is not a case of mala fide E
termination. In the subsequent writ petitions before the
High Court only one reason was given for the
termination, i.e., the Central Government refused to
extend the FTC Scheme and so, the State Government
also decided not to extend the FTC Scheme beyond 31st F
March, 2011. This probably was not a valid reason to
dismiss the writ petitions because the court ought to have
examined the prayer of those officers for regularization
of their services and absorption against the regular cadre
posts. This aspect of the writ petition was not even G
discussed by the High Court and the writ petitions were
dismissed. [Para 119) [410-F-H; 411-A-E]
Brij Mohan Lal v Union of India and Ors. CWP No. 5740
of 2001 - referred to.
H
326 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 6.2 The petitioners also raised a challenge to Rules
4 and 6 of the Gujarat Rules under which they were
appointed, on the ground that the same are arbitrary and
discriminatory, Firstly, the Rules under which the
petitioners were appointed after 2001 themselves were to
B be in force only till 31st December, 2005. Till 2005, none
of the appointees challenged these Rules. For these four
years, they, in fact, took full advantage of their
appointment under these Rules and received different
service benefits thereunder. It cannot be said that these
c Rules themselves were temporary and were enacted to
meet an emergency situation. The appointments were
made purely on ad hoc and urgen't temporary basis for a
period of two years, terminable without any prior notice.
A temporary appointment, which itself was made for a
period of two years, can hardly be equated to a tenure
0
appointment and must be construed on such terms.
These appointments were to come to an end by lapse of
time. Such an appointment obviously cannot vest or
confer any right upon the appointees to be absorbed in
the permanent cadre, as they were not appointed in
E accordance with the provisions of the Gujarat Judicial
Service Recruitment Rules, 1961. The expression 'liable
to be terminated at any time without any notice' could be
susceptible to objections if it was used in the case of a
quasi permanent or permanent employee of a
F Government servant. However, there were no permanent
posts contemplated under the FTC Scheme. The entire
FTC Scheme was ad hoc and formulated to operate only
until the year 2005. It was continued beyond that period
in accordance with the directions of this Court but now
G a decision has been taken not to continue the FTC
Scheme beyond 31st March, 2011. Even if, it is accepted
that the expression 'liable to be terminated at any time
without any notice' is arbitrary and opposed to the basic
Rule of Law, it still has to satisfy the twin tests laid down
H in the case of Parshotam Lal Dhingra, i.e., firstly, whether
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 327
the Government servant being terminated or reduced in A
rank thereby had a right to the post or to the rank, as the
case may be and, secondly, whether he had been visited
with evil consequences. Both of these tests have to be
answered in the negative, in the facts and circumstances
of the instant case. These offii:ers had no right to their B
posts and, consequently, discontinuation of their
services in the facts of the present case cannot be
construed as punitive or one visiting the petitioners with
civil consequences. This holds true even though in some
cases, it has been recorded that the performance of these c
appointees was found to be unsatisfactory but that is not
the lone reason given by the High Court for dispensing
with their services. It is the discontinuation of the FTC
Scheme itself that is the principal reason for terminating
the services of all these officers. In the instant case, the
0
Rules themselves were temporary and were bound to
cease to have force of law after 2005. The posts created
were temporary and ad hoc. The appointments were
made on ad hoc and urgent temporary basis for a limited
period of two years and terminable without notice. In
these circumstances, neither can it be stated that there E
existed posts which had permanent or quasi-permanent
character and were the duly sanctioned posts of the
regular cadre of the State Government nor that the
appointees had any right to these posts. [Para 120) [411-
G-H; 412-A-H; 413-A-D] F
Parshotam Lal Dhingra v. Union of India AIR 1958 SC
36: 1958 SCR 828; Mohd. Abdul Kadir and Anr. v. Director
General of Police, Assam and Ors. (2009) 6 sec 611 - relied
on. G
6.3 Writ Petitions were filed by some of the
appointees from the State of Orissa praying for quashing
of the caution issued to some officers whereby they were
required to dispose of eight sessions trials every month
H
328 SUPREME COURT REPORTS [2012] 5 S.C.R.
A which, so far, they had not been able to achieve and that
if they still failed to achieve the said target, their services
would be liable to be terminated. The challenge on the
ground that it is violative of Articles 14 and 16 of the
Constitution inasmuch as no such restriction or limitation
B of disposing eight Session Trials every month is applied
to the members of the State Higher Judicial Services and
that the same yardstick should uniformly.be applied to the
direct recruits appointed under the Rules as well as to the
Judicial Officers promoted/transferred to the FTCs, is
c misconceived. The Judicial Officers appointed under the
regular cadre of the State Higher Judicial Services are
subject to various restrictions and limitations of judicial
conduct as imposed by the High Court and under the
relevant Rules in force. Without exception, unit system for
disposal of cases prevails and is applicable to the courts
0
presided over by such officers. On the contrary, the FTC
. Judges are to deal only with session trials. This was the
very purpose for which the Scheme was created and, as
such, they cannot claim that the imposition of such a
condition is ex facie unreasonable, arbitrary or
E discriminatory. In fact, in the writ petitions filed no data
has been provided to substantiate that it is neither
practicable nor possible for these courts to dispose of
eight Session Trials, as contemprated under this caution
letter. [Paras 121, 122) [413-F-G; 414-D-H; 415-A]
F
6.5 Absorption in service is not a right. Regularization
also is not a statutory or a legal right enforceable by the
persons appointed under different rules to different
posts. Regularization shall depend upon the facts and
G circumstances of a given case as well as the relevant
Rules applicable to such class of persons. The relief of
regularization of the persons and workmen who had been
appointed against a particular scheme or project has
been rejected. In matters of public employment,
H absorption, regularization or permanent continuance of
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 329
temporary, contractual or casual daily wage or ad hoc A
employees appointed and continued for long in such
public employment would be de hors the constitutional
scheme of public employment and would be improper. It
would also not be proper to stay the regular recruitment
process for the concerned posts. [Para 123) [415-F-H; B
416-A-B]
Secretary, State of Karnataka & Ors. v. Uma Devi (3) &
Ors. (2006) 4 SCC 1: 2006 (3 ) SCR 953 - referred to.
6.6 The State of Orissa issued an advertisement for c
direct recruitment to the Higher Judicial Services of the
State. The appointees to the FTCs prayed that this
advertisement be quashed and they be absorbed against
the regular vacancies. The said prayer was made even in
other States. There is no merit in the contention. There
0
are two different sets of Rules, applicable in different
situations, to these two different classes of officers and
further they are governed by different conditions of
service. They cannot be placed at par. The process of their
appointments is distinct and different. The petitioner- E
appointees have no right to the posts as the posts
themselves were temporary and were bound to come to
an end by efflux of time. With reference to the letters of
their appointment and the Rules under which the same
were issued, it is clear that these petitioners cannot claim
any indefeasible right either to regularization or F
absorption. Under the Orissa Superior Judicial Services
and Judicial Service Rules, 2007, there is no provision for
absorption or regularization of ad hoc Judges. Thus, it
would neither be permissible nor proper for the Court to
halt the regular process of selection on the plea that G
these petitioners have a right to be absorbed against the
posts in the regular cadre. [Paras 121, 122, 123, 124) [413-
G-H; 415-C-F; 416-C-D]
6.7 The petitioners from the State of Andhra Pradesh H
330 SUPRE'ME COURT REPORTS [2012] 5 S.C.R.
A prayed that the advertisement issued for filling up the
vacancies in the regular cadre should be quashed and
not processed any further and the petitioners instead
should be absorbed against those vacancies. There is no
merit in these submissions. The FTC Judges were
B 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
c appointments. [Paras 125 and 126) [416-E-G)
6.8 The judgment of this Court in All India Judges'
Association case (2002) as well as the relevant Rules
contemplate that a person who is to be directly appointed
to the Higher Judicial Services has to undergo a written
D examination and appear in an interview before he can be
appointed to the said cadre. As far as appointment by
promotion is concerned, the promotion can be made by
two different modes, i.e., on the basis of seniority-cum-
merit or through out of turn promotion wherein any Civil
E Judge, Senior Division who has put in five years of
service is required to take a competitive examination and
then to the extent of 25 per cent of the vacancies
available, such Judges would be promoted to the Higher
Judicial Services. [Para 128) [417-D-G]
F 6.9 In the case of State of Rajasthan, the Judicial
Officers from the cadre of Civil Judge, Senior Division,
were promoted as FTC Judges. They continued to hold
the posts for a consid!lrable period. The petitioner
admitted that these officers who were promoted as ad
G hoc FTC Judges had not taken any written competitive
examination before their promotion to this post under the
Higher Judicial Services. They were promoted on ad hoc
basis depending on the availability of vacancy in the
FTCs. Once the Rules required a particular procedure to
H be adopted for promotion to the regular posts of the
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 331
Higher Judicial Services, then the competent authority A
can effect the promotion only by that process and none
other. In view of the admitted fact that these officers have
not taken any written examination, there is no reason as
to how the challenge made by these Judicial Officers to
the directive issued by the State Government for B
undertaking of written examination may be sustained.
Thus, the relief prayed for cannot be granted in its
entirety. [Para 127, 128) [416-H; 417-A; G-H; 418-A-B]
All India Judges' Association v. Union of India & Ors. C
(2002) 4 sec 247: 2002 (2) SCR 712 - relied on.
6.10 In the case of the State of Punjab and Haryana,
the appointees directly appointed as FTC Judges by way
of direct recruitment from the Bar, prayed for
regularization of their services and absorption in the D
regular cadre as well as for continuation of the FTC
Scheme till their absorption. The relief of regularization/
absorption cannot be granted to these petitioners. They
too have no right to the post. Admittedly, these
candidates also did not pass any written competitive E
examination and were appointed solely on the basis of
an interview and must now undergo the requisite
examination. [Para 129) [418-C-E]
The effect of Madhumita Das and Brii Mohan Lal and the
F
directions that this Court is required to issue in light
thereof
7.1 This Court would fail in its duty if it declines to
exercise its jurisdiction in the latter class of cases (duty
upon the Court to test the merits or otherwise of the G
policy decision), solely on the ground that it was a policy
decision and, thus, is beyond the limits of judicial review,
being a matter primarily within the domain of the
Government. Keeping in view its constitutional duty, the
constitutional rights of citizens of this country at large H
332 SUPREME COURT REPORTS [2012] 5 S.C.R.
A and with reference to the facts of a given case, this Court
may be duty bound to amplify and extend the arm of
justice in accordance with the principle Est boni Judicls
ampliare Justiciary non-Jurisdictionem. The argument
that matters of policy are, as a rule, beyond the power of
B judicial review has to be dispelled. This Court would be
required to take unto itself the task of issuing appropriate
directions to ensure that the Rule of Law prevails and the
constitutional goals are not defeated by inaction either
when the law requires action or when the policy in
c question is so arbitrary that it defeats the larger public
interest. [Para 134] (421-D-G]
7.2 The Union of India failed to place any material on
rec-0rd to justify its decision, deciding to stop financing
the FTC Scheme with effect from 31st March, 2011. The
D submission that it would not be a case where this Court
should venture to issue a mandamus directing
continuation of the Scheme and reverse the policy
decision taken by the Union of India, is accepted. Though
policy decisions should be interfered with rarely by the
E court, but the instant case is certainly one where the
Court should issue certain directions to ensure that the
fundamental rights and protections available to the
citizens are not violated and at the same time, the
decision of the Government of India does not undermine
F the independence of judiciary. It may not be mandatory,
but is always desirable that the policy decision in relation
to administration of justice should be made by Union of
India in consultation with the Supreme Court and/or the
respective High Courts of the State. The recommendation
G of bodies like the Law Commission of India or other
special commissions appointed in relation to
administration of justice delivery system ought to be
taken· into consideration. But, it cannot be said that the
recommendations given by one of the important organs
H
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 333
of the State, the judiciary, are not given effective A
consideration and due weightage in framing and
implementation of the policies relating to matters of
administration of justice. It would neither be appropriate
nor logical for the Union of India and/or the State
Governments to raise an argument that this Court may B
not issue any directions or mandamus to the concerned
Government, as it may have far reaching consequences.
Firstly, the Union of India and the State Governments are
not expected to raise such issue and secondly, it can
hardly be disputed that the Governments have not been c
able to successfully perpetrate any stable and result-
oriented solution to reduce the huge pendency of
criminal cases before the courts. The finances,
infrastructure and existence of adequate posts are the
prime considerations which would weigh with any
0
Authority or Court while taking any policy decisions or
passing necessary directions in that behalf. [Para 136,
137] [423-A-H; 424-A-B]
7.3 The fact that the 13th Finance Commission
recommended a grant of Rs. 5,000 Crores to the States E
for improving the justice delivery system in the country
with a specific objective of reducing the arrears
significantly and out of this amount of Rs.5,000 crore a
sum of Rs.2,500 crore has been allotted for morning/
evening/shift courts and no amount has been allotted for F
FTCs weighed with the Central Government for not
continuing the FTC Scheme after 31.03.2011. [Para 138]
[424-B-D]
It would be clear from the extracts from the
recommendations of the 13th Finance Commission that G
the recommendations were based on the proposals of
the Department of Justice, Government of India for
setting up morning/evening and shift courts because the
morning courts in Andhra Pradesh and the evening
courts in Gujarat had demonstrated the feasibility of H
334 SUPREME COURT REPORTS [2012] 5 S.C.R.
A morning and evening courts. The morning and evening
courts, however, may not be feasible in the other States
in India due to various local conditions prevailing in the
States. Moreover, the idea behind having morning/
evening/ shift courts is that sufficient infrastructure such
B as court rooms were not available for regular courts and
with the same infrastructure more hours of judicial work
could be done through morning/evening and shift courts.
The fact, however, remains that with the help of funds
allotted by the 11th Finance Commission, the States have
C already established additional court rooms for the FTCs.
These relevant aspects was not considered by the
Central Government while rejecting the recommendations
in the Conference of Chief Ministers of the States and
Chief Justices of the High Courts for continuing the FTC
Scheme after 31.03.2010. The State Governments and the
0
High Courts of different States should have been
consulted and their views should have been taken before
the Central Government took the final decision to reject
the proposal at the Conference of the Chief Ministers of
States and Chief Justices of the High Courts to continue
E the FTC Scheme. However, it is found that the policy-
decision of the Central Government to discontinue the
FTC Scheme beyond 31.03.2011 has already been given
effect to and for this reason there is no inclination to
strike down the policy-decision of the Union of India to
F discontinue the FTC scheme beyond 31.03.2011. [Para
139] [426-8-H; 427-A]
7.4 It would be clear from the recommendations of
the 13th Finance Commission that there are over 3 crores
G pending cases in various courts in the country and there
is enormous delay in disposing of the cases resulting in
immense hardship, including those borne by large
number of under-trials. If the FTC ad hoc direct recruits
who have over the years gained a lot of judicial
experience are regularised and absorbed in the regular
H
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 335
cadre of Additional District Judges in different States, the A
problem of arrear of cases can be handled to some
extent. The State Governments, however, may not have
the funds to bear the salary and allowances of additional
posts of Additional District Judges and therefore, may not
be in a position to regularise the ad hoc FTC Judges. To B
meet the cost disability of some of the State
Governments, the 13th Finance Commission has
provided funds for different projects, grant-in-aid and
infrastructural expenditure relating to establishment and
running of courts. To meet the expenses of the State c
Government for improving the Justice Delivery System,
the 13th Finance Commission, therefore, recommended
a total grant of Rs.5,000 crores under the specific heads.
Thus, the Central Government should, in consultation
with the State Governments and the High Courts of the
0
different States, reconsider allocating some amount out
of the grant of Rs.5000 crores and for such additional
amount for meeting the initial expenses of increase in
cadre strength of Additional District Judges for absorbing
the direct recruits of the FTC Scheme by way of
regularisation. [Paras 140, 141 and 142] [427-B-E; 428-D- E
E; 429-8-D]
7.5 In terms of Articles 141 and 144 of the
Constitution, the law declared by the Supreme Court of
India is binding on all Courts and all authorities which are F
to act in aid of the law so declared. The framers of the
Constitution, in no uncertain terms, declared that the
judgments of this Court are binding on all. In fact, there
is a duty upon the Authorities and all other Courts to act
in aid of such decisions. In the case of *Brij Mohan Lal G
this Court issued number of directions in relation to
establishment and functioning of the FTCs. It repelled the
challenge to the FTC Scheme. The modes of appointment
of Judges to the FTCs were also provided. The judgment
itself said that no right would be conferred on the Judicial
Officers in service for claiming any regular promotion on H
336 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the basis of serving as FTC Judges. While stating the
order of preference for appointment to these Courts, this
Court held that the first preference would be given to
judges from amongst the eligible judicial officers by ad
hoc promotion, the second preference would be given to
B the retired judges with good service records and the third
preference would be given to the members of the Bar by
direct recruitment. Thereafter, this Court passed a
detailed order in the case of Madhumita Das, finding
some substance in the plea that while assessing the
C performance, there cannot be different yardsticks, i.e. the
same parameters have to be adopted while judging the
performance of the petitioners viz-a-viz. those which are
recruited from another source, i.e. from amongst the
Judicial Officers. However, in the interim order, this Court
made a specific direction that the petitioners would
0
continue to hold the post until further orders, which it
directed the High Court to pass. It was also stated therein
that as and when regular vacancies would arise, the
cases of the petitioners shall be duly considered and
there shall not be any need for them to appear in any
E examination meant for recruitment to the cadre of District
Judge. Thus, these two orders must be seen in light of
the fact that the Union of India, as well as the State
Governments of their own, extended the FTC Scheme for
another five years i.e. till 2010 and thereafter, by another
F year. The Central Government ultimately took the decision
not to finance the FTC Scheme with effect from 30th
March, 2011. Even thereafter, a number of States have
taken the decision to continue the FTC Scheme while
retaining the appointees thereto till 2012, 2013 and even
G till 2016. The State of Haryana has even thought of
making it as a permanent feature of dispensation of
justice in the State. The cumulative effect of all these
factors is that the petitioners had a legitimate expectation
that either their services would be continued as the FTC
H Scheme would be made a permanent feature of the
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 337
justice administration in the concerned State or they A
would be absorbed in the regular cadre. But mere
expectation or even legitimate expectation of absorption
cannot be a cause of action for claiming the relief of
regularization, particularly when the same is contrary to
the Rules and letters of appointment. In **Madhumita Das s
the protection was granted in an interim order and such
directions cannot be issued, if they are contrary to the
enacted statute. When all these facts, circumstances and
the judgments of this Court are harmoniously construed
with an intention to do complete justice as well as to c
protect the fundamental rights and protections available
to the public at large, it would appear necessary that this
Court passes certain directions. [Paras 143, 144 and 145]
(429-E-H; 430-A-H; 431-A-C]
Brij Mohan Lal v Union of India and Ors. CWP No. 5740 D
of 2001; Smt Madhumita Das & Ors v State of Orissa & Ors
2008 AIR sew 4274 - referred to.
8. Without any intent to interfere with the policy
decision taken by the Governments but, unmistakably, to E
protect the guarantees of Article 21 of the Constitution,
improve the Justice Delivery System and fortify the
independence of judiciary, while ensuring attainment of
constitutional goals as well as to do complete justice to
the lis before this Court, in terms of Article 142 of the F
Constitution, the following orders and directions are
passed:
1. Being a policy decision which has already taken
effect, the policy decision of the Union of India vide letter
dated 14th September, 2010 not to finance the FTC G
Scheme beyond 31st March, 2011 is not struck down.
2. All the States which have taken a policy decision
to continue the FTC Scheme beyond 31st March 2011
shall adhere to the respective dates as announced.
H
338 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 3. The States which are in the process of taking a
policy decision on whether or not to continue the FTC
Scheme as a permanent feature of administration of
justice in the respective States are free to take such a
decision.
B
4. All the States, henceforth, shall not take a decision
to continue the FTC Scheme on ad hoc and temporary
basis. The States are at liberty to decide but only with
regard either to bring the FTC Scheme to an end or to
continue the same as a permanent feature in the State.
c
5. The Union of India and the State Governments
shall re-allocate and utilize the funds apportioned by the
Thirteenth Finance Commission and/or make provisions
for such additional funds to ensure regularization of the
o FTC judges in the manner indicated and/or for creation
of additional courts as directed.
6. All the decisions taken and recommendations
made at the Chief Justices and Chief Ministers
Conference shall be placed before the Cabinet of the
E Centre or the State, as the case may be, which alone shall
have the authority to finally accept, modify or decline,
implementation of such decisions and, that too, upon
objective consideration and for valid reasons.
F 7. No decision, recommendation or proposal made
by the Chief Justices and Chief Ministers Conference
shall be rejected or declined or varied at any bureaucratic
level, in the hierarchy of the Governments, whether in the
State or the Centre.
G 8. It shall be for the Central Government to provide
funds for carrying out the directions contained in this
judgment and, if necessary, by re-allocation of funds
already allocated under the 13th Finance Commission for
Judiciary; and that for creation of additional 10 per cent
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 339
posts of the existing cadre, the burden shall be equally A
shared by the Centre and the State Governments and
funds be provided without any undue delay so that the
courts can be established as per the schedule directed.
9. All the persons who have been appointed by way B
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 manner
stated.
c
10. The members of the Bar who have directly been
appointed but whose services were either dispensed with
or terminated on the ground of doubtful integrity,
unsatisfactory work or against whom, on any other
ground, disciplinary action had been taken, would not be 0
eligible to the benefits stated therein.
11. The respective States and the Central
Government are directed to create 10 per cent of the total
regular cadre of the State as additional posts within three
m.'.>nths from today and take up the process for filling E
such additional vacancies as per the Higher Judicial
Service and Judicial Services Rules of that State.
12. These directions, of course, are in addition to and
not in derogation of the recommendations that may be
made by the Law Commission of India and any other F
order which may be passed by the Courts of competent
jurisdiction, in other such matters.
13. The candidates from any State, who were
promoted as FTC Judges from the post of Civil Judge, G
Senior Division having requisite experience in service,
would be entitled to be absorbed and remain promoted
to the Higher Judicial Services of that State subject to the
given conditions.[Para 146] [431-C-H; 432-A-H; 433-A-D;
435-A-G] H
340 SUPREME COURT REPORTS [2012] 5 S.C.R.
A All India Judges' Association v. Union of India & Ors.
(1992) 1 sec 119: 1991 (2) Suppl. SCR 206; All India
Judges' Association v. Union of India & Ors. (1993) 4 SCC
288: 1993 (1) Suppl. SCR 749; Record Association v. Union
of India & Ors. (1993) 4 SCC 441: 1993 (2) Suppl. SCR 659;
B - referred to.
