Holding

Appointments to Fast Track Courts are ad‑hoc and do not entitle the appointees to regular seniority over direct recruits appointed to substantive vacancies.

Summary

The appellants, originally District Munsifs promoted to Sub‑Judges, were appointed as District & Sessions Judges (Grade II) to vacant Fast Track Courts (FTCs) under the 2001 Special Rules for Ad‑hoc Appointments. The respondents were later appointed as direct recruits to regular vacancies under the 1958 Rules. The appellants claimed seniority over the respondents, arguing that their appointment letters under the 1958 Rules made them regular members of the State Higher Judicial Service. The Supreme Court held that FTC appointments are expressly ad‑hoc, governed by a separate rule set, and do not create a right to regular seniority. Consequently, the appellants could not claim seniority over the direct recruits who filled substantive vacancies. The appeal was dismissed without costs.

Issues considered

Whether appointments to Fast Track Courts under the 2001 ad‑hoc rules confer regular seniority rights in the State Higher Judicial Service.
Whether an ad‑hoc appointment can make a judge a member of the regular cadre for purposes of seniority.
Whether the seniority list prepared by the High Court, placing respondents above appellants, is legally valid.

Subjects

judicial seniorityFast Track Courtsad‑hoc appointmentState Higher Judicial Serviceseniority listregularisationjudicial service rules

Judgment

[2016] 3 S.C.R. 834

A V. VENKATA PRASAD & ORS.
v.
HIGH COURT OF A.P. & ORS.
(Civil Appeal No.6105 of2013)

B JUNE29,2016
[DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.)
Judiciary - Seniority~ Claim of. by judicial officers appointed
as Fast Track Court judges - On facts. appellants appointed as
District Muns ifs in State Judicial Service and in due course promoted
c as Sub-judges - Later their names recommended for promotion to
the post of District and Sessions Judge. Grade II - Appellants when
functioning as sub-judges, Government sanctioned 86 additional
posts to be established as Fast Track Courts - Initially the High
Court sanctioned 41 Additional District and Sessions Court and 3
D Additional Senior Ciril Judges Court - Approval of names for
appointment as District and Sessions Judges, Grade II by transfer
- Appellants posted as DS.J Gr II against vacancies in Fast Track
Courts temporarily - Re5pondents appointed as DSJ Gr II by direct
recruitment - Respondents claiming seniority over the DSJ promoted
by way of transfer from the cadre of Senior Civil Judge - Final
E seniority list prepared - Seniority of respondents fixed above that
of the appellants - Seniority list upheld by the High Court - On
· appeal, held: Appointments in respect of Fast Track Courts are ad
hoc in nature - No right accrues to such recruits promoted/posted
on ad hoc basis from the lower judiciary for the regular promotion
F on the basis of such appointment - FTC Judges were appoinJed
under a separate set of rules than the rules governing the regular
appointme11t in the State Higher .Judicial Services - Appellants were
promoted because of the introduction of the Fast frock Court Scheme
and under the 2001 Rules - They were the beneficiaries of a Scheme
- While conti11uing in the post under the scheme. the regular posts
G i11 the cadre fell vacant and they were regularised but prior to that;
the respondents were appointed as direct recruits in respect of
substantive posts in their quota - Appellants should have been in a
position to accept the distinction - Andhra Pradesh State Higher
Judicial Service Special Rules for Adhoc Appointments, 2001.
H
834
V. VENKATA PRASAD v. HIGH COURT OF A.P. 835

Dismissing the appeal, the Conrt A
HELD: 1.1 From *Brij Mo/um/al-I and ** Brij Molumlal-Jl's
case, it is clear that the appointments in respect of Fast Track
Courts are ad hoc in nature and no right is to accrue to such
recruits promoted/posted on ad hoc basis from the lower judiciary
for the regular promotion on the basis of such appointment. FTC B
Judges were appointed under a separate set of rules than the
rules governing the regular appointment in the State Higher
Judicial Services. [Para 19) [849-E]
1.2 The 2001 Rules are specific rules for ad hoc
appointments. As the fact situation would exposit, there were six c
vacancies in the regular cadre. Because of introduction of the
Fast Track Court Scheme, the promotional avenues on ad hoc
basis became available. The conditions in *Brij Molumlal-l's and
**Brij Molzanlal-Jl's make it absolutely clear. The submission of
the appellants is that they were appointed under the 1958 Rules
as the letter of appointment would show and whole thing would D
depend upon the letter of appointment and not the posting orders
issued by the High Court; and that if a candidate is appointed on
ad hoc basis in respect of a vacancy, he would be regarded as
senior to the direct recruit. Both the submissions, as it is
perceived, are interwoven but the singular answer to the same E
would be "fundamentally fallacious". [Para 22) [850-F-G; 851-B-
C]
1.3 The principle stated in ***0.P. Sil1gla's case that no
distinction can be made between direct recruits on one hand and
promotees appointed to the Service on the other, in the matter F
of their placement in the seniority list does not assist the counsel
for the appellants. It is simply so because the appellants were
not appointed to substantive vacancies. That has also been clearly
stated in the majority opinion in O.P. Singla's case which has been
placed reliance upon by the three-Judge Bench in ****Debabrata
Dash 's case. The appellants who are aspirant to structure the G
case solely on the basis of the words used in the letter of
' ' ,'
appointment ignoring the letter of posting, they are bound to
remain in the realm of unnecessary undiminished hope. Their
promotion came because of the. introduction of the Fast Track
Court Scheme and under the 2001 Rules framed by the High H
836 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Court. They were the beneficiaries of a Scheme. While continuing
in the post under the scheme, the regular posts in the cadre fell
vacant and they were regularised but prior to that, the
respondents were appointed as direct 1·ecruits in respect of
substantive posts in their quota. The appellants should have been
in a position to accept the distinction. But the inter se dispute
B
between the promotees and the direct recruits seems to be a
ceaseless affair. [Para 30] [854-F-H; 855-A-C]
Commissioner of Bombay v. Goverdlwndas Bhanji
(1952) SCR 135; M.S. Gill v. Chief Election
Commissioner 1978 (2) SCR 272 :(1978) l SCC 405;
c D.R. Nim v. Union of India (1967) 2 SCR 325; Rudra
Kumar Sain v. Union of India 2000 (2) Suppl. SCR
573:(2000) 8 SCC 25; V. Bhasker Rao & Ors v. State
of A.P. & Ors. 1993 (2) SCR 547:(1993) 3 SCC 307;
Direct Recruitment Class II Engineering Officers'
D Association v. State of Maharashtra 1990 (2) SCR 900
:(1990) 2 SCC 715; ****Debabrata Dash v. Jatindra
Prasad Das 2013 (2) SCR 331:(2013) 3 SCC 658;
** Brij Mohan/al-JI v. Union of India 2012 (5) SCR
305:(2012) 6 SCC 502; *Brij Mohan Lal v. Union of
India-I 2002 (3) SCR 810:(2002) 5 SCC 1; All India
E Judges' Assn. v. Union of India 2002 (2) SCR
712:(2002) 4 SCC 247; P. Ramachandra Rao v. State
of Karnataka (2002) 4 SCC 578; All India Judges'
A.~sn.1' Union of India 1991 (2) Suppl. SCR 206:(1992)
1 sec 119; All India Judges' Assn. V. Union of India
F 1993 (1) Suppl. SCR 749:(1993) 4 sec 288; ***O.P.
Sing/a v. Union of India 1985 (1) SCR 351:(1984) 4
SCC 450; State of West Bengal v. Aghore Nath Dey 1993
(2) SCR 919:(1993) 3 SCC 371; State of Haryana v.
ViJay Singh 2012 (10) SCR 356:(2012) 8 sec 633 -
referred to.
G
Case Law Reference
(1952) SCR 135 referred to Para 11
11)78 (2) SCR 272 referred to Para 11
(1967) 2 SCR 325 referred to Para 12
H
V. VENKATA PRASAD v. HIGH COURT OF A.P. 837

