Supreme Court of India
MAHESH CHANDRA VERMA & ORS.versusSTATE OF JHARKHAND & ORS.
- Citation
- 2012 INSC 410
- Decided
- 19 September 2012
- Disposal
- Disposed off
- Bench
- AFTAB ALAM
Holding
The appointments of the ADJ‑FTC judges on 02‑02‑2002 and 12‑08‑2002 are irregular, not made under the 2001 Rules, and the appellants may be regularised only in accordance with the directions laid down in Brij Mohan Lal II.
Summary
The Jharkhand High Court had appointed 17 Additional District Judges (ADJs) to the regular cadre under a 2001 advertisement, but later appointed another 25 ADJs as Fast Track Court (FTC) judges using the same merit list. The petitioners, sub‑judges, challenged these later appointments as illegal, arguing that FTC posts were not sanctioned at the time of the advertisement and that the Rules governing the Jharkhand Superior Judicial Service did not apply to temporary, ex‑cadre posts. The Supreme Court held that the FTC appointments were irregular, made in ignorance of established service‑law principles, and could not be treated as regular appointments under the 2001 Rules. It affirmed the High Court’s view that FTC posts are temporary and ex‑cadre, and therefore the appellants are entitled to regularisation only in the manner prescribed in Brij Mohan Lal II. The Court directed the State and the High Court to regularise the appellants according to those directions within six months. The appeals were disposed of, with no interference in the High Court’s decision beyond the compliance directive.
Issues considered
- The legality of appointing the 10 and 15 ADJ‑FTC judges on 02‑02‑2002 and 12‑08‑2002 under the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001.
- Whether the select list prepared for regular ADJ recruitment could be used for FTC appointments after the regular vacancies were filled.
- Whether FTC posts are temporary, ex‑cadre posts and thus fall outside the ambit of the 2001 Rules.
- Whether the appellants are entitled to regularisation in the regular cadre under the directions of Brij Mohan Lal I and II.
- Locus standi of the sub‑judges to challenge the FTC appointments.
- Whether the High Court’s order was vitiated by mala fides or procedural irregularities.
Legislation cited
- Advocates Act, 1961s. Section 2(1)(a)
- Code of Criminal Procedure, 1973s. Section 25
- Constitution of Indias. Article 142, s. Article 233, s. Article 309
- Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001s. Rule 21, s. Rule 22, s. Rule 25, s. Rule 4(a), s. Rule 5, s. Rule 9
Subjects
Fast Track CourtsAdditional District Judgeex‑cadre appointmenttemporary postsregularisationservice lawselection listJharkhand Superior Judicial ServiceArticle 142Article 233vacancyappointment irregularity
Judgment
[2012] 9 S.C.R. 6
A MAHESH CHANDRA VERMA & ORS.
V.
STATE OF JHARKHAND & ORS.
(Civil Appeal No. 6647 of 2012 ETC.)
SEPTEMBER 19, 2012
B
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
JUDICIARY:
c FAST TRACK COURTS (FTC) - Appointments of ADJ,
FTC - Advertisement issued for direct recruitment from the
Bar to regular cadre in Jharkhand Superior Judicial Service
- 17 vacancies being available, appointments given to
candidates at SI. No.. 1 to 17 in the select list - Thereafter
candidates from SI. No. 18 to 27 in the select list appointed
0
ADJ, FTC - Subsequently, 15 more candidates appointed as
ADJ, FTC - Appointment of latter 25 candidates as ADJ, FTC
challenged by Sub-Judges - Held: With the appointment of
17 candidates, the select list came to an end and with it the
selection process for appointment of regular ADJs came to
E an end - When the advertisement for regular posts of ADJs
in Jharkhand Superior Judicial Service was issued, the posts
for FTCs were not sanctioned nor were they even in
contemplation - Therefore, the advertisement was not and
could not have been for FTC Judges - The unexhausted list
F was wrongly used for appointment of 10 FTC Judges - Further,
out of list of unsuccessful candidates, 15 persons were
appointed as FTC Judges - The whole procedure was
irregular - Nevertheless, High Court's decision, however
improper, cannot, in any way, be said to be vitiated by ma/a
G tides. - In the circumstances, the appointments made on 021
0212002 and 1210812002 are held as irregular, made in
ignorance of settled principles underlying service law, in an
anxiety to comply with the desire expressed by the Law
H 6
MAHESH CHANDRA VERMA & ORS. v. STATE OF 7
JHARKHAND
Ministry and to set up FTCs to deal with the problem of A
pendency of cases - Jharkhand Superior Judicial Service
(Recruitment, Appointment and Conditions of Service) Rules,
2001 - Locus Standi..
FAST TRACK COURTS (FTC) - Appointment of FTC B
Judges - Held: The FTC posts were temporary, ad hoc and
ex-cadre posts and appointees to such posts cannot be said
to have any legal right to the posts - The Rules of 2001 meant
for Jharkhand Superior Judicial Service do not apply to ad hoc
ADJs appointed under a scheme of temporary duration like
Fast Tract Court Scheme - The appellants were appointed to C
ex-cadre posts for a temporary period - Merely because they
were made to take written examination and viva voce their
appointments cannot be termed as substantive appointments
nor can the nature of work done by them make their
appointments substantive. D
FAST TRACK COURTS (FTC) - FTC Judges -
Regularisation - Held: The case of the appellants FTC Judges
in the instant matter is covered by the decision in Brij Mohan
Lal-I/ - State Government and High Court will comply with the E
directions issued in Brij Mohan Lal-If to appoint the appellants
in the regular cadre in the Higher Judicial Service in the State
strictly in the manner laid down in Brij Mohan-I/ - Constitution
of India, 1950 - Art. 142.
The High Court of Jharkhand issued an F
advertisement dated 23.5.2001 inviting applications to fill
up the vacancies of regular Additional District Judges
(ADJs) by direct recruitment from Bar in terms of the
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001. On G
completion of the selection process, 17 candidates were
appointed as ADJs in the regular cadre of Higher Judicial
Service. Subsequently, 10 candidates from Sr.No.18 to 27
of the merit list were appointed as ADJ, Fast Track Court
(FTC) by Notification dated 2.2.2002; and 15 more H
8 SUPREME COURT REPORTS (2012] 9 S.C.R.
A candidates were appointed as ADJ, FTC by Notification
dated 12.8.2002. Respondent Nos.5 to 35, who belonged
to the category of Sub Judge in the Judicial Service in
Subordinate Judiciary of the State, filed a writ petition
before the Hig:1 Court contending that the appointment
B of the latter 25 ADJs, FTC was illegal and it affected their
promotional avenues. The affidavit filed on behalf of the
High Court stated that at the time of advertisement (i.e.
23.05.2001) the States of Bihar and Jharkhand were
newly bifurcated and cadre strength was not finalized.
C The High Court was waiting for more officers to be
allocated to Jharkhand cadre. New Posts were also
under the process of creation and, therefore, in the
advertisement exact number of vacancies was not stated.
It further stated that on the date of advertisement, 13
clear cut vacancies existed for appointment of ADJs
0
directly from Bar and when the names were
recommended on 20/10/2001, there were clear cut 17
vacancies for appointment of regular ADJs directly from
Bar. The High Court allowed the writ petition. Aggrieved,
some of the ADJs of FTCs filed the appeals.
E
Disposing of the appeals, the Court
HELD : 1.1 The important features of the
advertisement dated 23.5.2001 are that it was an
F advertisement to fill-in the posts of ADJs; that the
vacancies were not mentioned in the advertisement and
that the appointments were to be finalized as per the
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001.
G Thus, the advertisement was not and could not have
been for FTC Judges. The Rules of 2001 were rightly
mentioned in the advertisement because they deal with
regular appointments in Superior Judicial Service cadre
and the advertisement was for appointments of ADJs in
regular cadre. [Para 23) [36-G-H; 37-A]
H
MAHESH CHANDRA VERMA & ORS. v. STATE OF 9
JHARKHAND
All India Judges Association & Ors. v. Union of India & A
Ors. (2002) 4 SCC 247 = 2002 (2) SCR 712 - referred to.
1.2 From the affidavit filed on behalf of the High Court,
it appears that in the meantime letter dated 14/6/2001 from
the Government of India was received by the High Court
8
forwarding the necessary material on the Fast Track
Court scheme. In the State-wise break-up, 89 additional
courts are shown against the State of Jharkhand.
However, the posts were not sanctioned. It is the case of
the High Court, stated on affidavit, that at that time only C
70 officers were available in the sub-judge cadre and as
such the posts in FTCs could not have been filled-up by
ad hoc promotion from service cadre. There is no reason
to disbelieve this stand of the High Court. [Para 24] [37-
B-D]
D
1.3 It is important to note that posts of FTC Judges
were created only when Government of Jharkhand
issued notification dated 29/11/2001. Thus, on the date
when advertisement dated 23/5/2001 was issued, FTCs
were not even sanctioned and, therefore, were not even E
in anticipation of the High Court. From the affidavit filed
on behalf of the High Court it is evident that on the date
of recommendation, there were clear cut 17 vacancies for
appointment of regular ADJs directly from Bar. After
written examination, oral interviews were conducted in F
pursuance to the said advertisement. In October, 2001 the
High Court prepared a select list of 27 candidates for
superior judicial service which was duly notified as per
Rule 21 of the Rules of 2001. [Para 28-30] [38-G-H; 39-C-
D] G
1.4 By notification dated 29/11/2001, the State
Government constituted 89 FTCs of Additional District &
Sessions Judges for 5 years with immediate effect. On 14/
12/2001, 20 promotee officers were appointed by the
State as FTC Judges on ex cadre temporary posts. On H
10 SUPREME COURT REPORTS [2012] !:! S.C.R.
A 15/12/2001, 17 candidates whose names were found at
Sr.Nos.1 to 17 of the merit list were appointed as ADJs
in the regular cadre of Higher Judicial Service.
Appointments of these persons cannot be faulted,
because it is stated on oath that there were 17 clear cut
B vacancies. [Para 31] (39-E-G]
2.1 On 02/02/2002, ten candidates from Sr.Nos.18 to
27 of the merit list were appointed as FTC Judges. It is
disclosed from the affidavit filed on behalf of the High
Court that in the Full Court meeting held on 02/07/2002,
C it was resolved to fill up the remaining 45 posts of ADJs
to preside over FTCs in addition to 30 FTCs already,
functioning in the State. Thirty were to be by promotion
from Sub-judges and 15 by direct recruitment from the
panel prepared during selection process of regular
D District Judges. On 12/08/2002, 15 persons were
appointed as FTC Judges from Bar on ad hoc basis in
ex-cadre posts. The names of these 15 persons do not
find place in the select list prepared by the High Court
pursuant to advertisement dated 23/05/2001. [Para 32] (39-
E G-H; 40-A-C]
2.2 Since a select list of 27 persons was duly notified
as per Rules of 2001, after candidates from Sr. No. 1 to
17 were appointed as regular ADJs on 15.12.2001, the
F select list came to al) end because as per the affidavit
filed on behalf of the High Court though vacancies were
not mentioned in the advertisement, 17 posts of ADJs
were available on the date of recommendation i.e. on
20/10/2001. On the appointment of 17 regular ADJs, the
G selection process for appointment of regular ADJs came
to an end.The unexhausted select list was wrongly used
for appointment of 10 FTC Judges. The persons from
select list prepared for recruitment to posts of regular
ADJ, can not be appointed as FTC Judges. Again, out of
list of unsuccessful candidates, 15 persons were
H appointed as FTC Judges. Their names were not there
MAHESH CHANDRA VERMA & ORS. v. STATE OF 11
JHARKHAND
in the select list. The whole procedure was irregular. [Para A
33 and 39] [40-D-F; 43-F]
Rakhi Ray v. High Court of Delhi 2010 (2 ) SCR 239 =
488 (2010) 2 SCC 637; and Surinder Singh v. State of
Punjab 1997 ( 3 ) Suppl. SCR 538 = (1997) 8 SCC - relied
B
on.
