REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4782 OF 2018 [Arising out of SLP(C) No.31167 of 2015]

MAHESH CHANDRA VERMA           ….APPELLANT

Versus

THE STATE OF JHARKHAND Through: ITS CHIEF SECRETARY & ORS.  ….RESPONDENTS

WITH

Civil Appeal No.4784 of 2018 [Arising out of SLP(C) No.32438/2015]

Civil Appeal No.4783 of 2018 [Arising out of SLP(C) No.31857/2015]

Civil Appeal Nos.4786-4790 of 2018 [Arising out of SLP(C) Nos.34869-34873/2015]

Civil Appeal No.4785 of 2018 [Arising out of SLP(C) No.34695/2015]

Civil Appeal No.4791 of 2018 [Arising out of SLP(C) No.10555/2016]

Civil Appeal No.4792 of 2018 [Arising out of SLP(C) No.19639/2016]

Civil Appeal Nos.4794-4795 of 2018 [Arising out of SLP(C) Nos.23978-23979/2016]

Civil Appeal No.4793 of 2018 [Arising out of SLP(C) No.23977/2016]

1

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The  sole  question,  which  arises  for  consideration  in  these

appeals  is  whether  the  services  rendered  by  the  appellants/Judicial

Officers as Fast Track court Judges is liable to be counted for their

pensionary and other benefits, the appellants having joined the regular

judicial service thereafter.

2. The question of law arising as aforesaid, it is not necessary to

delve  into  the  facts  of  each  case.   Thus,  only  the  facts  which  are

relevant for the determination of this question are being set out.  The

Jharkhand State was carved out from the State of Bihar under the Bihar

Reorganisation  Act,  2000  on  25.11.2000.   Soon  thereafter  the

Jharkhand High Court, respondent No.2, issued an advertisement on

23.5.2001 to fill up the vacancies for the post of Additional District

Judges in the Jharkhand Superior Judicial Service.  The appellants also

took part in the recruitment process and post conduct of examination

and interview, a select list was prepared of 27 candidates, who were

eligible for appointment to the Superior Judicial Service.  None of the

appellants,  however,  figured  in  the  final  select  list.   A  parallel

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development  was the allocation  by the  11th Finance Commission of

Rs.502.90 crores under Article 275 of the Constitution of India, for the

establishment of courts described as the Fast Track courts.1,734 courts

in  various  States  were  envisaged  to  deal  with  long-pending  cases,

specifically,  Sessions  cases.   The  funds  allocated  by  the  Finance

Commission were to be utilized in a time bound schedule of five years,

and the State Governments were required to take necessary steps to

establish such courts.

3. A challenge was laid to this Scheme, known as the Fast Track

Courts Scheme, in various High Courts primarily on the ground that

there was no constitutional sanction for employment of retired Judges,

nor were there effective guidelines in operation.  These matters were

transferred to the Supreme Court and all these matters were dealt with

in the judgment in Brij Mohan Lal v. Union of India & Ors.  1 - [1].

The Scheme was analysed by the Supreme Court and keeping in mind

the laudable objects with which the Fast Track Courts Scheme was set

up,  the  constitution  of  these  courts  was  upheld  but  with  certain

directions.   In  terms  of  these  directions,  the  first  preference  for

appointment  to these courts  was to  be given by ad hoc promotions

1 (2002) 5 SCC 1

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from amongst eligible Judicial Officers, while the second preference

was to be given to retired Judges who had good service records.  The

third preference envisaged was to the members of the Bar for direct

appointment to these courts.  The fourth direction in this behalf is as

under:

“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.”

4. It is in furtherance of the aforesaid Fast Track Courts Scheme

that  the  State  of  Jharkhand/respondent  No.1  is  stated  to  have

constituted  more  than  80  such  Fast  Track  courts  at  the  level  of

Additional District Judges vide Notification dated 29.11.2001.  In order

to  fill  these  posts  expeditiously,  the  process  of  examination  having

been conducted immediately before this Notification, a decision was

taken to accommodate the persons from the select list, who could not

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be accommodated in the regular cadre of Superior Judicial Service, to

the Fast Track courts.  The first 17 candidates out of the 27 candidates

in the select list were appointed to the regular cadre on 15.12.2001,

while the remaining 10 candidates were appointed to the Fast Track

courts on 2.2.2002.  Since the Fast Track court’s vacancies could not be

filed in  by this  process,  15  more candidates,  under  the  category of

direct  recruitment  from the  Bar,  were  appointed  from amongst  the

candidates who participated in the selection process pursuant  to the

advertisement dated 23.5.2001, but were not on the select list.  This

process  was  followed  strictly  in  accordance  with  the  merit  of  the

candidates beyond the select list.  These 15 candidates were appointed

on 23.9.2002.

5. We may also  notice  that  the  existing  system of  pension  and

General Provident Fund ceased to exist for Government servants who

joined in service on or after 1.12.2004 and in lieu of the same a new

Contributory  Pension  Scheme  was  introduced  for  Government

officials, who joined service on or after 1.12.2004.  These Government

officials  joining on or  after  1.12.2004 were mandatorily required to

procure a new Permanent Retirement Account Number (‘PRAN’).

