Kum C. Yamini Vs The State of Andhra Pradesh

C.A .@ S.L.P(C) No.20990/17 etc. etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6296 OF 2019 [Arising out of S.L.P.(C)No.20990 of 2017]

Kum C. Yamini ...Appellant

Versus

The State of Andhra Pradesh & Anr. ...Respondents

WITH

CIVIL APPEAL NO.6297 OF 2019 [Arising out of S.L.P.(C)No.12535 of 2018];

CIVIL APPEAL NO.6298 OF 2019 [Arising out of S.L.P.(C)No.13046 of 2018];

AND

CIVIL APPEAL NO.6299 OF 2019 [Arising out of S.L.P.(C)No.28302 of 2018]

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. Relief claimed in these matters is same, as such

they are heard together and disposed of by this common

judgment and order. For the purpose of disposal, we

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refer to the facts stated in the civil appeal arising

out of S.L.P.(C)No.20990 of 2017.

3. This civil appeal is filed, aggrieved by the

impugned judgment and final order dated 17.04.2017

passed by the High Court of Judicature at Hyderabad for

the State of Telangana and the State of Andhra Pradesh

whereby writ petition filed by the appellant in Writ

Petition No.13022 of 2017 was dismissed. In the writ

petition, appellant has questioned paragraph nos.5 and 6

of G.O.MS. No.68 dated 02.07.2013 of Law (LA & J-SC.F)

Department as unconstitutional and illegal.

4. The appellant was appointed to a Fast Track Court,

as an ad hoc District Judge in the year 2003. The

appellant was practising as an advocate at the relevant

time, and the appointment was made pursuant to

selections made for appointment to the post of ad hoc

District Judges. Pursuant to her selection to preside

over a Fast Track Court, she joined duty on 25.10.2003.

On 28.05.2004, the second respondent-High Court issued

notification, inviting applications for regular

appointments to the posts of District & Sessions Judges

in the A.P. Higher Judicial Service. A set of ad hoc

District Judges appointed to the Fast Track Courts filed

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writ petition in W.P.No.11273 of 2004 questioning such

notification. In the aforesaid writ petition all the

ad hoc District Judges who were selected to preside over

the Fast Track Courts, prayed for absorption against

regular vacancies. The writ petition was dismissed by

the High Court by order dated 13.07.2004. Aggrieved by

the aforesaid judgment, a Special Leave Petition

(C)No.17338 of 2004 was filed by the ad hoc District

Judges. While granting leave, this Court, by interim

order dated 09.03.2006 passed in Civil Appeal No.1276 of

2005, has observed that any appointments that would be

made in regular selections, will be subject to the

result of the civil appeal. Subsequently, the above

said civil appeal was disposed of along with a batch of

matters, which were decided on 19.04.2012 which is

reported as Brij Mohan Lal (2) v. Union of India &

Ors.1. While considering the validity of notification

dated 28.05.2004, which was issued for making

appointments to the posts of District & Sessions Judges

and the claim of absorption made by the ad hoc District

Judges, who are appointed to preside over Fast Track

Courts, this Court in paragraph 175 has observed as

under :

1 (2012) 6 SCC 502

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“175. The petitioners from the State of Andhra Pradesh have also prayed for identical relief claiming that the advertisement dated 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.”

5. In the aforesaid judgment, while considering their

claim for absorption in the regular cadre, while

declining to grant the relief of absorption certain

directions were issued as contained in paragraph 207.9.

The directions issued in the aforesaid paragraph read as

under :

“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 manner :

(a) The direct recruits to FTCs who opt for regularisation shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges.

(b) Thereafter, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four seniormost Judges of that High Court.

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(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 by the States for direct appointment to Higher Judicial Services.

(d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks.

(e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases.

(f) The candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in the regular cadre of the State.

(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected.

(h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age

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relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age.”

6. In compliance of directions issued in the judgment

in the case of Brij Mohan Lal (2) v. Union of India &

Ors. (supra) as referred above, the second respondent-

High Court has issued notification dated 13.08.2012

inviting applications, to fill up the posts of District

Judges in regular cadre from the working/former ad hoc

Fast Track Court District Judges. All the appellants

herein who responded to the aforesaid notification, were

selected and appointed by the Government to the posts of

regular District Judges (Entry Level) vide G.O.MS. No.68

dated 02.07.2013 issued by Law (LA & J-SC.F) Department.