Case Law Reference:
442 Pa.45; 274 A.2d 193 Referred to Para 43, 79
1991 (2) Suppl. SCR 206 Referred to Para 43
c
1993 (1) Suppl. SCR 749 Referred to Para 43, 46
1993 (2) Suppl. SCR 659 Referred to Para 43
2006 (9) Suppl. SCR 73 Referred to Para 61
D 1958 SCR 828 Referred to Para 62
AIR 1984 SC 1854 Referred to Para 63
1980 (1) SCR 420 Referred to Para 63
E 2002 (5) Suppl. SCR 573 Referred to Para 66
c2001) 1o sec 520 Referred to Para 66
c2010) 6 sec 33 Referred to Para 68
(1985) 3 sec 398 Referred to Para 68
F
1973 (2) SCR 757 Referred to Para 70
1989 (3) SCR 19 Referred to Para 71
(2009) 6 sec 611 Referred to Para 74
G
(1981) Supp.,SCC 87 Referred to Para 77
(1992) 4 sec. 288 Referred to Para 78
2002 (2) SCR 712 Referred to Para 78
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 341
442 Pa.45; 274 A.2d 193 Referred to Para 79 A
1965 SCR 366 Referred to Para 99
1997 (3) SCR 1131 Referred to Para 101
2010 (6) SCR 857 Referred to Para 102
B
1995 (5) Suppl. SCR 511 Referred to Para 105
2008 (4) SCR 1 Referred to Para 106
1958 SCR 828 Relied on Para 120
c
(2009) 6 sec 611 Relied on Para 120
2006 (3) SCR 953 Followed Para 123
(2002) 2 SCR 712 Relied on Para 128
404 F Supp. 2d 571 Referred to Para 131 D
1979 (3) SCR 532 Referred to Para 131
(1986) 3 sec 632 Referred to Para 132
2002 (3) Suppl. SCR 353 Referred to Para 133 E
2006 (6) Suppl. SCR 473 Referred to Para 133
2008 AIR sew 4274 Referred to Para 144,
145
F
CIVIL ORIGINAL JURISDICTION : Transfer Case (Civil) No.
22 of 2001 etc.
Under Article 139 of lhe Constitution of India.
WITH
G
T.C. (C) No. 23 of 2001.
Writ Petitions (C) Nos. 140 of 2005 28, 152 of 2011, 250,
254, 261 of 2008.
H
342 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Civil Appeal Nos. 3635, 3636, 3637, 3638, 3639, 3640,
3641,3642, 3643,3644, 3645,3646, 3647, 3648,3649, 3650,
3651, 3652, 3653, 3654, 3655, 3656, 3657-3658 and 3659-
3662 of 2012.
B P.S. Narasimha, (A.C.), A. Mariaputham, T.S. Doabia,
Ashok Bhan, Nagendra Rao, V. Shekar, C.S. Rajan, Jaydeep
Gupta, Ranjit Kumar, Arvind Varma, Raju Ramachandran, Dr.
Manish Singhvi Manjit Singh and Anil Grover, MG, S.W.A.
Qadri lmtiaz Ahmed, Sunita Sharma, S.K. Mishra, B.V.
Balramdas Satya Siddiqui, Shailendra Kr. Mishra, S.S. Rawat,
C Moh. Khairati, OS Mehra, Rekha Pandey, Ashwani Garg, Zaid
Ali, Aruna Mathur, Yusf Khan, Kaustabh Sinha, S.K. Dwivedi,
R.P. Mehrotra, Vandana Mishra, Chander Shekhar Ashri,
Rachana Srivastava, Ranchi Daga, Kishor M. Paul, Abha R.
Sharma, Ajai Bhalla, Nitin Bhardwaj, Hemal K. Sheth, A
D Venayagam Balan, Shiv Mangal Sharma, Ankit Shah, M.K.
Shah, Abhinandini Sharma, Sitesh Narayan Singh, Manoj K.
Mishra, V.K. Mishra, Shiv Pati B. Pandey, R. Santhan Krishnan,
C.S.N. Mohan Rao, D.N. Ray, Lokesh K. Choudhary, Sumita
Ray, Satish Chand Gupta, Sarbendra Kumar, Rameshwar
E Prasad Goyal, Haresh Raichura, Saroj Raichura, A.D.N. Rao,
D. Mahesh Babu, P. Parmeswaran, Kamini Jaiswal, H. Wahi,
Rojalin Pradhan, Jesal, Suveni Banerjee, V.N. Raghupathy, KH.
Nobin Singh, Ashok Mathur, Anshul Narayan, Javed Mahmud
Rao, Ashok Kumar Singh, T.G.N. Nair, K.N. Madhusoodanan,
F T.V. Ratnam, Prashant Bhushan, K. Ram Kumar, Gopal Singh,
Manish Kumar, Chandan Kumar, Rituraj Biswas, Anil
Shrivastav, Anis Suhrawardy, Sanjay R. Hegde, Ranjan
Mukherjee, S. Bhowmick, S.C. Ghose, Deepika Ghatowar,
Vartika Sahay, for (Corporate Law Group), J.P. Dhanda, Vikas
G Upadhyay, B.S. Banthia, V.D. Khanna, T.C. Sharma, V.G.
Pragasam, S.J. ~~stotle, Prabu Ramasubramanian, M.T.
George, Kavita K.T., Raj Kumar Mehta, Revathy Raghavan, A.
Subhashini, Radha Shyam Jena, Mukesh K. Giri, Dilip Kr.
Sharma, Vishwajit Singh, Rajesh Srivastava, Anil K. Jha, Arun
H K. Sinha, G.S. Chatterjee, Raja Chatterjee, Sachin Das, Sunil
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 343
Kumar Jain, Janaranjan Das, C.D. Singh, Abhinanya Singh, A
Sunny Choudhary, P.I. Jose, Sneha Kalita, Siba Sanker Mishra,
Ajay Kumar Jha, Pradeep Misra, Manish Kumar Saran, G.
Prakash, Sameer Parekh, (for Parekh and Co.), Gopal Prasad,
Naresh K. Sharma, P.V. Yogeswaran, S. Sukumaran, Anand
Sukumar, Bhupesh Kumar Pathak, Meera Mathur, S.M. Jadhav, B
Ashok K. Srivastava, Kuldip Singh, Jayesh Gaurav, Soumitro
G Choudhury, Abhijit Sengupta, B.P. Yadav, Anima Kujur,
Sampa Sengupta, A. Ramakrishna, lrshad Ahmad, Sunil
Fernandes, Krishanu Adhikary, Astha Sharma, K. Enatoli
Serna, Edward Belho, Amit Kumar Singh, G.N. Reddy, C. c
Kannan, Ravi Shankar, R. Sathish, Tarjit Singh, Kamal Mohan
Gupta, Sanjay Kharde, Asha G. Nair, Venkateswara Rao
Anumolu, Prabhakar Parnam, AVS Raju, T.N. Singh, Rajeev
Dubey, Kamlendra Mishra, Sunil Kr. Jain, Parmatma Singh, 8.
Sridhar, K. Ram Kumar, Atul Jha, Sandeep Jha, D.K. Sinha, D
Abhimanyu Singh, Noopur Singhal, T. Kanaka Durga, Gaichang
Pou Gangmei, D. Siri Rao, Sridhar Potaraju, G. Ramarishna
Prasad, B. Suyodhan, Bharat J. Joshi, Shibashish Misra, P.S.
Sudheer, Rishi Maheswari, Shiv Ram Sharma, D, Bharthi
Reddy, Jagjit Singh Chhabra for the appearing parties.
E
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Leave granted in the all the
above SLPs ..
F
2. The Writ Petition being CWP No. 5740 of 2001 titled
Brij Mohan Lal v. Union of India and Ors. was filed in the High
Court of Punjab and Haryana at Chandigarh under Article 226/
227 of the Constitution of India praying for issuance of a writ in
the nature of quo warranto and prohibition, requiring the
respondents to stop the scheme and policy of appointment of G
the retired District and Sessions Judges as ad hoc Judges of
the Fast Track Courts (hereinafter referred to as the 'FTCs') in
the State Judicial Services. It was also prayed in that petition
that in order to maintain the standards of judicial system, the
H
344 SUPREME COURT REPORTS (2012] 5 S.C.R.
A scheme of appointing the retired Judges, as opposed to the
regular appointment of Judges to the posts of District and
Sessions Judges from the members of the Bar or from the
lower judiciary, should be given up. The principal submission
made in the writ petition was that the constitutional scheme
B contained under Articles 233 to 235 read with Articles 308 and
309 of the Constitution do not contemplate and permit
appointment of retired judges as ad hoc District and Sessions
Judges. Even otherwise, there is no constitutional provision
which empowers the authorities concerned to make such
c appointments. The purpose of this petition obviously was to
ensure that only the members of the Bar are appointed by direct
recruitment to the post of ad hoc District and Sessions Judges.
3. A writ. petition being Writ Petition No.8903 of 2001 titled
Bar Council of Andhra Pradesh v. Union of India also came
D to be filed before the High Court of Andhra Pradesh at
Hyderabad praying that the Court may issue appropriate order,
writ or direction declaring that constitution of the FTCs and 32
presiding officers in the State of Andhrr Pradesh and the
G.O.M. Nos. 38 Law (LA & J. Courts.C) \Department, dated
E 27th March, 2001 and G.O. Rt. No. 412, Law (LA & J. SC.F)
Department dated 27th March, 2001 was unconstitutional and
consequently should be set aside.
4. The Union of India filed two transfer petitions before this
F Court being Transfer Petition Nos.331-332 of 2001 for transfer
of both the Brij Mohan Lal case and the Bar Council of Andhra
Pradesh case (supra) from the High Courts of Punjab and
Haryana and Andhra Pradesh respectively, to the Supreme
Court. These petitions came to be allowed vide order dated
G 3rd August, 2001. By the same order, a Bench of this Court
even permitted the intervention by other parties who might have
filed similar petitions in different High Courts of the country.
5. Both these writ petitions upon transfer to this Court were
numbered as Transferred Cases Nos. 22 and 23 of 2001,
H respectively.
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 345
[SWATANTER KUMAR, J.]
6. On 6th May, 2002, a deta~ed order was passed by this A
Court in Transferred Case No.22 of 2001 and the directions
issued therein read as under :
"1. The first preference for appointment of judges of the
Fast Track Courts is to be given by ad-hoc promotions 8
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.
2. The second preference in appointments to Fast Track C
Courts shall be given to retired judges who have good
service records with no adverse comments in their ACRs,
so far as judicial acumen, reputation regarding honesty,
integrity and character are concerned. Those who were not
given the benefit of two years extension of the age of D
superannuation, shall not be considered for appointment.
It should be ensured that they satisfy the conditions laid
down in Article 233(2) and 309 of the Constitution. The
concerned High Court shall take a decision with regard to
the minimum-maximum age of eligibility to ensure that they E
are physically fit for the work in Fast Track Courts.
3. No Judicial Officer who was dismissed or removed or
compulsorily retired or made to seek retirement shall be
considered for appointment under the Scheme. Judicial F
Officers who have sought voluntary retirement after
initiation of Departmental proceedings/inquiry shall not be
considered for appointment.
4. The third preference shall be given to members of the
Bar for direct appointment in these Courts. They should be G
preferably in the age group of 35-45 years, so that they
could aspire to continue against the regular posts if the
Fast Track Courts cease to function. The question of their
continuance in service shall be reviewed peri9dically by the
High Court based on their performance. they may be H
346 SUPREME COURT REPORTS [2012] 5 S.C.R.
A absorbed in regular vacancies, if subsequent recruitment
takes place and their performance in the Fast Track Courts
is found satisfactory. For the initial selection, the High Court
shall adopt such methods of selection as are normally
followed for selection of members of the Bar as direct
B recruits to the Superior/Higher Judicial Services.
5. Overall preference for appointment in Fast Track Courts
shall be given to eligible officers who are on the verge of
retirement subject to they being physically fit.
C 6. The recommendation for selection shall be made by a
Committee of at least three Judges of the High Court,
constituted by the Chief Justice of the concerned High
Court in this regard. The final decision in the matter shall
be taken by the Full Court of the High Court.
D
7. After ad-hoc promotion of judicial officers to the Fast
Track Courts, the consequential vacancies shall be filled
up immediately by organizing a special recruitment drive.
Steps should be taken in advance to initiate process for
selection to fill up these vacancies much before the judicial
E
officers are promoted to the Fast Track Courts, so that
vacancies may not be generated at the lower levels of the
subordinate judiciary. The High Court and the State
Government concerned shall take prompt steps to fill up
the consequential as well as existing vacancies in the
F subordinate Courts on priority basis. Concerned State
Government shall take necessary directions within a month
from the receipt of the recommendations made by the High
Court.
G 8. Priority shall be given by the Fast Track Courts for
disposal of those Sessions cases which are pending for
the longest period of time, and/or those involving under-
trials. Similar shall be the approach for Civil cases i.e. old
cases shall be given priority.
H
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 347
[SWATANTER KUMAR, J.]
9. While the staff of a regular Court of Additional District A
and Sessions Judge includes a Sessions Clerk and an
office Peon, work in Fast Track Courts is reported to be
adversely affected due to shortage of staff as compared
to regular Courts performing same or similar functions.
When single Orderly or Clerk proceeds on leave, work in B
Fast Track Courts gets held up. The staff earmarked for
each such Court are a Peshkar/ Superintendent, a
Stenographer and an Orderly. If the staff is inadequate, the
High Court and the State Government shall taKe
appropriate decision to appoint additional staff who can be c
accommodated within the savings out of the existing
allocations by the Central Government.
10. Provisions for the appointment of Public Prosecutor
and Process Server have not been made under the Fast
Track Courts Scheme. A Public Prosecutor is necessary D
for effective functioning of the Fast Track Courts. Therefore,
a Public Prosecutor may be earmarked for each such Court
and the expenses for the same shall be borne out of the
allocation under the head 'Fast Track Courts'. Process
service shall be done through the existing mechanism. E
11. A State Level Empowered Committee headed by the
Chief Secretary of the State shall monitor the setting up of
earmarked number of Fast Track Courts and smooth
functioning of such Courts in each State, as per the F
guidelines already issued by the Government of India.
12. The State Governments shall utilize the funds allocated
under the Fast Track Courts Scheme promptly and will not
withhold any such funds or divert them to other uses. They
shall send the utilization certificates from time to time to the G
Central Government, who shall ensure immediate release
of funds to the State Governments on receipt of required
utilization certificates.
13. At least one Administrative Judge shall be nominated H
348 SUPREME COURT REPORTS [2012) 5 S.C.R.
A in each High Court to monitor the disposal of cases by
Fast Track Courts and to resolve the difficulties and
shortcomings, if any, with the administrative support and
cooperation of the concerned State Government. State
Government shall ensure requisite cooperation to the
8 Administrative Judge.
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
C 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.
D
15. The retired Judicial Officers who are appointed under
the Scheme shall be entitled to pay and allowances
equivalent to the pay and allowance they were drawing at
the time of their retirement, minus total amount of pension
drawn/payable as per rules.
E
16. Persons appointed under the Scheme shall be
governed, for the purpose of leave, reimbursement of
medical expenses, TA/DA and conduct rules and such
other service benefits, by the rules and regulations which
F are applicable to the members of the Judicial Services of
the State of equivalent status.
17. The concerned High Court shall periodically review the
functioning of the Fast Track Courts and in case of any
G deficiencies and/or shortcoming, take immediate remedial
measures, taking into account views of the Administrative
Judge nominated.
18. The High Court and the State Government shall ensure
that there exists no vacancy so far as the Fast Track Courts
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 349
[SWATANTER KUMAR, J.]
are concerned, and necessary steps in that regard shall be A
taken within three months from today. In other words, steps
should be taken to set up all the Fast Track Courts within
the stipulated time."
7. As is evident from the above directions, the B
appointments to FTCs were to be made on ad hoc basis.
Primarily, there were three sources of recruitment, firstly by
promotion from amongst the eligible judicial officers, secondly
by appointment of retired judges with good service records and
lastly by direct recruitment from amongst the members of the C
Bar between the age group of 35 to 45 years. In the last
category, the selection was to be made in the manner similar
to that of direct recruitment to the Higher Judicial Services. It
was also considered desirable that the eligible officers on the
verge of retirement, be appointed with overall preference, subject
to their physical fitness and as recommended by a Committee D
of at least three judges, constituted by the Chief Justice of the
concerned High Court and as approved by the Full Court of that
High Court. This Court had foreseen the possibility of the closure
of the Fast Track Courts Scheme (FTC Scheme). It directed that
the service in the FTCs will be deemed as service of promoted E
Judicial Officers rendered in the parent cadre. However, no right
would accrue to such recruits promoted/posted on ad hoc basis
from the lower judiciary for regular promotion on the basis of
such appointment. For direct recruits, continuation in service will
be dependant on review by the High Court and there could be F
possibility of absorption in the regular vacancy if their
performance was found to be satisfactory. Besides these two
/
aspects, the directions also dealt with the management of FTCs,
timely and appropriate utilization of funds and monitoring of
smooth functioning of the FTCs by the State Level Empowered G
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 H
350 SUPREME COURT REPORTS [2012] 5 S.C.R.
A while disposing of both these transferred cases. However, this
Court still directed regular filing of quarterly status reports before
this Court and held that the matter would remain alive to that
extent.
8. The quarterly status reports have been filed from time
8
to time about the functioning of the FTCs in the entire country.
In the meanwhile, some writ petitions came to be filed directly
before this Court under Article 32 of the Constitution and some
special leave petitions were also filed against various
judgments of different High Courts. Thus, it will be useful for us
C to at least take a note of all the cases which are pending before
this Court.
9. As opposed to the prayer made in the cases of Brij
Mohan Lal (supra) and Bar Council of Andhra Pradesh
D (supra), two separate writ petitions were filed in this Court being
Writ Petition (Civil) No. 152 of 2011, All India Judges'
Association Through V.N. Shah, Working President v. Union
of India & Ors. and Writ Petition (Civil) No. 140 of 2005, All
Media Journalists Association v. Union of India with the prayer
E that the Court should issue appropriate writ or direction to the
respondents to extend the FTC Scheme for another five years
or even till 31.03.2015 and to release the necessary funds for
that purpose.
10. It was also prayed in the latter petition that five years'
F time to utilize the funds should be considered from the date of
actual starting of the first FTC and also that a Committee should
be appointed to make suggestions with respect to further
strengthening the FTC Scheme to get better results.
G 11. In both these writ petitions, the prayer was similar that
the FTC Scheme should be continued for a further period of
five years, from 2005 in one and from 2011 in the other.
12. It is the case of the petitioners in these writ petitions
·that the FTC Scheme has proven a success in Tamil Nadu and
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 351
[SWATANTER KUMAR, J.]
even in other States and, therefore, the extension of the FTC A
Scheme is necessary. Another issue that has been raised in
these petitions is that the persons who were appointed as direct
recruits from the Bar were, at the relevant time, in the age group
of 35-45 years and while serving in the FTCs have become
overage for re-employment in permanent posts. Also, as per B
the Bar Council of India Rules (Rule 7), they would now be
ineligible to practice in any Court lower than the High Court.
Therefore, this would seriously jeopardize the interests of the
persons appointed as ad hoc judges of the FTCs and it would
be an additional and appropriate reason for further continuing c
the FTC Scheme.
13. On somewhat similar lines is another writ petition filed
in this Court, being Writ Petition (Civil) No. 28 of 2011 titled
Roshan Lal Ahuja v. Union of India & Ors., wherein the
petitioner has raised a challenge to a part of the letter dated D
11th March, 2010. Vide this letter, though the extension of the
petitioner as FTC Judge was recommended by the Chief
Justice of the High Court of Punjab and Haryana, yet it was said
that if the recommendation to continue the FTC Scheme is
accepted, the services of the officer would be liable to be E
terminated only on 7th March, 2011 and if the scheme was
discontinued, he would be terminated on 31st March, 2010 .
itself.
· 14. In that very Writ Petition, challenge was also raised to F
the decision of the Union of India to discontinue the FTC
Scheme beyond 31st March, 2011. This decision was said to
be arbitrary, discriminatory and violative of the fundamental
rights under Article 21 of the Constitution.
15. The appointment of the judicial officers in that case G
had been made under Rules 8 and 9 of the Punjab Superior
Judicial Service Rules, 1963 and selections were made under
Rule 5 of the Haryana Additional District and Sessions Judges
Ad hoc Services Rules, 2001. The petitioners, therefore,
H
352 SUPREME COURT REPORTS [2012] 5 S.C.R.
A claimed a right to the post and prayed that the FTC Scheme
be continued.
16. There are a bunch of Special Leave Petitions which
are directed against the judgments of the Gujarat High Court.
B All the petitioners before the High Court were direct recruits
from the Bar and were appointed to the posts of ad hoc
Additional District Judges under the FTC Scheme on different
dates, all between 2002 to 2004. The term of some of them
had initially been extended but later their services were
C terminated. For example, vide order dated 25th September,
2009 their services were extended but vide order dated 14th
December, 2009, services of the same officers stood
terminated. For either of these orders, one hardly finds any
reason recorded on the file.
D 17. As per the facts noticed by the High Court in the
impugned judgment, services of 53 FTC Judges came to be
terminated. By orders dated 12th October, 2006 services of six
Judicial Officers were terminated on the ground of 'having not
been found suitable', by orders dated 8th February, 2007,
E services of seven other officers were terminated on the same
ground, by orders dated 28th April, 2008, the services of 2 FTC
Judges were discontinued again on the same ground. Still vide
order dated 25th September, 2009, the services of 12 directly
recruited FTC ad hoc Additional District Judges were
F terminated by the State with effect from 30th September, 2009,
on the recommendation of the High Court. Vide order dated
8th October, 2009, services of another 11 Judicial Officers
working under the FTC Scheme were terminated by the State
on the recommendation of the High Court, w.e.f 15th October,
G 2009 and, lastly, vide order dated 14th December, 2009,
services of 13 officers were terminated on the recommendation
of the High Court on the ground of 'having not been found
suitable'. By these orders, services of only the direct recruits
were terminated. Out of the 66 persons appointed as direct
H recruits, some persons had either left or died and only these
53 remained in service. The High Court, vide its judgment
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 353
[SWATANTER KUMAR, J.]
dated 11th August, 2010 dismissed the writ petition as far as A
18 officers were concerned, returning a finding that in the face
of the service record of these officers, the recommendation of
the High Court and the consequent order issued by the State
Government cannot be faulted with. With regard to the six
Judicial Officers whose services were terminated vide order B
dated 12th October, 2006, the High Court came to the
conclusion that they had no right to the post and those
petitioners could not derive any benefit from the provisions of
Article 311 (2) of the Constitution of India and declined to
interfere with the order of termination. Thus, only with rnspect c
to 12 officers did the High Court remand the matter to the
administrative side of the High Court for reconsideration with
reference to the service records of these officers. The High
Court also noticed that certain complaints which had been
received against these officers had been dropped, after
0
conducting fact finding enquiry or because the allegations were
found to be vague. For these reasons, the High Court concluded
that the decision on the administrative side of the High Court
was not based on record and was prima facie illogical and,
therefore, referred the matter back to the High Court. Rest of
the writ petitions also came to be dismissed by the High Court. E
18. In furtherance to the judgment of the High Court, the
Full Court of the Gujarat High Court reconsidered the matter
on the administrative side. It found that only the cases of six
petitioners deserved favourable reconsideration, while the F
remaining six were without merit and its earlier decision, in
recommending termination of their services needed to be
reiterated. The six officers who were dismissed being
dissatisfied with the order of the High Court as communicated
to them by the Principal District Judge vide order dated 5th G
March, 2011, again approached the Gujarat High Court on its
judicial side, praying for quashing the said order and
continuation of their services under the FTC Scheme. When
these writ petitions came up before the High Court for hearing,
the argument was that there was no adverse remarks against H
354 SUPREME COURT REPORTS [2012] 5 S.C.R.
A these officers and, therefore, they were entitled to continue in
employment on the basis of the decision of this Court in the
case of Smt. Madhumita Das & Ors. v. State of Orissa & Ors.