2000 (2) Suppl. SCR 573 referred to Para 12 A
1993 (2) SCR 547 referred to Para 12
1990 (2) SCR 900 referred to Para 12
2002 (2) SCR 712 referred to Para 15
(2002) 4 sec 578 referred to Para 15 B

1991 (2) Suppl. SCR 206 referred to Para 15
1993 (1) Suppl. SCR .749 referred to Para 15
2012 (5) SCR 305 referred to Para 19,22
2002 (3) SCR 810 referred to Para 19,22
c
1993 (2) SCR 919 referred to Para 27
2012 (10) SCR 356 referred to Para 28
7013 (2) SCR 331 referred to Para30
D
1985 (1) SCR 351 referred to Para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6 I05 of
2013.
From the Judgment and Order dated 16.12.2011 of the High Cou11
of Judicature of Andhra Pradesh at Hyderabad in Writ Petition No. 23902
E
of2008.
P. P. Rao, Sr. Adv., G. V. R. Choudary, Ms. Ananya Sarkar,
Swarnendu Chatterjee, K. Shivraj Choudhuri, A. Chandra Kumar, Advs.
for the Appellant.
Mohan Parasaran, Guru Krishnakumar, Sr. Advs., Anshuman Ashok,
F
Amit Pai, Ari val Shukla, Nirnial Amabastha, Ash win Kumar, Purushottam
Sharma Tripathi, Mukesh Kumar Singh, Luv Kumar, Y. Raja Gopala
Rao, Hiendra Nath Rath, Sandeep Singh, K. Sharat Kumar, Guntur
Prabhakar, Ms. Prerna Singh, Advs. for the Respondents.
The Judgment of the Cou11 was delivered by
G
DIPAK MISRA, J. I. The appellants were appointed as District
Munsifs in Andhra Pradesh Judicial Service in the years 1985-1987
through A.P. Public Service Commission and in due course were
promoted as Sub-Judges. Later on their names were recommended for
promotion to the post of District and Sessions Judge, Grade II vide letter
dated 23.4.2002 hy the Registrar General, High Court of A.P. and the H
838 SUPREME COURT REPORTS [2016) 3 S.C.R.

A said recommendations were approved by the Government in GO.Ms.
No. 64 (LA&J) (SC.F) Department dated 4.5.2002. Their temporary
appointments were notified in the said Cadre in GO.Rt. No. 542 dated
4.5.2002.
2. While the appellants were functioning as Sub-Judges, the
B Ministry of Law and Justice, Government ofl ndia on 2 7.3.2001 sanctioned
86 additional posts to be established as Fast Track Courts. Initially, the
Registrar General, High Court of A.P. recommended for appointments
of 41 Additional District and Sessions Courts and three Senior Civil Judge-
cum-Assistant Sessions Court for a period of five years w.e.f. 1.4.2001.
The proposal for establishing the rest of the Courts could not be fructified
c due to lack of accommodation. On the basis of communication made by
the Registrar General, the Government accorded sanction of 44 additional
courts with specific staffing pattern. Be it stated, 41 Additional District
and Sessions Courts were sanctioned and three courts of Additional
Senior Civil Judges comt were sanctioned.
D 3. After the posts were sanctioned. the Andhra Pradesh State
Higher Judicial Service Special Rules for Adhoc Appointments, 2001
(for short, '2001 Rules') were framed which came into force with effect
from 1.3.2001. Rule l of2001 Rules deals with the constitution of service
which stipulates that it shall consist of District and Sessions Judges on
E ad hoc appointment. Rule 2 of 2001 Rules deals with appointment. ft
reads as follows:-
"Appointment:
Notwithstanding anything contained in the Special Rules for A.P.
State Higher Judicial Service 1958, the appointment of District
F and Sessions Judges on ad hoc basis shall be made:
(i) by direct recruitment from the members of the bar;
(ii) appointment by transfer from among Senior Civjl Judges in
the State Judicial Service;
G (iii) by re-employment of retired District Judges provided that
33 1/3% of the total number of ad hoc posts shaH be filled by
direct recruitment.
1. In the detennination of 33 1/3% of total numlJer of ad hoc
posts, fractions exceeding one half shall be counted as one and
H other tractions shall be disregarded.
V. VENKATA PRASAD v. HIGH COURT OF A.P. 839
[DJPAK MISRA, J.]