Paragraphs 4,5 and 6 of the aforesaid Order read as

under :

“4. The appointments ordered above will take effect from the dates on which the respective officers assume charge.

5. The probation of the officers will be governed by rule 9 of the A.P. State Judicial Service Rules, 2007, and they will be on probation for a period of two years from the date of joining duty as decided by the High Court of Andhra Pradesh.

6. The seniority of the persons appointed to the category of District Judges by direct recruitment as well as recruitment by

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transfer shall be fixed as per the roster prescribed in schedule A appended to the Andhra Pradesh State Judicial Service Rules, 2007.”

The appellant availed the benefit of such appointment

and completed probation of two years from the date of

joining duty. Nearly after four years of her

appointment, she has filed the present writ petition,

before the High Court questioning paragraphs 5 and 6 of

the notification dated 02.07.2013, which resulted in the

impugned order rejecting claim of her seniority from the

date of her initial appointment as ad hoc District

Judge. In the impugned order, the High Court has

observed that the appellant very conveniently took up

the appointment subject to conditions and after getting

a declaration of successful completion of probation and

after ensuring berth in the judiciary, has chosen to

come up with a challenge to the very Government Order by

which she was appointed. Further, taking note of the

rejection of the claim of the appellant and similarly

placed persons for their absorption and their challenge

to the notification dated 28.05.2004 for selection to

the regular cadre of District Judges, the High Court has

opined that in view of the rules which govern the

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appointment to the post of ad hoc District Judge, the

appellant is not entitled to claim seniority from the

date of initial appointment.

7. We have heard Kum. C. Yamini, appellant-in-person

in civil appeals arising out of S.L.P.(C)Nos.20990 of

2017 and 12535 of 2018; Sri R. Venkataramani, learned

senior counsel appearing for the appellant in civil

appeal arising out of S.L.P.(C)No.13046 of 2018; Sri

Sridhar Potaraju, learned counsel appearing for the

appellants in civil appeal arising out of S.L.P.

(C)No.28302 of 2018; and Ms. Uttara Babbar, learned

counsel appearing for the then High Court of Judicature

at Hyderabad for the State of Telangana and the State of

Andhra Pradesh.

8. Kum. C. Yamini, appellant appearing in person has

mainly contended that when the appellant was appointed

to the very same post of District Judge in the year 2003

by following the procedure as applicable to the regular

appointments and when the appellant was selected and

appointed pursuant to the notification issued on

02.07.2013, there is no reason or justification for

denying her seniority in the cadre of District Judges

from initial date of appointment in the year 2003. She

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has relied on a judgment of this Court in the case of

Rudra Kumar Sain & Ors. v. Union of India & Ors.2.

Learned senior counsel Sri R. Venkataramani, by

referring to the directions issued by this Court in the

case of Brij Mohan Lal (1) v. Union of India & Ors.3,

has submitted that, when the appellants were appointed

to the post of District Judges by following the

procedure akin to that of regular District Judges, there

is no reason or justification for denying seniority to

them from the date of initial appointment. Learned

senior counsel also relied on the judgment of this Court

in the case of Debabrata Dash & Anr. v. Jatindra Prasad

Das & Ors.4 and also the judgment in the case of Brij

Mohan Lal (2) v. Union of India & Ors. (supra).

9. On the other hand, learned counsel Ms. Uttara

Babbar, appearing for the High Court has submitted that

the very appointment of the appellants as ad hoc

District Judges was only to preside over the Fast Track

Courts under the special rules framed for recruitment of

ad hoc Judges. It is submitted that in the very same

rules, it is made clear that they have no claim against

regular vacancies. Further it is contended that when

2 (2000) 8 SCC 25 3 (2002) 5 SCC 1 4 (2013) 3 SCC 658

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their claim for absorption is rejected by the High Court

and confirmed by this Court, it is not open for the

appellants to claim seniority from the date of initial

appointment. It is further submitted that all the

persons who will be affected, in the event of grant of

relief as claimed by the appellants are not even made

party respondents. Learned counsel has submitted that

similar issue i.e. claim of seniority over persons who

are appointed against the substantive posts is

considered and rejected by this Court in the case of V.