[2008 AIR SCW 4274], wherein this Court had held that yardstick
for assessing the performance of direct recruit FTC Judges on
8 the one hand and the members of the regular judicial services
on the other, could not be different as they discharge similar
functions.
19. The High Court, while declining the relief prayed for,
concluded as under :
c
"10. Having heard the learned counsel for the parties, as
we find that the central Government Scheme for Fast
Track Court has come to an end from 1.4.2011 and the
petitioners cannot be accommodated against the regular
D post in the regular cadre of the District Judges, including
the 100 Courts of Additional District Judges created for
one year in the regular cadre, whie,h are to be filled up on
the basis of a separate rules, we are of the view that no
relief can be granted in favour of the petitioners, the
E scheme of Fast Track Court having abolished.
11. So far as their appointment in the regular service post
of the Additional District Judge including 100 posts of
Additional District Judge is concerned, we may only
mention that as per the earlier judgment rendered in the
F case of the petitioners dated 11.8.2010 in SCA No.148
of 2010 and analogous cases, it having observed that the
petitioners cannot be absorbed in the regular service of
the State and in absence of any provision made in the
Gujarat Judicial Services Rules for appointment by way of
G absorption from amongst the Fast Track Court Judge, as
they cannot be absorbed, we hold that the petitioners
cannot even claim straightway absorption in the regular
service of Gujarat Judicial Services including the
temporary posts of Additional District Judges created by
H resolution dated 30.3.2011. However, as per the decision
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 355
[SWATANTER KUMAR, J.]
of the Supreme Court in the case of Brij Mohan/al (Supra) A
(AIR 2002 SC 2096), the petitioners may apply for
appointment by selection, if normal rule is followed for
selection of members from Bar as direct recruits to the
Superior/Higher Judicial services, subject to their
eligibility." B
20. Thus, the petitioners whose writ petitions were originally
dismissed by the Gujarat High Court vide its judgment dated
11th August, 2010 and those whose petitions were
subsequently dismissed vide judgment dated 21st June, 2011, C
have challenged the same before this Court in the above-
mentioned Special Leave Petitions.
21. Now, we may notice another group of cases where the
prayer made is diametrically opposite to that made in the case
of Brij Mohan Lal (supra). The petitioners in Writ Petition (C) D
No.261 of 2008 titled Sovan Kumar Dash & Ors. v. State of
Orissa & Anr. have approached this Court directly under Article
32 of the Constitution with a prayer that they should be
absorbed against vacant posts in the regular cadre as per the
directions contained in Brij Mohan Lal Case (supra). They E
further made a prayer that the notification dated 11th April,
2008 issued by the State of Orissa calling for applications from
eligible candidates for direct recruitment from the Bar to the
cadre of the District Judge be quashed. These petitioners have
taken the plea that they have already crossed the eligibility F
condition of age. Similarly, another set of petitioners have also
filed Writ Petition (C) No.250 of 2008 titled Madhumita Das &
Ors v. State of Orissa & Ors. The petitioners therein were
working as FTC Judges. While invoking the writ jurisdiction of
this Court under Article 32 of the Constitution, they prayed that G
they be absorbed against the regular vacancies of the State
cadre of District Judges. They further prayed that the
abovementioned advertisement dated 11th April, 2008, inviting
applications for all the posts of District Judges including the
posts against which the petitioners were working, be quashed.
It is the contention of the petitioners in this petition that they H
356 SUPREME COURT REPORTS [2012] 5 S.C.R.
A have already attained an age more than the higher age limit
prescribed while working as ad hoc Judges of the FTCs. Also,
while judging the performance of the FTC Judges, the condition
of completion of eight sessions trials per month cannot be
imposed as it has not so been imposed against the judges who
B are forming the regular cadre of the State services.
22. In this petition, no final order has been passed by this
Court. However, at the interim stage, when the Writ Petition
came up for hearing on 11th June, 2008, this Court passed the
C following order :
"Issue notice.
Challenge in these writ petitions is to the Advertisement
No.1 of 2008 issued by the Orissa High Court. The
D petitioners have been selected to function as ad hoc
Additional District Judges in terms of the judgment of this
Court in Brij Mohan Lal vs. Union of India and Ors. [(2002)
5 SCC 1]. It is their grievance that 16 posts advertised also
include the 9 posts presently held by the petitioners in the
two writ petitions. It is pointed out that the eligibility criterion
E
fixed in the advertisement rules out the present petitioners.
Firstly, some of them are above the maximum age of 45
years and secondly, being Judicial Officers, they cannot
apply for posts advertised for members of the Bar. It is also
pointed out that in terms of what has been stated by this
F Court in Brij Mohan's case (supra), at paragraph 10,
direction No.4, they are to be continued (in the ad hoc
posts) belonging to Fast Track Courts, and, thereafter, in
respect of regular posts available, after the Fast Track
Courts cease to function. Their cases are to be
G considered subject to their performance being found
satisfactory. Their stand is that they have been continued
from time to time. Obviously, their performance was found
to be satisfactory. Presently, we are not concerned with
that question which may have relevance only at the time
H of considering their absorption in respect of the regular
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 357
[SWATANTER KUMAR, J.]
vacancies. It is submitted by Mr. Uday U. Lalit, learned A
senior counsel that while assessing the performance, there
cannot be different yardsticks, i.e. same parameters have
to be adopted while judging the performance of the
petitioners viz-a-viz those which are recruited from another
source, i.e. from amongst the Judicial Officers. We find B
substance in this plea also. Therefore, we direct that the
process of selection pursuant to the Advertisement No.1
of 2008 may continue but that shall only be in respect of 7
posts, and not in respect of 9 posts presently held by the
petitioners. It is pointed out that the High Court, after the c
advertisement has been issued has issued certain letters
regarding the non-disposal of adequate number of cases.
The petitioners have given reasons as to why there could
not be adequate disposal of the cases. Needless to say,
the High Court shall consider the stand taken in the
0
responses while judging their suitability for appointment on
regular basis. The petitioners shall continue to hold the
posts until further orders, for which necessary orders shall
be passed by the High Court. It is made clear that as and
when regular vacancies arise, cases of the petitioners
shall be duly considered. There shall not be any need for E
them to appear in any examination meant for recruitment
to the cadre of District Judge."
23. As is evident from the above order, the cases of the
petitioners were directed to be considered as and when the F
regular vacancies arose and they did not need to appear in any
examination meant for recruitment to that post. This order of
the Court has been relied upon by all the petitioners in different
matters before this Court who are or were working as FTC
Judges and are praying for their regularization in the service. G
This was an interim order subject to the final order that the Court
would pass while disposing of the writ petition finally.
24. Writ Petition (C) No. 254 of 2008 titled Prakash
Kumar Rath v. State of Orissa is again a petition invoking the
writ jurisdiction of this Court under Article 32 of the Constitution, H
358 SUPREME COURT REPORTS [2012] 5 S.C.R.
A wherein the petitioner's case is that he had been selected as
per the Judicial Services Rules of the State but had later been
appointed as ad hoc Additional District and Sessions Judge
to the FTC. Having been selected in the regular cadre and as
per the regular process, his services could not be dispensed
s with and the communication dated 4th April, 2008 and the
advertisement dated 11th April, 2008 seeking to fill up
vacancies in the regular cadre, are liable to be quashed and
the petitioner is entitled to be absorbed regularly in the State
service cadre.
c 25. Writ Petition (C) No. 203 of 2010 titled MK. Sharma
& Ors. v. Rajasthan High Court & Anr. involves the cases
where the members of the regular service cadre, i.e .. Civil
Judge, Senior Division, had been promoted as ad hoc FTC
Judges and had worked for more than five years in that post.
D The State of Rajasthan issued a Notification dated 15th April,
2010 inviting applications for promotion to 22 posts in the cadre
of District Judges, by limited competitive examination, in
accordance with the provisions of the Rajasthan Judicial
Services Rules, 2010. The respondents, vide this notification,
E required the petitioners also to appear in the limited
competitive examination for promotion to the cadre. According
to the petitioners, they had already been promoted in
accordance with the 2010 Rules as Additional District Judges
and, therefore, they are not liable to take the limited competitive
F examination. It is the case of the petitioners that they be treated
as regular members of the State Judicial Service and be given
equal treatment with other Judicial Officers as in the case of
Smt. Madhumita Das (supra).
26. Civil Appeal No. 1276 of 2005 titled Smt. G. V.N.
G Bharatha Laxmi & Ors. v. State of Andhra Pradesh & Ors. is
an application questioning the correctness of the judgment of
the High Court of Andhra Pradesh dated 13th July, 2004,
passed in Writ Petition (C) No.11273 of 2004, wherein the High
Court declined to grant the prayer of the petitioners, who were
H appointed as the Presiding Officers in the FTC under the
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 359
[SWATANTER KUMAR, J.]
Andhra Pradesh State Higher Judicial SeNice Special Rules A
for Ad hoc Appointments, 2001, that they be granted absorption
in the regular cadre of District and Sessions Judges created
in the State of Andhra Pradesh. The plea of the petitioners was
that they had been appointed under the Rules and have gained
sufficient experience as ad hoc Judges under the FTC Scheme B
and are liable to be regularized in that scale.
27. It is appropriate for us to refer to the Rules before we
venture to discuss the merits of various cases. It is undisputed
that there are Rules in place in all the States, with which we C
are concerned, for appointment to the Superior Judicial
SeNices, as for example, the Punjab Superior Judicial SeNices
Rules, 2007 in the State of Punjab. Besides these Rules, some
of the States like, Andhra Pradesh, Gujarat, Orissa and
Jharkhand had enacted separate sets of Rules for appointment
as ad hoc Judges under the FTC Scheme or otherwise. The D
State of Andhra Pradesh framed the Rules which were called
as The Andhra Pradesh State Higher Judicial SeNice Special
Rules for Adhoc Appointments, 2011 (Andhra Rules). Orissa
enacted Orissa Judicial SeNice (Special Scheme) Rules, 2001
(Orissa Rules), Jharkhand enacted Jharkhand Superior Judicial E
SeNice (Recruitment, Appointment and Conditions of SeNice)
Rules 2001 (Jharkhand Rules) and Gujarat framed Gujarat
State Judicial SeNice Rules, 2005 (Gujarat Rules) which were
applicable only to the officers in seNice.
F
28. Appointments to the post of ad hoc Judges under the
FTC Scheme have been made by different States in different
manners either with the aid of the regular Rules for appointment
to the Higher Judicial SeNices/Superior Judicial Services
without following the due and complete process under those G
Rules or under the temporary rules enacted by the respective
States for this purpose. Some of the States have not taken
recourse to any of these Rules, but have made appointments
by issuing general orders.
29. It will be useful to refer to the Rules solely enacted for H
360 SUPREME COURT REPORTS [2012] 5 S.C.R.
A this purpose and relating to temporary appointments. In the
case of Orissa, Rule 3 of the Orissa Rules provides that
notwithstanding anything contained in the Orissa Superior
Judicial Service Rules, 1963 and Orissa Judicial Service Rules,
1994, the appointment of Additional District Judges on ad hoc
B and purely temporary basis for implementation of the FTC
Scheme will be made under these Rules. Rule 4 contemplates
that the appointment made under these Rules shall be purely
on ad hoc and temporary basis and was liable to be terminated
at any time without any prior notice. This was amended by the
c Orissa Judicial Service (Special Scheme) Amendment Rules,
2003 to permit the selection of members from the Bar by way
of direct recruitment. The amendments of 2003 were
necessitated by virtue of the directions issued by this Court on
6th May, 2002 in the case of Brij Mohan Lal (supra). According
D to all these Rules, the retired District Judges, retired Additional
District Judges, in-service Chief Judicial Magistrates having
three years of service remaining and the members from the Bar
who were eligible to be considered for appointment as FTC
Judges by direct recruitment or judicial officers eligible for
promotion, as the case may be may be, appointed to the FTCs.
E All these Rules provided that the appointment shall be purely
on ad hoc and temporary basis. Rule 7 clearly stated that in-
service judicial officers shall not claim regular promotion in the
regular cadre on the basis of his/her appointment made under
the FTC Scheme. These Rules also provided for
F disqualification, pay and other allowances payable to the FTC
Judges.
30. These Rules clearly indicate that the appointment to
the post of FTC Judges under the FTC Scheme was purely ad
G hoc and temporary, without giving any right to the persons so
appointed.
31. Similarly, the Legal Department of the State of Gujarat
also issued a notification bringing into force the Rules for ad
H hoc and purely urgent temporary appointment of Judicial
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 361
[SWATANTER KUMAR, J.]
Officers and the members of staff in the State of Gujarat for A
implementing the FTC Scheme. The committee for selection
of such officers was, again, a committee of Judges constituted
by the Chief Justice of the concerned High Court. The nature
of the appointment and eligibility criteria were provided for
under·this Notification as follows: B
"4. The appointment made under these Rules shall be
purely on ad hoc and urgent temporary basis and such
appointments shall be liable to be terminated at any time
without any notice.
c
5. (i) The appointments on ad hoc basis for the posts
of District and Sessions Judges as the Presiding
Officer of the Fast Track Courts shall be made by
the Governor on recommendation of the High Court
either by promotion or transfer or by recruitment D
from amongst-
(a) Retired District & Sessions or retired
Assistant Judges/retired City Civil and
Sessions Judges or
E
(b) Judicial Officers eligible to be appointed as
Assistant Judges, or
(c) Advocates eligible to be appointed as
District and Sessions Judges, F
(ii) District and Sessions udges or City Civil and
Sessions judges or Assistant Judges, who retired
on attaining the age of superannuation or who took
voluntary retirement in normal course but have not
G
attained the age of 63 years at the time of
appointment shall be eligible to be considered for
such ad hoc appointment subject to fitness and
suitability.
6. No right is conferred on any Judicial officer in service H
362 SUPREME COURT REPORTS [2012] 5 S.C.R.
A for claiming any regular promotion on the basis of his
appointment on ad hoc basis under the Scheme and these
Rules."
32. The State of Andhra Pradesh, in exercise of the
B powers conferred under Article 233 and proviso to Article 309
of the Constitution, framed Rules which were called the Andhra
Pradesh State Higher Judicial Service Special Rules for Ad
hoc Appointments, 2001 (Andhra Rules). In terms of Rule 2,
notwithstanding anything contained in the Special Rules of
Andhra Pradesh State Higher Judicial Services, 1958, the
C appointment of District and Sessions Judges on ad hoc basis
shall be made by direct recruitment from the members of the
Bar, by transfer from amongst Senior Civil Judges in the State
Service or by re-employment of retired District Judges,
provided that 33 1/3 per cent of the total number of ad hoc posts
D shall be filled by direct recruitment. The rule of reservation of
posts was to apply to direct recruitment. The qualification
prescribed for appointment of persons from the Bar to category
II post under Rule 3 of the Special Rules for Andhra Pradesh
State Higher Judicial Services, 1958 was to apply mutatis
E mutandis to the direct recruitment from the Bar under the
Andhra Rules. Nevertheless, in terms of Rule 7(1)(b), a person
appointed under Rule 2(i) shall not be regarded as a member
of the permanent cadre covered under Rule 2 of the Special
Rules for Andhra Pradesh State Higher Judicial Service, 1958
F and shall not be entitled to any preferential right to any other
appointment to this service or any other service and their
service shall not be treated as regular or permanent under the
State Government. The Andhra Pradesh Civil Services (CC&A)
Rules, 1991 were applicable to all the services under these
G Rules.
33. In the case of State of Rajasthan, this Court is primarily
concerned with the officers who were members of the Judicial
Services of the State and who had been appointed as
H Additional District Judges in terms of Rule 22 of the Rajasthan
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 363
[SWATANTER KUMAR, J.]
Higher Judicial Services Rules, 1969 (Rajasthan Rules). These A
Rules provided for temporary or officiating appointments.
Relying upon the Rajasthan Rules, the petitioners claim
regularization without taking the written examination.
34. We may also notice the challenge to the various Rules
8
by the petitioners from different States. As is evident, the
petitioners are praying for absorption and regularization of their
services as members of the regular service cadre of that State
with reference to the Rules of the respective States. However,
there is also a challenge raised to the constitutional validity of C
Rules 4 and 6 of the Gujarat Rules, under which the candidates
were appointed as ad hoc Judges for the FTC Scheme. Rule
4 provided for the pure ad hoc and urgent temporary nature of
these posts and specified that their services were terminable
without any notice while Rule 6 put an embargo upon the
petitioners from claiming any regularization on the basis of such D
ad hoc service. The High Court had repelled the challenge to
both these provisions and, in fact, had come to a positive
conclusion that the petitioners had no right to these posts.
35. We may now summarise the contentions which have E
been raised before us in this bunch of cases by the petitioners,
States and the Union of India. Wherever the services of the
petitioners have been terminated, they have argued that such
termination is arbitrary and without any basis. The contention
by the petitioners from the State of Gujarat is that, in fact, the F
termination is stigmatic inasmuch as their services have been
dispensed with on the ground of their 'having not been found
suitable'. Such discontinuation in the service, therefore, amounts
to termination which itself is punitive in nature. It is also the
contention of these petitioners that there was nothing adverse G
in their record which could justify the taking of such decision.
Besides acting in such an arbitrary manner, the State
Government and the High Court have added insult to the injury,
as the Bar Council of India Rules debar the petitioners from
practicing in the District Courts and Courts equivalent or lower H
364 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to the FTCs where they had been practicing prior to their
appointment as ad hoc Judges under the FTC Scheme. Now,
except in the High Courts and the Supreme Court, all doors of
practicing law are closed for them. To demonstrate their plea
of arbitrariness in termination, they argued that the chart of
B confidential report shown at page 31 to 32 of SLP (C)
No.26148 of 2011 against the name of P.O. Gupta has been
marked as 'good' under the column 'knowledge of law and
procedure' but then a note has been made that she should
improve. Similarly, the remarks recorded against others also
C do not tally with what has been stated in the main chart. There
appear to be some mistakes, typographical or otherwise, in
relation to entries in the Confidential Reports and even the
grades of the persons to whom they refer.
36. In other cases, the contention is that the advocates had
D been appointed by following the due procedure prescribed
under the Rules/Notification and, therefore, keeping in view the
judgments of this Court in the cases of Brij Mohan and
Madhumita Das (supra), the petitioners are entitled to continue
in service and to be regularized in the service. In fact, their
E rights under Articles 14 and 16 of the Constitution have been
violated. It is also contended that as a one-time exercise, the
regularization can take place, as was directed by this Court in
the case of Secretary, State of Karnataka & Ors. v. Uma Devi
(3) & Ors. [(2006) 4 sec 11.
F
37. In addition to these contentions raised on the factual
matrix of the case, challenge to the constitutional validity of
Rules 4 and 6 of the Gujarat Rules was made by the appointees
whose cases, even upon reconsideration by the Full Court of
G the Gujarat High Court, were not favourably considered.
38. The State of Gujarat and other States have taken the
stand that they are not prepared to take upon themselves the
financial burden of continuation of the FTC Scheme, particularly
when the Central Government has decided not to extend the
H Scheme any further beyond 31st March, 2011. Though they
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 365
[SWATANTER KUMAR, J.]
conceded that provision of fair and expeditious trial is the A
obligation of the State, which nevertheless is subject to financial
limitations of the State. On behalf of the State of Gujarat, the
main contender, it has been argued that the petitioners have
no right to the post and in terms of the Gujarat Rules also, no
right is vested in the petitioners. Discontinuation of services of B
these petitioners had not caused any stigma upon the
petitioners as they have not been held guilty of any misconduct.
39. The stand of the Union of India is that it had initially
created the FTCs for a limited period of five years. However,
subsequently with the intervention of this Court, it was extended C
by another five years and finally, it stood extended upto March,
2011. lill that date, the Central Government has discharged all
its liabilities relating to infrastructure and finances. In fact, the
Central Government has principally taken these financial
liabilities on its shoulders while the appointments and all the D
other matters fall in the domain of the State Governments. The
13th Finance Commission has provided Rs.5,000 crores under
different heads relating to the Judiciary. This amount is
inclusive of allocations for Gram Nyayalayas and Evening
Courts. Under the 11th Finance Commission, 1734 FTCs were E
created and there has been a successful reduction in total
number of cases. Nevertheless, because of more legislations,
there has been an increase in pendency. The Finance
Commission and its functions are duly provided under Articles
264, 280 and 281 of the Constitution. The sharing of F
expenditure at the end of every five years is to be declared by
the Finance Commission.
40. The fact that this financial aid and the responsibility of
the Central Government to run the FTC Scheme would G
eventually come to an end was a fact known to all the State
Governments and the High Courts right from the inception of
the FTC Scheme and as such, the action of the Central
Government in not continuing the FTC Scheme cannot be
faulted with. The Cabinet Note was prepared on 7th July, 2010 H
366 SUPREME COURT REPORTS [2012] 5 S.C.R.
A in relation to continuation of the Scheme of Central assistance
to the States for FTCs for another one year and the same was
approved vide letter dated 9th August, 2010 and the said letter
read as under:
"I am directed to say that the matter of continuation of
B
central assistance to the State Governments for the
operation of the Fast Track Courts was under
consideration of Government. In this regard, attention is
invited to Shri S.C. Srivastava, Joint Secretary's 0.0. letter
No.15017/5/2008-JUS(M) dated 31.3.2010 to Law
c Secretaries of all the State Governments.
