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    REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

Kum C. Yamini                       ...Appellant

Versus

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

WITH

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

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

AND

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

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

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

they are heard together and disposed of by this common

judgment and order.  For the purpose of disposal, we

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refer to the facts stated in the civil appeal arising

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

3. This  civil  appeal  is  filed,  aggrieved  by  the

impugned  judgment  and  final  order  dated  17.04.2017

passed by the High Court of Judicature at Hyderabad for

the State of Telangana and the State of Andhra Pradesh

whereby writ petition filed by the appellant in Writ

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

petition, appellant has questioned paragraph nos.5 and 6

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

Department as unconstitutional and illegal.

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

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

appellant was practising as an advocate at the relevant

time,  and  the  appointment  was  made  pursuant  to

selections made for appointment to the post of  ad hoc

District Judges. Pursuant to her selection to preside

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

On 28.05.2004, the second respondent-High Court issued

notification,  inviting  applications  for  regular

appointments to the posts of District & Sessions Judges

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

District Judges appointed to the Fast Track Courts filed

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

notification.  In the aforesaid writ petition all the

ad hoc District Judges who were selected to preside over

the Fast Track Courts, prayed for absorption against

regular vacancies.  The writ petition was dismissed by

the High Court by order dated 13.07.2004.  Aggrieved by

the  aforesaid  judgment,  a  Special  Leave  Petition

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

Judges.  While granting leave, this Court, by interim

order dated 09.03.2006 passed in Civil Appeal No.1276 of

2005, has observed that any appointments that would be

made  in  regular  selections,  will  be  subject  to  the

result of the civil appeal.  Subsequently, the above

said civil appeal was disposed of along with a batch of

matters,  which  were  decided  on  19.04.2012  which  is

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

Ors.1.  While considering the validity of notification

dated  28.05.2004,  which  was  issued  for  making

appointments to the posts of District & Sessions Judges

and the claim of absorption made by the ad hoc District

Judges, who are appointed to preside over Fast Track

Courts,  this  Court  in  paragraph  175  has  observed  as

under :

1 (2012) 6 SCC 502

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“175. The  petitioners  from  the  State  of Andhra Pradesh have also prayed for identical relief claiming that the advertisement dated 28-5-2004 issued for filling up the vacancies in the regular cadre should be quashed and not processed any further and the petitioners instead  should  be  absorbed  against  those vacancies.  In view of the above discussion, we find no merit even in these submissions.”

5. In the aforesaid judgment, while considering their

claim  for  absorption  in  the  regular  cadre,  while

declining  to  grant  the  relief  of  absorption  certain

directions were issued as contained in paragraph 207.9.

The directions issued in the aforesaid paragraph read as

under :

“207.9. All  the  persons  who  have  been appointed by way of direct recruitment from the Bar as Judges to preside over FTCs under the  FTC  Scheme  shall  be  entitled  to  be appointed to the regular cadre of the Higher Judicial  Services  of  the  respective  States only in the following manner :

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

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

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(c) There shall be 150 marks for the written examination and 100 marks for the interview.  The qualifying marks shall be 40% aggregate for general candidates and 35%  for  SC/ST/OBC  candidates.   The examination and interview shall be held in  accordance  with  the  relevant  Rules enacted  by  the  States  for  direct appointment to Higher Judicial Services.

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

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

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

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

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

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

6. In compliance of directions issued in the judgment

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

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

High  Court  has  issued  notification  dated  13.08.2012

inviting applications, to fill up the posts of District

Judges in regular cadre from the working/former ad hoc

Fast Track Court District Judges.  All the appellants

herein who responded to the aforesaid notification, were

selected and appointed by the Government to the posts of

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

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

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

under :

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

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

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

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

The appellant availed the benefit of such appointment

and completed probation of two years from the date of

joining  duty.   Nearly  after  four  years  of  her

appointment, she has filed the present writ petition,

before the High Court questioning paragraphs 5 and 6 of

the notification dated 02.07.2013, which resulted in the

impugned order rejecting claim of her seniority from the

date  of  her  initial  appointment  as  ad  hoc District

Judge.   In  the  impugned  order,  the  High  Court  has

observed that the appellant very conveniently took up

the appointment subject to conditions and after getting

a declaration of successful completion of probation and

after ensuring berth in the judiciary, has chosen to

come up with a challenge to the very Government Order by

which she was appointed.  Further, taking note of the

rejection of the claim of the appellant and similarly

placed persons for their absorption and their challenge

to the notification dated 28.05.2004 for selection to

the regular cadre of District Judges, the High Court has

opined  that  in  view  of  the  rules  which  govern  the

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appointment to the post of  ad hoc District Judge, the

appellant is not entitled to claim seniority from the

date of initial appointment.