Venkata Prasad & Ors. v. High Court of Andhra Pradesh &

Ors.5. It is submitted that in the aforesaid judgment

Rules 2, 6 and 7 of Andhra Pradesh State Higher Judicial

Service Special Rules for Ad Hoc Appointments, 2001 were

considered. In the aforesaid judgment, this Court has

categorically held that appointments in respect of Fast

Track Courts are ad hoc in nature and no right accrues

to such appointees.

10. Having heard the appellant appearing in person and

learned senior counsel appearing for the appellant in

Civil Appeal arising out of S.L.P(C) No.13046 of 2018

and other counsels, we have perused the written

submissions and other material placed on record.

5 (2016) 11 SCC 656

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11. When the Fast Track Courts were established in the

State of Andhra Pradesh out of the grants made available

by the 11th Finance Commission, for making appointments

to preside over such courts, a separate set of rules,

namely, Andhra Pradesh State Higher Judicial Service

Special Rules for Ad Hoc Appointments, 2001 were issued.

The said rules were framed in exercise of powers

conferred by Article 233 and the proviso to Article 309

of the Constitution of India. The appellant was

initially appointed as per the aforesaid Rules. Rule 1

of the said Rules deals with the constitution of service

and Rule 7 lays down the terms and conditions of the

appointment. Rule 7(1)(B) states that a person

appointed under Rule 2(i) shall not be regarded as a

member of permanent cadre covered under Rule 2 of

Special Rules and is not entitled to any preferential

right to any other appointment. The said Rules are

framed only for the purpose of selecting District Judges

on ad hoc posts for presiding over Fast Track Courts.

The Fast Track Courts were established initially for a

limited period of five years as per the grant provided

in the 11th Finance Commission. All these selections

which were made on ad hoc basis, are not for any posts

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in the regular cadre of A.P. Higher Judicial Service.

After the appointment of the appellant in the year 2003,

when the second respondent has issued notification

inviting applications for recruitment to the posts in

regular vacancies of District Judges, certain Fast Track

Court Judges have questioned the very notification by

claiming absorption in the regular vacancies. Such plea

of the appellants was rejected and confirmed by this

Court, in clear terms, while disposing of the matter in

Brij Mohan Lal (2) (supra) para 175. Their challenge to

the notification issued in the year 2004 for recruitment

to the regular cadre posts of District Judges is also

rejected.

12. While rejecting the claim for their absorption and

challenge to the notification issued for the recruitment

in the regular cadre posts, certain directions were

issued in Brij Mohan Lal (2) (supra) for considering the

claims of ad hoc judges appointed to Fast Track Courts

into regular cadre posts. Following the directions

only, the second respondent has issued notification

inviting applications for appointments to the regular

cadre of District Judges and appellants and others

responded to such notification and totally 12 of them

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were selected for regular vacancies. In the appointment

order dated 02.07.2013 in G.O.MS. No.68 issued by Law

(LA & J-SC.F) Department, they were put on probation for

a period of two years and after the declaration of

successful probation and nearly after four years of

appointment, the present claim is made claiming

seniority from the date of their initial appointment, as

ad hoc District Judges.

13. The claim of the appellants that they were

appointed as ad hoc District Judges by following the

procedure which is similar to the procedure for

appointments to the sanctioned posts in the regular

cadre, is no ground to accede to their request to reckon

their seniority in the permanent cadre of District

Judges, from their initial appointment as the District

Judges for the Fast Track Courts. The appointments which

came to be made for selecting District Judges for Fast

Track Courts sanctioned under the 11th Finance Scheme

are totally different and distinct, compared to

appointments which are to be made for regular vacant

posts of District Judges covered under A.P. Higher

Judicial Service. If a person is not appointed to any

post in the cadre, such person cannot claim any

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seniority over the persons who are appointed in vacant

posts in the cadre. The Fast Track Courts which were

sanctioned initially for five years from the grants of

11th Finance Commission, were continued in some States

beyond such period with the assistance, from States and

such Fast Track Courts were discontinued in some other

States. Merely on the ground that they were selected by

following the same procedure akin to that of regular

selections, is no ground to consider their claim for

grant of seniority from the date of initial appointment.