2. Government has now decided to continue providing
central assistance for funding the Fast Track Courts all
over the country for one more year beyond 31.3.2010 i.e.
D up to 31.3.2011 at the rate of Rs.4.80 lakh per court for
meeting the recurring expenditure on these courts. Any
expenditure in excess of this amount will have to be borne
by the State Government out of their own resources.
3. It has also been decided that there will be no central
E
funding for Fast Track Courts beyond 31.3.2011.
4. The central assistance for Fast Track Courts for
2010-11 will be made available to a maximum of 1562
Fast Track Courts that were reported operational on
F 31.3.2005 when the scheme of central assistance was
continued beyond 31.3.2005 for a further period of five
years. Accordingly, the maximum number of Fast Track
Courts for which central assistance will be provided to
Arunachal Pradesh Will be 3."
G
41. Having taken this decision, the Union of India does not
wish to continue the FTC Scheme beyond the specified period.
The two important aspects which emerge from the submissions
of the parties, with particular reference to the Union of India,
are, firstly, that the Ministry of Law and Justice, Union of India
H declared a Vision Statement on 24th October, 2009. In that
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 367
[SWATANTER KUMAR, J.]
statement, it was declared publicly that the Ministry of Law and A
Justice shall ensure that 15,000 judge positions are established
within two years to dispose of the cases expeditiously and to
provide speedy trial. Secondly, one aspect which has been
heavily relied upon by the petitioners is that even in the Chief
Justices and Chief Ministers Conference held on August 16, B
2009 at New Delhi, the work of expeditious disposal of cases
by the FTCs under the FTC Scheme was highly appreciated
and it was assured that the said Scheme shall continue till 2015
and neither any of the States nor the Centre raised the plea of
financial limitations at that time. Once this was the definite view c
of such a high level meeting, it was expected of the Central
Government as well as the State Governments, to follow the said
directive. But, on the contrary, they have taken a decision to
discontinue the Scheme with effect from 31th March, 2011.
Some of the States have urged before this Court that they can 0
continue with the FTC Scheme only if the Central Government
continues to provide 100 per cent funding for the same. In
response, the Union of India has also stated that it has no
objection, if, within their own means, each State Government
carries on with the FTCs already established in the respective E
States. Consequently, there is a state of impasse, which has
emerged from these opposing stands taken by the State
Governments, on the one hand and the Central Government,
on the other.
42. However, the State and the Centre, both, have taken F
the stand that it is not permissible for this Court to issue a
mandamus directing either the State Governments or the
Central Government to either continue the FTC Scheme or to
provide the funds for the FTC Scheme. Articles 112, 264, 280
and 281 of the Constitution detail the budgeting provisions and G
presentation of annual financial statements before the
Parliament. Thus, it will not be appropriate for this Court to step
into the functions of the Executive, as specific powers under
the Constitution are vested with the latter in relation to finances
of the States. H
368 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 43. Learned Amicus Curiae, Mr. P.S. Narsimha, Senior
Advocate contended with some vehemence that there are
various decisions of this Court to support the proposition that
the writ of mandamus could be issued by this Court in such
circumstances. However, the formulation of such directions
B would be a point of fine construction by the Court. A large
number of cases are pending, so this Court would have to take
judicial notice of such heavy pendency and it will be well within
its jurisdiction to pass orders and directions with respect to
reduction of pendency. What should be the strength of judges
c in the country is again a matter where the Courts may not
directly comment as there may be many policy considerations
that would influence the Government's decision. The Court can
express a hope that the Government of India will periodically
review the strength of Judges in each State and appoint as
many Judges as required for the purpose of disposing of the
0
arrears of pending cases. However, the Court, while exercising
restraint, with minimum encroachment on the Executive field and
within the contours of the reasonable extent of jurisdiction even
in the given circumstances, may issue mandamus directing the
States to incur expenditure in order to maintain the
E independence of judiciary and to ensure fair trial. It is also
contended by the learned amicus that even under the American
justice delivery system, the Courts have gone to the extent of
passing such directions, for example, in the case of
Commonwealth ex rel. Carroll v. Tate et al. (442 Pa.45; 274
F A.2d 193) where Judge Montgomery issued a mandamus
order against the defendants therein to appropriate and pay an
amount of US $2,458,000 and made final his injunctive order
dated 27th July, 1970 against adjustment. The Court.took the
above view in exercise of its inherent powers, it being a basic
G precept of the Constitutional form of Republic Government that
the Judiciary is an independent and co-equal branch of
Government along with the Executive and Legislative Branches.
On the strength of this American case and various judgments
of this Court in the cases of All India Judges' Association v.
H Union of India & Ors. [(1992) 1 SCC 119]; All India Judges'
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 369
[SWATANTER KUMAR, J.]
Association v. Union of India & Ors. [(1993) 4 SCC 288); A
Record Association v. Union of India & Ors. [(1993) 4 SCC
441 ); and All India Judges' Association v. Union of India &
Ors. [(2002) 4 SCC 247), the contention is that this Court should
direct continuation of the FTC Scheme as the expenses have
already been incurred and 1562 Courts are functional. B
44. The First National Judicial Pay Commission, in the
year 1999, noticed the statistics of pending cases in the country.
It mentioned that nearly 1.30 crore cases are disposed of while
1.45 crore fresh cases are filed every year. Thus, the backlog
of cases increases every year. To put it simply, the existing C
backlog was stated to be two crores, increased by nearly 12
to 15 lakh cases per year. This Commission took note of the
fact that there were nearly 340 Central legislations which
created offences and matters allied thereto, triable by the Court
of Magistrate. These legislations were also increasing with the D
passage of time. It was felt desirable that, at the minimum,
double the present number of judicial officers were required to
handle the problem of pendency of cases in the country.
45. The 120th Report of the Law Commission, 1987 E
brought out another very significant drawback in the justice
administration system of the country. In terms of this report, the
proportion of judicial officers in India was 10.5 officers per
million population, in the year 1987. This percentage, in
comparison to other developed countries in the world, was F
probably the lowest. Australia had 41.6 judicial officers per
million population, Canada 75.2, England 50.9 and the United
States of America 107 per million population.
46. The National Crime Record Bureau, Ministry of Home
Affairs, also published a Report on Crime in India. According G
to this report, approximately 49 lakh criminal cases under the
IPC and 36 lakh criminal cases under the special or local laws
were pending at the end of the year 2000. Realizing the gravity
of the problem, the then Minister of Law and Justice,
Government of India had evolved the FTC Scheme, primarily H
370 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to deal with the pendency of sessions cases. This was termed
as a "long-term road map" for judicial reforms that was being
chattered out by the Government. The FTC Scheme originally
contemplated establishment of five Courts per district in
approximately 600 districts, thus making a total of 3000 Courts
B in the country. Instead of employing new Judges, services of
retired Judges were to be utilised. The supporting staff was to
be appointed on re-employment basis and it was estimated
that Rs. 2.16 lakhs annual expenditure was likely to be incurred
while taking only 50 per cent of the normal salary for the serving
c employees. The recurring cost per Court per year was Rs.3.32
lakhs and non-recurring cost was Rs.4.6 lakh per court per year.
However, this proposed FTC Scheme was curtailed to some
extent, by the 11th Finance Commission which only
recommended 1, 734 Courts at the rate of Rs.29 lakh
expenditure per court. Out of this, non-recurring expenditure per
0
Court was estimated at Rs.5,00,000/- and recurring
expenditure at Rs.4.8 lakhs. The total expenditure estimated for
the period of five years was Rs.509 crores. The purpose
primarily was to reduce the pendency of criminal cases pending
in the respective courts. The anticipated benefits of the FTC
E Scheme, as projected, were - speedy trial, elimination of
pendency in the district courts, enormous saving of expenses
incurred on under-trials, etc. There was a further possibility of
saving of funds on account of public prosecutors, manpower
for running jails and even on behalf of the under-trials with
F regard to fees that they spend on advocates. In the case of All
India Judges Association v. Union of India (1993) 4 SCC 288,
this Court took note of the fact that the Judiciary had been
included as a plan subject by the Planning Commission. The
Court directed that the infrastructure, including the Courts and
G residential complexes for the Judges should be built in
consultation with the respective High Courts and the High
Courts should take due interest in such construction. In
compliance with the said judgment, the Eighth, Ninth and Tenth
Plan earmarked Rs.110 crores, Rs.385 crores and Rs. 700
H crores, respectively, for infrastructure for the Judiciary. It may
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 371
[SWATANTER KUMAR, J.]
be usefully noticed here that on the one hand, the Central A
Government has taken the decision to discontinue the FTC
Scheme for reasons best known to it and, on the other hand, it
has sanctioned funds of Rs.2500 crores as per the 13th Finance
Commission Report for commencement and running of
Morning/Evening/Special/Judicial/Metropolitan/Shift Courts for B
the period 2010-11 to 2014-15, amongst other heads of
expenditure. But no funds appear to have been allocated for
judicial infrastructure.
47. The 11th Finance Commission under Article 275 of the
Constitution allocated Rs.502.90 crores in the year 2000 for the C
FTC Scheme. It was stipulated that there shall be a time-bound
utilization of these funds within the five years of the FTC
Scheme, the term of which was to end on 31st March, 2005.
48. The FTC Scheme was challenged by different persons o
before various High Courts. The Union of India took a clear
stand that appointment of retired judges was not a mandatory
requirement and additionally, the FTC Scheme also
contemplated ad hoc appointment of Judicial Officers, as well
as direct recruitment from the Bar. Though the FTC Scheme E
was contemplated to be for a definite period of five years, it
came to be extended and remained into force under the
judgment of this Court in the case of Brij Mohan Lal (supra)
and even under certain other directions passed in the case of
Madhumita Das (supra). It is the conceded position before us
F
that the Central Government had decided not to finance the FTC
Scheme beyond 31st March, 2011. Out of the funds of
Rs.502.90 crores, which were allocated by the 11th Finance
Commission, a balance of Rs. 83.87 crores was lying with the
Central Government, as only Rs. 420.03 crores had been
disbursed as on 31st March, 2005. It was ordered by this Court G
that this amount will not lapse and will be disbursed for the
implementation of the FTC Scheme. But from the record before
us, it appears that neither the amount has been disbursed nor
spent under the FTC Scheme. On the recommendation made
by the Chief Justices and the Chief Ministers Conference, the H
372 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Cabinet Committee on Economic Affairs vide its decision
dated 7th April, 2005 extended the FTC Scheme for a period
of another five years with 100 per cent Central funding. Again,
the FTC Scheme was extended by the decision of the Central
Government till 31st March, 2011 but thereafter the Union of
8 India had taken a conscious decision not to extend the financing
of FTC Scheme beyond 31st March, 2011.
49. Despite discontinuation of the FTC Scheme by the
Union of India, a number of States have decided to continue
with the FTC Scheme, at least for the present. This decision
C of the concerned States needs to be noticed with appreciation.
In the State of Orissa, the State Government has taken a
decision to keep the FTC Scheme in force till 31st March, 2013,
however, the State has not taken any decision as to what would
happen thereafter. The State of Gujarat on the other hand, has
D decided not to continue with the Scheme beyond 31st March,
2011 and the Judicial Officers appointed directly from the Bar
on a temporary basis have been relieved. As already noticed,
a number of writ petitions have been filed challenging the
above-mentioned actions of the State.
E
50. The State of Andhra Pradesh, on the recommendation
of the High Court, has also taken a conscious decision to
continue the FTC Scheme till 31st March, 2012. State of
Haryana has taken a tentative view to continue the FTC
F Scheme till March 2016, subject to a final decision to be taken
by the competent authority in the State hierarchy. The State of
Rajasthan has decided to continue the FTC Scheme till 29th
February, 2013.
Whether any of the appointees to the post of ad hoc
G judges under the FTC Scheme have a right to the post
in context of the facts of the present case?
51. The first and foremost question that requires the
consideration of this Court at this very stage is whether the
H appointees have a right to the post. In order to answer this
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 373
[SWATANTER KUMAR, J.]
question, we must first refer to the letters of appointment which A
were issued to the appointees, particularly the appointees in
the States of Gujarat, Rajasthan, Orissa, Andhra Pradesh and,
on somewhat similar lines, even in other States.
52. In the State of Gujarat, the Notification dated 12th 8
November, 2003 and other notifications vide which advocates
were appointed directly as ad hoc Judges, FTCs under the FTC
Scheme, are similarly worded. The relevant part of the
Notification dated 12th November, 2003 reads as under:-
"No. Fast Track Court/102002/270/ 270/D :- Following C
practicing Advocates who are selected for the appointment
of Ad-hoc basis under rule 5(1) (C) of "The ad-hoc and
purely urgent temporary appointment of Judicial Officers
and members of the Staff in the State of Gujarat for
implementing the Special Scheme of Fast Track Courts D
(Sponsored by Central (Govt.) for elimination of arrears
Rule, 201 are appointment for a period of two years from
the day they over charge of the said posts as on Ad-hoc
and purely temporary basis as Joint District Judges to
preside over the Fast Track Courts." E
53. A bare reading of the above Notification clearly shows
that they were appointed under the FTC Rules, on ad hoc basis
and on purely urgent temporary appointment, for a period of two
years from the date they took over the charge of the said posts. F
The entire emphasis of the Notification was on the
appointments being temporary, ad hoc and terminable at any
time. These appointments were made under the "Ad hoc and
purely urgent temporary appointment of Judicial Officers and
the members of staff in the State of Gujarat for implementing G
the Special Scheme of Fast Track Courts (sponsored by the
Central Government) for elimination of arrears Rules 2001 ".
These Rules, in turn, referred to the expression "Committee"
which means the Committee of the Judges of the High Court
constituted by the High Court or the Chief Justice. 'Fast Track
Court' means the Court created under the FTC Scheme as H
374 SUPREME COURT REPORTS [2012] 5 S.C.R.
A sponsored by the Central Government and for all other words
and definitions, one has to refer to the Gujarat Judicial Services
Recruitment Rules, 1961. Rule 3 of the said Rules prescribed
that the appointments were on ad hoc and on purely urgent
temporary basis for implementing the FTC Scheme and the
B Rules were notwithstanding the Gujarat Judicial Service
Recruitment Rules, 1961. These appointments were made by
the Governor on the recommendation of the High Court either
by promotion or transfer of Judicial Officers or by recruitment
from amongst retired District and Sessions Judges/Judicial
c Officers and advocates eligible to be directly appointed as
District and Sessions Judges. The selection of the candidates
for such ad hoc appointment was to be made by the
Committee on the basis of the procedure and criteria laid
down. Rule 6 of the Gujarat Rules clearly stated that no right is
conferred on any Judicial Officer in service for claiming any
0
regular promotion on the basis of his appointment on ad hoc
basis under the Scheme. Further, Rule 4 of the Gujarat Rules
provided for termination of their services.
54. For all other conditions of service, these officers were
E to be governed by the conditions of service applicable to the
Judicial Officers of the State.
55. In the State of Orissa, advocates were appointed
temporarily as ad hoc Additional District Judges in the pay
F scale of Rs. 10,650-325-15350 by direct recruitment to the
FTCs which had been established under the grant of 11th
Finance Commission. In terms of the notification of
appointment, their service conditions were to be governed by
the Orissa Rules, as amended from time to time. All other
G appointees were appointed by similar notification of different
dates. Therefore, reference to the Orissa Rules becomes
necessary.
56. These Rules were pari materia to the Judicial Service
Rules framed by the Orissa State except that the appointments
H were initially for a period of one year and subject to termination
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 375
[SWATANTER KUMAR, J.]
without notice. Clause 4 of the said Rules reads as under :- A
"4(1) The appointment made under these rules shall be on
ad hoc and temporary basis.
(2) The appointment shall be made initially for a period of
one year and shall be liable to be terminated at any time B
without any prior notice.
(3) During the term of such appointment the appointees
will be under the administrative and disciplinary control of
the High Court." c
57. These Rules were framed by the State of Orissa
notwithstanding the Orissa Superior Judicial Services Rules,
1963 and the Orissa Judicial Service Rules, 1994. Any right
to regular promotion in the regular cadre was also specifically D
denied under Rule 7 of the Orissa Rules.
58. In the State of Andhra Pradesh also, under Rule 2 of
the Andhra Rules, the advocates were directly appointed as
Additional District Judges to preside over FTCs vide
Notification dated 6th October, 2003. These appointments E
were also ad hoc and temporary, for a limited period. These
Rules were framed notwithstanding anything contained in the
Special Rules for Andhra Pradesh State Higher Judicial
Service, 1958 and provided the same categories of recruitment
to the FTCs as were provided under the Rules of two above- F
mentioned States. It duly prescribed for the qualifications,
seniority, posting and transfer of the appointees. Under the
terms and conditions of service, Rule 7(1 )(b) specifically
contemplated that a person appointed under the Andhra Rules
shall not be. entitled to any preferential right to any other G
appointment to this service or any other service. It was also
contemplated that their services shall neither be treated as
regular or permanent under the State Government nor shall it
be a bar for the appointment to posts covered by the other
Rules in that State. Under Rule 2(4), all appointments made
H
376 SUPREME COURT REPORTS [2012] 5 S.C.R.
A from time to time under the Andhra Rules were to cease on
31st March, 2005, i.e., the period for which the FTC Scheme
was created at the first instance.
59. All the petitioners/candidates in the State of Rajasthan
were members of the regular Judicial Services of that State.
8
They were promoted on ad hoc basis to officiate as Additional
District Judges (Fast Track) and they had been functioning as
such for a considerable period. They were given extension of
service vide Notification issued by the State. Now, they have
been asked to take the Limited Competitive Examination for
C being promoted on regular basis to the Higher Judicial Services
of the State. This has been challenged by them on different
grounds, as already noticed above. But, we must notice that
initially when they were appointed as Additional District Judges,
they had not taken any written examination as prescribed under
D the Rules and the judgment of this Court in the case of A/I India
Judges Association (supra). Further, in fact, they have not taken
such an examination till date.
60. Upon an analysis of the above-stated Rules relating
E to the different States, the appointment letters issued to the
appointees and the methodology that was adopted for
appointment of the FTC Judges, it becomes clear that the
appointees cannot be said to have any legal, much less an
indefeasible, right to the posts in question. Firstly, the posts
F themselves were temporary, as they were created under and
within the ambit and scope of the FTC Scheme sponsored by
the Union of India, which was initially made only for a limited
period of five years. Now, financing of the FTC Scheme has
already been stopped by the Central Government with effect
G from 31st March, 2011. No permanent posts were ever created.
In other words, their appointments were temporary
appointments against temporary posts. The relevant Rules of
the States clearly postulate that the appointments made under
the Rules were purely on ad hoc basis and urgent temporary
basis and were terminable without notice. The Rules as well
H as the respective notifications of appointment issued to these
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 377
[SWATANTER KUMAR, J.]
appointees, unambiguously stated that no right would be A
conferred upon the appointees for regular promotion on the
basis of working on ad hoc basis under the FTC Scheme. The
notifications vide which the judges/candidates/petitioners were
appointed, particularly in the State of Gujarat, clearly specified
these appointments to be temporary and for a period of two B
years on ad hoc basis. The cumulative effect of the notifications
appointing the petitioners to the ~aid posts under the FTC
Scheme and the relevant Rules governing them clearly
demonstrate that these were temporary and, in some cases,
even time-bound appointments, terminable without prior notice. c
It is difficult for the Court to accept the contention of these
petitioners that there was any indication, in the above noted
Rules or otherwise, that the said appointments were permanent
and that the appointees were entitled to be absorbed regularly
in those posts. D
61. Normally, there are three kinds of posts that may exist
in a cadre - (1) permanent posts; (2) temporary posts; and (3)
quasi permanent posts. Accordingly, there can be a temporary
employee, a permanent employee or an employee in quasi
permanent capacity. In the case of Indian Drugs and E
Pharmaceuticals Ltd. v. Workmen [(2007) 1 SCC 408], this
Court, while elucidating upon the distinction between temporary
and permanent employees stated that such distinction is well
settled. Whereas a permanent employee has a right to the post,
a temporary employee has no right to the post. It is only the F
permanent employee who has a right to continue in service till
the age of superannuation. As regards a temporary employee,
there is no age of superannuation because he has no right to
the post at all. Thus, it follows that for a person to have a right
to the post, the post itself has to be a permanent post duly G
sanctioned in the cadre. The person should be permanently
appointed to that post. Normally, it is only under these
circumstances that such an employee gets a right to the post,
but even when a temporary employee is appointed against a
permanent post, he could get a right to the post provided he H
378 SUPREME COURT REPORTS [2012] 5 S.C.R.
A had at least acquired the status of a quasi permanent employee
under the relevant Rules. Where neither the post is sanctioned
nor is permanent and, in fact, the entire arrangement is ad hoc
or is for an uncertain duration, it cannot create any rights and
obligations in favour of the appointees, akin to those of
B permanent employees. The appointees in the present case had
been appointed not only on ad hoc and temporary basis but
the entire FTC Scheme itself was ad hoc and for a duration of
five years only as declared by the Central Government. Despite
that, some of the States declared the FTC Scheme for two
C years only. In these circumstances, it is not possible for this
Court to hold that the appointees had any right to the post.
62. Decades ago, this Court, in the case of Parshotam
Lal Dhingra v. Union of India [AIR 1958 SC 36], was seized
with a matter where the appellant had been granted promotion
D from Class Ill Service in the Indian Railways to Class II, but, in
view of the adverse remarks in his Confidential Report, the
same was not effected. The action of the State was challenged
before the High Court. The learned Single Judge took the view
that this action of the State was punitive. However, the judgment
E was reversed by the Division Bench of the High Court. A
Constitution Bench of the Supreme Court allowed the appeal,
while holding as under :
"12. In the absence of any special contract the substantive
appointment to a permanent post gives the servant so
F
appointed a right to hold the post until, under the rules, he
attains the age of superannuation or is compulsorily retired
after having put in the prescribed number of years' service
or the post is abolished and his service cannot be
terminated except by way of punishment for misconduct,
G
negligence, inefficiency or any other disqualification found
against him on proper enquiry after due notice to him. An
appointment to a temporary post for a certain specified
period also gives the servant so appointed a right to hold
the post for the entire period of his tenure and his tenure
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 379
[SWATANTER KUMAR, J.]
cannot be put an end to during that period unless he is, A
by way of punishment, dismissed or removed from the
service. Except in these two cases the appointment to a
post, permanent or temporary, on probation or on an
officiating basis or a substantive appointment to a
temporary, on probation or on an officiating basis or a B
substantive appointment to a temporary post gives to the
servant so appointed no right to the post and his service
may be terminated unless his service had ripened into what
is, in the service rules, called a quasi-permanent service ... "
63. In the case of Champaklal Chiman/al Shah v. Union C
of India [AIR 1984 SC 1854], this Court held that where a
Government servant had completed three years service and the
Rules provided for declaration of his service thereafter as a
quasi-permanent employee, the Government servant would
become a quasi-permanent employee only if such declaration D
was actually made. Similar view was also taken earlier in the
case of Jaswant Singh v. State of Haryana [(1979) 4 SCC
440].