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

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

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

senior  counsel  appearing  for  the  appellant  in  civil

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

Sridhar  Potaraju,  learned  counsel  appearing  for  the

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

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

counsel appearing for the then High Court of Judicature

at Hyderabad for the State of Telangana and the State of

Andhra Pradesh.

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

mainly contended that when the appellant was appointed

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

by following the procedure as applicable to the regular

appointments and when the appellant was selected and

appointed  pursuant  to  the  notification  issued  on

02.07.2013,  there  is  no  reason  or  justification  for

denying her seniority in the cadre of District Judges

from initial date of appointment in the year 2003.  She

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

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

Learned  senior  counsel  Sri  R.  Venkataramani,  by

referring to the directions issued by this Court in the

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

has submitted that, when the appellants were appointed

to  the  post  of  District  Judges  by  following  the

procedure akin to that of regular District Judges, there

is no reason or justification for denying seniority to

them  from  the  date  of  initial  appointment.   Learned

senior counsel also relied on the judgment of this Court

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

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

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

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

Babbar, appearing for the High Court has submitted that

the  very  appointment  of  the  appellants  as  ad  hoc

District Judges was only to preside over the Fast Track

Courts under the special rules framed for recruitment of

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

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

regular vacancies.  Further it is contended that when

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

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their claim for absorption is rejected by the High Court

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

appellants to claim seniority from the date of initial

appointment.   It  is  further  submitted  that  all  the

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

relief as claimed by the appellants are not even made

party respondents.  Learned counsel has submitted that

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

are  appointed  against  the  substantive  posts  is

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

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

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

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

Service Special Rules for Ad Hoc Appointments, 2001 were

considered.  In the aforesaid judgment, this Court has

categorically held that appointments in respect of Fast

Track Courts are ad hoc in nature and no right accrues

to such appointees.

10. Having heard the appellant appearing in person and

learned senior counsel appearing for the appellant in

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

and  other  counsels,  we  have  perused  the  written

submissions and other material placed on record.

5 (2016) 11 SCC 656

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11. When the Fast Track Courts were established in the

State of Andhra Pradesh out of the grants made available

by the 11th Finance Commission, for making appointments

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

namely,  Andhra  Pradesh  State  Higher  Judicial  Service

Special Rules for Ad Hoc Appointments, 2001 were issued.

The  said  rules  were  framed  in  exercise  of  powers

conferred by Article 233 and the proviso to Article 309

of  the  Constitution  of  India.   The  appellant  was

initially appointed as per the aforesaid Rules.  Rule 1

of the said Rules deals with the constitution of service

and Rule 7 lays down the terms and conditions of the

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

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

member  of  permanent  cadre  covered  under  Rule  2  of

Special Rules and is not entitled to any preferential

right to any other appointment.  The said Rules are

framed only for the purpose of selecting District Judges

on  ad hoc posts for presiding over Fast Track Courts.

The Fast Track Courts were established initially for a

limited period of five years as per the grant provided

in the 11th Finance Commission.  All these selections

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

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

After the appointment of the appellant in the year 2003,

when  the  second  respondent  has  issued  notification

inviting applications for recruitment to the posts in

regular vacancies of District Judges, certain Fast Track

Court Judges have questioned the very notification by

claiming absorption in the regular vacancies.  Such plea

of the appellants was rejected and confirmed by this

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

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

the notification issued in the year 2004 for recruitment

to the regular cadre posts of District Judges is also

rejected.

12.  While rejecting the claim for their absorption and

challenge to the notification issued for the recruitment

in  the  regular  cadre  posts,  certain  directions  were

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

claims of ad hoc judges appointed to Fast Track Courts

into  regular  cadre  posts.   Following  the  directions

only,  the  second  respondent  has  issued  notification

inviting applications for appointments to the regular

cadre  of  District  Judges  and  appellants  and  others

responded to such notification and totally 12 of them

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were selected for regular vacancies.  In the appointment

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

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

a  period  of  two  years  and  after  the  declaration  of

successful  probation  and  nearly  after  four  years  of

appointment,  the  present  claim  is  made  claiming

seniority from the date of their initial appointment, as

ad hoc District Judges.