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6. In the year 2008, the High Court issued a new selection process

for 34 posts of Additional District Judges through a limited competitive

examination to be held on 31.8.2008.  Thereafter began a legal battle

between the persons who were working in the Fast Track courts and

those  who  would  be  beneficiaries  under  the  limited  competitive

examination.   The  challenge  laid  before  the  Jharkhand  High  Court

impugning the aforesaid selection process succeeded on 29.8.2008 but

in  the  Special  Leave  Petition  (‘SLP’)  filed,  the  judgment  of  the

Jharkhand  High  Court  was  set  aside  in  Srikant  Roy  v.  State  of

Jharkhand2.  The Judicial Officers assailed the appointment of persons

to the post of Fast Track courts and suffice to say that the contest was

carried right  till  this  Court,  decided in  Mahesh Chandra Verma v.

State of Jharkhand3.

7. Prior to the judgment in  Mahesh Chandra Verma4 the issue of

what is to be done with the Judges appointed to the Fast Track court

after the funding was stopped by the Central Government, and when

2(2017) 1 SCC 457 3(2012) 11 SCC 656 4(supra)

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the State Government also had a problem of funding, formed subject

matter of directions in Brij Mohan Lal v. Union of India5 - [II].  The

relevant paragraphs are 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 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.

(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

5(2012) 6 SCC 502

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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  afore  indicated  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.”

8. The aforesaid judgment was taken note of in Mahesh Chandra

Verma6 and it was, thus, observed in para 63 as under: “63.  The  State  of  Jharkhand  will  now  have  to  take  steps  to comply with directions issued in Brij Mohan Lal7-[II], if it has not complied with them so far. The State of Jharkhand 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

6(supra) 7(supra)

8

Judicial  Service are  complied with strictly in the manner laid down in Brij Mohan Lal8-[II].”

9. The effect of the aforesaid judgment was that an examination for

regularization and absorption was conducted and the appellants before

this Court were successful and were thus, appointed to the Jharkhand

Superior  Judicial  Service.   However,  they  were  treated  as  fresh

recruits.

10. The appellants were aggrieved on account of them being treated

as fresh recruits and requested for benefits of pay protection and other

benefits of continuance of service.  This request was, however, rejected

by the State Government.  This resulted in the writ petitions being filed

in  the  High  Court  where  some  interim  protection  was  granted  but

ultimately,  the  writ  petitions  have  been  dismissed  by  the  common

impugned order dated 14.10.2015.

11. A perusal  of  the  impugned  order  shows  that  other  than  the

reference  to  the  judgments  referred  to  aforesaid,  the  only  aspect

examined is that the initial appointment was temporary on the ex-cadre

post,  the appointment  being so made for  the temporary scheme for

speedy disposal of cases.  However, in view of the judgment in  Brij

8(supra)

9

Mohan Lal9-[II] and Mahesh Chandra Verma10 they were appointed

through a process to the regular post.  The High Court reasoned that

since these two judgments have not dealt  with the post appointment

situation of the appellants, the High Court would not be able to give

anything  which  has  not  been  granted  by  the  Supreme Court  under

Article 142 of the Constitution of India.  The Supreme Court had taken

recourse to Article 142 of the Constitution of India to deal with the

issue of the methodology for recruitment of the Fast Track court Judges

to the regular posts.

12. In the course of arguments,  learned counsel appearing for the

State Government sought to emphasise that by its very nature, the Fast

Track courts were constituted for a limited period of time and, thus, the

persons so appointed were conscious of the fact that they would have a

limited  tenure.   Since  the  funding  from  the  Central  Government

stopped,  the  State  Governments  did  continue these  courts  for  some

years, but that again would not give any right to the appellants to claim

the benefit of the service rendered as Fast Track court Judges for the

purposes of computation of pensionary and retiral benefits.  He also

9(supra) 10(supra)

10

sought to emphasise that this Court has taken recourse to Article 142 of

the Constitution of India to issue directions and the High Court had

rightly observed that what was not done by the Supreme Court under

Article 142 of the Constitution of India could not be done by the High

Court.

13. We put a specific query to the learned counsel as to whether this

Court  had,  in  the  two  judgments  in  question,  prohibited  any  such

grant?  Learned counsel after some initial hesitation could not dispute

the position that there was no such prohibition.  We also put to the

learned counsel whether the existing cadre strength was sufficient to

sub-serve the justice delivery process, i.e., could it be said that there

were enough courts in existence to try the relevant cases?  The only

answer,  which  came  forth  was  that  the  State  had  been  carved  out

recently and had taken immediate steps to fill the vacancies.  However,

to our mind, the important aspect is that the State was no exception to

the general position prevalent of inadequate judicial posts to deal with

the existing inflow of cases.  It is only through subsequent directions

that a periodic increase in judicial strength has been envisaged.  In Brij

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Mohan Lal11-[II], it was observed as under:

“207.11.  Keeping  in  view  the  need  of  the  hour  and  the constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional 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.”