64. Therefore, the above principles clearly show that there E
should be a right vested in an employee, which is duly
recognized and declared in accordance with the Rules
governing the conditions of service of such employee before
such relief is granted. Unless the Government employee holds
any status as afore-indicated, it may not be possible to grant F
relief to the Government employee, particularly, when such relief
is not provided under the relevant Rules.
65. We may even consider this from a different point of
view. These Rules had been framed under Article 309 of the
Constitution and had the force of law. Of course, in some of G
the petitions, i.e., in some of the matters relating to the State
of Gujarat, there is challenge raised to the constitutional validity
of Rules 4 and 6 of the Gujarat Rules, which we shall shortly
proceed to discuss, but in all other cases arising from different
States, there is no challenge to the validity of the Rules H
380 SUPREME COURT REPORTS [2012] 5 S.C.R.
A governing these appointments.
66. Right to a post is not a fundamental right but is a civil
or a statutory right. That the creation of a post, absorption and
payment of salaries on regular pay scales are purely Executive
functions and under the Doctrine of Separation of Powers well
8
left are these functions to the Executive, was the view
expressed by this Court in the case of P. U. Joshi v. Accountant
General [(2003) 2 SCC 632]. To take another example, where
a person is sent on deputation to a post even after consultation
with the Union Public Service Commission but for a limited
C period, after the expiry of the said period, the deputationist can
neither claim a right to continue in that post, nor can he claim
absorption on permanent basis as he had no right to the post.
This view was stated by this Court, in the case of Union of India
v. S.N. Panicker [(2001) 10 SCC 520]. It is primarily the nature
D of the post, the method and manner of appointment to the said
post and the Rules governing the conditions of service of that
post which would be the precepts to deal with such situations.
67. Article 310 of the Constitution is concerned with the
E tenure of office of persons serving the Union or a State. Except
as expressly provided by the Constitution, every person who
is a member of a defence service or a civil service of the Union
or State or an all-India service or holds any post connected with
defence or any civil post under the Union, holds such office
F during the pleasure of the President or during the pleasure of
the Governor of the State, as the case may be. However, Article
311 of the Constitution carves out an exception to Article 310
and states that no person who is a member of a civil service
of the Union shall be dismissed or removed by an authority
G subordinate to that by which he was appointed and then, only
after holding of an enquiry and opportunity of being heard and
making a representation in respect of those charges and on
penalty proposed. Proviso to Articles 311 (2) and 311 (3)
provide further exceptions to the operation of Article 311 itself.
H The doctrine of pleasure, under our Constitution, deals with
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 381
[SWATANTER KUMAR, J.]
three different categories of posts. First, offices which are held A
during the pleasure of the President or Governor, as the case
may be; second, offices held during pleasure of the President
or Governor but subject to some restrictions against removal;
and third, offices held for a specified term but with immunity
against removal, except by impeachment. The third category B
of posts is not subject to the doctrine of pleasure. Having regard
to the Constitutional scheme, it is not possible to extend the
type of protection against removal granted to one category of
officers, to another category. In India, contrary to the law in
England, even the doctrine of pleasure has limitations and c
restrictions.
68. It is believed that, where Rule of Law prevails, there
can be nothing like unfettered discretion or unaccountable
action. The degree of reasoning required in support of the
decision may vary. The degree of scrutiny during judicial review D
may vary. But the need for reasoning exists. As a result, when
the Constitution of India provides that some offices will be held
during the pleasure of the President, without any express
limitations or restrictions, this power should, however,
necessarily be read as being subject to the fundamentals of E
constitutionalism. {Refer B.P. Singhal v. Union of India [(2010)
6 sec 331]}. We must also notice another settled position of
law, stated by this Court in the case of Union of India & Anr.
v. Tulsiram Patel [(1985) 3 SCC 398], that the origin of
Government services is contractual. There is an offer and F
acceptance in every case. But once appointed to his post or
office, the Government servant acquires a status and his rights
and obligations are no longer determined by the consent of both
the parties, but by statute or statutory rules as framed and
unilaterally altered by the Government. In other words, the legal G
position of a Government servant is more one of status than
that of contract.
69. Therefore, the appointees do not have an absolute right
to the post, but we would have to consider the effect of the H
382 SUPREME COURT REPORTS [2012] 5 S.C.R.
A judgments of this Court in the cases of Madhumita Das (supra)
and Brij Mohan Lal (supra) to examine if the petitioners in these
cases are entitled to any relief or not. Before we enter into
discussion upon that aspect of the case, it will be necessary
for us to deliberate on the question whether writ of mandamus
B can at all be issued in this case and, if so, its scope. Needless
to say, the origin of the FTC Scheme was in a policy decision
by the Central Government. The Central Government had taken
a decision to implement the FTC Scheme, particularly to deal
with the arrears of criminal cases in the country and it had taken
C unto itself the burden of financing the entire scheme. It was to
incur all infrastructural and recurring expenditures for
implementation of the FTC Scheme. Examined from any point
of view, it was a policy decision of the Union of India, which
was accepted by the various State Governments, which in turn
implemented this policy by appointing ad hoc Judges to
0
preside over FTCs. These appointments were made by three
different methods: from amongst the retired Judges, by
promotion from Civil Judges (Senior Division), and by direct
recruitment from the Bar.
E 70. The Central Government then has taken a decision not
to finance the FTC Scheme beyond 31st March, 2011.
However, some of the State Governments have still taken a
decision at their own level to continue with the FTC Scheme,
for the time being. None of the States appearing before us have
F stated that, as a matter of policy or otherwise, they have
decided to continue the FTC Scheme at their own expense as
a permanent feature of Justice Administration System. It is a
settled principle of law that matters relating to framing and
implementation of policy primarily fall in the domain of the
G Government. It is an established requirement of good
governance that the Government should frame policies which
are fair and beneficial to the public at large. The Government
enjoys freedom in relation to framing of policies. It is for the
Government to adopt any particular policy as it may deem fit
H and proper and the law gives it liberty and freedom in framing
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 383
[SWATANTER KUMAR, J.]
the same. Normally, the Courts would decline to exercise the A
power of judicial review in relation fo such matters. But this
general rule is not free from exceptions. The Courts have
repeatedly taken the view that they would not refuse to
adjudicate upon policy matters if the policy decisions are
arbitrary, capricious or mala fide. In bringing out the distinction B
between policy matters amenable to judicial review and those
where the Courts would decline to exercise their jurisdiction,
this Court, in Bennett Coleman & Co. and Others. v. Union of
India and Others [(1972) 2 sec 788], held as under:
c
"100. The argument of the petitioners that Government
should have accorded greater priority to the import of
newsprint to supply the need of all newspaper proprietors
to the maximum extent is a matter relating to the policy of
import and this Court cannot be propelled into the
0
unchartered ocean of Government policy."
71. We must examine the cases where this Court has
stepped in and exercised limited power of judicial review in
matters of policy. In Asif Hameed v. State of Jammu &
Kashmir and Anr. [1989 Suppl. (2) SCC 364], this Court E
noticed that, where a challenge is to the action of the State, the
Court must act in accordance with law and determine whether
the State has acted within the powers and functions assigned
to it under the Constitution. If not, it must strike down the action,
of course, with due caution. Normally, the Courts do not give F
directions or advise in such matters. This Court held as under:
"19. When a State action is challenged, the function of
the court is to examine the action in accordance with law G
and to determine whether the legislature or the executive
has acted within the powers and functions assigned under
the Constitution and if not, the court must strike down the
action. While doing so the court must remain within its self-
imposed limits. The court sits in judgment on the action of H
-·
384 SUPREME COURT REPORTS [2012] 5 S.C.R.
A a coordinate branch of the Government. While exercising
power of judicial review of administrative action, the court
is not an Appellate Authority. The Constitution does not
permit the court to direct or advise the executive in
matters of policy or to sermonize qua any matter which
B under the Constitution lies within the sphere of legislature
or executive, provided these authorities do not transgress
their constitutional limits or statutory powers. "
(emphasis supplied)
C 72. It is also a settled cannon of law that the Government
has the authority and power to not only frame its policies, but
also to change the same. The power of the Government,
regarding how the policy should be shaped or implemented and
what should be its scope, is very wide, subject to it not being
D arbitrary or unreasonable. In other words, the State may
formulate or reformulate its policies to attain its obligations of
governance or to achieve its objects, but the freedom so
granted is subject to basic Constitutional limitations and is not
so absolute in its terms that it would permit even arbitrary
E actions. Certain tests, whether this Court should or not interfere
in the policy decisions of the State, as stated in other
judgments, can be summed up as:
(I) If the policy fails to satisfy the test of
reasonableness, it would be unconstitutional.
F
(II) The change in policy must be made fairly and should
not give impression that it was so done arbitrarily
on any ulterior intention.
G (Ill) The policy can be faulted on grounds of mala fide,
unreasonableness, arbitrariness or unfairness etc.
(IV) If the policy is found to be against any statute or the
Constitution or runs counter to the philosophy
behind these provisions.
H
·-
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 385
[SWATANTER KUMAR, J.]
(V) It is dehors the provisions of the Act or Legislations. A
(VI) If the delegate has acted beyond its power of
delegation.
73. Cases of this nature can be classified into two main
classes: one class being the matters relating to general policy B
decisions of the State and the second relating to fiscal policies
of the State. In the former class of cases, the Courts have
expanded the scope of judicial review when the actions are
arbitrary, mala fide or contrary to the law of the land; while in
the latter class of cases, the scope of such judicial review is C
far narrower. Nevertheless, unreasonableness, arbitrariness,
unfair actions or policies contrary to the letter, intent and
philosophy of law and policies expanding beyond the
permissible limits of delegated power will be instances where
the Courts will step in to interfere with government policy. D
74. In the case of Mohd. Abdul Kadir and Anr. v. Director
General of Police, Assam and Ors. [(2009) 6 SCC 611], this
Court, while declining regularization of the persons employed
in a particular project under a temporary Scheme, though the E
same had been continued for a long time, commented upon
the scope of interference in the policy relating to Prevention of
Infiltration of Foreigners Additional Scheme, 1987 and
considered it appropriate to draw the attention of the authorities
to the issues.involved in the case by directing as under: -
F
"22. We are conscious of the fact that the issue is a matter
of policy having financial and other implications. But where
an issue involving public interest has not engaged the
attention of those concerned with policy, or where the
failure to take prompt decision on a pending issue is likely G
to be detrimental to public interest, courts will be failing in
their duty if they do not draw attention of the authorities
concerned to the issue involved in appropriate cases.
While courts gannet be and should not be makers of
H
386 SUPREME COURT REPORTS [2012] 5 S.C.R.
A policy, they can certainly be catalysts, when there is a need
for a policy or a change in policy."
75. The correct approach in relation to the scope of judicial
review of policy decisions of the State can hardly be stated in
absolute terms. It will always depend upon the facts and
8
circumstances of a given case. Furthermore, the Court would
have to examine any elements of arbitrariness,
unreasonableness and other Constitutional facets in the policy
decision of the State before it can step in to interfere and pass
effective orders in such cases. A challenge to the formation of
C a State policy or its subsequent alterations may be raised on
very limited grounds. Again, the scope of judicial review in such
matters is a very limited one. One of the most important
aspects in adjudicating such a matter is that the State policy
should not be opposed to basic Rule of Law or the statutory
D law in force. This is what has been termed by the courts as the
philosophy of law, which must be adhered to by valid policy
decisions.
76. The independence of the Indian Judiciary is one of the
E most significant features of the Constitution. Any policy or
decision of the Government which would undermine or destroy
the independence of the judiciary would not only be opposed
to public policy but would also impinge upon the basic structure
of the Constitution. It has to be clearly understood that the State
F policies should neither defeat nor cause impediment to
discharge of judicial functions. To preserve the doctrine of
separation of powers, it is necessary that the provisions falling
in the domain of judicial field are discharged by the Judiciary
and that too, effectively.
G 77. This Court has consistently held that the writ of
mandamus can be issued, perhaps not as regards the manner
of discharge of public duty but with respect to the due exercise
of discretion in the course of such duty. In the case of S.P.
Gupta v. Union of India [(1981) Supp. SCC 87], this Court
H issued directions to the Union of India to determine, within a
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 387
[SWATANTER KUMAR, J.]
reasonable time, the strength of permanent Judges required for A
disposal of cases instituted in the High Courts and to take tests
to fill up the vacancies after making such determination. While
stating that the appointment of judges was considered to be a
power coupled with duty, the Court in held as under: -
B
"In a parliamentary democracy with a written Constitution
in which three organs of the Governments are clearly
marked out, it becomes a primary duty of the State to
provide for fair and efficient administration of justice.
Justice must be within the easy reach of the lowest of the
lowliest. Rancour of injustice hurts an individual leading to C
bitterness, resentment and frustration and rapid
evaporation of the faith in the institution of judiciary. Two
vital limbs of the Justice system are that Justice must be
within the easy reach of the weaker sections of the society
and that it must be attainable within a reasonably short- D
time, in other words, speedily. Leaving aside other factors
contributing to the arrears in courts, it cannot be gainsaid
that in each High Court adequate number of Judges must
be appointed and the situation in each High Court must
be regularly reviewed by the President so as to efficiently E
discharge the duty cast on him by Article 216. In the course
of hearing a statement was made on behalf of the Union
of India that the Government is taking steps to review the
strength of each High Court to determine the adequate
strength of each High Court and then to take steps to make F
appointments according to the targets so devised. As this
statement is a solemn undertaking to this Court, it may be
reproduced in extenso:
The Union Government has decided to increase the
number of posts of permanent judges in the various High G
Courts keeping in view the load of work, the guidelines
prescribed and other relevant considerations. In fact in
1980 itself, on the basis of institution, disposal and arrears
of cases and the guidelines prescribed, the Governments
of seven States where the problem was more acute, had H
388 SUPREME COURT REPORTS [2012] 5 S.C.R.
A been addressed to consider augmentation of the Judge
strengths of their High Courts. It has been decided that
where necessary the guidelines prescribed will be suitably
relaxed by taking into account local circumstances the
trend of litigation and any other special or relevant factors
B that may need consideration. The Union Government will
take up the matter with the various State Governments so
that after consulting the Chief Justices of the High Courts,
they expeditiously send proposals for the conversion of a
substantial number of posts of Additional Judges into those
c of permanent judges.
2. The Union Government has also decided that ordinarily
further appointments of Additional Judges will not be made
for periods of less than one year.
D But to say that a litigant who wants his case to be disposed
of as early as possible being convinced that his case is
not handled by the Court for want of adequate number of
judges can bring an action to issue a mandamus to the
Government to appoint adequate number of judges
E requires more elaborate arguments and in view of the
statement it is not necessary to deal with the submission.
xxx xxx xxx
1251. Notwithstanding the principle of separation of
F powers found entrenched in the Constitution of the United
States of America, as can be seen from the last part of
para 141 of Vol. 52 of the American Jurisprudence 2d.
under the title 'Mandamus' if it is the constitutional or
statutory duty of a governor or the President to exercise
G his discretion with respect to a certain matter he may be
required by mandamus to do so but the manner in which
he has to discharge that duty cannot be directed by the
courts. As observed in the English decisions referred to
above it is manifest that a statutory discretion is not
H necessarily or indeed usually absolute, it may be qualified
BRIJ MOHAN LAL v. U1\JION OF INDIA & ORS. 389
[SWATANTER KUMAR, J.]
by express and implied legal duties to comply with A
substantive and procedural requirements before a decision
. is taken, whether to act and how to act. I am of the view
that the power conferred on the President by Article 216
of the Constitution to appoint sufficient number of Judges
is a power coupled with a duty and is not merely a political B
function. In the instant case ordinarily the court would have
been reluctant to issue any mandamus to the Government
to comply with the duty of determination of the strength of
Judges of High Courts. But having regard to the undisputed
total inadequacy of the strength of Judges in many High c
Courts, it appears to be inevitable that the Union
Government should be directed to determine within a
reasonable time the strength of permanent Judges required
for the disposal of cases instituted in them and to take
steps to fill up the vacancies after making such
0
determination."
78. Thereafter, even in the case of All India Judges'
Association v. Union of India & Ors. (1992) 4 SCC 288, this
Court not only issued a mandamus but even directed the
acceptance of the Justice Shetty Commission Report and E
consequently ordered the State Governments to fix grades of
pay, grant appropriate pay scales as well as make
amendments in the age of retirement and other conditions of
service, as necessary, in order to maintain the independence
of judiciary. Again, in a subsequent judgment taken up in the F
year 2002, in the same case All India Judges' Association v.
Union of India [(2002) 4 SCC 247], this Court held as under :
"21. The next question which arose for consideration is
whether the Shetty Commission was justified in G
recommending that 50 per cent of the expense should be
borne by the Central Government. It has been contended
by the learned Advocate-General for the State of
Karnataka as well as on behalf of the other States that the
judicial officers working in the States deal not only with the H
390 SUPREME COURT REPORTS [2012] 5 S.C.R.
A State laws but also with the federal laws. They, therefore,
submitted that, in fairness of things, the Central
Government should bear half of the expenses of the
judiciary.
B
xxx xxx xxx
25. An independent and efficient judicial system is one of
the basic structures of our Constitution. If sufficient number
of Judges are not appointed, justice would not be available
to the people, thereby undermining the basic structure. It
c is well known that justice delayed is justice denied. Time
and again the inadequacy in the number of Judges has
adversely been commented upon. Not only have the Law
Commission and the Standing Committee of Parliament
made observations in this regard, but even the Head of
D the judiciary, namely, the Chief Justice of India has had
more occasion than one to make observations in regard
thereto. Under the circumstances, we feel it is our
constitutional obligation to ensure that the backlog of the
cases is decreased and efforts are made to increase the
E disposal of cases. Apart from the steps which may be
necessary for increasing the efficiency of the judicial
officers, we are of the opinion that time has now come for
protecting one of the pillars of the Constitution, namely, the
judicial system, by directing increase, in the first instance,
F in the Judge strength from the existing ratio of 10.5 or 13
per 10 lakh people to 50 Judges per 10 lakh people. We
are conscious of the fact that overnight these vacancies
cannot be filled. In order to have additional Judges, not only
will the posts have to be created but infrastructure required
in the form of additional courtrooms, buildings, staff etc.,
G would also have to be made available. We are also aware
of the fact that a large number of vacancies as of today
from amongst the sanctioned strength remain to be filled.
We, therefore, first direct that the existing vacancies in the
subordinate courts at all levels should be filled, if possible
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 391
[SWATANTER KUMAR, J.]
latest by 31-3-2003, in all the States. The increase in the A
Judge strength to 50 Judges per 10 lakh people should
be effected and implemented with the filling up of the posts
in a phased manner to be determined and directed by the
Union Ministry of Law, but this process should be
completed and the increased vacancies and posts filled B
within a period of five years from today. Perhaps increasing
the Judge strength by 10 per 10 lakh people every year
could be one of the methods which may be adopted
thereby completing the first stage within five years before
embarking on further increase if necessary." c
79. Such is not the practice in India alone, but it is prevalent
even in the United States of America. In the case of
Commonwealth ex rel. Carroll v. Tate et al. (supra), Judge
Montgomery of the Supreme Court of Pennsylvania upheld the
order of mandamus issued against the defendants for D
appropriation and payment of the amounts needed for
infrastructure and other requirements for proper running of the
Courts. The Court held that it is a basic precept of the
Constitutional form of Republican Government that the Judiciary
is an independent and co-equal Branch of the Government E
along with Executive and Legislative Branches and the amount
that had been recommended by the Mayor for utilization by the
Judiciary was found to be inadequate to meet the reasonable
needs of the Court for the fiscal year. Thus, the Court, while
reducing the amount originally ordered by Judge Montgomery, F
nevertheless upheld the issue of mandamus, affirming the
earlier order earlier with some modification.
80. It is, thus, clear that it is the constitutional duty of this
Court to ensure maintenance of the independence of Judiciary G
as well as the effectiveness of the Justice Delivery System in
the country. The data and statistics placed on record, of which
this Court can even otherwise take judicial notice, show that
certain and effective measures are required to be taken by the
State Governments to bring down the pendency of cases in the H
392 SUPREME COURT REPORTS [2012] 5 S.C.R.
A lower Courts. It necessarily implies that the Government should
not frame any policies or do any acts which shall derogate from
the very ethos of the stated basic principle of judicial
independence. If the policy decision of the State is likely to
prove counter-productive and increase the pendency of cases,
B thereby limiting the right to fair and expeditious trial to the
litigants in this country, it will be tantamount to infringement of
their basic rights and constitutional protections. Thus, we have
no hesitation in holding that in these cases, the Court could
issue a mandamus. The extent of such power, we shall discuss
c shortly hereinafter.
81. Thus, we have no hesitation in coming to the conclusion
that in the cases at hand, this Court is possessed of the
jurisdiction and is competent to issue a writ of mandamus and/
or appropriate directions. However, the scope and dimensions
D of such directions is a matter of further deliberation, which we
shall shortly proceed to discuss.
Right to Practice
E 82. Article 19( 1)(g) of the Constitution provides a
fundamental right to practice any profession or to carry on any
occupation, trade or business. This right is subject to the
limitations contained under Article 19(6) of the Constitution. The
State is empowered to make any law imposing, in the interest
of general public, reasonable restrictions on the exercise of the
F rights conferred by the said sub-clause. This power specifically
refers to the professional or technical qualifications necessary
for practicing any profession or carrying on any occupation. The
right to practice law is not an absolute right and is subject to
the possession of requisite qualifications as contemplated
G under the Advocates Act, 1961. This right to practice is further
subject to the limitations prescribed in and the regulatory
regime of the Bar Council of India Rules. Therefore, the
argument that once a lawyer possesses the requisite
qualifications, he has an unrestricted and unregulated right to
H practice, is not tenable.
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 393
[SWATANTER KUMAR, J.]