2. Appointments under Rule.2 (ii) shall be on grounds of merit A
and ability, seniority being considered only when merit and ability
are approximately equal.
3. Appointments under Rule 2 (iii) shall be made on grounds of
merit, ability and fitness.
B
4. All appointments made from time to time under Rule 2 shall
cease on 31.03.2005."
Rule 6 of2001 Rules deals with seniority. It reads as follows:-
"Inter-se seniority of the promotees from senior Civil Judges to
the cadre of District and Sessions Judges shall be as per the c
seniority fixed at the time of appointment".
Rule 7 of200 I Rules lays down the terms and conditions. Sub-rule
2 of Rule 7 of2001 Rules provides that a person appointed under Rule
2( 1) shall not be regarded as a Member of permanent cadre covered
under Rule 2 of the 1958 Rules and shall not be entitled to any preferential D
right to any other appointment to this service or any other service and
their service shall not be treated as regular or permanent under the State
Government nor shall be a bar for appointment to the post covered by
the 1958 Rules ur lhe Andhra Pradesh State Judicial Service Rules,
1962.
E
4. After the posts were sanctioned, the Registrar, Vigilance
communicated to the State Government for appointment of District &
Sessions Judges Grade Il by transfer. The letter referred to 36 names.
It stated that under Rule 3 of the 1958 Rules appointment to Grade II
(i.e. District & Sessions Judge, Grade 11) shall be made by transfer from
amongst the Senior Civil Judges in the Andhra Pradesh Judicial Service. F
The concerned communication further stated:-
"ln this connection, I am to state that at present there are 6
vacancies in the Cadre of District & Sessions Judges and one
more vacancy will also arise consequent upon the retireme11t of
Sri K. Mahalakshmi Rao, District and Sessions Judge, Anantapur, G
on the AN of30.04.2002 and 24 Fast Track Courts in the cadre of
District and Sessions Judges, are also vacant. Thus there are 31
vacancies in the Cadre of District & Sessions Judges."
5. The Government of Andhra Pradesh vide order dated 4.5.2002
approved 36 names for appointment as District & Sessions Judges, Grade H
840 SUPREME COURT REPORTS [2016) 3 S.C.R.

A II by transfer. After the approval was given by the State, the High
Comt of Andhra Pradesh vide order dated J 4.6.2002 issued posting orders.
The appellant nos. I to 5 were posted against vacancies in Fast Track
Courts temporarily. Thereafter, appellant nos.· 6 and 7 were posted
against the vacancies to Fast Track Courts temporarily. The aforesaid
narration reflects how the appellants had come to hold the post.
8
6. The respondent nos. 3 to 7 were appointed as District & Sessions
Judge, Grade II by direct recruitment vide GO.Ms. No. I 08 (LA&J)
(SC-F) Department dated 4.8.2002. Their posting orders were issued
on 3.1.2003 and they were directed to undergo training in the Judicial
Academy. On completion of training, posting orders were issued vide
c ROC No. 73/2003 B.Spl dated 3.1.2003 and accordingly they took charge
as District and Sessions Judge, Grade-II at their respective places of
postings in January, 2003. As the facts would reveal, the said respondents
submitted a representation on 13.11.2003 to the High Court, the first
respondent herein, to fix their seniority over and above the District and
D Sessions Judges promoted by way of transfer from the cadre of Senior
Civil Judge. The High Court, vide ROC No. 207/04-8.Spl dated 24.2.2004
communicated the seniority list fixing their seniority after one Sh. Mohan
Gandhi whose name was at serial no.5. The final seniority list was
published vide GO.Rt. No. 1748 (LA&J SC.F) Department dated
18.9.2008.
E
7. At this juncture, a slight digression is necessary. After the High
Court had prepared a draft seniority list, objections were received and
thereafter a Sub-Committee of three Judges was constituted which
considered the objections and found that there were six regular vacancies
in the category of District & Sessions Judge, Grade II and one was to
F arise on the retirement of one Mr. K. Mahalakshmi Rao, District &
Sessions Judge.. \nanthapur on 30.4.2002. The committee made a
distinction about the incumbents who had been posted on the post that
were created vide letter dated 4.5.2002. The relevant part of the report
of the Sub-Committee is as follows:-
G "F) On a true and fair construction of the provisions of the 2001
Ad Hoc Rules, the conclusion is irresistible that the ad hoc posts
of District and Sessions judges to man the FTCs are direct posts
outside the cadre of the AP Higher Judicial Services. These posts
are not part of nor are composed within the AP Higher Judicial
Services. The fixed tenure of the posts and of the appointments,
H
V. VENKATA PRASAD v. HIGH COURT OF A.P. 841
[DIPAK MISRA, J.]