3.1 It cannot be said that the appellants were
appointed under r.4(a) of the Rules of 2001 or that they
can get advantage of r.25 thereof. The Rules of 2001 and
the regulations which are meant for Jharkhand Superior C
Judicial Service do not apply to ad hoc ADJs appointed
under a scheme of temporary duration like Fast Track
Court scheme. The Rules of 2001 were not amended to
make them applicable to FTCs. The appellants were
appointed in ex-cadre posts for a temporary period. This D
is clear from their appointment letters. Therefore, their
appointments were not under Rules of 2001. Merely
because they were made to take written examination and
viva voce, their appointments cannot be termed as
substantive appointments nor can the nature of work E
done by them make their appointments substantive.
[Para 33] [41-C-F]
3.2 Nevertheless, the High Court's decision, however
improper, cannot, in any way, be said to be vitiated by
mala tides. The Full Court Resolutions of the High Court F
and the correspondence of the Chief Justice with the Law
Ministry also indicate that the High Court was ill-equipped
to put the Fast Track Court Scheme in action in the State
because of several difficulties, prominent amongst them
being cadre bifurcation not having been completed and G
unavailability of officers from service cadre. The High
Court was bona fide trying to comply with the Central
Law Ministry's desire and in that it overstepped its limits.
[Para 34] [42-B-D]
H
12 SUPREME COURT REPORTS [2012] 9 S.C.R.
A 3.3 In the circumstances, this Court is of the view that
the appointments made on 0210212002 and 12/08/2002 are
irregular, made in ignorance of settled principles
underlying service law, in an anxiety to comply with the
desire expressed by the Law Ministry and to set up FTCs
B to deal with the problem of pendency of cases. [Para 34]
[42-E-F]
Brij Mohan Lal v. Union of India & Ors. (Brig Mohan Lal-
l) (2002) 5 SCC 1=2002 ( 3 ) SCR 810 and Brij Mohan Lal
C v. Union of India & Ors. (Brij Mohan Lal-(11) (2012) 6 SCC 502
- relied on.
Central Inland Water Transport Corporation Ltd. & Anr.
v. Brojo Nath Ganguly & Anr. AIR (1986) SC 1571 = 1986
(2) SCR 278; O.P. Sing/a v. Union of India (1984) 4 SCC
D 450=1985 (1) SCR 351; Rudra Kumar Sain v. Union of India
(2000) 8 SCC 25= 2000 (2) Suppl. SCR 573 and 0. Ganesh
Rao Patnaik v. State of Jharkhand (2005) 8 SCC 454=2005
(4) Suppl. SCR 102; Naseem Ahmad & Ors. v. State of Uttar
Pradesh & Anr. (2011) 2 SCC 734= 2010 (14) SCR 822;
E Prem Singh v. State of Haryana (1996) 4 SCC 319=1996 (2)
Suppl. SCR 401 and State of Jammu & Kashmir & Ors. v.
Sanjeev Kumar & Ors. (2005) 4 SCC 148=2005 (2) SCR 400
- held inapplicable.
4.1 In Brij Mohan Lal-II, this Court has, after
F considering the entire matter in its proper perspective,
held that the FTC posts were temporary and ex-cadre
posts and the appointees cannot be said to have any
legal right to the posts. This settled position cannot be
reopened. [Para 43 and 47] [44-F; 46-F]
G
4.2 In Brij Mohan Lal-II, this Court has given certain
directions in terms of Art.142 of the Constitution to
improve justice delivery system, to attain the
constitutional goals and to do complete justice. One of
H the directions pertain to regularization of the FTC Judges
MAHESH CHANDRA VERMA & ORS. v. STATE OF 13
JHARKHAND
in the manner laid down therein. This Court observed that A
if the FTC ad hoc direct recruits, who have over the years
gained a lot of judicial experience, are regularized and
absorbed in the regular cadre of ADJs in different States,
the problem of arrears of cases can be handled to some
extent. While considering the claim of the appointees who B
were directly appointed as FTC Judges from Bar for
regularization of their services and absorption in the
regular cadre, this Court observed that the relief of
regularization/ absorption cannot be granted to the
petitioners in the manner in which they have prayed. They c
have no right to the post. They were solely appointed on
the basis of an interview and, therefore, must undergo the
requisite examination. Making it clear that it had no
intention to interfere with the policy decision taken by the
Union of India, this Court gave certain directions under
0
Art.142 of the Constitution, as quoted in the instant
judgment. It cannot be said that the appellants' case is
not governed by the said judgment. Indeed, the
appellants have referred to their long standing services
as FTC Judges. They have left their practice at the Bar.
Some of them have become age-barred. Brij Mohan Lal- E
II considers this grievance. So far as persons like the
appellants, who are appointed by way of direct
recruitment from the Bar are concerned, this Court made
it clear that they shall be entitled to be appointed to the
regular cadre in the manner provided in Brij Mohal Lal-II. F
[Para 43, 44, 48 and 49] [45-A; 48-E; 45-C; 49-B]
4.3 Indisputably, the appellants were not appointed
on any permanent post. The notification of their
appointment dated 12/08/2002 clearly states they were G
appointed against temporary and ex-cadre posts on ad
hoc basis. They were not appointed under the Rules of
2001. Their appointment was made for a temporary
purpose in a temporary Scheme created for speedy
disposal of cases. Their case is, therefore, clearly covered
H
14 SUPREME COURT REPORTS [2012] 9 S.C.R.
A by Brij Mohan Lal-II. The directions given therein,
particularly those contained in paragraph 207.9 quoted
in the instant judgment, will clearly apply to them. In Brij
Mohan Lal-II, this Court even considered the plea that the
direct recruits had taken all the tests and, therefore, they
8 should not be made to undergo them again, and directed
that they will have to take written examination and they
must also be interviewed. It must be noted at this stage
that on behalf of the High Court of Jharkhand a
statement is made that subject to the creation of
C necessary posts I FTCs by the S~ate of Jharkhand, the
High Court will consider the appellants' case afresh in
terms of the decision of this court in Brij Mohan Lal-11. The
High Court has also taken-up the matter with the State
Government. [Para 50] [52-B-E]
D 4.4 The State of Jharkhand will now have to take
steps to comply with directions issued in Brij Mohan Lal-
11, if it has not complied with them so far. The State
Government and the High Court will have to work in sync
to ensure that the directions to appoint the appellants in
E the regular cadre in Higher Judicial Service are complied
with strictly in the manner laid down in Brij Mohan Lal-II.
[Para 51] [53-C]
4.5 The grievance of the contesting respondents that
F if the appellants are absorbed in regular cadre, their
promotional avenues will get affected or they will suffer
monetary loss, cannot be entertained in view of Brij
Mohan Lal-II. The directions given by this Court in Brij
Mohan Lal-II are under Art. 142 of the Constitution, to do
complete justice and while issuing directions, obviously
G this Court has considered the entire issue in its proper
perspective. This Court concurs with the view taken by
the High Court and there is no reason to interfere with it.
The State Government and the High Court are directed
to comply with the directions to appoint the appellants
H in the regular cadre in Higher Judicial Service in the State
MAHESH CHANDRA VERMA & ORS. v. STATE OF 15
JHARKHAND
strictly in the manner laid down in Brij Mohan Lal-II. [53- A
D-G]
B. Prabhakar Rao and others v. State of Andhra Pradesh
and others 1985 (Suppl) SCC 432= 1985 Suppl. SCR 573;
Hari Bansh Lal v. Sahadar Prasad Mah to and others (2010)
8
9 SCC 655= 2010 (10 ) SCR 561; Narender Chandha & Ors.
v. Union of India & Ors. (1986) 2 SCC 157= 1986 ( 1 ) SCR
211; N.K. Chauhan & Ors. v. State of Gujrat & Ors. (1977) 1
SCC 308= 1977 (1) SCR 1037; G.S. Lamba & Ors. v. Union
of India & Ors. (1985) 2 SCC 604= 1985 ( 3 ) SCR 431; Satya
Narain Singh v. High Court of Judicature at Allahabad & Ors. C
(1985) 1 SCC 225= 1985 ( 2 ) SCR 112; Sushma Suri v.
Govt. of National Capital Territory of Delhi & Anr. (1999) 1
SCC 330= 1998 ( 2) Suppl. SCR 187; Satish Kumar Sharma
v. Bar Council of H.P (2001) 2 SCC 365= 2001 ( 1 ) SCR 34;
Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 D
=2008 (5 ) SCR 1066; Uttar Pradesh Public Service
Commission v. Satya Narayan Sheohare & Ors. (2009) 5
SCC 473= 2009 (4) SCR 491; Ravinder Kumar v. State of
Haryana & Ors. (2010) 5 SCC 136= 2010 (5 ) SCR 116;
Bhakra Beas Management Board v. Krishan Kumar Vij & Anr. E
(2010) 8 SCC 701= 2010 (10) SCR 462; Girjesh Shrivastava
& Ors. v. State of Madhya Pradesh & Ors. (2010) 10 SCC
707= 2010 (12) SCR 839; Secy. A.P. Public Service
Commission v. Y. V. V.R. Srinivasu/u & Ors. (2003) 5 SCC
341= 2003 (3) SCR 742; State of Uttar Pradesh v. Johri Mal F
(2004) ·4 SCC 714= 2004 (1) Suppl. SCR 560; Malik Mazhar
Sultan and another v. UP. Public Service Commission and
others. (2006) 9 SCC 507= 2006 (3) SCR 689; State of Bihar
v. Madan Mohan (1994) Supp. (3) SCC 308= 1993 ( 3 )
Suppl. SCR 242; Smt. K. Lakshmi v. State of Kera/a (2012) G
4 SCC 115; Arup Das v. State of Assam2012(5) SCC 559 -
cited
Case Law Reference:
2010 (10) SCR 561 Cited Para 9 H
16 SUPREME COURT REPORTS [2012] 9 S.C.R.
A 1986 (1) SCR 211 cited Para 13
1977 (1)" SCR 1037 cited Para 13
1985 (3) SCR 431 cited Para 13
1985 (2) SCR 112 cited Para 13
8
1998 (2) Suppl. SCR 187 cited Para 13
2001 (1) SCR 34 cited Para 13
2008 (5) SCR 1066 cited Para 14
c 2009 (4) SCR 491 cited Para 14
2010 (5) SCR 116 cited Para 14
2010 (10) SCR 462 cited Para 14
D 2010 (12) SCR 839 cited Para 14
2003 (3) SCR 742 cited Para 16
2004 (1) Suppl. SCR 560 cited Para 17
E 2006 (3) SCR 689 cited Para 17
1993 (3) ~u'ppl. SCR 242 cited Para 18
(2012) 4 sec 115 cited Para 18
2012 (5) sec 559 cited Para 18
F
2002 (3) SCR 810 relied on Para 35
(2012) 6 sec 502 relied on Para 35
1986 (2) SCR 278 inapplicable Para 37
G inapplicable Para 38
1985 (1) SCR 351
2000 (2) Suppl. SCR 573 inapplicable Para 38
2005 (4) Suppl. SCR 102 inapplicable Para 38
H 2010 (14) SCR 822 inapplicable Para 39
MAHESH CHANDRA VERMA & ORS. v. STATE OF 17
JHARKHAND
1996 (2) Suppl. SCR 401 inapplicable Para 40 A
2005 (2 ) SCR 400 inapplicable Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6647 of 2012.