13. The  claim  of  the  appellants  that  they  were

appointed as  ad hoc District Judges by following the

procedure  which  is  similar  to  the  procedure  for

appointments  to  the  sanctioned  posts  in  the  regular

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

their  seniority  in  the  permanent  cadre  of  District

Judges, from their initial appointment as the District

Judges for the Fast Track Courts. The appointments which

came to be made for selecting District Judges for Fast

Track Courts sanctioned under the 11th Finance Scheme

are  totally  different  and  distinct,  compared  to

appointments which are to be made for regular vacant

posts  of  District  Judges  covered  under  A.P.  Higher

Judicial Service.  If a person is not appointed to any

post  in  the  cadre,  such  person  cannot  claim  any

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seniority over the persons who are appointed in vacant

posts in the cadre. The Fast Track Courts which were

sanctioned initially for five years from the grants of

11th Finance Commission, were continued in some States

beyond such period with the assistance, from States and

such Fast Track Courts were discontinued in some other

States.  Merely on the ground that they were selected by

following the same procedure akin to that of regular

selections, is no ground to consider their claim for

grant of seniority from the date of initial appointment.

When  their  claim  for  regularisation/absorption  and

challenge to notification issued in the year 2004 for

making  selections  to  the  vacant  regular  posts  of

District  Judges  is  rejected  by  the  High  Court  and

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

appellants have no basis to claim seniority from the

date  of  initial  appointment.   In  any  event,  having

applied in response to the notification issued by the

High Court in the year 2013 after availing the benefit

of appointment, it is not open to the appellants to

question the conditions imposed in the order which is in

conformity  with  rules.   Undisputedly,  appellant  was

appointed as ad hoc District Judges to preside over the

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Fast Track Courts only.  Initially when she was not

appointed to a post or category of posts, forming part

of cadre strength in such category, appellant cannot

claim any seniority over the persons regularly appointed

in the category of posts forming part of cadre strength.

There is yet another ground to reject the claim of the

appellant.  Though the appellant claims seniority over

the persons who are appointed in regular vacant posts

forming part of cadre strength but they are not even

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

appellants deserves rejection.   

14.  We have perused the judgment relied on by the

appellant party in person, in the case of  Rudra Kumar

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

aforesaid  case,  issue  relates  to  claim  of  seniority

between direct recruits and promotees.  Learned senior

counsel  Sri  Venkataramani,  has  also  relied  on  the

judgments of this Court in the case of  Brij Mohan Lal

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

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

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

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

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

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We have looked into the judgments referred above by the

learned senior counsel Sri Venkataramani and the party

in  person.   Having  regard  to  issue  involved  in  the

present  appeals,  we  are  of  the  view  that  the  ratio

decided  in  the  aforesaid  cases  would  not  render  any

assistance in support of their claim in these cases.

The claim of seniority will depend upon several factors,

nature  of  appointment,  rules  as  per  which  the

appointments are made and when appointments are made,

were such appointments to the cadre posts or not etc.

When the appellants were not appointed to any regular

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

claim seniority based on their  ad hoc appointments to

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

the ratio decided in the said judgments relied on by the

appellants would not render any assistance in support of

their case.

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

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

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

considering A.P. State Higher Judicial Service Special

Rules  for  Ad  Hoc  Appointments,  2001  held  that  such

appointments in respect of Fast Track Courts are ad hoc

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in nature and no right accrues to such appointees.  The

aforesaid view of this Court clearly supports the case

of the respondents.  Paragraph 25 of the said case which

is relevant for the purpose of these cases reads as

under :

“25. From the aforesaid two authorities, it is  quite  clear  that  the  appointments  in respect of Fast Track Courts are ad hoc in nature  and  no  right  is  to  accrue  to  such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment.  It has been  categorically  stated  that  FTC  Judges were appointed under a separate set of rules than  the  rules  governing  the  regular appointment  in  the  State  Higher  Judicial Services.”

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

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

has submitted that the appellants be at least given the

benefit of counting the service rendered by them in Fast

Track  Courts  for  pensionary  and  other  benefits.   In

support of his claim, learned counsel placed reliance on

the judgment of this Court in  Mahesh Chandra Verma v.

State  of  Jharkhand  &  Ors.6 wherein  this  Court  has

considered the very same issue and held that the service

rendered as Fast Track Court Judges is to be counted for

6 (2018) 7 SCC 270

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their length of service, for the purpose of determining

their pension and other retiral benefits.

17. We have perused the aforesaid judgment and we are

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

this Court.  Resultantly, while rejecting their claim

for grant of seniority from the date of their initial

appointment  as  Fast  Track  Court  District  Judges  and

other reliefs, we direct that the appellants and all

others who are similarly placed are to be given benefit

of counting their service rendered as Fast Track Judges,

for  the  purpose  of  pensionary  and  other  retiral

benefits. With the above directions and observations the

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

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

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

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

New Delhi; August 14, 2019

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