the specification under Rule 7(3) that persons appointed as District A
and Sessions Judges under Rule 2 (ii) shall be eligible to salary
and allowances as permissible to District and Sessions Judges
Grade II and the scheme of the FTC being funded on an Adhoc
basis apa11 from the title of the rules which specify the adhoc
nature of the scheme of the FTC all at least to these positions.
B
G) The 2001 Adhoc rules came into force w.e.f. 5.3.2002. On
that day 24 posts of District and Sessions Judges FTC were vacant.
The registry should have proposed Adhoc appointments to these
vacant posts by transfer from amongst the members of A.P. State
Judicial Service (Senior Civil Judge) and under Rule 2(ii) of the
2001 Adhoc Rules. Erroneously however, it addressed a D.O.
c
letter dated 23.04.2002 to the Government proposing temporary
appointments of30 Senior Civil Judges as District and Sessions
Judges Grade II. This letter clearly shows that statistical position
viz., that there are six regular vacancies in the category of District
& Sessions Judge Grade II (within the cadre of the AP State D
Higher Judicial Service) with one more vacancy to arise on the
retirement of Sri. K. Mahalakshmi Rao, District & Sessions Judge,
Anantapur, on the Afternoon of30.04.2002. The D.O. letter dated
23.04.2002 clearly intimated to the State that 24 FTCs in the cadre
of District & Sessions Judge were vacant, in all 31 vacancies. In
conclusion, the letter addressed the Government to approve the E
panel and notify initial temporary appointments of the 30 Senior
Civil Judges proposed as District & Sessions Judge, Grade II, by
transfer. Proposal for 30 posts were made against the 31 vacancies
set out, since there was an earlier recommendation for one Sri.
K. David Wilson for temporary appointment as District & Sessions F
Judge, Grade II. The State Government equally oblivious of the
legal position issued G.0. Ms. No. 64 approving 36 Senior Civil
Judges starting from Sri.C. Vachaspathi to Sr. D. Prabhakara Rao
for appointment as District & Sessions Judges Grade II by transfer,
without stipulating the mandated distinction between appointments
to posts within the cadre of the AP State Higher Judicial Service G
and the ad hoc posts in the FTC stream."
x x x x x x x x x
"J. Pursuant to the recommendation of the High Court, orders
were issued in GO Rt No. 542 dated 04.05.2002 for initial H
842 SUPREME COURT REPORTS [2016] 3 S.C.R.

A temporary appointments of30 Senior Civil Judges and District &
. Sessions Judges Grade- II and 24 FTC were vacant. In the
circumstances Sarvasri C V Vachiaspathi to G Mohan Gandhi
(Serial No I to 6 in GO Rt No.542) were appointed to the cadre
vacancies in the AP State Higher Judicial Services. The other 24
officers Sarvasri E Radhakrishna to T Pathabhi Ramarao were
B
posted to FTC vacancies in the notification of the High Court No.
654 B. Special dated 14.06.2000.
K. In GO Rt No.1192 dated 3.08.2002 the remaining 6 officers
Sarvasri G Chakradhara Rao to D Prabhkar Rao were issued
initial temporary appointments as District & Sessions Judge Grade
c - II by transfer. By this date 4 cadre vacancies in the AP State
Higher Judicial Services and 2 FTC vacancies were factually
vacant. Therefore 4 officers working in the FTC's Savasri ·E
Radhakrishna, L. Ravi Babu, M.A. Sharif & Y. Venkat Prasad
were posts to function in the cadre vacancies and the 6 officers
D specified in GO Rt No.1192 were posted to the available FTC
vacancies, by the notification of High Court No.855 B- Special
dated 08.08.2002.
L. After 04.01.2003 on completion of training the direct recruit
officers (Smt T Rajani & four others) were given posting orders.
E At this point of time three cadre vacancies and two FTC vacancies
were available. Therefore Sri M A Sharif and Sri V Venkata
Prasad working in the cadre vacancies were posted to FTC
vacancies and the five direct recruitees were given posting orders
in the cadre vacancies.

F M. The Seniority of the five direct recruit officers will have to be
reckoned w.e.f. 21.08.2002 the date they rep01ted for training
consequent on appointment."
8. The aforesaid report was accepted by the full Court of the High
Court and a final seniority list was published on 18.9.2008 which featured
G the names of respondent nos. 3 to 7 above the appellants.
9. After publication of the final seniority list, the same was
challenged before the High Court of Andhra Pradesh invoking the writ
jurisdiction and the Division Bench analysing the rule position came to
hold that they cannot be conferred the benefit of seniority on the basis of
continuous length of service. The Court arrived at the said conclusion
H
V. VENKATA PRASAD v. HIGH COURT OF A.P. 843
[DIPAK MISRA, J.]

that the officers who were appointed by promotion/transfer from Civil A
Judges to the cadre of District and Sessions Judges, Grade - II cannot
claim seniority from the date of initial appointment but can only claim so
from the date when they were regularly appointed in the cadre vacancies
as they could only be appointed in the said vacancies as and when the
vacancies arose. Being of this view the Division Bench dismissed the
B
writ petition. Hence, the present appeal by special leave.
10. Criticizing the judgment and order passed by the High Court it
is submitted by Mr. P.P. Rao, learned senior counsel appearing for the
appellants that appointments were made by the Governor under Rule
5( 1) on the recommendations of the High Court and, therefore, they are
to be treated as regular appointees. It is urged by him that the posting
c
orders issued by the High Court under Rule 5(2) of the 1958 Rules
cannot take away the right conferred by the order of appointment issued
by the Governor, for the nature of posting order has to be determiI1ed
with reference to the terms and conditions mentioned in the order of
appointment. D
11.Learned senior counsel would submit that the order of approval
of the Governor is a common order consisting of36 names including the
appellants herein and it does not mention that any one of them has been
approved for appointment as an ad hoc Judge in a Fast Track Court. It is
his further submission that the appellants were appointed by the Governor E
under the Rules to the post of District/Sessions Judges, Grade II of the
service on transfer and posted by the High Cou1t to Fast Track Courts. ·
It is argued by Mr. Rao, that when orders are passed in exercise of
statutory authority, it cannot be constituted otherwise in the light of the
explanation subsequently given by the officer making the orderofwhat
he meant or of what was in his mind, or what he intended to do. For the F
said purpose, he has placed reliance on Co111111issio11er of Bombay v.
Goverdlta11das Blw11ji'a11d M.S. Gill v. Cltief Electio11
Co111111issio11er1• It has been further argued that it was open to the
appointing authority to appoint some of the Senior Civil Judges as ad hoc
Additional District & Session Judges for the Fast Track Courts on a G
consolidated salary of Rs. 10,000/- per month as against the posts
sanctioned vide the Govt. order dated 27.03.2001 read with 2001 rules
on ad hoc basis. It was also open to the appointing authority to recruit by
I (1952) SCR 135
2
(1978)1sec405
H
844 SUPREME COURT REPORTS (2016) 3 S.C.R.

