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 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     6647     OF     2012   [Arising out of Special Leave Petition (Civil) No. 8091 of 2011]

Mahesh Chandra Verma & Ors.   …    Appellants  

Versus

State of  Jharkhand & Ors.   …   Respondents

WITH  

CIVIL     APPEAL     NO.     6648     OF     2012   [Arising out of Special Leave Petition (Civil) No. 8102 of 2011]

Alok Kumar Dubey & Ors.   …    Appellants  

Versus  

State of  Jharkhand & Ors.   …   Respondents

WITH  

CIVIL     APPEAL     NO.     6649     OF     2012   [Arising out of Special Leave Petition (Civil) No. 9587 of 2011]

Rajesh Kumar Pandey & Anr.   …    Appellants  

Versus  

State of  Jharkhand & Ors.   …   Respondents

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.  

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1. Leave granted.

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 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 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 avenues because of the appellants’  

appointments.  They sought a declaration that the entire  

selection process for appointment of the appellants to the post  

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of ADJs, FTCs pursuant to advertisement dated 23/5/2001 is  

illegal.  They prayed that the Notifications dated 2/2/2008  

and 12/8/2002 whereby the 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 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  

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 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  

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2001”, for brevity).  Rule 9 thereof prescribed the eligibility for  

appointment as an ADJ in the State of Jharkhand, which  

reads as under:

“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 the year in which the  examination is held; provided that in the  case of a candidate belonging to  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 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;

(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  

amended on 20/08/2004, whereby the percentage from  

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different sources was modified in terms of the direction of this  

Court in All     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%  

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  

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.

(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.

(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  

many posts in the regular cadre of ADJs were sought to be  1 (2002) 4 SCC 247

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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 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  

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  

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 these  

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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  

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-I)  2  .  The  

respondents pointed out that in the counter affidavit filed by  

the Jharkhand High Court in WP (S) No. 5613 of 2001, it was  

stated that the Full Court 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 October, 2001 for making  

appointments against non-existent posts. On 23/05/2001  

when advertisement was issued, Fast Track Courts Scheme  

2 (2002) 5 SCC 1

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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 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 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.

8. The case of respondents 3 to 35 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 day, whatever posts were existing or  

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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 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 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  

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  

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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, 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 any more tests.  Relying on the Central  

Inland     Water     Transport    v.  Brojo     Nath     Ganguly  3  ;    O.P.  

Singla     v.      Union     of     India  4  ; Rudra     Kumar     Sain    v.  Union     of    

India  5   and D.     Ganesh     Rao     Patnaik    v.  State     of    

Jharkhand  6  ,   counsel submitted that the appellants are  

performing the same duties as are being performed by the  

regular ADJs.  Therefore, their description as ex-cadre,  

temporary or ad hoc is unjustified.  The appellants did not  

3 AIR 1986 SC 1571 4 (1984) 4 SCC 450 5 (2000) 8 SCC 25 6 (2005) 8 SCC 454

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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 appointed on anticipated and contemplated  

vacancies and their appointments were legal.  Counsel  

submitted that the impugned 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 laches in filing the petition in the High Court and on  

that ground alone, the High Court should have rejected the  

petition. Counsel’s criticism 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     others  7   and  Hari     Bansh    

Lal  v.  Sahadar     Prasad     Mahto     and     others  8  .    Finally,  

counsel submitted that in light of Brij     Mohan     Lal     v.      Union    

7 1985 (Suppl) SCC 432 8 (2010) 9 SCC 655

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of     India     &     Ors.     (Brij     Mohan     Lal-(II)  9  , the services of the  

appellants must be regularized.   

10. Mr. Sharma, learned counsel appearing for some of 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 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 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 scale of ADJ.   The selection letters further state  9 (2012) 6 SCC 502

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that the 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.   

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 have  

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 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 before  

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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 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, 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 submitted that this court should direct the State of  

Jharkhand and the High Court of Jharkhand to regularize the  

services of the appellants with all consequential benefits.  

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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 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 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 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 the contesting respondents  

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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 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.  Counsel  

submitted that this is supported by the averment made by the  

High Court in its affidavit to the effect that total number 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,  

appointment in real sense was not a pure temporary  

10 (1986) 2 SCC 157 11 (1977) 1 SCC 308 12 (1985) 2 SCC 604

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appointment.  Relying on Rudra     Kumar     Sain   v. Union     of    

India13 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 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 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 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  

13 (2008) 8 SCC 25  

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previous orders issued on the subject”.  Pertinently, all  

previous orders are regarding regular courts. 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    

Judicature     at     Allahabad     &     Ors  .14,  Sushma     Suri   v. Govt.  

of     National     Capital     Territory     of     Delhi     &     Anr  .15 and  

Satish     Kumar     Sharma   v. Bar     Council     of     H.P     16.  Counsel  

submitted that as per 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.  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  

14 (1985) 1 SCC 225 15 (1999) 1 SCC 330 16 (2001) 2 SCC 365

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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 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 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 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.   