83. The appointees in the present case argued that in terms A
of the Bar Council of India Rules, after they cease to be judges
of the FTCs for any reason whatsoever, they shall be debarred
from practicing in the district and subordinate courts. Their right
to practice is abridged with respect to the courts in which they
acted as judges and courts of the equivalent or lower grade. B
They can still practice in the higher courts, i.e., permissible
Tribunals, High Courts and the Supreme Court of India. Thus,
there is no complete and absolute restriction on their right to
practice. It is only a partial restriction which is based upon
securing the larger public interest and the interest of ensuring C
transparency in the administration of justice. This by itself,
therefore, cannot be a consideration for compelling the
Government to continue their appointments, if they are
otherwise not entitled under law to continuation. This question,
in somewhat similar circumstances, came up for consideration
of this Court when the retired members of the Custom, Excise
0
and Service Tax Appellate Tribunal (for short "the CESTAT")
were not permitted to practice before the same Tribunal on the
strength of Rule 7 Chapter Ill, Part VI of the Bar Council of India
Rules. This COl.11-:: not only upheld the validity of the said Rules,
but also held that this did not amount to an absolute and E
unreasonable bar on the right to practice of the past members
of the Tribunal. Upon an objective analysis of the principles
stated therein, this Court held that except where a challenge is
made on the grounds of legislative incompetence or the
restriction imposed is ex facie unreasonable, arbitrary and F
violative of Part Ill of the Constitution, the restriction would be
held to be valid and enforceable. We may refer to the following
paragraph of the judgment of this Court, in the case of N.K.
Bajpai v. Union of India & Anr. (CA No. 2850 of 2012 arising
out of SLP(C) No. 8479 of 2010), to which one of us, Swatanter G
Kumar, J was a member, decided on 15th March, 2012, which
reads as under:-
"29. An objective analysis of the above principles makes
it clear that except where the challenge is on the grounds H
394 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of legislative incompetence or the restriction imposed was
ex facie unreasonable, arbitrary and violative of Part Ill of
the Constitution of India, the restriction would be held to
be valid and enforceable."
84. For the reasons afore-noticed and the law indicated
8 above, we do not find any merit in the contention raised on
behalf of the appointees/petitioners that they would suffer an
irreparable loss by termination of their services as FTC judges
and that the restriction contained in Rule 7 of the Bar Council
of India Rules amounts to an absolute unreasonable restriction
C upon their right to practice in the event of such termination.
Scope of Judicial Review
85. The power of judicial review to examine the validity of
a legislation falls within a very limited compass. It is treated by
0
the Courts with greater restraint and on a much higher pedestal
than examination of the correctness or validity of State policies.
In the present case, the Union of India had framed a policy,
which was termed as the FTC Scheme. This was a conscious
policy decision taken by the appropriate Government, the
E implementation whereof in regard to financial infrastructure,
capital or recurring expenditure was primarily that of the Union
of India. Some of the State Governments framed Rules to fill
up the posts of Judges who were to preside over the FTCs,
while others just took a policy decision with respect to the
F existing statutory Rules for recruitment to the regular Higher
Judicial Services cadre of that State. As already noticed, the
FTC Scheme contemplated three different sources for
recruitment of judges, i.e. by direct recruitment, promotion and
appointment of retired Judges. The work done by the FTCs
G over long period had been appreciated by all concerned. To
demonstrate this aspect, we may refer to certain statistics
which have been placed on record by different States.
86. As per the latest data placed on record, the State of
H Andhra Pradesh had sanctioned 108 posts of FTC Judges, out
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 395
[SWATANTER KUMAR, J.]
of which 72 are stated to be in place as on the financial year A
2010-2011. These courts disposed of 20,696 cases in the
period from 01.01.2011 to 30.11.2011 and the pendency as
on 30.11.2011 in these courts was 35,290 cases. In Bihar, 183
posts were created and 138 judges are presently in position.
18,222 cases have been disposed of in the period from B
01.01.2011 to 31.12.2011, and 13,149 cases transferred to
regular courts leaving arrears of 75,868. The State of Gujarat
has claimed, for the same year, that 166 judicial posts were
sanctioned and functioning, and they had disposed of 38,426
cases in the period from 01.01.2011 to 31.12.2011 leaving C
arrears/ pendency of 86,755 cases.
87. In Himachal Pradesh, there were nine judicial posts,
out of which five are presently filled and 8607 cases were
disposed of in the period from 01.01.2011 to 31.12.2011 D
leaving pendency of 5852 cases. Jharkhand had 39 presiding
officers in place out of the 89 sanctioned posts and they had
disposed of 1406 cases in the period from 01.01.2011 to
31.03.2011, leaving a pendency of 22,238 cases as on
31.03.2011.
E
88. In Kerala, 25 posts out of 38 sanctioned posts were
functioning. 9,925 cases were disposed of in the period from
01.01.2011 to 31.12.2011, leaving a pendency of 13,809
cases.
F
89. In Karnataka, 92 out of 93 sanctioned 'posts are
functioning. They have disposed of 39,800 cases in the period
from 01.01.2011 to 31.12.2011, leaving a pendency of 33,661
cases. In Madhya Pradesh, 44 out of 59 judicial posts are filled
and they have disposed of 61,866 cases in the period from G
01.01.2011 to 31.12.2011, leaving a pendency of 36,284
cases. In Maharashtra, out of 100 sanctioned posts, 91 judicial
officers have been appointed. They have disposed of 25235
cases, leaving a balance of 54398 in the year 2010-2011. In
Orissa, 34 courts out of 72 are functioning. They have disposed
H
396 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of 7007 cases leaving a balance of 5275 upto the year 2010-
2011.
90. In Punjab and Haryana, out of 18 courts, 15 courts and
out of 16 courts, seven courts are working. They have disposed
of 7376 cases leaving a balance of 13202 cases. In Rajasthan,
8
42 courts out of 43 are functioning. They have disposed of 9680,
having a total pendency of 17,474 cases upto the year 2010-
2011. In Tamil Nadu, 43 out of 49 posts are functional. They
have disposed of 65,877 cases in the period from 01.01.2011
C to 31.12.2011 leaving arrears of 50,386. In Uttar Pradesh, 153
posts, out of the sanctioned 156 were functioning. They have
disposed of 16,640 cases in the period from 01.01.2011 to
31.03.2011 leaving a pendency of 53, 117 cases as on
31.08.2011. In West Bengal, 150 posts out of 151 sanctioned
are in place and have disposed of 10,499 cases in the period
D from 01.01.2011 to 31.12.2011 leaving a pendency of 32,648
cases upto the year 2010-2011.
91. There were 1734 FTCs under the FTC Scheme out of
which 1281 Courts are in place in the entire country. They have
E disposed nearly 32.34 lakh cases right from the date of their
establishment till the year 2010-2011. The above stated
pendency details of criminal cases in the country as on 30
March, 2011 is only with regard to Sessions cases. If we take
the total figure of pendency of criminal cases before the
F Sessions Courts, as well as the Magisterial Courts, there shall
be a total pendency of approximately 6.56 lakh cases.
92. The above data clearly shows that the pendency of
criminal cases in the country has increased at a rapid pace,
despite a good rate of disposal of cases being maintained by
G the FTCs. This experiment has been tried over a long period,
i.e., it was started in the year 2001 for an initial period of five
years. However, it was subsequently extended and the Central
Government agreed to finance the FTC Scheme uptil 30th
March, 2011. Thereafter, the various State Governments have
H either decided to wind up the FTC Scheme or have extended
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 397
[SWATANTER KUMAR, J.]
the FTC Scheme at their own expense. Thus, there is no A
unanimity between the Union Government and the States either
on continuation or the closure of the FTC Scheme.
93. The Union of India, of course, has stated that it would
not, in any case. finance expenditure of the FTC Scheme B
beyond 30th March, 2011 but some of the States have resolved
to continue the FTC Scheme upto 2012, 2013 and even 2016.
A few States are even considering the continuation of the FTC
Scheme as a permanent feature in their respective States. This,
to a large extent, has created an anomaly in the administration C
of Justice in the States and the entire country. Some of the
States would continue with the FTC Scheme while others have
been forced to discontinue or close it because of non-
availability of funds.
94. On the one hand, the Central Government has D
communicated its decision not to finance the FTC Scheme to
the State Governments, but on the other hand and quite
strangely, it has provided substantial funds for the starting of
Evening Courts and Gram Nyalayas, etc. Again, this is a policy
decision and though the Government has the jurisdiction to E
decide on such policy matters, there has to be some rationale
and reasonableness in the same. They cannot be so arbitrary
and patently erroneous that it becomes necessary for the Court
to interfere with the same.
95. Some of the States, like the State of Gujarat, have F
decided to terminate the services of the appointees directly
recruited from the Bar. However, in some cases, the High Court
on its judicial side has quashed the notice of termination. In the
case of Orissa, although the FTC Scheme is continuing upto
30th March, 2013, they have still dispensed with the services G
of some of the direct recruits from the Bar.
96. In Chhatisgarh, the FTC Scheme itself has been
discontinued with effect from 1st April, 2011.
H
398 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 97. In some of the other States, the appointees have
prayed for regularization of their services.
98. In some of the States, the FTC Scheme is being
continued on ad hoc basis and without any final decision being
taken in that behalf. The appointees have therefore, prayed for
8
continuation of the FTC Scheme as well as regularization of
their services in the regular cadre of the State Judicial Services.
99. The policy decision of the State should be in public
interest and taken objectively. Adhocism or uncertainty in the
C State policy particularly relating to vital factors of governance,
may not bring the requisite dividend. Reasons for taking a
policy decision would squarely fall in the domain of the State,
but it should be free from element of arbitrariness and mala fide.
There are three basic pillars of our constitutional governance
D i.e. the Executive, the Legislature and the Judiciary. The doctrine
of separation of powers demarcates the area of their respective
operation. Normally, the Government exercises various controls
over its instrumentalities and the organizations involved in the
governance of the State. This would be through financial,
E administrative or managerial and functional controls. These
parameters of control may be applied to determine whether or
not a particular organization or a body is a State within the
meaning of Article 12 of the Constitution. We have noticed
these aspects primarily with the purpose of demonstrating that
F judicial functions and judicial powers are one of the essential
attributes of a sovereign State and on considerations of policy,
the State transfers its judicial functions and powers, mainly to
the courts established by the Constitution, but that does not
affect competence of the State to, by appropriate measures,
G transfer a part of its judicial functions or powers to Tribunals or
other such bodies. This view is expressed by this Court, in the
case of Associated Cements Co. Ltd. v. P.N. Sharma [AIR
196,5 SC 1595]. However, as far as functioning of the courts,
i.e., dispensation of justice by Courts is concerned, the
Government has no control whatsoever over the courts. Further,
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 399
[SWATANTER KUMAR, J.]
in relation to matters of appointments to the Judicial Services A
of the States and even to the Higher Judiciary in the country,
the Government has some say, however, the finances of
Judiciary are entirely under the control of the State. It is obvious
that these controls should be minimized to maintain the
independence of the Judiciary. The courts should be able to B
function free of undesirable administrative and financial
restrictions in order to achieve the constitutional goal of
providing social, economic and political justice and equality
before law to its citizens.
100. Article 21 of the Constitution of India takes in its C
sweep the right to expeditious and fair trial. Even Article 39A
of the Constitution recognizes the right of citizens to equal
justice and free legal aid. To put it simply, it is the constitutional
duty of the Government to provide the citizens of the country
with such judicial infrastructure and means of access to Justice D
so that every person is able to receive an expeditious,
inexpensive and fair trial. The plea of financial limitations or
constraints can hardly be justified as a valid excuse to avoid
performance of the constitutional duty of the Government, more
particularly, when such rights are accepted as basic and E
fundamental to the human rights of citizens.
101. In the case of High Court of Judicature at Bombay,
Through its Registrar v. Shirishkumar Rangrao Patil and Anr.
[(1997) 6 SCC 339], this Court articulated the above-mentioned F
principles unambiguously in the following words:-
"13. The question then is whether the High Court is justified
in recommending to the Governor the respondent's
dismissal from service on the basis of the material on
record and whether the evidence on record was not G
sufficient to conclude the misconduct of having demanded
illegal gratification. In a democracy governed by rule of
law, under a written constitution, judiciary is the sentinel on
the qui vive to protect the fundamental rights and poised
to keep even scales of justice between the citizens and H
400 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the States or the States inter se. Rule of law and judicial
review are basic features of the Constitution. As its integral
constitutional structure, independence of the judiciary is an
essential attribute of rule of law. Judiciary must, therefore,
be free from pressure or influence from any quarter. The
B Constitution has secured to them, the independence. The
concept of "judicial independence" is a wider concept
taking within its sweep independence from any other
pressure or prejudice. It has many dimensions, namely,
fearlessness of other power centres, economic or political,
and freedom from prejudices acquired and nourished by
c the class to which the Judge belongs. Independent
judiciary, therefore, is most essential to protect the liberty
of citizens. In times of grave danger, it is the constitutional
duty of the judiciary to poise the scales of justice unmoved
by the powers (actual or perceived), undisturbed by the
D
clamour of the multitude. The heart of judicial
independence is judicial individualism. The judiciary is not
a disembodied abstraction. It is composed of individual
men and women who work primarily on their own. (Vide
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee) The
E Constitution of India has delineated distribution of
sovereign power between the legislature, executive and
judiciary. The judicial service is not service in the sense
of employment. The Judges are not employees. As
members of the judiciary, they exercise the sovereign
F judicial power of the State. They are holders of public
offices in the same way as the members of the Council of
Ministers and the members of the legislature. It is an office
of public trust and in a democracy, such as ours, the
executive, the legislature and the judiciary constitute the
G three pillars of the State. What is intended to be conveyed
is that the three essential functions of the State are
entrusted to the three organs of the State and each one
of them in turn represents the authority of the State. The
Judges, at whatever level they may be, represent the State
H and its authority, unlike the bureaucracy or the members
BRkl MOHAN LAL v. UNION OF INDIA & ORS. 401
[SWATANTER KUMAR, J.]
of the other service. [Vide All India Judges' Assn. v. Union A
of India [SCC paras 7 and 9] (second case).] The Judges
do not do an easy job. They repeatedly do what the rest
of us seek to avoid, i.e., make decisions. Judges, though
are mortals, they are called upon to perform a function that
is utterly divine in character. The trial Judge is the kingpin B
in the hierarchical system of administration of justice. He
directly comes in contact with the litigant during the day-
to-d ay proceedings in the court. On him lies the
responsibility to build a solemn atmosphere in the
dispensation of justice. The personality, knowledge, judicial c
restraint, capacity to maintain dignity, character, conduct,
official as well as personal and integrity are the additional
aspects which make the functioning of the court successful
and acceptable. Law is a means to an end and justice is
that end. But in actuality, law and justice are distant
0
neighbours; sometimes even strangely hostile. If law shoots
down justice, the people shoot down the law and
lawlessness paralyses development, disrupts order and
retards progress. [Vide All India Judges' Assn. v. Union
of lndia 9 ) which quoted with approval the statement of law E
by Krishna Iyer, J.] Fourteenth Report of the Law
Commission, extracted and approved by this Court in the
above judgment (SCC p. 134, para 44), postulates thus:
"If the public is to give profound respect to the
judges the judges should by their conduct try and F
observe it; not by word or deed should they give
cause for the people that they do not deserve the
pedestal on which we expect the public to place
them. It appears to us that not only for the
performance of his duties but outside the court as G
well a judge has to maintain an aloofness
amounting almost to self-imposed isolation."
14. Therein also, it was further observed that what
is required of a Judge is "a form of life and conduct far H
402 SUPREME COURT REPORTS [2012] 5 S.C.R.
A more severe and restricted than that of ordinary people"
and though unwritten, it has been most strictly observed.
The judicial officers are at once privileged and restricted;
they have to present a continuous aspect of dignity and
conduct. If the rule of law is to efficiently function under the
B aegis of our democratic society, Judges are expected to
nurture an efficient, strong and enlightened judiciary. To
have it that way, the nation has to pay the price, i.e., to
keep them above wants, provide infrastructural facilities
and services. There was a time when a Judge enjoyed a
high status in society. A Government founded on anything
c except liberty and justice cannot stand and no nation
founded on injustice can permanently stand. Therefore,
dispensation of justice is an essential and inevitable
feature in the civilized democratic society. Maintenance of
law and order requires the presence of an efficient system
D
of administration of criminal justice. A sense of confidence
in the court is essential to maintain the fabric of ordered
liberty for free people and it is for the subordinate judiciary
by its action and the High Court by its appropriate control
of subordinate judiciary and its own self-imposed judicial
E conduct, on and off the bench, to ensure it. If one forfeits
the confidence in the judiciary of its people, it can never
regain its lost respect and esteem. The conduct of every
judicial officer, therefore, should be above reproach. He
should be conscientious, studious, thorough, courteous,
F patient, punctual, just, impartial, fearless of public clamour,
regardless of public praise, and indifferent to private,
political or partisan influences; he should administer justice
according to law, and deal with his appointment as a
public trust; he should not allow other affairs or his private
G interests to interfere with the prompt and proper
performance of his judicial duties, nor should he administer
the office for the purpose of advancing his personal
ambitions or increasing his popularity. If he tips the scales
of justice, its rippling effect would be disastrous and
H deleterious. Obviously, therefore, this Court in All India
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 403
[SWATANTER KUMAR, J.]
Judges' Assn. attempted to ensure better uniform A
conditions of service for subordinate judiciary throughout
the country, it recommended the superannuation of the
subordinate judicial officers at the age of 60 years; and
ensured amelioration of their service conditions by giving
diverse directions. In 2nd All India Judges' Assn. this Court B
dealt with the status of the judicial officers as a class and
held that they are above the personnel working in other
constitutional functionaries, viz., the executive and the
legislature. Directions were issued by this Court for
ensuring due implementation for their better service c
conditions. Three years' minimum service at the Bar was
recommended to be eligible to be a judicial officer in All
India Judges' Assn. v. Union of India (third case). In All
India Judges' Assn. v. Union of India (fourth case),
direction was issued to ensure accommodation." D
102. As is evident from the above extract, which makes
reference to a number of other judgments of this Court, judicial
review is recognized as a basic feature of the Constitution and
independence of judiciary is integral to the constitutional
structure, as an essential attribute of the Rule of law. Judiciary E
must, therefore, be free from pressure and influences from any
quarter. The heart of judicial independence is judicial
individualism. The judiciary is not a disembodied abstraction.
It is composed of men and women who work primarily on their
own. Thus, it can be stated with certainty that any impediments F
to the continued and independent functioning of the Judiciary
would result in damaging the institution of Justice as well as
adversely affecting the faith of the public in the functioning of
the CourtsfTribunals. Only if continued judicial independence is
assured, would the Courts1Tribunals be able to discharge their G
functions in an impartial manner. It is fundamental that members
of the CourtsfTribunal be independent persons. They should
resemble the courts and not bureaucratic Boards {Ref. Union
of India v. R. Gandhi, President, Madras Bar Association
[(2010) 11 sec 1n. H
404 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 103. In the above-mentioned case, this Court also
expressed the view that persons exercising quasi-judicial
powers should be vested and possessed with the
independence, security and capacity as is associated with the
courts.
B
104. It is a frequently stated principle that making the
Judiciary free from control of the Executive and the Legislature
is essential, as there exists a right to have claims decided by
Judges who are free from domination by other branches of the
Government.
c
105. These principles have withstood the test of time and
have been frequently applied by the courts. Even in the case
of Union of India & Ors. v. Pratibha Bonnerjea & Anr. [(1995)
6 SCC 765], this Court stated that the Judicial Officers
D belonging to the subordinate services are placed under the
protective umbrella of the High Court and that it had no
hesitation in concluding that the relationship between the
Government and the High Court is not that of master and
servant. The Judicial Officers cannot be said to be holding a
E post under the Union or the State.
106. It is in this context that this Court, in the case of
Ashoka Kumar Thakur v. Union of India & Ors. [(2008) 6 SCC
1], while dealing with Right to Education in terms of Article 21A
of the Constitution, held that financial constraints upon the State
F cannot be a ground to deny fundamental rights to citizens.
107. On a proper examination of the above principles, it
can be stated without hesitation that wherever the right which
is being affected is a basic or a fundamental right, the State
G cannot be permitted to advance an argument of financial
constraints in such matters. The policy of the State has to be
in the larger public interest and free of arbitrariness. Adhocism
and uncertainty are the twin factors which are bound to
adversely affect any State policy and its results. The State
H cannot in, an ad hoc manner, create new systems while
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 405
[SWATANTER KUMAR, J.]
simultaneously giving up or demolishing the existing systems A
when the latter have even statistically shown achievement of
results.
108. In reference to the cases at hand, the Central
Government had taken a decision to stop financing and B
consequently to wind up the FTC Scheme. However, at the
same time, it has allocated Rs.2500 crores for operation of the
Morning, Evening and Shift Courts in the country besides
providing funds under other heads, as per the 13th Finance
Commission Report for the period 2010-2011 to 2014-2015.
c
109. It may not be appropriate for this Court to decide upon
a comparative analysis of the policy decisions as to which
policy has greater merit and which policy the Government should
adopt, but certainly whichever policy is eventually taken up by
the State, it has to be fair, in public interest and also satisfy D
the constitutional limitation of ensuring independence of
Judiciary.
110. Another very important aspect, which has often been
noticed by this Court, is that the Legislature, in exercise of its E
power, has enacted various Central and State laws. The
disputes arising under these laws are to be adjudicated upon
by the Courts. It is a known fact that such legislations are not
preceded by Judicial Impact Assessment by the concerned
authorities.
F
111. To take an example, in 1988 the Legislature
amended the provisions of the Negotiable Instruments Act,
1881, inserting Chapter XVII (Section 138 to Section 142) by
the Amending Act 66 of 1988. Again, vide the Amending Act
55 of 2002, the punishment prescribed under Section 138 of G
that Act was amended and the period of notice was also
reduced to 15 days from the one month period prescribed
earlier. These amendments resulted in filing of unexpected
number of cases in the courts of the learned Magistrate. As per
the 213th Law Commission Report, the pendency in 2008 of H
406 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Section 138 cases alone in the country is 3.8 million cases in
the trial courts.
112. Similarly, with the passage of time, owing to the
tremendous growth in the population of the country and greater
B awareness among citizens of their rights, civil and criminal
litigation before the Courts have increased manifold, without
there being an equivalent increase in the strength of Judges
and enhancement in the infrastructure of the Courts. Thus, it is
essential that some kind of consistent and systematized
approach is adopted by all the concerned Governments,
C including the Union of India, so as to take effective measures
to remedy this situation as w~ll as to prevent further undesirable
increase in the pendency of cases before the Courts.
Expeditious disposal of cases is obviously the first answer to
this multifarious problem.
D
The Conference of the Chief Ministers of the States and
the Chief Justices of the High Courts
113. In order to resolve various administrative and allied
E issues relating to the administration of justice in the States, it
has been the practice to hold the Chief Justices and Chief
Ministers Conference, which is presided over by the Chief
Justice of India. In these meetings, various steps are
discussed, for which an agenda is circulated and suggestions
from the High Courts as well as the State Governments are
F invited. This Conference is normally attended by the Chief
Ministers and/or the Law Ministers of the State, Chief Justices
of the High Courts and various other authorities from the
bureaucracy and the High Courts. Upon due deliberations,
decisions are taken, whereafter Minutes of the same are
G prepared and circulated. The decisions are recorded and
circulated to the States and the Union of India specifically for
their information and further action. Unfortunately, the practice
has shown that these decisions have hardly been implemented
by the concerned authorities.