A transfer Senior Civil Judges to regular cadre of District and Sessions
Judges, Category II of the service and thereafter post some of them in
the Fast Track Courts, but the appointing authority in its wisdom availed
the second option of appointment of appellants to the cadre of District
and. Sessions Judges, Category II by transfer and posted some of them
to regular posts in the cadre and others in the Fast Track Court and
B
hence, they are entitled to the benefit of seniority of continuous service.
In essence, the submission is that the nature of appointment is under the
1958 Rules and not under 2001 Rules as a result of which concept of ad
hoc appointment does not arise.
12. Mr. Rao, would further submit that a stop-gap arrangement of
c this nature would not have been continued for such a long span and the
material brought on record clearly show that it was not a temporary
arrangement. For the said purpose he has commended us to the
Constitution Bench decision in D.R. Nim v. Union of India'. It is his
further submission that if an appointn1ent is made to meet the contingency
D arising on account of delay in completing the process of regular
recruitment to the post due to any reason and it is not possible to leave
the post vacant till then, and to meet this contingency an appointment is
made then it can appropriately be called as a stop-gap arrangement and
appointment in the post as ad hoc appointment. To substantiate the said
stand he has placed reliance on Rudra Kumar Sai111•. U11io11 <~{ ludia4•
E Highlighting the language employed in Rule 6, learned senior counsel
would contend that seniority has to be determined with reference to the
date from which an officer is continuously in service in Category II and
as the appellants have continued without any break prior to Respondent
Nos. 3 to 7, the High Court has etTed in not granting the relief to the
F appellants. In this regard, he has drawn inspiration from V. Blmsker
Rao & Ors v. State of A.P. & Ors 5 and Direct Recruitment Class II
E11gi11eeri11g Officers' Associatio11 v. State of Maltaraslitra 6 •
13. Mr. Parasaran, !·earned senior counsel appearing for the
respondent no. I, would submit that the appellants are not entitled to
G seniority over the respondents who are direct recruits in regular vacancies
because they were appointed in ad hoc capacity in respect of the

' ( 1967) 2 SCR 325
'(20001 s sec 2s
'(1993) 3 sec 307
H '' (1990) 2 sec 715
V. VEN KATA PRASAD v. HIGH COURT OF A.P. .845
[DIPAK MISRA, J.]

vacancies created in Fast Track Courts. It is urged by him that the A
controversy is covered by the decision in Direct Recruitment Class II
Engineering Officers' Association (supra) and Debabrata Dash v.
Jatindra Prasad Das 7 and the principle laid down in V. Bltasker Rao
(supra) does not apply to the case at hand. It is because, submits Mr.
Parasaran, the appellants were not substantially appointed against any
B
vacancy in their cadre and hence, their case would be governed by the
Constitution Bench decision in the Direct Recruitment Class II
Engineering Officers' Association (supra) and the pronouncement in
Debabrata Dash (supra). It.is his submis~ion that six vacancies came .
to be filled up by way of transfer/promotion from amongst Sub-Judges.
in the Andhra Pradesh State Judicial Service anc\ the re~pondent nos. 3 c
to 7 were appointed as direct recruits when the vacancies had arisen in
their quota but the appellants were never appointed in respect of a
substatitial post prior to the point in respect of the said vacancies and,
therefore, the claim of seniority over them is misconceived. The learned
senior counsel has seriously opposed the stand of the appellants to claim
D
benefit under Rule 6 which postulates for seniority on the basis of
continuous service. It has been argued that the Fast Track Courts were
of a different character and were constituted for a specific purpose and
appointments in respect of the said courts cannot confer the benefit of
seniority on the appellants. He has supported the findings of the report
of the sub-committee which has been brought on record and thejudgtnent E
and order passed by the High Court.
14. Mr. Gurukrishna Kumar, learned senior counsel appearing for
respondent nos. 3 to 7 has contended that if200 I Rules are scrutinised
in proper perspective, it is quite vivid that the ad hoc posts of District &
Sessions Judges to man the Fast Track Courts are posts outside the F
cadre of the A.P. Higher Judicial Services· and are neither part of nor
composed within the A.P. Higher ,Judicial Services and· hence, the
appellants cannot claim benefits of being appoi11ted under the said rules.
It is his further submission that assuming there as an erroneous proposal
of the Registry of the High Comito fill up the posts on temporary basis
from amongst the Senior Civjl Judges as District & Sessions Judges,
Grade'-11, that really does not help, for the said proposal also clearly
indicates that there'are six regular vacancies in the category of District
& Sessions Judge, Grade-I! with one more vacancy to arise on retirement
·' ..

1
(2013) 3 sec 658
H
846 SUPREME COURT REPORTS [2016] 3 S.C.R.

A ofanotherofficer. Thus, submits Mr. Gurukrishna Kumar, the appellants
were appointed on the Fast Track Courts under 2001 Rules and the
respondents were appointed under the 1958 Rules and, therefore, the
seniority of the respondents, who are direct recruits, has to be reckoned
w.e.f. 21.8.2002, the date they repotied for training consequent upon
B their appointment. It is canvassed by him that as per the authority in Brij
. Molia11lal - II v. U11io11 of I11dla 8 , the Fast Track Court Judges were
appoi11ted on ad hoc basis and they would not derive any benefit from
such appointment. Lastly, it is submitted that the pronouncement in
Debabrata Dash (supra) is the last nail in the coffin in the submission
advanced by the appellants and, the judgment rendered by the High
C Court deserves to be accepted.
15. To appreciate the rivalised submissions raised at the Bar which
have been astutely canvassed. it is extremely essential to project the
real plinth of the litigation. The I I1h Finance Commission allocated
Rs.502.90 crores under Article 275 of the Constitution for the purpose
D of setting up 1734 courts in various States to deal with long pending
cases, particularly sessions cases. The funds were to be allocated by
the Finance Commission which stipulated a time-bound utilisation within
a period of five years and the State Governments were required to take
necessary steps to establish such courts. The Finance Commission had
stated that States may consider re-employment of retired Judges for
E limited period since these courts were ad hoc in the sense that there
would be no permanent addition of courts with in a particular State. The
High Courts framed Fast Track Courts Scheme for employment of retired
Judges. Certain litigations were filed in various High Comis and eventually
the matter travelled to this Court after cases being transferred and also
F otherwise in Brij Molia11 Lal v. U11io11 ofImlia - l 1 • It was highlighted
before this Co mi that infrastructural facilities were not available so as to
make the scheme a reality. It was also pleaded that instead ()f retired
officers, eligible members of the Bar should be considered for
appointment. Be it stated, the constitutional validity of the Fast Track
Court Scheme was also challenged. The Court negatived the said plea.
G After referring to the authorities in All India Judges' Assn. v. U11io11 of
littlia' 0 , R ·Ramacluuulra Rao v. State of Kamataka", All India
• (20I2J 6 sec so2
• (2002) s sec 1
"(2002) 4 sec 247
11 (2002) 4 sec 578
H
V. VENKATA PRASAD v. HIGH COURT OF A.P. 847
[DIPAK MISRA, J.J