B
From the Judgment and Order dated 07.03.2011 of the
High Court of Jharkhand at Ranchi in W.P. (s) No. 2872 of 2009.
WITH
C.A. No. 6648 and 6649 of 2012.
c
Nidesh Gupta, Kamal Nayan Choubey, Amarendra
Sharan, Sunil Kumar, Vijay Hansaria, K.K. Rai, Ajit Kumar
Sinha, Amit Kumar, Atul Kumar, Ashish Kumar, Rekha, Bakshi,
Rituraj Kumar, Anil Kumar, Ritu Priyadarshany, Madhusmita
Bora, Shiv Ram Sharma, Sweety Singh, Archana Kumari, N. D
Batray, T.N. Singh, V.K. Singh, H.L. Srivastava, Jayesh Gaurav,
Chhaya Kumari, (For Anil K. Jha), Sneha Kalia, Akhilesh Kumar
Pandey, Ajay Amrit Raj, Rajeev Singh, Shiv Ram Sharma,
Asha Gopalan Nair, Ambhoj Kumar Sinha for the Appearing
Parties. E
The Judgment of the Court was delivered by
(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
F
2. These appeals, by special leave, are directed against
the judgment dated 07/03/2011 delivered by the Division Bench
of the Jharkhand High Court. They involve the same questions
of law and facts and hence can be disposed by a common
judgment. The appellants in these appeals were posted as G
Additional District Judges, Fast Track Courts. They are direct
recruits from the bar. By the impugned order, the High Court
disposed of the Writ Petition filed by the Judicial Officers who
are members of the Subordinate Judiciary of the State of
Jharkhand, challenging the appointment of the appellants to the H
18 SUPREME COURT REPORTS [2012] 9 S.C.R.
A posts of Additional District Judge (for short, "ADJ"), Fast Tract
Courts (for short, "FTC"). The writ petitioners before the High
Court, inter alia, claimed that they were eligible for being
appointed as ADJs and that they are directly affected persons
in monetary terms as well as in terms of their future promotional
B avenues because of the appellants' appointments. They sought
a declaration that the entire selection process for appointment
of the appellants to the post of ADJs, FTCs pursuant to
advertisement dated 23/5/2001 is illegal. They prayed that the
Notifications dated 21212008 and 12/8/2002 whereby the
C appellants were appointed be quashed. They are respondents
before this court. The High Court by the impugned judgment
allowed the writ petition.
3. It is necessary to state case of respondents 5 to 35
D before the High Court for better appreciation of the issues
involved in these appeals.
On 15/11 /2000 Bihar Reorganisation Act, 2000 was
passed, whereby the State of Jharkhand was carved out of the
State of Bihar. By Notification dated 22/02/2001, 90 Superior
E Judicial Officers (ADJs and District Judges) were transferred
from the State of Bihar to the State of Jharkhand. Out of these
90 Judicial Officers, 62 were promotees and 28 were direct
recruits. On 10/05/2001 the Governor of Jharkhand, in
consultation with the High Court, framed Jharkhand Superior
F Judicial Service (Recruitment, Appointment and Conditions of
Service) Rules, 2001 under Article 233 read with proviso to
Article 309 of the Constitution of India ("Rules of 2001 ", for
brevity). Rule 9 thereof prescribed the eligibility for appointment
as an ADJ in the State of Jharkhand, which reads as under:
G
"9. Eligibility: A candidate shall be eligible to be
appointed as an ADJ under these Rules, if:-
(a) he is above the age of 35 years and below the age
of 45 years as on the last day of January preceding
H the year in which the examination is held; provided
MAHESH CHANDRA VERMA & ORS. v. STATE OF 19
JHARKHAND [RANJANA PRAKASH DESAI, J.]
that in the case of a candidate belonging to A
scheduled caste or scheduled tribe, there may be
a relaxation of upper age limit by three years;
(b) is a graduate in law from a University recognized
for the purpose of enrolment as an Advocate under
8
the Advocates' Act, 1961;
(c) has an experience of more than seven years at the
Bar as a practicing Advocate after having been duly
enrolled as such under the Advocates Act, 1961;
c
(d) possesses good health, is of sound moral character
and is not involved in, or related to any criminal case
of any type involving moral turpitude."
4. In order to bring all the facts on record, it would be
necessary to state here that Rule 5 of Rules of 2001 was D
amended on 20/08/2004, whereby the percentage from
different sources was modified in terms of the direction of this
Court in Al/ India Judges Association & Ors. v. Union of India
& Ors. 1 and it was fixed as 50% by promotion, 25% by
promotion through a limited competitive examination and 25% E
by direct recruitment.
5. On 23/05/2001 the High Court of Jharkhand issued an
advertisement inviting applications in the prescribed format
from the eligible candidates to fill-up the vacancies in the post F
of ADJs. The prescribed eligibility criteria was as under:
"(i) Qualification - Graduate in law from University
recognized for the purpose of enrolment as an
Advocate under the Advocates Act, 1961.
G
(ii) Age - above 35 years, but below 45 years as on
31st January, 2001. The upper age limit is relaxable
by three years in the case of SC/ST candidates.
1. (2002) 4 sec 247. H
20 SUPREME COURT REPORTS [2012] 9 S.C.R.
A (iii) Experience - more than 7 years at the Bar as a
practicing advocate after having been duly enrolled
as such."
6. The advertisement, however, did not disclose as to how
B many posts in the regular cadre of ADJs were sought to be
filled. The number of vacancies was not mentioned. On 19/08/
2001 written examination was held in which approximately
4,000 candidates appeared. On 20/09/2001 a list of successful
candidates who were qualified to appear for oral interview was
C published. The list contained names of candidates upto merit
serial number 134.
7. According to the respondents, the number of candidates
called for the interview was much higher than the legally
recognized ratio. Ultimately, out of the candidates whose
D names appeared in the list of successful candidates, 17
candidates were appointed as ADJs in the regular cadre of
Higher Judicial Services. Upon issuance of their appointment
letters the selection process pursuant to the advertisement
dated 23/05/2001 should have come to an end, but 10
E candidates from Sr. Nos.18 to 27 of the merit list were
appointed as FTC Judges. No such panel was ever published
by the respondents therein. In August, 2002, without any
advertisement, 15 persons were appointed as FTC Judges
from the Bar vide Notification dated 12/08/2002. Names of
F these persons were not mentioned in the select list prepared
by the High Court pursuant to the advertisement dated 23/05/
2001. The subsequent appointments of 10 & 15 ADJs in FTCs
in February and August, 2002 by way of direct recruitment from
amongst the members of the Bar were in violation of the rules
G of fairness, equality and fair play as enshrined in Articles 14
and 16 of the Constitution of India. They were also in derogation
of directions given by this Court in Brij Mohan Lal v. Union of
India & Ors. (Brig Mohan Lal-1)2. The respondents pointed out
that in the counter affidavit filed by the Jharkhand High Court
H 2. (2002) s sec 1.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 21
JHARKHAND [RANJANA PRAKASH DESAI, J.]
in WP (S) No. 5613 of 2001, it was stated that the Full Court A
of the High Court in the meeting held on 18/10/2001
recommended the names of 17 candidates for regular
appointments as ADJs in FTCs. FTCs were constituted in the
State of Jharkhand vide Notification dated 29/11/2001. But even
before creation of the FTCs, 10 names were recommended in B
October, 2001 for making appointments against non-existent
posts. On 23/05/2001 when advertisement was issued, Fast
Track Courts Scheme was not in vogue. Some of those
appointed as ADJs, FTCs were working as Assistant Public
Prosecutors in terms of Section 25 of the Code of Criminal C
Procedure, 1973 (for short, "the Code"). They could not have
been appointed ADJs as they were not advocates within the
meaning of Section 2 (1) (a) of the Advocates Act and they
cannot be said to have fulfilled the mandatory eligibility criteria
of having experience of more than 7 years at. the Bar. While
0
deciding eligibility criteria, Rule 9 (a) of the Rules of 2001 was
breached. The candidates who were not above the age of 35
years on the last day of January of the preceding year in which
the examination was held were selected. It was contended that
though there was no provision for preparation of a panel for
future appointment, a panel was prepared. E
8. The case of respondents 3 to 3o found favour with the
High Court. The High Court inter alia held that the appointments
which were offered to the members of the Bar pursuant to the
advertisement dated 23/05/2001 were meant for ADJs. On that F
day, whatever posts were existing or contemplated could have
been made the subject matter of selection. On that day, there
was no sanction from the State Government for those posts,
therefore, those posts were not contemplated vacancies which
can be covered by the advertisement in question. The High G
Court observed that the appellants were appointed on ex-cadre
posts created for a temporary purpose and for a temporary
period for an entirely different objective which was not the
dominant object of Rules of 2001. The High Court further held
·that selection process by way of requisition and advertisement H
22 SUPREME COURT REPORTS [2012) 9 S.C.R.
A can be started for clear vacancies and also for anticipated
vacancies but not for future vacancies. That is exactly what was
done in this case. The High Court, in the circumstances,
quashed the appointments.
9. The impugned order of the High Court has been severely
8
criticized by the counsel for the appellants. By and large the
counsel are unanimous on grounds of attack. We shall
therefore, avoid repetition. Written submissions have been filed
which reflect the submissions of the counsel. We shall give a
gist thereof. On behalf of some of the appellants, senior
C advocate Mr. Choubey submitted that the appellants have been
appointed under Rule 4(a) of the Rules of 2001. Placing heavy
reliance on Rule 25 thereof, he submitted that the appellants
are entitled to be treated on par with the first list of 17
appointees. Counsel submitted that the appellants have already,
D a decade back, passed the rigorous examination comprising
preliminary test, main written test, viva-voce test and orientation
course. The 17 persons who have undergone the same course
are working as District Judges in the cadre. Counsel submitted
that the appellants should not, therefore, be made to undergo
E any more tests. Relying on the Central Inland Water Transport
v. Brojo Nath Ganguly3; O.P. Sing/a v. Union of lndia 4; Rudra
Kumar Sain v. Union of lndia5 and D. Ganesh Rao Patnaik
v. State of Jharkhand6, counsel submitted that the appellants
are performing the same duties as are being performed by the
F regular ADJs. Therefore, their description as ex-cadre,
temporary or ad hoc is unjustified. The appellants did not
agitate the same issue as their names were shown in the
seniority list consistently. Counsel submitted that from the record
produced by the High Court, it is clear that the appellants were
G appoint~d on anticipated and contemplated vacancies and their
3. AIR 1986 SC 1571.
4. (1984) 4 sec 450.