14. The need to set up Fast Track courts arose on account of delays

in  the  judicial  process,  targeting  certain  priority  areas  for  quicker

adjudication.   In fact,  had there been adequate cadre strength,  there

would have been no need to set up these Fast Track courts.

15. The appellants were not appointed to the Fast Track courts just

at the whim and fancy of any person, but were the next in line on the

merit list of a judicial recruitment process.  They were either part of the

select list, who could not find a place given the cadre strength, or those

next in line in the select list.  Had there been adequate cadre strength,

the recruitment process would have resulted in their appointment.  We

do believe that these Judges have rendered services over a period of

nine years and have performed their role as Judges to the satisfaction,

otherwise there would have been no occasion for their appointment to

11(supra)

12

the regular cadre strength.  Not only that,  they also went through a

second process for such recruitment.  We believe that it is a matter of

great regret that these appellants who have performed the functions of

a  Judge  to  the  satisfaction  of  the  competent  authorities  should  be

deprived of their pension and retiral benefits for this period of service.

The appellants were not pressing before us any case of seniority over

any person who may have been recruited subsequently,  nor for  any

other benefit.  In fact, we had made it clear to the appellants that we are

only examining the issue of giving the benefits of their service in the

capacity of Fast Track court Judges to be counted towards their length

of service for pensionary and retiral benefits.  To deny the same would

be unjust and unfair to the appellants.  In any case, keeping in mind the

spirit of the directions made under Article 142 of the Constitution of

India in  Brij Mohan Lal12-[II] and in  Mahesh Chandra Verma13, the

necessary corollary must also follow, of giving benefit of the period of

service in Fast Track courts for their pension and retiral benefits.  The

methodology of non-creation of adequate regular cadre posts and the

consequent  establishment  of  Fast  Track  courts  manned  by  the

appellants cannot be used as a ruse to deny the dues of the appellants. 12(supra) 13(supra)

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16. In a different factual context but on the principle laid down, we

take note of the judgment in Nihal Singh & Ors. v. State of Punjab &

Ors.14  of a Bench of this court to which one of us was a member.  The

State of Punjab in the 1980s was faced with large scale disturbance and

was not in a position to handle the prevailing law and order situation

with the available police personnel and, hence, resorted to recruitment

under Section 17 of the Police Act, 1861 (hereinafter referred to as the

‘Act’) for appointing Special Police Officers (‘SPOs’).  The SPOs were

assigned  the  duty  of  providing  security  to  banks,  for  which  the

financial  burden  was  to  be  borne  by  the  banks,  with  the  clear

understanding  that,  as  per  the  provisions  of  the  Act,  such  police

officers  were  to  be  under  the  discipline  and  control  of  the  Senior

Superintendent  of  Police  of  the  District  concerned.   Such  SPOs

provided yeoman service in difficult  times but  when their  case was

considered for regularization subsequently, it met with an unfavourable

response  by  an  order  passed  in  the  year  2002.   This  Court  while

recognizing that the creation of a cadre or sanctioning of posts was

exclusively within the authority of the State, opined that if the State did

14(2013) 14 SCC 65

14

not choose to create a cadre but chose to make appointments of persons

creating  contractual  relationship  only,  such  action  would  be

categorized as arbitrary nature of exercise of power.  In this context, it

was observed by the Bench, thus:  “Sanctioned posts do not fall from

heaven. The State has to create them by a conscious choice on the basis

of  some  rational  assessment  of  the  need.”   Thus,  the  facts  found

showed that there was the existence of a need for creation of posts and

the  failure  to  create  such  posts  or  having  a  stop  gap  arrangement,

which lasted for years cannot be used to deny in an arbitrary manner,

the absorption benefit to people who had worked for long years.  A

direction was issued to regularise the services of such SPOs and they

were held entitled to the benefits of service similar in nature to the

existing cadre of police service of the State.

17. The position in respect of the appellants is really no different on

the principle enunciated, as there was need for a regular cadre strength

keeping in mind the inflow and pendency of cases.  The Fast Track

Court  Scheme  was  brought  in  to  deal  with  the  exigency  and  the

appellants were appointed to the Fast Track courts and continued to

work for almost a decade. They were part of the initial select list/merit

15

list  for  recruitment  to  the  regular  cadre  strength  but  were  not  high

enough to be recruited in the existing strength. Even at the stage of

absorption  in  the  regular  cadre  strength,  they  had  to  go  through  a

defined process in pursuance of the judgment of this court and have

continued to work thereafter.

18. We are, thus, unhesitatingly and unequivocally of the view that

all the appellants and Judicial Officers identically situated are entitled

to the benefit  of  the period of  service rendered as Fast  Track court

Judges to be counted for their length of service in determination of

their pension and retiral benefits.

19. The appeals are accordingly allowed leaving the parties to bear

their own costs.

..….….…………………….J. [J. Chelameswar]

              ...……………………………J. [Sanjay Kishan Kaul]

New Delhi. May 11, 2018.

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