Judges' Assn. v. Union 1~{ India" and All India Judges' Assn. v. A
U11io11 ofllldia", the three-Judge Bench issued ce11ain directions. Some
of the relevant directions are necessitous to be reproduced:-
]. The first preference for appointment ofjudges of the
Fast Track Courts is to be given by ad hoc promotions
from amongst eligible judicial officers. While giving such B
promotion, the High Coul1 shall follow the procedures
in force in the matter of promotion to such posts in
Superior/Higher Judicial Services.
xxxxxxxxxx
14. No right will be conferred on judicial officers in c
service for claiming any regular promotion on the basis
of his/her appointment on ad hoc basis under the
Scheme. The service rendered in Fast Track Cou1is
will be deemed as service rendered in the parent cadre.
In case any judicial officer is promoted to higher grade D
in the parent cadre during his tenure in Fast Track
Coul1s, the service rendered in Fast Track Coul1s will
be deemed to be service in such higher grade.
xxxxxxxxxx
18. The High Court and the State Government shall E
ensure that there exists no vacancy so far as the Fast
Track Courts are concerned, and necessary steps in
that regard shall be taken within three months from
today. In other words, steps should be taken to set up
all the Fast Track Cou1is within the stipulated time.
F
16. The directions given in the Brij Mo/um/al -I (supra) were
further analysed in Brij Mo/um/a/ -II (supra). The two-Judge Bench
scrutinising the directions observed that appointment to FTCs were to
be made on ad hoc basis. It has been observed therein that there are
three sources of recruitment. Firstly, by promotion from amongst the
G
eligible judicial officers, secondly by appointment of retired Judges with
good service records and lastly by direct recruitment from amongst the
members of the Bar between the age group of 35 to 45 years. In the
12
(1992) 1sec119
" ( 1993) 4 sec 2ss H
848 . SUPREME COURT REPORTS [2016] 3 S.C.R.
~ .. . .

A last category, the selection was to be made in the manner si1nilar to that
of direct recruitment to the Higher Judicial Services. The Court further
observed:-
. "This Court had foreseen the possibility of the closure of the Fast
Track Courts Scheme (FTC Scheme). It directed that the service
B in FTCs will be deemed as service of the promoted judicial officers
rendered in the parent cadre. However, no right would accrue to
such recruits promoted/posted on ad hoc basis from the lower
judiciary for regular promotion on the basis of such appointment.
For direct recruits, continuation in service will be dependent on
review by the High Court and there could be possibility ot'absorption
c in the regular vacancy if their performance was found to be
satisfactory. Besides these two aspects, the directions also dealt
with the management ofFTCs, timely and appropriate utilisation
offynds and monitoring of smooth functioning of FTCs. by the
State-Level Empowered Committee headed by the ChiefSecretaiy
D of the State; the disposal of cases was to be monitored by one
· Administrative Judge, nominated by the High Court. It was
expected that each FTC will at least have one Public Prosecutor
eai·rnarked. This was the sum and substance of the directions
issued by this Comi in Brij Mohan La/case while disposing of
both these transferred cases".
E
17. The basic prayer in the said case pe1iained to extension of FTC
.scheme. The Court adverting to various precedents and facets relating
to scope of interference in policy matters in exercise ofpowerof judicial
revicwand many other aspects, came to hold that:-

F " 172. The prayer for regularisation of service and absorption
of the petitioner appointees against the vacancies appearing in
the regular cadre has been made not only in cases involving the
case. of the State of Orissa, but even in other States. Absorption
in service is not a right. Regularisation also is not a statutory or a
legal right enforceable by the persons appointed under different
G rules to different posts. Regularisation shall depend upon the facts
and circumstances of a given case as well as the relevant rules
appiicable. to such class of persons.
XXXXXXXXXJ.;

17 5. !he petitiOners from the State of Andhi·a Pradesh have also
1-1
V. VENKATA PRASAD v. HIGH COURT OF A.P. 849
[DIPAK MISRA, J.]