5. (2000) 8 sec 25.
H 6. (2005) 8 sec 454.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 23
JHARKHAND [RANJANA PRAKASH DESAI, J.]
appointments were legal. Counsel submitted that the impugned A
judgment is based on case laws relating to specified
vacancies. The impugned judgment, therefore, deserves to be
set aside. Besides, there is inordinate delay and !aches in filing
the petition in the High Court and on that ground alone, the High
Court should have rejected the petition. Counsel's criticism B
about the High Court's conduct was trenchant. It was submitted .
that unfortunately the High Court has chosen to take
prevaricating and even inconsistent stand at different stages
of the proceedings. In this connection counsel relied on B.
Prabhakar Rao and others v. State of Andhra Pradesh and c
others 7 and Hari Bansh Lal v. Sahadar Prasad Mahto and
others8 • Finally, counsel submitted that in light of Brij Mohan
Lal v. Union of India & Ors. (Brij Mohan Lal-(1/) 9, the services
of the appellants must be regularized.
10. Mr. Sharma, learned counsel appearing for some of D
the appellants, submitted that from the documents, copies of
which have been produced by the High Court and also from the
submissions of the State of Jharkhand, it is clear that the
vacancies of FTCs were anticipated and contemplated and that
the appellants were in the select list of the examination process E
conducted in pursuance to advertisement dated 23/05/2001.
The process of appointment cannot be said to have been
· completed after appointment of first lot of 17 as the posts of
FTC Judges was still to be filled-up and the panel was valid
for a year. Counsel submitted that the High Court never intended F
that the appointments would be ex-cadre appointments.
Selection letters issued by the High Court state that names of
the appellants have been included in the select list of Jharkhand
Superior Judicial Service for appointment as ADJs, but
appointment shall, initially be on ad hoc basis in the regular G
scale of ADJ. The selection letters further state that the
7. 1985 (Suppl) sec 432.
8. c2010) 9 sec 655.
9. (2012) 6 sec 502. H
24 SUPREME COURT REPORTS [2012] 9 S.C.R.
A appointments were likely to continue and in the first instance
they will be posted as Presiding Officers of the FTCs. Counsel
submitted that from the selection letters it is clear that the
appointments were ad hoc initially, but were likely to continue
and were, in fact, substantive appointments.
B
11. Counsel pointed out that the notification of creation of
the posts of FTCs does not state that these posts will be ex-
cadre posts. Notification of appointments which mentions the
word ex-cadre was issued subsequently. The appellants ha_ve
C left their jobs, attended the orientation course and completed
it successfully. Counsel urged that this court should go by the
rules of appointment, the manner of appointment and the nature
of work performed by the appointees and not by the
subsequent nomenclature of deployment occurring in the letters
of appointment which fall within the exclusive domain of the
D employer against which the appointees had no bargaining
power.
12. Counsel submitted that the case of the appellants is
on much better footing than those FTC Judges who were
E before this Court in Brij Mohan Lal-II because those FTCs were
not appointed after completing the process stipulated in the
rules for regular ADJs. Their appointments were under special
schemes. They were appointed either after they took cursory
written examination followed by an interview or only on the basis
F of interview and none of them underwent the orientation course.
Counsel pointed out that the appellants in this case were
selected after exhaustive process provided in the Rules of 2001
for appointment of regular ADJs. In addition to sessions trial,
they were also doing the work of civil appeals, criminal appeals,
G revisions and MACT cases etc. The 17 officers who underwent
the same process of selection are still in the service and are
holding the posts of District Judges in selection grade. It will
not be, therefore, proper to make the appellants take the written
examination or viva voce for their confirmation. Counsel
H submitted that this court should direct the State of Jharkhand
MAHESH CHANDRA VERMA & ORS. v. STATE OF 25
JHARKHAND [RANJANA PRAKASH DESAI, J.]
and the High Court of Jharkhand to regularize the services of A
the appellants with all consequential benefits.
13. Shri Amrendra Sharan, senior counsel on behalf of
appellant-Sanjay Kumar Chandhariyavi, submitted that finding
of the High Court that there was no anticipated vacancy as on B
the date of advertisement is ex-facie wrong. He submitted that
from the Full Court Resolution dated 07/10/2001 and affidavit
of the High Court dated 07/08/2012 it is clear that the High
Court was conscious of anticipated vacancies. Because the
High Court wanted to take into account the anticipated C
vacancies, it deliberately did not mention the number of
vacancies in the advertisement. Counsel submitted that cadre
division was not finalized between the State of Bihar and State
of Jharkhand, therefore, quota of direct recruits and vacancy
of direct recruits could not be ascertained. Counsel pointed out D
that as per Rule 21 of the Rules of 2001 the select list is valid
for a period of one year from the date of the notification.
Counsel submitted that unless the number of vacancies is
certain, it cannot be held that examination process started only
for 17 posts of ADJs and with recruitment of 17 ADJs,
recruitment process came to an end. Counsel submitted that E
the contesting respondents who are from Subordinate Services
could not participate in the process of direct recruitment from
Bar and hence, they had no locus to file petition in the High
Court. Relying on Narender Chandha & Ors. v. Union of India
& Ors. 10, N.K. Chauhan & Ors. v. State of Gujrat & Ors. 11 and F
G. S. Lamba & Ors. v. Union of India & Ors. 12, counsel
submitted that as per Rule 5 of the Rules of 2001 quota can
be deviated in either direction. As the appointments have been
made on the recommendation of the High Court by the
Jharkhand Government, there is deemed relaxation of quota. G
Counsel submitted that this is supported by the averment made
by the High Court in its affidavit to the effect that total number
10. (1986) 2 sec 157.
11. (1977) 1 sec 308.
12. (1985) 2 sec 604. H
26 SUPREME COURT REPORTS [2012) 9 S.C.R.
A of vacancies sought to be filled through advertisement dated
23/5/2001 was 46. Counsel pointed out that as initially
appointment of Shri Chandhariyavi was not for fixed period of
five years but appointment was with further stipulation to the
effect that regarding continuity further order would be passed,
B appointment in real sense was not a pure temporary
appointment. Relying on Rudra Kumar Sain v. Union of lndia 13
it was urged that Shri Chandhariyavi was appointed after going
through the entire selection process for regular appointment
after recommendation of the High Court under Article 233. He
c tried all types of cases which is sufficient to establish that he
was not appointed for particular purpose. His appointment was
not on ad hoc basis. Counsel submitted that as per Rule 3 of
the Rules of 2001, cadre strength and composition of the
service along with pay-scale of different categories have not
0 been specified by the State Government in consultation with the
High Court. Seniority of 20 promotees and 10 direct recruits
has been fixed which is sufficient to establish that Shri
Chandhariyavi is holding cadre post. Counsel submitted that it
was not the intention of the Jharkhand State to create courts
E only for sessions trial, if that was so, there would have been no
mention of Sections 13 and 14 of the Bengal Agra and Assam
Civil Court Act, 1887, which deals with powers of ADJ to deal
with civil matters. The notification contains the words "in
supersession of all previous orders issued on the subject".
Pertinently, all previous orders are regarding regular courts.
F Besides, the notification did not mention that 89 posts would
be ex-cadre posts. Counsel submitted that Public Prosecutor
can apply for the post in the Higher Judicial Services. They are
eligible for recruitment under Article 233. In support of this
submission he relied on Satya Narain Singh v. High Court of
G Judicature at Allahabad & Ors. 14, Sushma Suri v. Govt. of
National Capital Territory of Delhi & Anr. 15 and Satish Kumar
13. c2000) 8 sec 25.
14. (1985) 1 sec 225.
H 15. (1999) 1 sec 330.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 27
JHARKHAND [RANJANA PRAKASH DESAI, J.]
Sharma v. Bar Council of H.P 16 . Counsel submitted that as per ·A
Rule 9 of the Rules of 2001 age should be counted from 21st
January of preceding year of examination, however, year of
examination has not been mentioned anywhere. There was
specific date mentioned in the advertisement which is 31/01/
2001, therefore, the date should be calculated from that date. B
Counsel submitted that Shri Chandhariyavi figured at Serial
No. 22 of the select list. On the date of advertisement 46
vacancies were required to be filled up. Rule 22 of the Rules
of 2001 states that the High Court shall recommend to the State
Government the names for appointment of ADJs from the select c
list depending upon the number of vacancies available or those
required to be filled up. Appointment letters were issued to all
27 persons. Seventeen persons were directed to join
permanent courts whereas, Shri Chandhariyavi was directed
to assume the charge as ADJ and posted in FTC at Hazaribagh D
at first instance along with other nine candidates. The
appointment was made under Rule 4 of the Rules of 2001.
Counsel pointed out that Notification dated 02/02/2002 was
issued by the government to appoint these 10 remaining
candidates initially in the FTCs. Counsel submitted that Shri E
Chandhariyavi took written examination and was called for
interview in the first list. He was selected and offered
appointment as ADJ and given posting as FTC Judge. He has
put in 9 years. dedicated and unblemished service. In the
circumstances, his services .deserve to be regularized.
F
14. On behalf of some of the appellants it was submitted
by learned counsel Shri T.N. Singh that appointments of the
appellants were quashed without properly deciding the
preliminary issues with regard to the locus standi and
maintainability of the writ petition. The writ petition before the G
High Court was barred by delay and laches of 7 years and as
such the writ petitioners were not eligible to challenge the
selection of the appellants at the belated stage. It was
16. (2001) 2 sec 365. H
28 SUPREME COURT REPORTS [2012] 9 S.C.R.
A submitted that appointments of the appellants have been made
by the High Court in accordance with the Rules of 2001 on
merit. The appellants were not only duly qualified but selected
on merit by the High Court after they successfully passed the
written examination as well as viva-voce test. They are working
B as ADJs since 2002 and as such they have legitimate
expectation to be confirmed and made permanent as ADJs.
The appointments have been made against anticipated/
contemplated vacancies to fill up 89 vacancies. Counsel
submitted that appointments of the appellants have been
c quashed after more than 8 years of continuous service rendered
by the appellants as ADJs, FTCs. They were practicing as
advocates at the Allahabad High Court. Their appointments
have been made by way of direct recruitment from the Bar
strictly in accordance with the provisions of the Rules of 2001.
They left their legal practice and joined judicial services.
0
Cancellation of their appointments is an example of travesty of
justice inasmuch as the entire career of the appellants is ruined.
It is, therefore, necessary to set aside the impugned judgment.
In support of his submissions, counsel relied on Prem Singh
E & Ors. v. H_aiyana State Electricity Board & Ors. 17; Hemani
Malhotra v. High Court of Delhi 18; Uttar Pradesh Public
Service Commission v. Satya Narayan Sheohare & Ors. 19;
Rakhi Ray & Ors. v. High Court of Delhi & Ors. 20; Ravinder
Kumar v. State of Haryana & Ors. 21 ; Bhakra Beas
Management Board v. Krishan Kumar Vlj & Anr. 22; and
F Girjesh Shrivastava & Ors. v. State of Madhya Pradesh &
Ors. 23
17. (1996) 4 sec 319.