When their claim for regularisation/absorption and

challenge to notification issued in the year 2004 for

making selections to the vacant regular posts of

District Judges is rejected by the High Court and

confirmed by this Court, we are of the view that the

appellants have no basis to claim seniority from the

date of initial appointment. In any event, having

applied in response to the notification issued by the

High Court in the year 2013 after availing the benefit

of appointment, it is not open to the appellants to

question the conditions imposed in the order which is in

conformity with rules. Undisputedly, appellant was

appointed as ad hoc District Judges to preside over the

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Fast Track Courts only. Initially when she was not

appointed to a post or category of posts, forming part

of cadre strength in such category, appellant cannot

claim any seniority over the persons regularly appointed

in the category of posts forming part of cadre strength.

There is yet another ground to reject the claim of the

appellant. Though the appellant claims seniority over

the persons who are appointed in regular vacant posts

forming part of cadre strength but they are not even

made parties. On this ground also, the claim of the

appellants deserves rejection.

14. We have perused the judgment relied on by the

appellant party in person, in the case of Rudra Kumar

Sain & Ors. v. Union of India & Ors. (supra). In the

aforesaid case, issue relates to claim of seniority

between direct recruits and promotees. Learned senior

counsel Sri Venkataramani, has also relied on the

judgments of this Court in the case of Brij Mohan Lal

(1) v. Union of India & Ors. (supra); in the case of

Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors.

(supra); in the case of V. Venkata Prasad & Ors. v. High

Court of Andhra Pradesh & Ors. (supra) and in the case

of Brij Mohan Lal (2) v. Union of India & Ors. (supra).

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We have looked into the judgments referred above by the

learned senior counsel Sri Venkataramani and the party

in person. Having regard to issue involved in the

present appeals, we are of the view that the ratio

decided in the aforesaid cases would not render any

assistance in support of their claim in these cases.

The claim of seniority will depend upon several factors,

nature of appointment, rules as per which the

appointments are made and when appointments are made,

were such appointments to the cadre posts or not etc.

When the appellants were not appointed to any regular

posts in the A.P. Judicial Service, appellants cannot

claim seniority based on their ad hoc appointments to

preside over Fast Track Courts. We are of the view that

the ratio decided in the said judgments relied on by the

appellants would not render any assistance in support of

their case.

15. On the other hand, the judgment in the case of V.

Venkata Prasad & Ors. v. High Court of Andhra Pradesh &

Ors. (supra), this Court has, in clear terms, while

considering A.P. State Higher Judicial Service Special

Rules for Ad Hoc Appointments, 2001 held that such

appointments in respect of Fast Track Courts are ad hoc

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in nature and no right accrues to such appointees. The

aforesaid view of this Court clearly supports the case

of the respondents. Paragraph 25 of the said case which

is relevant for the purpose of these cases reads as

under :

“25. 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 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 governing the regular appointment in the State Higher Judicial Services.”

16. In the civil appeal arising out of S.L.P.

(C)No.28302 of 2018, learned counsel for the appellants

has submitted that the appellants be at least given the

benefit of counting the service rendered by them in Fast

Track Courts for pensionary and other benefits. In

support of his claim, learned counsel placed reliance on

the judgment of this Court in Mahesh Chandra Verma v.

State of Jharkhand & Ors.6 wherein this Court has

considered the very same issue and held that the service

rendered as Fast Track Court Judges is to be counted for

6 (2018) 7 SCC 270

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their length of service, for the purpose of determining

their pension and other retiral benefits.

17. We have perused the aforesaid judgment and we are

in agreement with the view taken by a two Judge Bench of

this Court. Resultantly, while rejecting their claim

for grant of seniority from the date of their initial

appointment as Fast Track Court District Judges and

other reliefs, we direct that the appellants and all

others who are similarly placed are to be given benefit

of counting their service rendered as Fast Track Judges,

for the purpose of pensionary and other retiral

benefits. With the above directions and observations the

civil appeals are disposed of with no order as to costs.

...................J. [S.A. Bobde]

...................J. [R. Subhash Reddy]

...................J. [B.R. Gavai]

New Delhi; August 14, 2019

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KUM C. YAMINI Vs THE STATE OF ANDHRA PRADESH

KUM C. YAMINI Vs THE STATE OF ANDHRA PRADESH