prayed for identical re.lief claiming that the advertisement dated A
28-5-2004 issued for filling up the vacancies in the regular cadre
should be quashed and not processed any further and the
petitioners instead should be absorbed against those vacancies:
In view of the above discussion, we find no merit even in these
submissions.
B
176. We have already noticed that the FTC Judges were appointed
under a separate set of Rules than the Rules governing the regular
appointment to the State Higher Judicial Services. It has been
clearly stipulated that such appointmei1ts would be ad hoc and
temporary and that the appointees shall not derive any benefit
from such appointments". · c
18. The two-Judge Bench issued certain directions for regularisation
of the direct recruits from the Bar as Judges to preside over FTCs on
certain terms and conditions. Ce11ain directions were also given in respect
of candidates who were promoted as FTC Judges from the post of Civil
Judges (Senior Division) having requisite experience in service to be D
entitled to be absorbed and remain promoted to the Higher Judicial Service
subject to the rule position and certain other conditions. ·
19. From the aforesaid two authorities, it is quite clear that the
appointments in respect of Fast Track Courts are ad hoc in nature and
no right is to accrue to such recruits promoted/posted on ad hoc basis E
from the lower judiciary for the regular promotion on the basis of such
appointment. It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules g<?verning the
regular appointment in the State Higher Judicial Services.
20. Now we shall focus on the relevant Rules that governs the F
appointments to judicial service in the State of Andhra Pradesh. The
Andhra Pradesh Higher Judicial Service is governed by the Andhra
Pradesh State Higher Judicial Service Rules, 1958 (for short, 'the 1958
Rules') framed by the Governor of Andhra Pradesh in consultation with
the High Court and the said Rules have come into force w.e.f. I0.10.1958.
According to Rule I, the service shall consist of two categories. Category G
I" deals with District & Sessions Judge, First Grade and category 2"d
deals with District & Sessions Judge, Second Grade. Rule 2 provides
for appointment. The said Rule which is required to be delib.erated upon
is reproduced below:-
"Rule 2: Appointment H
850 SUPREME COURT REPORTS [2016] 3 S.C.R.

A (a) Appointment to Category I shall be made by promotion from
Category II and appointment to Category II shall be made:-
(i) by transfer from among:
Sub-Judges in the Andhra State Judicial Service; or in the
Hyderabad State Judicial Service; and
B
(ii) by direct recruitment from the Bar:
Provided that 33 113% of the total number of permanent posts
shall be filled or reserved to be filled by direct recruitment.
Explanation: In the determination of33 113% of the total number
C of permanent posts, fractions exceeding one-half shall be counted
. as one and other fractions shall be disregarded.
(b) All promotions shall be made of grounds of merit and ability,
seniority being considered only when merit and ability are
approximately equal."
D
21. Rule 3 provides for qualification. Rule 4 deals with probation.
Rule 5( I) stipulates that all first appointments, and reappointments of
persons under reversion to the category of District & Sessions Judge,
Second Grade, shall be made by the Governor in consultation with the
High Court. Rule 5(2) provides that all postings, other than first
E appointments or reappointments to the service, and transfers in the service
shall be made by the High Court. Rule 6 deals with seniority. It reads as
follows:-
"The seniority of a person appointed to Category I or Category II
shall be determined with reference to the dated from which he
F may continuously be on duty in that category".
22. In the instant case, we are not concerned with any other Rule.
The 200 I Rules are specific rules for ad hoc appointments. Rule 7( I )(b)
of the 2001 Rules lays down as follows:-
" A person appointed under Rule 2 (i) shall not be regarded as a
G Member of permanent cadre covered under Rule 2 of the Special
Rules for Andhra Pradesh State Higher Judicial Service, 1958,
and shall not be entitled to any preferential right to any other
appointment to this service or any other service and their service
shall not be treated as regular or permanent under the State
I-I Government nor shall be a bar for appointment to the posts covered
V. VENKATA PRASAD v. HIGH COURT OF A:P. 851
[DJPAK MISRA, J.]

by the Special Rules for Andhra Pradesh Higher Judicial Service, A
1958 or the Andhra Pradesh State Judicial Service Rules, 1962."
As the fact situation would exposit, there were six vacancies in the
regular cadre. Because of introduction of the Fast Track Court Scheme,
the promotional avenues on ad hoc basis became available. The conditions
in Brij Mohan/al -I (supra) and Brij Molza11/al -II (supra) make it B
absolutely clear. The submission of Mr. Rao, learned senior counsel for
the appellants is that the appellants were appointed under the 1958 Rules
as the letter of appointment would show and whole thing would depend
upon the letter of appointment and not the posting orders issued by the
High Court. According to the learned senior counsel, if a candidate is
appointed on ad hoc basis in respect ofa vacancy, he would be regarded
c
as senior to the direct recruit. Both the submissions, as we perceive, are
inte1woven but the singular answer to the same wou Id be "fundamentally
fallacious".
23. In Debabrata Dash (supra), almost in a similar situation, the
three-Judge Bench reproduced a passage from O.P. Si111:la v. Union of D
I11dia 1':-
"21 . ... This Rule shows that two conditions must co-exist in
order that a person can become a 'Member of the Service'. Firstly,
his appointment has to be in a substantive capacity and secondly,
the appointment has to be to the Service, that is, to a post in the E
Service. Persons who hold posts bearing designations similar to
the designations of posts comprised in the Service cannot, for that
reason alone, become members of the Service. It is only when
they are appointed in a substantive capacity to a post in the Service,
that they become members of the Service."
F
24. After referring to the said paragraph, the Court observed that:-
"Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules leave no manner of
doubt that a person can become a member of the Senior Branch
of the Superior Judicial Service only if his appointment has been
made to a post in the service. If there is no vacancy to be filled in G
by promotion i"n the cadre of Senior Branch service, there is no
question of any appointment being made to the service. The
membership of service is limited to the persons who are appointed
within the cadre strength by direct recruitment and by promotion".
14
(1984)4SCC450 H
852 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 25. Thereafter, the Court referred· to the Constitution Bench
judgment in Direct Recruitment Class II Engineering Officers'
Association (supra) and after adverting to the legal position (Clauses
A, B and C) stated thus:-
"The essence of direction in Clause (A) is that the seniority of an
B appointee has to be counted from the date of his appointment and
not according to the date of his confirmation once a recruitee is
appointed to a post according to the rules. In other words, where
initial appointment is only ad hoc and not according to the rules
and made as a stopgap arrangement, the officiation in such post
cannot be taken into account for considering the seni_ority".
c
26. Be it noted, the three-Judge Betich referred to the authority in
Rudra Kumar Sain (supra), reproduced a passage therefrom and opined
that though the High Court had quoted the relevant paragraph, yet had
applied it wrongly.