G 18. (2008) 7 sec 11.
19. (2009) s sec 473.
20. (2010) 2 sec 637.
21. (2010) s sec 136.
22. (201 OJ 8 sec 701.
H 23. (2010) 10 sec 707.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 29
JHARKHAND [RANJANA PRAKASH DESAI, J.]
15. On behalf of respondent - the High Court of Jharkhand, A
it is submitted that vide advertisement dated 23/05/2001,
applications were invited for appointment to the post of ADJs
to be recruited from the Bar. The exact vacancies available, at
the time of advertisement, were not notified as the cadre
bifurcation was not finalized between the State of Bihar and B
State of Jharkhand and new posts were being created.
However, on the date of advertisement, 13 clear cut vacancies
existed for regular appointment from the Bar and on the date
of recommendation to the State Government i.e. on 18/10/
2001, 17 clear cut vacancies existed for regular appointment c
directly from the Bar. Admittedly, the appointments of the
appellants were made beyond the vacancies available on the
date of advertisement i.e. 23/05/2001 and/or during the period
of selection. In the impugned judgment it is rightly held that these
ad hoc, temporary, ex-cadre appointments are beyond the D
ambit of Rules of 2001 because the said rules deal only with
regular appointments in superior judicial service cadre. The
appointments of the appellants were ex-cadre and made on ad
hoc basis for FTCs for a particular period of time. As per the
recommendation of the Eleventh Finance Commission, the
Central Government had created 1734 additional courts for fast E
disposal of long pending cases, out of which 89 posts were
created for the State of Jharkhand. Vide letter dated 15/10/
2001, the Law Minister, Government of India, Shri Arun Jaitley
had informed the then Chief Justice Shri V.K. Gupta that the
FTCs need to be created. After bifurcation of the State of Bihar F
and Jharkhand suitable number of retired judges were not
available for appointment in FTCs. The Chief Justice, Jharkhand
High Court, had pointed out this fact to the Law Minister,
Government of India and the Law Minister vide his letter dated
22/05/2001 had conveyed his approval to the Chief Justice for G
making appointments from the Bar as per the rules applicable
in respect of the Jharkhand High Court. Only 70 officers were
available in the Sub Judge Cadre. The number of FTCs created
was 89 and, therefore, the FTCs could not have been filled up
by ad hoc promotion of service cadre. As the State of H
30 SUPREME COURT REPORTS (2012] 9 S.C.R.
A Jharkhand was lagging behind the other States as regards
FTCs and there was persistent request from the Central
Government to establish the FTCs as soon as possible and if
fresh examination was conducted for appointments to be made
to the FTCs from the Bar, that would have consumed a lot of
B time, the Jharkhand High Court decided to appoint officers from
the merit list, who had appeared in the examination for the
recruitment of regular ADJs. There were only 17 vacancies in
the regular cadre at the time of recommendation of the names
of officers who had successfully passed in the recruitment exam
c and the names of 25 officers (including the present 22
appellants) were recommended for their appointment in the
FTCs which was ex-cadre, ad hoc post and the appointment
of the appellants was subject to continuation of the post. The
appellants have no legal or statutory or vested right which could
0 be enforced by law and they are bound by the terms and
conditions of their appointment letters. As per the direction of
this court in Brij Mohan Lal-II, the Jharkhand High Court has
requested the State to create 31 permanent FTCs and also for
expansion of the cadre strength by 10 per cent. The Jharkhand
High Court may consider the case of the appellants afresh
E subject to the creation of necessary posts/FTCs by the State
of Jharkhand in the light of decision of this court in Brij Mohan
Lal-II and the decision in these appeals.
16. On behalf of State of Jharkhand, it is submitted that
F the FTCs were constituted in the State of Jharkhand as per the
Fast Track Court Scheme envisaged by the Central Government
for which funds were allocated by the Central Government. The
Scheme was to continue for five years. The State of Jharkhand
issued Notification dated 12/08/2002 for appointment of ad hoc
G ADJs, FTCs on the recommendation of the High Court. The
recommendation was based on an evaluation of inter se merit
of the competing candidates who had taken a written test and
interview. The appointments were co-extensive with the
duration of FTCs and ad hoc nature of the appointment was
H clearly indicated in the notification of appointment. The
MAHESH CHANDRA VERMA & ORS. v. STATE OF 31
JHARKHAND [RANJANA PRAKASH DESAI, J.]
appointees had no right to claim regular appointment or A
continue as ad hoc Additional District & Sessions Judges,
FTCs beyond the duration of FTCs. Relying on Brij Mohan Lal-
l, it is submitted that the relevant notification pertaining to the
•
appointment of ad hoc ADJs, FTCs indicate that the
appointments of ADjs, FTCs were not appointments in the B
Jharkhand Superior Judicial Service. In Brij Mohan Lal-I, the
distinction between appointments under the Fast Track Court
Scheme and the State Judicial Service was clearly stated. The
rules and regulations which applied to members of the
Jharkhand Superior Judicial Service did not ipso facto apply c
to the ADJs under the Scheme. The word "preference" used
in Brij Mohan Lal-I has to be viewed in the overall context of
the FTC Scheme and it cannot mean absolute en bloc
preference akin to reservation. The word "preference" is
capable of different shades of meaning taking colour from the D
context, purpose and object of its use under the Scheme of
things envisaged (Secy. A.P. Public Service Commission v.
Y. V. V.R. Srinivasulu & Ors. 24 ). The appointment of ADJs, FTC
was to be made not against a vacancy in the Jharkhand
Superior Judicial Service, but against temporary posts under E
a Scheme by following the method of selection as is normally
followed for selection of members of the Bar as direct recruits
to the Superior Judicial Services and the Full Court of the
Jharkhand High Court in discharge of its constitutional
obligation took a decision to utilize the list of candidates who
had taken a written test and appeared for interview for FTC F
Judges. The said decision of the Full Court cannot be faulted.
Respondents 5 to 35 belong to the category of Sub Judge in
the Judicial Service of the State. As per Brij Mohan Lal-II, the
vacancies in question cannot go to them and, therefore, they
cannot challenge the legality of the appointments of the G
appellants.
17. On behalf of respondents 5 to 35, it is contended that
FTCs were established in view of the Eleventh Finance
24. (2003) 5 sec 341. H
32 SUPREME COURT REPORTS [2012] 9 S.C.R.
A Commission Report in the year 2000 which accepted the
recommendation of Shri N.C. Jain. The recommendation was
that only retired Sessions & Addi. Sessions Judges should be
appointed for two years on 11d-hoc basis in FTCs. Judgment
of this court in Brij Mohan Lal-/ came on 06/05/2002, by which
B 3rd preference was to be given to the direct recruits from the
members of the Bar. In this case, on 0210212002 i.e. before Brij
Mohan Lal-I, appointments of 10 persons were made by direct
recruitment contrary to recommendations of Shri N.C. Jain. On
12/08/2002, further 15 direct recruits were appointed as Ad hoc
c ADJs, FTCs which is in contravention of Brij Mohan Lal-I
because sufficient number of eligible serving judicial officers
were available and without considering their case,
appointments of direct recruits were made. The said
appointments were illegal also because the advertisement was
0 not for the post of FTCs, there was no vacancy in FTCs,
advertisement was only for regular cadre and the process came
to an end after the regular direct ADJs were appointed.
Appointment of ad hoc ADJs in FTCs on the basis of merit list
prepared on the basis of the said advertisement was per se
E illegal. There was no notified select list for the appointment of
fifteen persons on 12108/2002. Some of the appointees were
Public Prosecutors and, as such, were not eligible to be
appointed as ADJs (State of Uttar Pradesh v. Johri Maf2 5}.
Some of the appointees did not fulfill the age criteria (Malik
Mazhar Sultan and another v. U.P. Public Service
F Commission and others. 26). Respondents 5 to 35 are directly
affected in monetary terms. Their promotional avenues are also
affected by the appointments. As the initial appointment of the
appellants itself was illegal, they cannot get benefit of Brij
Mohan Lal-I/. If any extra posts are created as per Brij Mohan
G Lal-I/, Rule 5 of the Rules of 2001 would come into play and
75% of the extra posts created would be required to be filled-
up by the quota of promotees. Otherwise, it would disturb the
25. (2004) 4 sec 714.
H 26. (2006) g sec 507.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 33
JHARKHAND [RANJANA PRAKASH DESAI, J.]
quota fixed for promotees. It is submitted that no interference A
is called for with the impugned order. In any case, adjustment,
if any, can be made only against 25% quota.
18. Mr. Hansaria, learned senior advocate appearing for
private respondents has assailed the appointment of the 8
appellants on similar grounds. In addition to the grounds quoted,
he added that it is well settled that appointments on posts which
were neither advertised nor in existence on the date of
issuance of advertisement could not be filled from select list
prepared on the basis of such advertisement. Pertinently, C
though number of vacancies has not been mentioned in the
advertisement, the High Court in its affidavit has stated that only
17 posts of ADJs were available on the date of advertisement.
The posts of FTC Judges were created on 29/11/2001. On the
date of advertisement dated 23/05/2001, the said posts were
not even in anticipation of the High Court to be filled by direct D
recruitment. The advertisement dated 23/05/2001 and the
select list prepared pursuant thereto which was duly notified as
per the Rules of 2001 could not have been used for filling up
of FTC Judges. The selection process comes to an end with
the filling of vacancies for which advertisements have been E
issued. In any case, candidates in the select list have no right
to be appointed beyond the number of posts to be filled. In this
connection, reliance was placed on State of Bihar v. Madan
Mohan 27 Rakhi Ray, State of Orissa v. Rajkishore Nanda 28,
Sm]. K. Lakshmi v. State of Kerala 29 , Arup Das v. State of F
Assam30 and Surinder Singh v. State of Punjab 31 •
19. We have given anxious consideration to the
submissions advanced by learned counsel. Certain facts can
G
27. 1994 Supp. (3) sec 308.
2a. c2010) e sec 777.
29. c2012) 4 sec 115.
3o. 2012(5} sec 559.
31. (1997) 8 sec 488. H
34 SUPREME COURT REPORTS (2012] 9 S.C.R.
A be gathered from the various affidavits on record, oral
submissions of the counsel and written submissions filed in the
court. It would be appropriate to note them while examining the
grievance of the appellants and the case of the respondents.
8 20. On 25/11/2000, Bihar Reorganization Act, 2000 was
passed whereby State of Jharkhand was carved out from the
State of Bihar. On 15/01/2001, the then Law Minister Shri
Jaitley wrote to Shri Gupta, the then Chief Justice of Jharkhand
High Court, about the scheme of creation of 1734 additional
courts for faster disposal of pending cases based on the
C recommendations of the Eleventh Finance Commission. He
requested the Chief Justice to execute the scheme effectively
and efficiently so that the courts start functioning from 01/04/
2001. On 22/02/2001, notification was issued transferring 90
superior judicial officers from the State of Bihar to the State of
D Jharkhand out of which 62 were promotees and 28 direct
recruits. from the note of the then Chief Justice dated 23/02/
2001, it appears that issue whether in-service judges should
be promoted on ad hoc basis or whether retired judges should
be considered was debated upon. It was noted that the State
E of Jharkhand may not have sufficient number of retired judges.