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 407
[SWATANTER KUMAR, J.]
114. One such Conference was held on 16th August, 2009 A
in which various matters were discussed. Item 3 of the Agenda
and the decision taken thereunder reads as follows:-
"3. Progress made in setting-up of fast track courts
of magistrates and fast track civil courts and 8
continuation of fast track courts.
There was unanimity amongst all the participants that Fast
Track Courts of Magistrates and Fast Track Civil Courts
be set up on the lines of Fast Track Courts of Sessions
for the purpose of expeditious disposal of cases pending C
in the Magisterial Courts. They were unanimous on the
aspect that huge accumulation of arrears of cases cannot
be arrested unless strength of Judicial Officers is raised.
All the speaker were ad idem with the proposal of
continuing Fast Track Courts of Sessions for a further D
period of five years beyond 31st March, 2010, as they
were set-up with a laudable object and a large number of
cases have been disposed of by these courts. However,
the speakers cited financial constraints and desired that
the allocation of funds for this purpose be made by the E
Central Government.
DECISION
a] Fast Track Civil Courts and Fast Track Courts of
Magistrates be set-up in order to arrest accumulation of F
arrears of cases in such courts.
b] Fast Track Courts of Sessions be continued for a further
period of five years beyond 31st March, 2010.
c] Priority be given to the retired Judicial Officers for G
appointment to the Fast Track Courts having unblemished
service record of integrity, probity and ability as also on
the basis of physical and mental fitness. A reasonable
amount of remuneration be paid to the retired Judicial
Officers appointed for the purpose." H
408 SUPREME COURT REPORTS [2012) 5 S.C.R.
A 115. The matter in regard to setting up of Evening, Morning
and Shift Courts was also discussed and it was required that
the State Government shall set up at least one Family Court in
each district. Other items which may have some bearing on the
matter before us are Item nos. 8 and 13 which read as under:-
B
"8] Steps required to be taken for reduction of arrears
and ensuring the speedy trial
There was complete unanimity amongst the participants
that cases are not being disposed of within a reasonable
c time-schedule and they were of the view that strength of
Judges at all levels need to be enhanced in order to arrest
accumulation of arrears of cases and to provide speedy,
efficient and effective justice to the citizens. The speakers
also stressed upon the need to evolve methods to arrest
D arrears of cases and to ensure speedy disposal of cases.
The participants also impressed upon the fact that unfilled
vacancies be filled up at the earliest which will contribute
to reducing the backlog of cases.
DECISION
E
The High Courts will make scientific and rational analysis
as regards accumulation of arrears and devise a roadmap
for itself and jurisdictional courts to arrest arrears of cases
taking into account average institution, pendency and
F disposal of cases and to ensure speedy trial within a
reasonable time-schedule.
13] Judicial Impact Assessment
The proposal of 'Judicial Impact Assessment' was
G welcomed at the Conference and need was felt that it be
assessed on a continual basis. It was suggested that a
scientific study be made to estimate the additional case-
load on the courts on account of a new legislation.
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 409
[SWATANTER KUMAR, J.]
DECISION A
A judicial .impact office at the National and State levels on
continual basis for making assessment of impact of
legislations on judicial work load be constituted."
116. There is nothing placed on record before us to show 8
that the FTCs at the level of the Magistrate Courts have no
further efficacy. All the concerned governments, including the
Union of India, which duly participated in the Conference, had
decided to extend the FTCs for a period of five years beyond
31st March, 2010 i.e. till 31st March, 2015. It was further C
contemplated in the above decisions that other measures
should also be taken by the respective State Governments and
Union of India to tackle the problem of arrear of cases. Hardly
any decision in that regard was implemented, but on the other
hand, a decision contrary to the minutes has been taken with D
certainty and has been plac.3d before us that the FTC Scheme
would not be financed by the Central Government beyond 31st
March, 2011. The question that arises is whether it is justified
for the Central Government, or any other Government, to brush
aside the above Minutes and recommendations of such a high E
level meeting in a most casual manner or whether such Minutes
require favourable consideration by all concerned and proper
and complete policy decisions taken in furtherance thereto and
such minutes form the foundation for major policy decisions
relating to judiciary. F
117. The latter perspective demands an affirmative answer
as these decisions and recommendations should be favourably
considered by all concerned. Rather, they should form the basis
of the policy decisions relating to the administration of justice.
The Chief Justices and the Chief Ministers are the constitutional G
heads of the Judiciary and the Executive, respectively. The
matters are discussed by all States, Union of India and
Judiciary. The decisions are taken on the basis of the collective
wisdom. One can hardly comprehend a constitutional body of
a higher normative significance than the Chief Justices and the H
410 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Chief Ministers of the respective High Courts/States to take
such policy decisions at the National level. The meeting is held
under the umbrella of the Union of India and is presided over
by the Chief Justice of India, Union Minister for Law and Justice
and other high dignitaries to deliberate upon issues which relate
B to the justice delivery system, ultimately affecting the basic and
fundamental rights of the citizens of this country at large.
118. It will not only be unfair but unacceptable that these
Minutes be placed in the shelves of the Government archives
C without attaching any significance to them. In our considered
view, it will neither be fair nor proper for any level in the
bureaucratic hierarchy of the Government to reject such
suggestions at the threshold, that too, without any proper
reasoning in support thereof. At least, the Cabinet of the
Government of India or the State Government, as the case may
D be should take into consideration the decisions and
recommendations of this meeting. We hasten to add that due
weightage should be attached to these recommendations and
preferably, they should form the basis of the policy decision by
the State or the Central Government in relation to the matters
E concerning Judicial administration.
Merits of the Respective Cases
119. We have already noticed that in the case of the State
of Gujarat, a number of persons were appointed as Judicial
F Officers to preside over the FTCs by way of direct recruitment
from the Bar. Their services have been terminated on the ground
of unsatisfactory performance. The High Court had, vide its
judgment dated 1st August, 2010, declined to set aside the
termination of services of most officers, except 12 officers
G whose cases were remanded to the High Court for
reconsideration on the administrative side. Out of these 12
officers, the High Court reinstated six officers and declined
reinstatement of six others. In this way, 47 officers have
. challenged their termination orders. In the impugned judgment,
H the High Court has noted unsatisfactory performance as the
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 411
[SWATANTER KUMAR, J.]
cause for termination of their services. Entries of their service A
records have been reproduced in the judgment. All these
officers had been appointed as ad hoc and temporary FTC
Judges. At no point of time was anything done, di;ectly or
indirectly, by the State to give rise to a legitimate expectation
of the appointees that their services will be regularized and B
they will be absorbed in the regular cadre. On the basis of the
Confidential Records referred to by the High Court, in its
judgment, it is difficult for us to take any different view,
particularly when these judicial officers were only temporary and
ad hoc appointees with no vested right to the post. Certainly, c
this is not a case of mala fide termination. In the subsequent
writ petitions before the High Court only one reason has been
given for the termination, i.e., the Central Government has
refused to extend the FTC Scheme and so, the State
Government of Gujarat has also decided not to extend the FTC 0
Scheme beyond 31st March, 2011. This probably was not a
valid reason to dismiss the Writ Petitions because the Court
ought to have examined the prayer of those officers for
regularization of their services and absorption against the
regular cadre posts. This aspect of the Writ Petition was not E
even discussed by the High Court and the writ petitions were
dismissed. However, the High Court, while noticing that 100
posts of Additional District Judges have been created,
concluded that the FTC Judges would not be adjusted or
absorbed against those vacancies and that the they could not
claim absorption against those posts. The High Court merely F
granted leave to the petitioners to apply for selection to the new
posts or the regular posts, in light of the judgment of this Court
in the case of Brij Mohan Lal (supra).
120. These petitioners have also raised a challenge to G
Rules 4 and 6 of the Gujarat Rules under which they were
appointed, on the ground that the same are arbitrary and
discriminatory. Firstly, the Rules under which the petitioners
were appointed after 2001 themselves were to be in force only
till 31st December, 2005. Till 2005, none of the appointees H
412 SUPREME COURT REPORTS [2012] 5 S.C.R.
A challenged these Rules. For these four years, they, in fact, took
full advantage of their appointment under these Rules and
received different service benefits thereunder. We are unable
to appreciate the contention that these Rules were arbitrary or
discriminatory. The Rules themselves were temporary and were
B enacted to meet an emergency situation. The appointments
were made purely on ad hoc and urgent temporary basis for a
period of two years, terminable without any prior notice. A
temporary appointment, which itself was made for a period of
two years, can hardly be equated to a tenure appointment and
c must be construed on such terms. These appointments were
to come to an end by lapse of time. Such an appointment
obviously cannot vest or confer any right upon the appointees
to be absorbed in the permanent cadre, as they were not
appointed in accordance with the provisions of the Gujarat
Judicial Service Recruitment Rules, 1961. The expression
0
'liable to be terminated at any time without any notice' could be
susceptible to objections if it was used in the case of a quasi
permanent or permanent employee of a Government servant.
However, we have already noticed that there were no
permanent posts contemplated under the FTC Scheme. The
E entire FTC Scheme was ad hoc and formulated to operate only
until the year 2005. It was continued beyond that period in
accordance with the directions of this Court but now a decision
has been taken not to continue the FTC Scheme beyond 31st
March, 2011. Even if, for the sake of argument, we accept the
F contention that the expression 'liable to be terminated at any
time without any notice' is arbitrary and opposed to the basic
Rule of Law, it still has to satisfy the twin tests laid down in the
case of Parshotam Lal Dhingra (supra), i.e., firstly, whether the
Government servant being terminated or reduced in rank
G thereby had a right to the post or to the rank, as the case may
be and, secondly, whether he had been visited with evil
consequences. Both of these tests have to be answered in the
negative, in the facts and circumstances of the present case.
We have already held above that these officers had no right to
H their posts and, consequently, discontinuation of their services
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 413
[SWATANTER KUMAR, J.]
in the facts of the present case cannot be construed as punitive A
or one visiting the petitioners with civil consequences. This
holds true even though in some cases, it has been recorded
that the performance of these appointees was found to be
unsatisfactory but that is not the lone reason given by the High .
Court for dispensing with their services. It is the discontinuation B
of the FTC Scheme itself that is the principal reason for
terminating the services of all these officers. In the present
case, the Rules themselves were temporary and were bound
to cease to have force of law after 2005. The posts created
were temporary and ad hoc. The appointments were made on c
ad hoc and urgent temporary basis for a limited period of two
years and terminable without notice. In these circumstances,
neither can it be stated that there existed posts which had
permanent or quasi-permanent character and were the duly
sanctioned posts of the regular cadre of the State Government 0
nor that the appointees had any right to these posts. Similar
views were expressed by this Court in the case of Mohd. Abdul
Kadir (supra) holding that the appointments made under a
scheme, which was extended from time to time could still be
terminated or discontinued as the temporary or ad hoc E
engagements or appointments were in connection with a
particular project or a specific scheme only. Such appointments
would come to an end with the scheme itself.
121. Writ Petitions have been filed by some of the
appointees from the State of Orissa praying for quashing of the F
caution dated 4th April, 2008 issued to some officers, including
Smt. Madhumita Das, which had informed them that they were
required to dispose of eight sessions trials every month which,
so far, they had not been able to achieve and that if they still
failed to achieve the said target, their services would be liable G
to be terminated. The State of Orissa had issued an
advertisement for direct recruitment to the Higher Judicial
Services of the State dated 11th April, 2008. The appointees
to the FTCs prayed that this advertisement be quashed and
they be absorbed against the regular vacancies. Amongst H
414 SUPREME COURT REPORTS [2012] 5 S.C.R.
A others, one Shri Prakash Kumar Rath, petitioner in Writ Petition
(C) No.254 of 2008 has approached this Court under Article
32 of the Constitution on the ground that he had earlier been
placed in the waiting list of the candidates selected for regular
-appointment to the Higher Judicial Services of the State of
B Orissa under the Orissa Superior Judicial Service Rules, 1963
though after sometime, his appointment was made under the
Orissa Judicial Service (Special Scheme) Rules, 2001 relating
to temporary appointment for FTCs. According to this
petitioner, he ought to be treated as a regular candidate as his
c selection was under the regular service cadre and, therefore,
he should be absorbed against those vacancies.
122. The correctness of the above-mentioned caution is
primarily challenged on the ground that it is violative of Articles
14 and 16 of the Constitution inasmuch as no such restriction
D or limitation of disposing eight Session Trials every month is
applied to the members of the State Higher Judicial Services
and that the same yardstick should uniformly be applied to the
direct recruits appointed under the Rules as well as to the
Judicial Officers promoted/transferred to the FTCs. This
E argument is misconceived. The Judicial Officers appointed
under the regular cadre of the State Higher Judicial Services
are subject to various restrictions and limitations of judicial
conduct as imposed by the High Court and under the relevant
Rules in force. Without exception, unit system for disposal of
F cases prevails and is applicable to the courts presided over
by such officers. They are required to dispose of certain given
number of cases as that is one of the main parameters for
recording the Annual Confidential Reports of the officers and
placing them in the categories of 'Outstanding', 'Very Good',
G 'Good', 'Average', etc. On the contrary, the FTC Judges are to
deal only with session trials. This was the very purpose for which
the Scheme was created and, as such, they cannot claim that
the imposition of such a condition is ex facie unreasonable,
arbitrary or discriminatory. In fact, in the writ petitions filed
H before us, no data has been provided to substantiate that it is
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 415
[SWATANTER KUMAR, J.]
neither practicable nor possible for these courts to dispose of A
eight Session Trials, as contemplated under this caution letter
dated 4th April, 2008. It is not that every sessions trial requires
examination of large number of witnesses and other evidence.
There are a considerable number of sessions cases where the
trial may not really take prolonged period for disposal. In the B
absence of any specific data and even otherwise, we are
unable to accept this contention raised on behalf of the
petitioners-appointees. Similarly, we also find no merit in the
contention that this Court should quash the advertisement
issued by the State of Orissa for making selections to the c
Orissa Higher Judicial Services on the basis of the claims for
regularization of the petitioners against such posts. There are
two different sets of Rules, applicable in different situations, to
these two different classes of officers and further they are
governed by different conditions of service. They cannot be
0
placed at par. The process of their appointments is distinct and
different. These petitioners have no right to the post. Thus, it
would neither be permissible nor proper for the Court to halt
the regular process of selection on the plea that these
petitioners have a right to be absorbed against the posts in the E
regular cadre.
123. The prayer for regularization of service and
absorption of the petitioners-appointees against the vacancies
appearing in the regular cadre has been made not only in cases
involving case of State of Orissa, but even in other States. F
Absorption in service is not a right. Regularization also is not
a statutory or a legal right enforceable by the persons appointed
under different rules to different posts. Regularization shall
depend upon the facts and circumstances of a given case as
well as the relevant Rules applicable to such class of persons. G
As already noticed, on earlier occasions also, this Court has
declined the relief of regularization of the persons and workmen
who had been appointed against a particular scheme or
project. A Constitution Bench of this Court has clearly stated
the principle that in matters of public employment, absorption, H
416 SUPREME COURT REPORTS [2012] 5 S.C.R.
A regularization or permanent continuance of temporary,
contractual or casual daily wage or ad hoc employees
appointed and continued for long in such public employment
would be de hors the constitutional scheme of public
employment and would be improper. It would also not be proper
s to stay the regular recruitment process for the concerned posts.
[refer Uma Devi (3) (supra)].
124. It is not necessary for us to deliberate on this issue
all over again in view of the above discussion. Suffice it to
C notice that the petitioner-appointees have no right to the posts
in question as the posts themselves were temporary and were
bound to come to an end by efflux of time. With reference to
the letters of their appointment and the Rules under which the
same were issued, it is clear that these petitioners cannot claim
any indefeasible right either to regularization or absorption. It
D may also be noticed that under the Orissa Superior Judicial
Services and Judicial Service Rules, 2007, there is no provision
for absorption or regularization of ad hoc Judges.
125. The petitioners from the State of Andhra Pradesh
E have also prayed for identical relief claiming that the
advertisement dated 28th May, 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
absorbed against those vacancies. In view of the above
F discussion, we find no merit even in these submissions.
126. 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
G would be ad hoc and temporary and that the appointees shall
not derive any benefit from such appointments.
127. In the case of State of Rajasthan, it is the Judicial
Officers from the cadre of Civil Judge, Senior Division, who
H were promoted as FTC Judges. They have continued to hold
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 417
[SWATANTER KUMAR, J.)
those posts for a considerable period. According to these A
petitioners, they were promoted to the Higher Judicial Services
as per Rules and, therefore, keeping in view the order of this
Court in the case of Madhumita Das (supra) as well as the very
essence of the FTC Scheme, they should be absorbed as
members of the regular cadre of Higher Judicial Services of B
the State of Rajasthan. The State Government had issued a
directive that they should undertake the limited competitive
examination for their regular promotion/absorption in the higher
cadre. These officers questioned the correctness of this
directive on the ground that they were promoted as Additional c
Sessions Judges (FTC) under the Rules and, therefore, there
was no question of any further requirement for them to take any
written examination after the long years of service that they have
already put in in the Higher Judicial Services.
128. The Rajasthan Higher Judicial Service Rules, 2010 D
are in force for appointment to the Higher Judicial Services of
the State. The judgment of this Court in A// India Judges'
Association case (2002) (supra) as well as the relevant Rules
contemplate that a person who is to be directly appointed to
the Higher Judicial Services has to undergo a written E
examination and appear in an interview before he can be
appointed to the said cadre. As far as appointment by
promotion is concerned, the promotion can be made by two
different modes, i.e., on the basis of seniority-cum-merit or
through out of turn promotion wherein any Civil Judge, Senior F
Division who has put in five years of service is required to take
a competitive examination and then to the extent of 25 per cent
of the vacancies available, such Judges would be promoted to
the Higher Judicial Services. It was admitted before us by the
learned counsel appearing for the petitioner that these officers G
who were promoted as ad hoc FTC Judges had not taken any
written competitive examination before their promotion to this
post under the Higher Judicial Services. In other words, they
were promoted on ad hoc basis depending on the availability
of vacancy in the FTCs. Once the Rules required a particular H
418 SUPREME COURT REPORTS [2012] 5 S.C.R.
A procedure to be adopted for promotion to the regular posts of
the Higher Judicial Services, then the competent authority can
effect the promotion only by that process and none other. In view
of the admitted fact that these officers have not taken any
written examination, we see no reason as to how the challenge
B made by these Judicial Officers to the directive issued by the
State Government for undertaking of written examination may
be sustained. Thus, the relief prayed for cannot be granted in
its entirety.
129. In the case of the States of Punjab and Haryana, the
C appointees were directly appointed as FTC Judges by way of
direct recruitment from the Bar and they prayed for
regularization of their services and absorption in the regular
cadre as well as for continuation of the FTC Scheme till their
absorption. For the reasons already recorded by us in relation
D to other States mentioned above, we do not think that the relief
of regularization/absorption can be granted to these petitioners
also in the manner in which they have prayed. They too have
no right to the post. Admittedly, these candidates also did not
pass any written competitive examination and were appointed
E solely on the basis of an interview and must now undergo the
requisite examination.
The effect of Madhumita Das (supra) and Brij Mohan Lal
(supra) and the directions that this Court is required to
F issue in light thereof
130. The issues arising for the consideration of this Court
under this head, though ancillary, are of significant importance.
Having held that the petitioners/appointees to the FTCs do not
have any right to the post and such appointments were
G temporary, ad hoc and on urgent basis for a limited period, we
have yet to examine whether these petitioners would at all be
entitled to some relief within the framework of law, with
particular reference to certain constitutional provisions. The
independence of the Judiciary forms part of the basic structure
H of our Constitution. In the Indian Democracy neither
BRIJ MOHAN LAL v. UNION OF !NOIA & ORS. 419
[SWATANTER KUMAR, J.]
administration of justice nor functioning of the courts can be A
rendered irrelevant by actions of other organs of the State.
Article 13 of the Constitution prescribes that if relevant laws are
inconsistent with Part Ill of the Constitution, when enacted, they
shall thereafter be held to be void to the extent of such
inconsistency. The power of the Legislature, thus, is limited by B
the very fundamental restriction prescribing that it cannot enact
laws inconsistent with the fundamental rights of the citizens.
With the development of law, Article 21 has been given a very
wide connotation. It covers various facets of life. Right to life
encompasses the right to live with dignity. Life or personal c
liberty cannot be taken away except according to the procedure
established by law. Such procedure established by law also has
to be reasonable, fair and just. On failure to satisfy these
parameters, such deprivation would be found violative of the
fundamental right guaranteed under Article 21 of the
0
Constitution and would be liable to be struck down. One such
rudiment stated by this Court is the right to fair and speedy trial.
131. The right to speedy trial is an essential ingredient of
such reasonable, fair and just procedure. The State cannot be
permitted to deny the constitutional right to speedy trial to the E
accused on the ground that the State does not have adequate
financial resources to incur the necessary expenditure needed,
for improving the administrative and judicial apparatus to ensure
speedy trial. Usefully, we can refer to the words of Judge
Blackmum in Jackson v. Bishop (404 F Supp. 2d 571] who F
proclaimed that 'humane considerations and constitutional
requirements are not, in this day, to be measured by dollar
considerations'. In the case of Hussainara Khatoon and Others
(IV) v. Home Secretary, State of Bihar, Patna [(1980) 1 SCC
98], this Court held that: G
"10 ..... it is also the constitutional obligation of this Court,
as guardian of the fundamental rights of the people, as a
sentinel on the qui vive, to enforce the fundamental right
of the accused to speedy trial by issuing the necessary H
420 SUPREME COURT REPORTS [2012] 5 S.C.R.
A directions to the State which may include taking of positive
action such as augmenting and strengthening investigative
machinery, setting up new courts, building new court
houses, providing, providing more staff and equipment to
the courts, appointment of additional Judges and other
B measures calculated to ensure speedy trial."