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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 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  

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 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 quashed after more than 8 years of continuous service  

rendered by the appellants as ADJs, FTCs.  They were  

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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.  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     &     Ors.    v.    Haryana     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     Vij     &     Anr.  22  ;   and Girjesh     Shrivastava     &    

Ors.  v.  State     of     Madhya     Pradesh     &     Ors.  23       

17 (1996) 4 SCC 319 18 (2008) 7 SCC 11 19 (2009) 5 SCC 473 20 (2010) 2 SCC 637 21 (2010) 5 SCC 136 22 (2010) 8 SCC 701 23 (2010) 10 SCC 707

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15. On behalf of respondent - the High Court of Jharkhand,  

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  

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 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 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  

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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 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 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 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  Jharkhand was lagging behind the  

other States as  regards  FTCs and there was persistent  

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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 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 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 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 subject  

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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 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 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 clearly indicated in the notification of  

appointment.  The appointees had no right to claim regular  

appointment or continue as ad hoc Additional District &  

Sessions Judges, FTCs beyond the duration of FTCs.  Relying  

on Brij     Mohan     Lal-I  , it is submitted that the relevant  

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notification pertaining to the appointment of ad hoc ADJs,  

FTCs indicate that the appointments of ADJs, FTCs were not  

appointments in the 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 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 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 a Scheme by following the  

method of selection as is normally followed for selection of  

24 (2003) 5 SCC 341

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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 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 appellants.  

17. On behalf of respondents 5 to 35, it is contended that  

FTCs were established in view of the Eleventh Finance  

Commission Report in the year 2000 which accepted the  

recommendation of Shri N.C. Jain.  The recommendation was  

that only retired Sessions & Addl. Sessions Judges should be  

appointed for two years on ad-hoc basis in FTCs.  Judgment of  

this court in Brij     Mohan     Lal-I   came on 06/05/2002, by which  

3rd preference was to be given to the direct recruits from the  

members of the Bar.  In this case, on 02/02/2002 i.e. before  

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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 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  

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  

illegal.  There was no notified select list for the appointment of  

fifteen persons on 12/08/2002.  Some of the appointees were  

Public Prosecutors and, as such, were not eligible to be  

appointed as ADJs  (State     of     Uttar     Pradesh    v.  Johri     Mal  25).  

Some of the appointees did not fulfill the age criteria (Malik  

Mazhar     Sultan      and     another   v.  U.P.     Public     Service    

25 (2004) 4 SCC 714

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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-II  .  If any extra posts are created as per Brij  

Mohan     Lal-II  , 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 quota fixed for promotees.  It is submitted that no  

interference 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  

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, though number of vacancies has not been  26 (2006) 9 SCC 507

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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 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 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  ,   Smt.  

K.     Lakshmi    v.  State     of     Kerala  29  ,   Arup     Das    v.  State     of    

Assam  30   and Surinder     Singh    v.  State     of     Punjab  31  .   

27 1994 Supp. (3) SCC 308 28 (2010) 6 SCC 777 29 (2012) 4 SCC 115 30 2012(5) SCC 559 31 (1997) 8 SCC 488

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19. We have given anxious consideration to the submissions  

advanced by learned counsel. Certain facts can 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.  

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 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 Jharkhand out of which 62 were  

promotees and 28 direct recruits.  From the note of the then  

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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 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 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 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 resulted in the High  

Court Registry being ill-equipped.  The letter further stated  

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that whether the Presiding Officers of the FTCs 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 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 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 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  

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view the High Court’s actions, which have come under heavy  

criticism against the background of these facts.  

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 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  

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  

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  

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appointments in the cadre of Superior Judicial Officer.  On  

behalf of the High Court supplementary affidavit is filed by  

Shri 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 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 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  

relaxable by three years in case of SC/ST candidates.  

Qualification necessary was Graduate in Law from University  

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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  

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 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 recruitment because such posts were not sanctioned at  

that time.   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.

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24. From the affidavit of Shri Nath, Registrar(Admn.) it  

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  

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.

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 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  

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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 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 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 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 with a view to achieving the optimum level  

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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 this  

point candidates upto Sr.No.134 were called).  The Registrar  

General was 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.

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 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.

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28. On 18/10/2001, the High Court in its Full Court meeting  

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 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 over this.  