Decision was taken to discuss all the issues in the Chief
Justices' conference to be held on 30/03/2001. Thereafter, letter
dated 12/03/2001 was addressed by the then Chief Justice
Shri Gupta to Shri Jaitley, the then Law Minister regarding the
F difficulties experienced by the Jharkhand High Court in
appointing officers for FTCs so as to make them functional from
01 /04/2001. It was stated that cadre division of the Judicial
Officers between the two States of Bihar and Jharkhand had
not been completed except in respect of judicial officers
G belonging to Higher Judicial Service and the cadre division in
the rank of Sub Judge for which the Government had issued
Notification dated 22/02/2001. It was stated that the cadre
division in respect of the judicial officers in the ranks of sub-
judges and munsiffs had not so far been effected. This had
H resulted in the High Court Registry being ill-equipped. The letter
MAHESH CHANDRA VERMA & ORS. v. STATE OF 35
JHARKHAND [RANJANA PRAKASH DESAI, J.]
further stated that whether the Presiding Officers of the FTCs A
are to be appointed from amongst District/ADJs or by granting
ad hoc promotions to the serving judicial officers is also an
important issue. It was further communicated to the Law
Minister that only a handful of retired District Judges/ADJs were
residing in the State of Jharkhand and they were of advanced B
age. As far as appointing Presiding Officers by granting ad hoc
promotion to serving judicial officers is concerned, that can only
be done after the Cadre Division is effected and the judicial
officers belonging to Jharkhand Cadre take positions. Apart
from this, problems of shortage of accommodation and other C
infrastructural problems were also communicated. It was stated
that by Notification dated 22/02/2001 issued by Government
of India only allocation of officers was finalized and not the
strength/posts. This letter of the Chief Justice of Jharkhand High
Court reflects several genuine difficulties faced by the High D
Court and his anxiety that as desired by the Law Ministry Fast
Track Courts Scheme cannot be made functional in the State
because of those difficulties. We need to view the High Court's
actions, which have come under heavy criticism against the
background of these facts.
E
21. By letter dated 22/05/2001 addressed to the then Chief
Justice Shri Gupta, the Union Law Minister, considering the
difficulties expressed by the Chief Justice in his letter dated 22/
02/2001, communicated to him that he may make appointments
to FTCs from the Bar as per the rules applicable to the High F
Court. There is no dispute that there were no rules for
appointment of FTC Judges and the Rules of 2001 were not
amended so as to make provision for appointment of FTC
Judges.
22. On 23/05/2001, the High Court issued the G
advertisement to fill up vacancies for the post of ADJs. Number
of vacancies was not stated in the advertisement. The stand
of the State of Jharkhand in the affidavit filed by Shri A. Khaury,
Chief Administrative Officer is that at the time of the
H
36 SUPREME COURT REPORTS [2012] 9 S.C.R.
A advertisement there was no provision for appointment of
Judicial Officers in the FTCs as those courts were created on
29/11/2001 and the advertisement was restricted to regular
appointments In the cadre of Superior Judicial Officer. On
behalf of the High Court supplementary affidavit is filed by Shri
B Nath, Registrar (Admn.) High Court. It is stated in the affidavit
that at the time of advertisement the States of Bihar and
Jharkhand were newly bifurcated and cadre strength was not
finalized. The High Court was waiting for more officers to be
allocated to Jharkhand cadre. New Posts were also under the
C process of creation and therefore, in the advertisement exact
number of vacancies was not stated. It is further submitted
however that on the date of advertisement 13 clear cut
vacancies existed for appointment of ADJs directly from the Bar
and when the names were recommended on 20/10/2001, there
were clear cut 17 vacancies for appointment of regular ADJs
0
directly from the Bar.
23. As regards age criteria, it was mentioned in the
advertisement that the candidate should be above 35 years but
below 45 years as on 31/01/2001. Upper age limit was
E relaxable by three years in case of SC/ST candidates.
Qualification necessary was Graduate in Law from University
recognized for the purpose of enrollment as an advocate under
Advocates Act, 1961. Required experience was 7 years
practice at the bar as an advocate after enrolment. The
F advertisement clearly stated that the written examination shall
be conducted, entire selection process shall be undertaken and
the appointments shall be finalized as per the Rules of 2001.
Thus, important features of this advertisement are that it was
an advertisement to fill-in the posts of ADJs; that the vacancies
G were not mentioned in the advertisement and that the
appointments were to be finalized as per the Rules of 2001.
Thus, the advertisement was not and could not have been for
FTC Judges. In fact, the posts of FTC Judges were not even
in anticipation of the High Court so as to be filled by direct
H recruitment because such posts were not sanctioned at that
MAHESH CHANDRA VERMA & ORS. v. STATE OF 37
JHARKHAND [RANJANA PRAKASH DESAI, J.)
time. The Rules of 2001 were rightly mentioned in the A
advertisement because they deal with regular appointments in
Superior Judicial Service cadre and the advertisement was for
appointments of ADJs in regular cadre.
24. From the affidavit of Shri Nath, Registrar(Admn.) it
8
appears that in the meantime letter dated 14/6/2001 was
received from Joint Secretary, Government of India L & J, D.
to the Secretary of the Chief Justice of the High Court
forwarding the necessary material on the Fast Track Court
scheme. In the state-wise break-up 89 additional courts are C
shown against the State of Jharkhand. However, the posts were
not sanctioned. It is the case of the High Court, stated on
affidavit, that at that time only 70 officers were available in the
sub-judge cadre and as such the FTCs could not have been
filled-up by ad hoc promotion from service cadre. There is no
reason to disbelieve this stand of the High Court. D
25. On 19/08/2001, written examination was held in which
approximately 4000 candidates appeared. On 20/09/2001, list
of successful candidates who were qualified to appear for oral
interview was published. The list contained names of candidates E
upto merit list serial number 134. In this connection it is
necessary to state that Rule 21 of the Rules of 2001 to which
our attention is drawn by the counsel speaks of arranging the
candidates in order of merit. Rule 21 says that from the said
list the High Court shall prepare a select list and have it duly F
notified in a manner as specified in the regulations and such
select list shall be valid for a period of one year from the date
of being notified. Rule 22 states that out of the aforesaid select
list, depending upon the number of vacancies available or those
required to be filled up, the High Court shall recommend to the G
government the names for appointment as ADJs.
26. Minutes of the Full Court Meeting of the High Court
dated 07/10/2001 indicate that the meeting was held to
consider the question of calling more candidates for viva voce
test for appointment in the Jharkhand Superior Judicial Service H
38 SUPREME COURT REPORTS [2012] 9 S.C.R.
A as per Rules of 2001. The minutes note that having considered
the trends in the viva voce test already going on and in view of
large number of vacancies to be filled up, it is decided to
expand the list of candidates to include more candidates so
that wider spectrum and ambit of selection process is covered
B with a view to achieving the optimum level of suitable
candidates for appointment in the service. It was resolved that
more candidates from the merit list are required to be called.
It was further resolved that candidates from Sr. No.135 to Sr.
No.217 be called for viva voce test .(upto thrs point candidates
upto Sr.No.134 were called). The Registrar General was
c directed to fix up dates of viva voce test, staggering the list of
candidates on three occasions. First session was to be held
on 14/10/2001. The remaining two sessions were to be held
on 15/10/2001 and 16/10/2001. Oral interviews were
conducted of the remaining candidates upto Sr. No.217.
D
27. In the meantime, on 8/10/2001, the High Court wrote
a letter to the State Government, inter alia, stating that at the
time of bifurcation of the State under the Bihar Reorganisation
Act, 90 officers of Superior Judicial Services were allocated
E to Jharkhand Higher Judicial Cadre, out of which 62 were
promotees and 28 direct recruits. It was stated that the 42
vacancies will be apportioned in the ratio of 67% and 33% i.e.
28 posts for promotee officers and 14 posts for direct recruits.
28. On 18/10/2001, the High Court in its Full Court meeting
F
took a decision to begin with 30 FTC Judges out of which 20
would be from service and 10 by direct recruitment as per quota
of 2/3rd and 1/3rd. Moreover, by this date the entire selection
process i.e. preliminary written examination, main written
G examination and viva voce was completed. It is important to
note that posts of FTC Judges were created only when
Government of Jharkhand issued notification dated 29/11/2001.
Thus, on the date when advertisement dated 23/5/2001 was
issued, FTCs were not even sanctioned and hence were not
even in anticipation of the High Court. There can be no debate
H over this.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 39
JHARKHAND [RANJANA PRAKASH DESAI, J.]
29. By letter dated 20/10/2001, the High Court A
recommended 20 sub-judges for promotion to the rank of ADJs
keeping 2/3rd ratio. The High Court stated in that letter that out
of 89 earmarked FTCs, it has created 30 FTCs. It was made
clear that their promotion shall be on ad hoc basis and until
further orders depending on continuation of FTCs and that the B
promotion shall be ex-cadre. It was stated that the said 20 sub-
Judges on their appointment shall rank above, 10 direct recruits
on ad hoc basis. We have already noted that in the affidavit of
Shri Nath, Registrar (Admn.), High Court it is stated that on the
date of recommendation there were clear cut 17 vacancies for c
appointment of regular ADJs directly from Bar.
30. After written exams, oral interviews were conducted in
pursuance to the advertisement dated 23/5/2001, in October,
2001 the High Court prepared a select list of 27 candidates
for superior judicial services which was duly notified as per Rule D
21 of the Rules of 2001 to which we have already made a
reference.
31. As already noted, on 29/11/2001, vide notification of
the same date, the State Government constituted 89 FTCs of E
Additional District & Sessions Judges for 5 years with
immediate effect. On 14/12/2001, 20 promotee officers whose
names were recommended by the High Court on 20/10/2001
were appointed by the State as FTC Judges on ex cadre
temporary posts. On 15/12/2001, 17 candidates whose names F
were found at Sr. Nos.1 to 17 of the merit list were appointed
as ADJs in the regular cadre of Higher Judicial Services.
Appoiritments of these persons cannot be faulted, because it
is stated on oath that there were 17 clear cut vacancies.
32. Serious exception is however taken to appointments G
made on 02/02/2002 and 12/08/2002 and we are of the
opinion that there is merit in the criticism levelled against the
said appointments. On 02/02/2002, 10 candidates from
Sr.Nos.18 to 27 of the merit list were appointed as FTC Judges.
It is disclosed from the affidavit of Shri Nath, Registrar (Admn.), H
40 SUPREME COURT REPORTS [2012] 9 S.C.R.
A High Court, Jharkhand that in the Full Court meeting held on
0210712002, it was resolved to fill the remaining 45 posts of
ADJs to preside over FTCs in addition to 30 FTCs already
functioning in the State. Thirty were to be by promotion from
sub-judges and 15 were to be by direct recruitment from the
B panel prepared during selection process of regular District
Judges. On 12/08/2002, 15 persons were appointed as FTC
Judges from the bar on ad hoc basis in ex-cadre post. The
names of these 15 persons do not find place in the select list
prepared by the High Court pursuant to advertisement dated
c 23/05/2001.