132. This Court, in the case of Sheela Barse (//)and Ors.
v. U.0.1. and Ors. [(1986) 3 SCC 632), while expressing its
anguish over mounting arrears of criminal cases, particularly in
relation to retarded, abandoned or destitute children who were
C facing trial and lodged in protection homes for years, issued
various directions and held as under:-
"3 ... We are, therefore, firmly of the view that every State
Government must take necessary measures for the
D purpose of setting up adequate number of cburts,
appointing requisite number of judges and providing them
the necessary facilities. It is also necessary to set up an
institute or academy for training of Judicial Officers so that
their efficiency may be improved and they may be able to
E regulate and control the flow of cases in their respective
courts. The problem of arrears of criminal cases in the
courts of magistrates and Additional Sessions Judges has
assumed rather disturbing proportions and it is a matter
of grave urgency to which no State Government can afford
F to be oblivious. But, here, we are not concerned with the
question of speedy trial for an accused who is not a child
below the age of 16 years. That is a question which may
have to be considered in some other case where this
Court may be called upon to examine as to what is
reasonable length of time for a trial beyond which the court
G
would regard the right to speedy trial as violated .... "
133. It is a known fact that besides the above judgment,
in a number of decisions including all the cases titled All India
Judges' Association (supra), the Salem Advocate Bar
H Association v. Union of India ((2003) 1 sec 49) and various
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 421
[SWATANTER KUMAR, J.]
other public interest litigations, this Court has used all legally A
permissible judicial tools, to pass appropriate directions of a
generic nature and required the Governments to duly take
requisite policy decisions, in furtherance of public duties as
would be the requirement of law and the Constitution. {Ref.
Prakash Singh Badal v. State of Punjab and Others [(2006) B
8 sec 1]}. The Constitution confers certain rights upon the
citizens and they are entitled to full enforcement of such rights.
134. The present case has two significant aspects with
which the Court is concerned. One relates to the grant or refusal
of the relief claimed by various writ petitioners in these petitions C
while the other enjoins a duty upon the Court to test the merits
or otherwise of the policy decision taken by the Government
as opposed to the rights of the under trials or accused as well
as the right of the public at large to demand speedy and fair
trial. The former may have limited but the later certainly has far D
reaching consequences. This Court would fail in its duty if it
declines to exercise its jurisdiction in the latter class of cases,
solely on the ground that it was a policy decision and, thus, is
beyond the limits of judicial review, being a matter primarily
within the domain of the Government. Keeping in view its E
constitutional duty, the constitutional rights of citizens of this
country at large and with reference to the facts of a given case,
this Court may be duty bound to amplify and extend the arm of
justice in accordance with the principle Est boni Judicls
ampliare Justiciary non-Jurisdictionem. The argument that F
matters of policy are, as a rule, beyond the power of judicial
review has to be dispelled in light of the consistent view of this
Court. This Court would be required to take unto itself the task
of issuing appropriate directions to ensure that the Rule of Law
prevails and the constitutional goals are not defeated by G
inaction either when the law requires action or when the policy
in question is so arbitrary that it defeats the larger public
interest.
135. Now, we may examine certain essential features H
422 SUPREME COURT REPORTS [2012) 5 S.C.R.
A which have compelled us to state the directions with candour :
(a) The right of the citizens, undertrials or convicts to a
speedy and fair trial.
(b) Persistent deadlock between the Union and the
B State Governments in regard to continuation or
otherwise of the FTC Scheme .
(c) Uncertainty and adhocism in planning,
implementation and financing of the FTC Scheme.
c (d) The legitimate expectation of the large number of
FTC Judges, that their services would be
regularized in the Higher Judicial Service of the
respective State or that the FTC Scheme would be
made a permanent feature.
D
(e) The element of arbitrariness that appears to have
crept into the decision-making process of the
Government and its hierarchy.
E (f) Why due weightage was not given to the decision
and recommendation of the Minutes of the Chief
Justices and Chief Ministers Conference held in the
year, 2009 at New Delhi?
(g) Whether the decision of the Government was data
F based and taken objectively?
(h) There is an inbuilt contradiction in this policy
decision inasmuch as, on the one hand, lack of
finances is one of the grounds taken for
G discontinuance of the FTC Scheme, funds to the
tune of Rs.2500 crore have been allocated for
starting of the morning, evening and shift courts on
the other.
136. These are the features of the case which stand out
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 423
[SWATANTER KUMAR, J.]
and oblige the Government of India to clarify its stand. The A
Union of India has failed to place any material on record to justify
its decision taken vide letter dated 14th September, 2010
deciding to stop financing the FTC Scheme with effect from 31st
March, 2011. We are quite prepared to accept the contention
of the Union of India that it will not be a case where this Court B
should venture to issue a mandamus directing continuation of
the Scheme and reverse the policy decision taken by the Union
of India. While we are not oblivious of the principle that policy
decisions should be interfered with rarely by the court, we are
fully conscious of the fact that the present case is certainly one c
where the Court should issue certain directions to ensure that
the fundamental rights and protections available to the citizens
are not violated and at the same time, the decision of the
Government of India does not undermine the independence of
judiciary. It may not be mandatory, but is always desirable that 0
the policy decision in re!ation to administration of justice should
be made by Union of India in consultation with the Supreme
Court and/or the respective High Courts of the State. The
recommendation of bodies like the Law Commission of India
or other special commissions appointed in relation to
E
administration of justice delivery system ought to be taken into
consideration. But, we are unable to accept the view that the
recommendations given by one of the important organs of the
State, the judiciary, are not given effective consideration and
due weightage in framing and implementation of the policies
making relating to matters of administration of justice. F
137. It will neither be appropriate nor logical for the Union
of India and/or the State Governments to raise an argument that
this Court may not issue any directions or mandamus to the
concerned Government, as it may have far reaching G
consequences. This argument does not impress us at all.
Firstly, the Union of India and the State Governments are not
expected to raise such issue and secondly, it can hardly be
disputed that the Governments have not been able to
successfully perpetrate any stable and result-oriented solution H
424 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to reduce the huge pendency of criminal cases before the
courts. The finances, infrastructure and existence of adequate
posts are the prime considerations which would weigh with any
Authority or Court while taking any policy decisions or passing
necessary directions in that behalf.
B
138. What appears to have weighed with the Central
Government for not continuing the FTC Scheme after
31.03.2011 is that the 13th Finance Commission has
recommended a grant of Rs. 5,000 Crores to the States for
improving the justice delivery system in the country with a
C specific objective of reducing the arrears significantly and out
of this amount of Rs.5,000 crore a sum of Rs.2,500 crore has
been allotted for morning/evening/shift courts and no amount
has been allotted for FTCs. The recommendations of the 13th
Finance Commission under the head "Improving Justice
D Delivery" which are relevant are extracted hereinbelow:
"12.76 The improvement of justice delivery is a critical
component of the initiative to ensure better outputs and
outcomes. This can be done by supporting the judiciary,
E while simultaneously strengthening the capacity of the law
enforcement arm. We discuss here the support required
to improve judicial outcomes. There are over 3 crore
cases pending in various courts in the country today. At
the very least, current filings need to be disposed off, to
F prevent accumulation of arrears. The enormous delay in
disposal of cases results not only in immense hardship,
including those borne by the large number of under-trials,
but also hinders economic development.
12. 77 The Department of Justice has identified a number
G of initiatives which are part of this action plan and need
support. The first is increasing the number of court working
hours using the existing infrastructure by holding morning/
evening/shift courts. The second entails enhancing support
to Lok Adalats to reduce the pressure on regular courts.
H The third initiative involves providing additional funding to
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 425
[SWATANTER KUMAR, J.]
State Legal Services Authorities to enable them to A
enhance legal aid to the marginalised and empower them
to access justice. The fourth is promoting the Alternate
Dispute Resolution (ADR) mechanism to resolve pat of the
disputes outside the court system. The fifth is enhancing
capacity of judicial officers and public prosecutors through B
training programmes. The sixth relates to supporting
creation of a judicial academy in every state to facilitate
such training.
12.78 The department has also proposed creation of the
post of Court Managers in every judicial district to assist C
the judiciary in their administrative functions. A number of
courts in each state are housed in heritage buildings, which
reflect the cultural heritage of the arrears. It is proposed
that a grant be provided for maintaining these buildings.
D
12.79 The Commission, after careful consideration has
agreed to support the proposals made by the Department
of Justice by approving a grant of Rs.5,000 Crores to be
allocated as describe below. These allocations may be
released in two annual instalments subject to accounts E
being maintained and Utilisation Certificates (UCs)/
Statements of Expenditure (SOEs) provided as per
General Financial Rules (GFR 2005).
12.80 Operation of morning/ evening/ special judicial-
metropolitan magistrate/ shift courts: The present 14,000 F
district and subordinate courts in the country are disposing
off both important as well as petty cases. The pressure on
judicial time on account of the petty cases can be relieved
by allotting them to morning/evening courts/ courts of
special judicial/metropolitan magistrates. These courts will G
be staffed either by the regular judiciary on payment of
additional compensation, or by retired officers. The
morning courts in Andhra Pradesh and the evening courts
in Gujarat have demonstrated the feasibility of such
models. It is expected that about 14,825 such courts can H
426 SUPREME COURT REPORTS [2012] 5 S.C.R.
A dispose off 225 lakh pending as well as freshly filed cases
of a minor nature within a year. This aggregates to 1125
lakh cases over the period 2010-2015. An amount of
Rs.2,500 crore is being provided to facilitate setting up of
such courts, which has been allocated to each state in
B accordance with the number of sanctioned courts. "
139. It will be clear from the aforesaid extracts from the
recommendations of the 13th Finance Commission that the
recommendations were based on the proposals of the
Department of Justice, Government of India for setting up
C morning/evening and shift courts because the morning courts
in Andhra Pradesh and the evening courts in Gujarat had
demonstrated the feasibility of morning and evening courts. The
morning and evening courts, however, may not be feasible in
the other States in India due to various local conditions
D prevailing in the States. Moreover, as mentioned in paragraph
12. 77 of the recommendations of the 13th Finance
Commission, the idea behind having morning/evening/ shift
courts is that sufficient infrastructure such as court rooms were
not available for regular courts and with the same infrastructure
E more hours of judicial work could be done through morning/
evening and shift courts. The fact, however, remains that with
the help of funds allotted by the 11th Finance Commission, the
States have already established additional court rooms for the
FTCs. These relevant aspects have not been considered by the
F Central Government while rejecting the recommendations in the
Conference of Chief Ministers of the States and Chief Justices
of the High Courts for continuing the FTC Scheme after
31.03.2010. The State Governments and the High Courts of
different States should have beer:i consulted and their views
G should have been taken before the Central Government took
the final decision to reject the proposal at the Conference of
the Chief Ministers of States and Chief Justices of the High
Courts to continue the FTC Scheme. We, however, find that the
policy-decision of the Central Government to discontinue the
H FTC Scheme beyond 31.03.2011 in its letter dated 14.09.2010
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 427
[SWATANTER KUMAR, J.]
has already been given effect to and for this reason we are not A
inclined to strike down the aforesaid policy-decision of the
Union of India to discontinue the FTC scheme beyond
31.03.2011.
140. Nonetheless, it will be clear from paragraph 12.76 of 8
the recommendations of the 13th Finance Commission that
there are over 3 crores pending cases in various courts in the
country and there is enormous delay in disposing of the cases
resulting in immense hardship, including those borne by large
number of under-trials. If the FTC ad hoc direct recruits who C
have over the years gained a lot of judicial experience are
regularised and absorbed in the regular cadre of Additional
District Judges in different States, the problem of arrear of
cases can be handled to some extent. The State Governments,
however, may not have the funds to bear the salary and
allowances of additional posts of Additional District Judges and D
therefore may not be in a position to regularise the ad hoc FTC
Judges. To meet the cost disability of some of the State
Governments, the 13th Finance Commission has provided
funds for different projects, grant-in-aid and infrastructural
expenditure relating to establishment and running of courts. This E
will be clear from paragraphs 12.1 and 12.2 of the
recommendations of the 13th Finance Commission which are
quoted hereinbelow:
"12.1 Our terms of Reference (ToR) require us to make F
recommendations on the principles that should govern the
grants-in-aid of the revenues of states out of the
Consolidated Fund of India and the sums to be paid to
states which are in need of assistance by way of grants-
i n-aid of their revenues under Article 275 of the G
Constitution, for purposes other than those specified in the
provisos to Clause (1) of that article.
12.2 Grants-in-aid are an important component of Finance
Commission transfers. The size of the grants has varied
from 7.7 per cent of total transfers under FC-Vll to 26.1 per H
428 SUPREME COURT REPORTS [2012) 5 S.C.R.
A cent of total transfers under FC-VI. Grants recommended
by FC-Xll amounted to 18.9 per cent of total transfers. In
their memoranda to us, a few states have argued that
grants should be restricted to only a small portion of the
states' share in FC transfers. They have argued that grants
B have been directed to particular sectors and with
conditionalities that restrict the expenditure options of the
states. In our assessment, grants-in-aid are an important
instrument which enable the Commission to make its
scheme of transfers more comprehensive and qddress
c various issues spelt out in the ToR. Grants also allow us
to make corrections for cost disabilities faced by many
states which are possible to address .only to a limited
extent in any devolution formula. The Commission has
accordingly suggested several categories of grants-in-aid
amounting in aggregate to Rs. 3, 18, 581 crore which
D
constitutes 18.03 per cent of total transfers."
141. To meet the expenses of the State Government for
improving the Justice Delivery System, the 13th Finance
Commission has, therefore, recommended a total grant of
E Rs.5,000 crores under the following specific heads:
(i) Operation of morning/ evening/ special judicial-
metropolitan magistrate/ shift courts - Rs.2,500
crores
F (ii) Establishing ADR Centres and training of
mediators/conciliators - Rs.750 crores
(iii) Lok Ada lat - Rs.100 crores
G (iv) Legal Aid - Rs.200 crores
(v) Training of Judicial Officers - Rs.250 crores
(vi) State Judicial Academies - Rs.300 crores
H (vii) Training of Public Prosecutors - Rs.150 crores
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 429
[SWATANTER KUMAR, J.]
(viii) Creation of posts of Court Managers - Rs.300 A
crores
(ix) Maintenance of heritage court buildings - Rs.450
crores
142. On account of the aforesaid allocations of grants-in- 8
aid to specific heads, the State Governments will not be able
to utilise the allocations made in their favour for additional posts
of Additional District Judges for regularising the FTC Judges.
We are, thus, of the considered opinion that the Central
Government should, in consultation with the State Governments C
and the High Courts of the different States, reconsider
allocating some amount out of the grant of Rs.5000 crores and
for such additional amount for meeting the initial expenses of
increase in cadre strength of Additional District Judges for
absorbing the direct recruits of the FTC Scheme by way of D
regularisation.
143. In terms of Articles 141 and 144 of the Constitution,
the law declared by the Supreme Court of India is binding on
all Courts and all authorities which are to act in aid of the law E
so declared. The framers of the Constitution, in no uncertain
terms, declared that the judgments of this Court are binding on
all. In fact, there is a duty upon the Authorities and all other
Courts to act in aid of such decisions. In the case of Brij Mohan
Lal (supra), this Court vide its judgment dated 6th May, 2002
after noticing various judgments of this Court, issued number
F
of directions in relation to establishment and functioning of the
FTCs. It referred to the Report of the Eleventh Finance
Commission. While repelling the challenge to the FTC Scheme,
this Court directed that steps should be taken within three
months from the date of that judgment. The modes of G
appointment of Judges to the FTCs were also provided in this
judgment. The judgment itself said that no right will be conferred
on the Judicial Officers in service for claiming any regular
promotion on the basis of serving as FTC Judges. While stating
the order of preference for appointment to these Courts, this H
430 SUPREME COURT REPORTS [2012) 5 S.C.R.
A Court held that the first preference would be given to judges
from amongst the eligible judicial officers by ad hoc promotion,
the second preference would be given to the retired judges with
good service records and the third preference would be given
to the members of the Bar by direct recruitment.
B
144. Thereafter, this Court passed a detailed order in the
case of Madhumita Das (supra), finding some substance in the
plea that while assessing the performance, there cannot be
different yardsticks, i.e. the same parameters have to be
C adopted while judging the performance of the petitioners viz-
a-viz. those which are recruited from another source, i.e. from
amongst the Judicial Officers. However, in the interim order,
this Court made a specific direction that the petitioners will
continue to hold the post until further orders, which it directed
the High Court to pass. It was also stated therein that as and
D when regular vacancies would arise, the cases of the
petitioners shall be duly considered and there shall not be any
need for them to appear in any examination meant for
recruitment to the cadre of District Judge.
E 145. Thus, these two orders must be seen in light of the
fact that the Union of India, as well as the State Governments
of their own, extended the FTC Scheme for another five years
i.e. till 2010 and thereafter, by another year. The Central
Government ultimately took the decision not to finance the FTC
F Scheme with effect from 30th March, 2011. Even thereafter, a
number of States have taken the decision to continue the FTC
Scheme while retaining the appointees thereto till 2012, 2013
and even till 2016. The State of Haryana has even thought of
making it as a permanent feature of dispensation of justice in
G the State. The cumulative effect of all these factors is that the
petitioners had a legitimate expectation that either their services
would be continued as the FTC Scheme would be made a
permanent feature of the justice administration in the concerned
State or they would be absorbed in the regular cadre. But mere
expectation or even legitimate expectation of absorption cannot
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 431
[SWATANTER KUMAR, J.]
be a cause of action for claiming the relief of regularization, A
particularly when the same is contrary to the Rules and letters
of appointment. In Madhumita Das (supra), the protection was
granted in an interim order and we also feel that such directions
cannot be issued, if they are contrary to the enacted statute.
When all these facts, circumstances and the judgments of this B
Court are harmoniously construed with an intention to do
complete justice as well as to protect the fundamental rights and
protections available to the public at large, it would appear
necessary that this Court passes certain directions.
146. Without any intent to interfere with the policy decision
c
taken by the Governments but, unmistakably, to
protect the guarantees of Article 21 of the
Constitution, improve the Justice Delivery System
and fortify the independence of judiciary, while
ensuring attainment of constitutional goals as well D
as to do complete justice to the lis before us, in
terms of Article 142 of the Constitution, we pass the
following orders and directions :
1. Being a policy decision which has already taken E
effect, we decline to strike down the policy decision
of the Union of India vide letter dated 14th
September, 2010 not to finance the FTC Scheme
beyond 31st March, 2011.
F
2. All the States which have taken a policy decision
to continue the FTC Scheme beyond 31st March
2011 shall adhere to the respective dates as
announced, for example in the cases of States of
Orissa (March 2013), Haryana (March 2016),
Andhra Pradesh (March 2012) and Rajasthan G
(February 2013).
3. The States which are in the process of taking a
policy decision on whether or not to continue the
FTC Scheme as a permanent feature of H
432 SUPREME COURT REPORTS [2012] 5 S.C.R.
A administration of justice in the respective States are
free to take such a decision.
4. It is directed that all the States, henceforth, shall not
take a decision to continue the FTC Scheme on ad
hoc and temporary basis. The States are at liberty
8
to decide but only with regard either to bring the
FTC Scheme to an end or to continue the same as
a permanent feature in the State.
5. The Union of India and the State Governments shall
c re-allocate and utilize the funds apportioned by the
Thirteenth Finance Commission and/or make
provisions for such additional funds to ensure
regularization of the FTC judges in the manner
indicated and/or for creation of additional courts as
D directed in this judgment.
6. All the decisions taken and recommendations
made at the Chief Justices and Chief Ministers
Conference shall be placed before the Cabinet of
the Centre or the State, as the case may be, which
E
alone shall have the authority to finally accept,
modify or decline, implementation of such decisions
and, that too, upon objective consideration and for
valid reasons. Let the Minutes of the Conference of
2009, at least now, be placed before the Cabinet
F within three months from the date of pronouncement
of this judgment for its information and appropriate
action.
7. No decision, recommendation or proposal made
G by the Chief Justices and Chief Ministers
Conference shall be rejected or declined or varied
at any bureaucratic level, in the hierarchy of the
Governments, whether in the State or the Centre.
8. We hereby direct that it shall be for the Central
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 433
[SWATANTER KUMAR, J.]
Government to provide funds for carrying out the A
directions contained in this judgment and, if
necessary, by re-allocation of funds already
allocated under the 13th Finance Commission for
Judiciary. We further direct that for creation of
additional 10 per cent posts of the existing cadre, B
the burden shall be equally shared by the Centre
and the State Governments and funds be provided
without any undue delay so that the courts can be
established as per the schedule directed in this
judgment. c
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 D
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 E
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 F
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 G
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 H
434 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 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,
B
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
c 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,
D 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
E
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
F State Goverments 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
G 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
H
age.
BRIJ MOHAN LAL v. UNION OF INDIA & ORS. 435
[SWATANTER KUMAR, J.]
10. The members of the Bar who have directly been A
appointed but whose services were either
dispensed with or terminated on the ground of
doubtful integrity, unsatisfactory work or against
whom, on any other ground, disciplinary action had
been taken, shall not be eligible to the benefits B
stated in clause 5 of the judgment.
11. Keeping in view the need of the hour and the
Constitutional mandate to provide fair and
expeditious trial to all litigants and the citizens of the
country, we direct the respective States and the
c
Central Government to create 10 per cent of the
total regular cadre of the State as additional posts
within three months from today and take up the
process for filling such additional vacancies as per
the Higher Judicial Service and Judicial Services D
Rules of that State, immediately thereafter.
12. These directions, of course, are in addition to and
not in derogation of the recommendations that may
be made by the Law Commission of India and any E
other order which may be passed by the Courts of
competent jurisdiction, in other such matters.
13. The candidates from any State, who were promoted
as FTC Judges from the post of Civil Judge, Senior
F
Division having requisite experience in service, shall
be entitled to be absorbed and remain promoted
to the Higher Judicial Services of that State subject
to:
(a) Such promotion, when effected against the G
25 per cent quota for out-of-turn promotion on
merit, in accordance with the judgment of this
Court in the case of All India Judges'
Association (2002) (supra), by taking and
being selected through the requisite H
436 SUPREME COURT REPORTS [2012] 5 S.C.R.
A examination, as contemplated for out-of-turn
promotion.
(b) If the appointee has the requisite seniority
and is entitled to promotion against 25 per
B cent quota for promotion by seniority-cum-
merit, he shall be promoted on his own turn
to the Higher Judicial Services without any
written examination.
(c) While considering candidates either under
c category (a) or (b) above, due weightage
shall be given to the fact that they have
already put in a number of years in service
in the Higher Judicial Services and, of
course, with reference to their performance.
D
(d) All other appointees in this category, in the
event of discontinuation of the FTC Scheme,
would revert to their respective posts in the
appropriate cadre.
E 147. In view of these orders, Writ Petition (Civil) No. 152
of 2011 has been rendered infructuous and is dismissed as
such.
148. We appreciate the valuable and able assistance
F rendered by learned Amicus Curiae and all other senior counsel
and assisting counsel appearing in the present writ petition.
149. All interim orders passed in any of the above petitions
shall automatically stand vacated in terms of this order. With
G the above directions, all the appeals and other writ petitions are
partially allowed while leaving the parties to bear their own
costs.
N.J. Appeals and Writ Petitions partly allowed.
H
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