29. By letter dated 20/10/2001, the High Court  

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 promotion shall be ex-cadre. It was stated that the  

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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 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  

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  

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  

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names were found at Sr.Nos.1 to 17 of the merit list were  

appointed as ADJs in the regular cadre of Higher Judicial  

Services.  Appointments 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  

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.), High Court, Jharkhand that in the Full  

Court meeting held on 02/07/2002, 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 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-

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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 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 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 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 were appointed as FTC  

Judges.  Their names were not there in the select list.  The  

whole procedure was irregular.   Reliance  placed  by  the  

High Court in the impugned judgment of this Court in Rakhi  

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Ray      v.  High     Court     of     Delhi  32    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 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 Court   indicates that the High Court  

was informed about the 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 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 and the  

32 (2010) 2 SCC 637 33 (1997) 8 SCC 488

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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 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 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.  .  

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  

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Judiciary Department of the State giving state-wise break-up  

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 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 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-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  

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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 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  

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 from Brij     Mohan     Lal-I     and     Brij     Mohan     Lal-II  .  Brij  

Mohan     Lal-II   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 the  

petitioners.  Quite frankly most of them have no application to  

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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.  

37. In Central     Inland     Water     Transport     Corporation     Ltd.    

&     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 case at all.  

38. So far as judgments in O.P.     Singla;    Rudra     Kumar    

Sain and D.     Ganesh     Rao     Patnaik   are concerned, in these  

cases, this court was considering the question of seniority  

between 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.   

34 AIR (1986) SC 1571

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39. In Naseem     Ahmad     &     Ors.    v.  State     of     Uttar     Pradesh    

&     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 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  

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.  State     of     Haryana  36  , this court held  

that selection process by way of requisition and advertisement  

can be started for clear vacancies and also for anticipated  

35 (2011) 2 SCC 734 36 (1996) 4 SCC 319

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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.  

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  

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.  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 been  

37 (2005) 4 SCC 148

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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-II, we have examined the grievances of the parties, without  

going into this aspect.

43. In Brij     Mohan     Lal-II  , 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  

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  

circumstances of this case, in Brij     Mohan     Lal-II  , this court  

has 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  

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the manner laid down therein.  It is impossible to hold that the  

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  

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.    

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  

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  

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was challenged on various grounds. The said challenge was  

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:  

“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 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 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  

courts.

46. The Fast Track Courts Scheme was in operation till  

31/03/2011. But thereafter the Union of India took a decision  

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not to continue the financing of the Fast Track Courts Scheme  

beyond 31/03/2011.  Some States decided to continue the  

Fast 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 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  

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 than the rules governing the regular appointments to the  

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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 relevant rules governing them clearly demonstrate  

that those were temporary and, in some cases, even time-

bound appointments terminable without prior notice and,  

therefore, it 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 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  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 to  different posts. Regularisation shall depend upon  the facts and circumstances of a given case as  

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well as the relevant rules applicable to such class  of persons.

173. As already noticed, on earlier occasions also,  this 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  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 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 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 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  

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States 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 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 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  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  

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taken the decision to continue the Fast Track 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 of the justice administration in the State concerned or  

they would be absorbed in the regular cadre.  This Court,  

however, 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 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 examination  

and were solely appointed on the basis of an interview and,  

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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.  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 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 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 judgment.

207.8. We hereby direct that it shall be for the  Central 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, 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.”

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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:  

“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 senior most Judges of that High  Court. (c) There shall be 150 marks for the written  examination and 100 marks for the interview. The  qualifying marks shall be 40% 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.

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(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 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 directly  been appointed but whose services were either  dispensed with or terminated on the ground of  doubtful integrity, unsatisfactory work or against  whom, on any other ground, disciplinary action had  been taken, shall not be eligible to the benefits stated  in para 207.9 of the judgment.

207.11. Keeping in view the need of the hour and  the constitutional mandate to provide fair and  

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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 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  

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 disposal of cases.  Their case is, therefore, clearly  

covered by Brij     Mohan     Lal-II  .   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 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  

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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  

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-II  .  The High Court  

has also taken-up the matter with the State Government.  

Relevant portion from the affidavit of Shri Ambuj 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 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 / Evening /  Shift Courts.  However, after the direction of the  Hon’ble Apex Court in B.M. Lal Case (Tr. Civil Case  No.22 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 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.”  

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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 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-II  .    

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 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.  We, therefore, reject this  

submission.  In the view that we have taken we dispose of  

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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  

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.

…………………………………..J. (AFTAB ALAM)

…………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, SEPTEMBER 19, 2012.

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