33. Since a select list of 27 persons was duly notified as
per Rules of 2001, after candidates from Sr. No. 1 to 17 were
appointed as regular ADjs on 15.12.2001 the select list came
to an end because as per the affidavit filed on behalf of the High
D Court though vacancies were not mentioned in the
advertisement only 13 posts of ADJs were available on the date
of advertisement i.e. on 23/05/2001 and 17 posts of ADJs were
available on the date of recommendation i.e. on 20/10/2001.
On the appointment of 17 regular ADJs, the selection process
E for appointment of regular ADJs came to an end. The
unexhausted select list was wrongly used for appointment of 10
FTC Judges. Again, out of list of unsuccessful candidates, 15
persons wen~ 'appointed as FTC Judges. Their names were
not there in the select list. The whole procedure was irregular.
F Reliance placed by the High Court in the impugned judgment
of this Court in Rakhi Ray v. High Court of De/hi3 2 and
Surinder Singh v. State of Punjab 33 is apt. It must be mentioned
at the cost of repetition that on 23/05/2001 when the
advertisement was issued, the posts for FTCs were not
G sanctioned. Therefore, these posts were not even in
contemplation. They cannot be termed as vacancies
contemplated or anticipated by the High Court. Undoubtedly,
the correspondence between the Law Ministry and the High
32. (2010) 2 sec 637.
H 33. (1997) 8 sec 488.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 41
JHARKHAND [RANJANA PRAKASH DESAI, J.]
Court indicates that the High Court was informed about the A
need for creation of FTCs and that Fast Track Court Scheme
may be brought into action in Jharkhand but, till the posts for
FTCs were sanctioned, there was no question of taking into
account any anticipated vacancies. When advertisement is for
specific number of posts, the State cannot appoint more than B
the number of posts advertised. The select list gets exhausted
when all the advertised posts get filled. In Rakhi Ray and in a
long line of other cases to which reference need not be made,
this Court has clarified that appointments beyond the number
of posts advertised would amount to filling up future vacancies c
and the said course is impermissible in law. There is no
substance in the contention that appellants were appointed
under Rule 4(a) of the Rules of 2001 or that they can get
advantage of Rule 25 thereof. The Rules of 2001 and the
regulations which are meant for Jharkhand Superior Judicial D
Service do not apply to ad hoc ADJs appointed under a
scheme of temporary duration like Fast Track Court scheme.
The Rules of 2001 were not amended to make them
applicable to FTCs. The appellants were appointed in ex-cadre
post for a temporary period. This is clear from their appointment E
letters. Therefore, their appointments were not under Rules of
2001. Merely because they were made to take written
examination and viva voce their appointments cannot be
termed as substantive appointments nor can the nature of work
done by them make their appointments substantive.
F
34. We are, however, not inclined to hold that, however
improper, the High Court's decision is in any way, vitiated by
mala fides. We have already noted that when letter dated 14/
06/2001 was received by the High Court from the Law and
Judiciary Department of the State giving state-wise break-up G
showing 89 FTCs against State of Jharkhand, only 70 officers
from sub-judge cadre were available and, as such, FTCs could
not have been filled up by ad hoc promotion from service cadre.
The situation does not appear to have improved. It is the case
of the High Court that since the State of Jharkhand was lagging H
42 SUPREME COURT REPORTS (2012] 9 S.C.R.
A behind in so far as creation of FTCs is concerned and there
was persistent request from the Central Government to
establish the FTCs as soon as possible, it was felt that if fresh
examination was conducted for appointments to be made to
the FTCs from the Bar, much time would have been consumed
B and, therefore, it was decided to appoint officers from the merit
list who had appeared in the examination for the recruitment
of regular ADJs. The Full Court Resolutions of the Jharkhand
High Court and the correspondence of the Chief Justice with
the Law Ministry also indicate that the High Court was ill-
c equipped to put the Fast Track Court Scheme in action in the
State of Jharkhand because of several difficulties, prominent
amongst them being cadre bifurcation not having been
completed and unavailability of officers from service cadre. It
is, therefore, not necessary for us to refer to cases cited before
us in support of the contention that the High Court has taken
D
prevaricating and inconsistent stand. We are of the opinion that
the High Court was bona fide trying to comply with the Central
Law Ministry's desire and in that it overstepped its limits.
35. In the ultimate analysis we are of the view that the
E appointments made on 02/02/2002 and 12/08/2002 are
irregular, made in ignorance of settled principles underlying
service law, in an anxiety to comply with the desire expressed
by the Law Ministry and to set up FTCs to deal with the problem
of pendency of cases. This conclusion of our's draws support
F from Brij Mohan Lal-I and Brij Mohan Lal-II. Brij Mohan Lal-
l/ also offers a possible solution to the problem. We shall soon
advert to these judgments. ·
36. Several other judgments have been cited on behalf of
G the petitioners. Quite frankly most of them have no application
to the instant case and some of them need not be referred to
as Brij Mohan Lal-II now holds the field. We shall, however,
make a brief reference to them lest it is said that we overlooked
some points.
H
MAHESH CHANDRA VERMA & ORS. v. STATE OF 43
JHARKHAND [RANJANA PRAKASH DESAI, J.]
37. In Central Inland Water Transport Corporation Ltd. & A
Anr. v. Brojo Nath Ganguly & Anr. 34, this court was inter alia,
considering whether unconscionable clause in a contract of
employment is void under Section 23 of the Indian Contract Act
as being opposed to public policy. In our opinion, this case turns
on its own facts and has no application to the facts of the instant B
case at all.
38. So far as judgments in O.P. Sing/a; Rudra Kumar Sain
and D. Ganesh Rao Patnaik are concerned, in these cases,
this court was considering the question of seniority between C
promotees and direct recruits appointed under specific rules.
These judgments can have no application to the case on hand,
where the appointments are made on ad hoc basis in a
temporary scheme.
39. In Naseem Ahmad & Ors. v. State of Uttar Pradesh D
& Anr. 35, this court while dealing with U.P. Subordinate Civil
Courts Inferior Establishment Rules, 1955 considered what is
wait list, select list and panel. It was held that wait list is not a
selection list prepared for specific number of vacancies and
wait list is exhausted only when all duly selected candidates are E
given appointments. This case will have no application to the
instant case. Once it is held that the appointments of the
appellants were ad hoc, ex-cadre and not made as per the
Rules of 2001 and that they were made in a scheme of
temporary duration, wait list prepared while selecting regular F
ADJs cannot be used to appoint FTC Judges. In this case,
select list got exhausted when 17 ADJs were appointed and
persons from select list prepared for recruitment to the post of
regular ADJs cannot be appointed as FTC Judges.
40. In Prem Singh v. Stafe of Haryana 36, this court held G
that selection process by way of requisition and advertisement
34. AIR (1986) SC 1571.
35. c2011) 2 sec 734.
36. (1996) 4 sec 319. H
44 SUPREME COURT REPORTS [2012] 9 S.C.R.
A can be started for clear vacancies and also for anticipated
vacancies but not for future vacancies. We have already held
that as on the date of advertisement, FTCs were not
sanctioned. Therefore, there were no anticipated vacancies.
Prem Singh will have no application to the facts of this case.
B For the same reasons, State of Jammu & Kashmir & Ors. v.
Sanjeev Kumar & Ors.37 is also not applicable to the present
case.
41. Since we have held that appointments were not made
C under Rules of 2001, cases cited on deviation of quota or
deemed relaxation of quota as per Rule 5 can have no
application to this case. It must be borne in mind that
appointments of ADJ FTCs in this case were made on ad hoc
ex-cadre basis in a scheme of temporary duration. The fact that
the High Court recommended the names makes no difference.
D Their appointments were irregular.
42. Arguments were advanced on delay and laches. It is
true that there is some delay on the part of respondents 5 to
35 in approaching the High Court. A possible explanation has
E been given. Their locus standi has also been challenged.
Looking to the importance of the question involved and having
regard to the authoritative pronouncement of this Court in Brij
Mohan Lal-I/, we have examined the grievances of the parties,
without going into this aspect.
F 43. In Brij Mohan Lal-I/, this court has, after considering
the entire matter in its proper perspective, held that the FTCs
were holding ex-cadre post. We cannot reopen the settled
position now. Certain judgments cited in this regard need not,
therefore, be discussed. Besides, they have no application to
G this case. It was argued that certain Assistant Public
Prosecutors were appointed as FTC Judges. It was also urged
that the age criteria was not abided by. We do not propose to
go into those submissions because in the peculiar
H 37. c2oos) 4 sec 148.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 45
JHARKHAND [RANJANA PRAKASH DESAI, J.)
circumstances of this case, in Brij Mohan Lal-II, this court has A
given certain directions in terms of Article 142 of the
Constitution to improve justice delivery system, to attain the
constitutional goals and to do complete justice. One of the
directions pertains to for the regularization of the appellants in
the manner laid down therein. It is impossible to hold that the B
appellants' case is not governed by the said judgment.
44. Indeed, the appellants have referred to their long
standing services as FTC Judges. They have left their practice
at the Bar. Some of them have become age-barred. Certain C
judgments have been cited before us in support of the
submission that these-facts need to be considered and they
must be absorbed in the regular services. Brij Mohan Lal-II
considers this grievance. Hence, it is not necessary to refer to
the cases cited on this point.
D
45. We have repeatedly referred to Brij Mohan Lal-I and
Brij Mohan Lal-II. It is now necessary to see what they lay down.
The Eleventh Finance Commission allocated funds for the
purpose of setting up of 1734 courts in various States to deal
with the long-pending cases. The Finance Commission E
suggested that States may consider re-employment of retired
judges for a limited period since these courts were to be ad
hoc courts in the sense that they would not be a permanent
addition to the existing courts. The Fast Track Courts Scheme
was challenged on various grounds. The said challenge was F
dealt with by this Court in Brij Mohan Lal-I. This Court issued
number of directions in relation to establishment and functioning
of FTCs. It was made clear that while making appointments,
third preference should be given to direct recruits from the Bar.
The following direction is material in this behalf: G
"4. The third preference shall be given to members of the
Bar for direct appointment in these courts. They should be
preferably in the age group of 35-45 years, so that they
could aspire to continue against the regular posts if the
Fast Track Courts cease to function. The question of their H
46 SUPREME COURT REPORTS [2012] 9 S.C.R.
A continuance in service shall be reviewed periodically by the
High Court based on their performance. They may be
absorbed in regular vacancies, if subsequent recruitment
takes place and their performance in the Fast Track Courts
.is found satisfactory. For the initial selection, the High Court
B shall adopt such methods of selection as are normally
followed for selection of members of the Bar as direct
recruits to the Superior/Higher Judicial Services."
This Judgment made it clear that FTCs were to be ad hoc
C courts.
46. The Fast Track Courts Scheme was in operation till
31/03/2011. But thereafter the Union of India took a decision
not to continue the financing of the Fast Track Courts Scheme
beyond 31/03/2011. Some States decided to continue the Fast
D Track Courts Scheme and some States decided not to continue
it. Several writ petitions were filed thereafter inter alia praying
that necessary directions be given to the respondents to extend
the Fast Track Court Scheme and release necessary funds for
that purpose. Some of the petitioners who were direct recruits
E claimed absorption in the regular cadre.