D 27. Be it noted, in State of West Bengal v. Agl10re Nath Dey' 5 the
Court perceived ari apparent contradiction in Conclusions A and Band
while clarifying stated thus:.-
"19. The Constitution Bench in Direct Recruit case, while dealing
with Narender Chadha v. Union of India 16 emphasised the
E unusual fact that the promotees in question had worked ·
continuously for long periods of nearly fifteen to twenty years on
the posts without being reverted, and then proceeded to state the
principle thus:
'13 . ... We, therefore, confirm the principle of counting
towards seniority the period of continuous officiation
F
following an appointment made in accordance with the rules
prescribed for regular substantive appointments in the
service.'
20: The Constitution Bench having dealt with Nare11der
Chadha in this mw111e1: 10 indicate the above principle. thal
G
decision cannot be construed to apply to cases where !he inilial
appointment was not according to rules.

* * *
" (1993) 3 sec 371
H "·(1986)2sec157
V. VENKATA PRASAD v. HIGH COURT OF A.P. 853
[DIPAK MISRA, J.]

22. There can be no doubt that these two conclusions have to be A
read harmoniously, and Conclusion (8) cannot cover cases which
are expres.sly excluded by Conclusion (A). We may, therefore,
first refer to Conclusion (A). It is clear from Conclusion (A) that
w enable seniority to be counted from the date of initial appointment
and not according to the date of confirmation, the incumbent of
B
the post has to be initially appointed 'according to rules'. The
· corollary.set out in Conclusion (A), then is, that 'where the initial
appointment is only ad hoc and not according to rules and made
as a stopgap arrangement, the officiation in such posts cannot be
taken into account for considering the seniority'. Thus, the corollary
in Conclusion (A) exeressly excludes the category of cases where c
the initial appointment is only ad hoc and not according to rules,
being made only as a stopgap arrangement. The case of the writ
petitioners squarely falls within this corollary in Conclusion (A),
which says that the officiation in such posts cannot be taken into
account for counting the seniority."
D
* * *
"26. ... Admittedly, this express requirement in Rule 1I was not
followed or fulfilled subsequently, and, therefore, the initial ad
hoc appointments cannot be treated to have been made according
to the applicable rules. These ad hoc appointments were clearly E
not in accordance with the rules, and were made only as a
stopgap arrangement for fixed period, as expressly stated in the
appointment order itself."
28. In State of Harymut v. Vijay Singlt' 7, the issue emerged with
regard to determination of seniority in the backdrop of ad hoc initial F
appointment made dehors the seniority rules which were regularised by
the State Government. The Court appreciating the fact situation held
that ad hoc period would not be counted for the purpose of fixation of
seniority.
29. We will be failing in our duty if we do not refer to the authorities G
cited by Mr. Rao, learned senior counsel for the appellants. He has
commended us to a passage from O.P. Sing/a (supra). ·It reads as
follows:-

17
(2012)8SCC633 H
854 SUPREME COURT REPORTS [2016] 3 S.C .R.

A "It is however difficult to appreciate how, in the matter of seniority,
any distinction can be made between direct recruits who are
appointed to substantive vacancies in the Service on the
recommendation of the High Court under Rule 5(2) and the
promotees who are appointed in consultation with the High Court
to posts in the Service under Rules 16 and 17. Rule 16 provides
B
for the appointment of promotees to temporary posts in the Service,
while Rule 17 provides for appointment of promotees to substantive
vacancies in the Service on a temporary basis. Promotees who
are appointed to the Service under either of these two Rules must
be considered as belonging to the same class as direct recruits
c appointed under Rule 5(2). They perform similar functions,
discharge identical duties and bear the same responsibilities as
direct recruits. They are appointed on a regular basis to posts in
the Service in the same manner as direct recruits are appointed,
the only distinction being that whereas the latter are appointed on
the recommendation of the High Court, promotees are appointed
D
in consultation with the High Court. Therefore, no distinction can
be made between direct recruits on one hand and promotees
appointed to the Service on the other, in the matter of their
placement in the seniority list. E_xclusion from the seniority list of
those promotees who are appointed to posts in the Service, whether
E such appointment is to temporary posts or to substantive vacancies
in a temporary capacity, will amount to a violation of the equality
rule since, thereby, persons who are situated similarly shall have
been treated dissimilarly in a matter which constitutes an important
facet of their career".

F 30. The principle stated in the aforesaid paragraph, we are afraid,
does not assist learned senior counsel for the appellants. It is simply so
because the appellants were not appointed to substantive vacancies.
That has also been clearly stated in the majority opinion inO.P. Si11gla
(supra) which has been placed reliance upon by the three-Judge Bench
in Dehahrata Dash (supra). Learned senior counsel, as has been
G indicated earlier, heavily relied on the decision in Rudm Kumar Sain
(supra). On a perusal of the same, we do not find it to be remotely
helpful to the issue that has arisen here. The appellants who are aspirant
to structure the case solely on the basis of the words used in the letter
of appointment ignoring the letter of posting, we are constrained to say,
H
V. VENKATA PRASAD v. HIGH COURT OF A.P. 855
[DIPAK MISRA, J.]

they are bound to remain in the realm of unnecessary undiminished hope. A
Their promotion came because of the introduction of the Fast Track
Court Scheme and under the 200 I Rules framed by the High Court.
They were the beneficiaries of a Scheme. While continuing in the post
under the scheme, the regular posts in the cadre fell vacant and they
were regularised but prior to that, the respondents were appointed as
B
direct recruits in respect of substantive posts in their quota. The appellants,
in our considered opinion, should have been in a position to accept the
distinction. But the inter se dispute between the promotees and the
direct recruits seems to be a ceaseless affair. In O.P. Sing/a (supra),
Y. V. Chandrachud, C.J. had observed:-
"There are many decisions bearing upon the familiar controversy
c
between promotees and direct recruits and this will be one more.
Perhaps, just another."
31 . We share the said fond hope.
32. Consequently, the appeal, being devoid of merit, stands D
dismissed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
Nidhi Jain Appeal dismissed.