47. While dealing with the points raised in the petitions,
this Court in Brij Mohal Lal-II traced the history of the Fast
Track Courts Scheme. This Court considered the notifications
F issued by various States appointing direct recruits, relevant
rules of different States and methodology adopted for
appointment to the FTCs and came to the conclusion that the
said posts were temporary and the appointees cannot be said
to have any legal right to the posts. It was observed that the
appointments were governed under the separate set of rules
G than the rules governing the regular appointments to the States
Higher Judicial Services. This court observed that the
cumulative effect of the notifications appointing the petitioners
therein to the said posts under the Fast Track Court Scheme
and the relevantrules governing them clearly demonstrate that
H those were temporary and, in some cases, even time-bound
MAHESH CHANDRA VERMA & ORS. v. STATE OF 47
JHARKHAND [RANJANA PRAKASH DESAI, J.]
appointments terminable without prior notice and, therefore, it A
is difficult to accept the contention that the appointees were
entitled to be absorbed regularly in those posts. It was observed
that where neither the post is sanctioned nor is it permanent
and, in fact, the entire arrangement is ad hoc or is for an
uncertain duration, it cannot create any rights and obligations B
in favour of the appointees, akin to those of permanent
employees. It is necessary to quote relevant paragraphs of the
said judgment:
"172. The prayer for regularisation of service and
absorption of the petitioner appointees against the C
vacancies appearing in the regular cadre has been made
not only in cases involving the case of the State of Orissa,
but even in other States. Absorption in service is not a
right. Regularisation also is not a statutory or a legal right
enforceable by the persons appointed under different rules D
to different posts. Regularisation shall depend upon the
facts and circumstances of a given case as well as the
relevant rules applicable to such class of persons.
173. As already noticed, on earlier occasions also, this E
Court has declined the relief of regularisation 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, regularisation or F.
permanent continuance of temporary, contractual or casual
daily wage or ad hoc employees appointed and continued
for long in such public employment would be dehors the
constitutional scheme of public employment and would be
improper. It would also not be proper to stay the regular G
recruitment process for the posts concerned. [Refer to
Umadevi (3)7]
174. It is not necessary for us to deliberate on this issue
all over again in view of the above discussion. Suffice it
to notice that the petitioner appointees have no right to the H
48 SUPREME COURT REPORTS [2012] 9 S.C.R.
A 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
B regularisation or absorption."
48. While dealing with the peculiar situation created by the
decision taken by the Union of India to discontinue the Fast
Track Courts Scheme, this Court noticed that with the help of
funds allotted by the Eleventh Finance Commission, the States
C have already established the additional courtrooms for FTCs.
The relevant aspects were not considered by the Union of India
before taking decision to discontinue the Fast Track Courts
Scheme but since the policy decision has already been taken
and given effect to, this Court made it clear that it was not
D inclined to strike it down. This Court, however, noted that the
Thirteenth Finance Commission had in its recommendations
stated that there are 3 crore pending cases in various courts
in the country and there is enormous delay in disposing of the
cases resulting in immense hardship to people. This Court
E observed that if the FTC ad hoc direct recruits who have over
the years gained a lot of judicial experience are regularized and
absorbed in the regular cadre of ADJs in different States, the
problem of arrears of cases can be handled to some extent.
This Court observed that the Union of India as well as the State
F Governments of their own extended the Fast Track Courts
Scheme till 2010 and thereafter, by another year. The Union of
India ultimately took the decision not to finance the Fast Track
Courts Scheme w.e.f. 30/03/2011. Even thereafter, a number
of States have taken the decision to continue the Fast Track
G Courts Scheme while retaining the appointees thereto till 2012,
2013 and even till 2016. This Court observed that the cumulative
effect of all these factors is that the petitioners have legitimate
expectation that either their services would be continued as the
Fast Track Courts Scheme would be made a permanent feature
H of the justice administration in the State concerned or they
MAHESH CHANDRA VERMA & ORS. v. STATE OF 49
JHARKHAND [RANJANA PRAKASH DESAI, J.]
would be absorbed in the regular cadre. This Court, however, A
clarified that 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. While considering the claim
of the appointees who were directly appointed as FTC Judges B
from the Bar for regularization of their services and absorption
in the regular cadre this Court observed that the relief of
regularization/ absorption cannot be granted to these
petitioners in the manner in which they have prayed. They have
no right to the post. They did not pass any written competitive c
examination and were solely appointed on the basis of an
interview and, therefore, must now undergo the requisite
examination. Making it clear that it had no intention to interfere
with the policy decision taken by the Union of India this Court
gave certain directions under Article 142 of the Constitution.
D
We may quote the directions which have relevance to this case.
"207.4. 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 to
decide but only with regard either to bring the FTC E
Scheme to an end or to continue the same as a
permanent feature in the State.
207.5. The Union of India and the State Governments shall
reallocate and utilise the funds apportioned by the 13th F
Finance Commission and/or make provisions for such
additional funds to ensure regularisation of the FTC
Judges in the manner indicated and/or for creation of
additional courts as directed in this judgmeht.
207.8. We hereby direct that it shall be for the Central G
Government to provide funds for carrying out the directions
contained in this judgment and, if necessary, by
reallocation of funds already allocated under the 13th
Finance Commission for judiciary. We further direct that
for creation of additional 10% posts of the existing cadre, H
50 SUPREME COURT REPORTS (2012] 9 S.C.R.
A 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."
B 49. So far as persons like the appellants, who are
appointed by way of direct recruitment from the Bar are
concerned, this court made it clear that they shall be entitled to
be appointed to the regular cadre. Following directions are
material in this behalf:
c "207.9. All the persons who have been appointed by way
of direct recruitment from the Bar as Judges to preside
over FTCs under the FTC Scheme shall be entitled to be
appointed to the regular cadre of the Higher Judicial
Services of the respective States only in the following
D manner:
(a) The direct recruits to FTCs who opt for regularis~tion
shall take a written examination to be conducted by the
High Courts of the respective States for determining their
suitability for absorption in the regular cadre of Additional
E
District Judges.
(b) Thereafter, they shall be subjected to an interview by a
Selection Committee consisting of the Chief Justice and
four senior most Judges of that High Court.
F
(c) There shall be 150 marks for the written examination
and 100 marks for the interview. The qualifying marks shall
be 40% aggregate for general candidates and 35% for
SC/ST/OBC candidates. The examination and interview
shall be held in accordance with the relevant Rules enacted
G
by the States for direct appointment to Higher Judicial
Services.
(d) Each of the appointees shall be entitled to one mark
per year of service in the FTCs, which shall form part of
H the interview marks.
MAHESH CHANDRA VERMA & ORS. v. STATE OF 51
JHARKHAND [RANJANA PRAKASH DESAI, J.]
(e) Needless to point out that this examination and A
interview should be conducted by the respective High
Courts keeping in mind that all these applicants have put
in a number of years as FTC Judges and have served the
country by administering justice in accordance with law.
The written examination and interview module, should, B
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 aforeindicated shall be C
appointed to the post of Additional District Judge in the
regular cadre of the State.
(g) If, for any reason, vacancies are not available in the
regular cadre, we hereby direct the State Governments to
create such additional vacancies as may be necessary D
keeping in view the number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly
appointed from the Bar and are desirous of taking the
examination and interview for regular appointment shall be E
given age relaxation. No application shall be rejected on
the ground of age of the applicant being in excess of the
prescribed age.
207.10. The members of the Bar who have diredly been
appointed but whose services were either dispensed with F
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 stated in para 207.9 of the judgment.
G
207.11. 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 Central Government to create
10% of the total regular cadre of the State as additional H
52 SUPREME COURT REPORTS [2012] 9 S.C.R.
A 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 Rules of that
State, immediately thereafter."
50. Indisputably, the appellants were not appointed on any
8
permanent post. The notification of their appointment dated 12/
08/2002 clearly states they were appointed against temporary
and ex-cadre posts on ad hoc basis. They were not appointed
under the Rules of 2001. Their appointment was made for a
temporary purpose in a temporary Scheme created for speedy
C disposal of cases. Their case is, therefore, clearly covered by
Brij Mohan Lal-I/. The directions given therein, particularly
those contained in paragraph 207.9 which we have quoted
above, will clearly apply to them. In Brij Mohan Lal-II, this court
even considered the contention that the direct recruits had taken
D all the tests and, therefore, they should not be made to undergo
them again. After considering this argument, this court directed
that they will have to take written examination and they must
also be interviewed. It must be noted at this stage that on behalf
of the High Court of Jharkhand a statement is made that
E subject to the creation of necessary post/FTCs by the State of
Jharkhand, the.High Court will consider the appellants' case
afresh in terms of the decision of this court in Brij Mohan Lal-
l/. The High Court has also taken-up the matter with the State
Government. Relevant portion from the affidavit of Shri Ambuj
F Nath, Registrar (Administration), High Court of Jharkhand,
needs to be quoted.
"19. That as per the recommendation of 13th Finance
Commission the Jharkhand High Court has requested the
State Government to constitute 31 alternative Courts, in the
G cadre of Superior Judicial Service co-terminus with the
holiday courts/shift Court scheme of the 13th Finance
Commission as the terrain and deteriorating the law and
other situation was not congruent for holding Morning I
Evening I Shift Courts. However, after the direction of the
H
MAHESH CHANDRA VERMA & ORS. v. STATE OF 53
JHARKHAND [RANJANA PRAKASH DESAI, J.]
Hon'ble Apex Court in B.M. Lal Case (Tr. Civil Case No.22 A
of 2001 ), the Jharkhand High Court has taken up the matter
with the State Government for creation of 31 permanent
Fast Track Courts instead of 31 alternative court's co-
terminus with the morning and evening shift courts and an
expansion of 10% of Cadre strength as per the direction B
of the Hon'ble Apex Court in B.M. Lal Case (Tr. Civil Case
No.22 of 2001) in response to the direction dated 19th
April, 2012."
51. The State of Jharkhand will now have to take steps to
comply with directions issued in Brij Mohan Lal-II, if it has.not C
complied with them so far. The State of Jhakhand and the High
Court will have to work in sync to ensure that the directions to
appoint the appellants in the regular cadre in Higher Judicial
Service are complied with strictly in the manner laid down in
Brij Mohan Lal-I/. D
52. We are not prepared to entertain the grievance of the
contesting respondents that if the appellants are absorbed in
regular cadre their promotional avenues will get affected or they
will suffer monetary loss. Their locus to challenge the appellants'
appointments has been questioned. But, even if it is assumed E
that they have locus in view of Brij Mohan Lal-II such grievances
cannot be entertained. The directions given by this Court in Brij
Mohan Lal-II are under Article 142 of the Constitution, to do
complete justice and while issuing directions, obviously this
Court has considered the entire issue in its proper perspective. F
We, therefore, reject this submission. In the view that we have
taken we dispose of these appeals by recording that we concur
with the view taken by the High Court and see no reason to
interfere with it. We direct the State of Jharkhand and the High
Court of Jharkhand to comply with the directions to appoint the G
appellants in the regular cadre in Higher Judicial Service in the
State of Jharkhand strictly in the manner laid down in Brij Mohan
Lal-II within a period of six months from the date of receipt of
this order by it.
R.P. Appeals disposed of. H
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