REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4298 OF 2018 (ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 23780 OF 2016)

THE GAUHATI HIGH COURT THROUGH THE REGISTRAR GENERAL .....APPELLANT(S)

VERSUS

GOTO ETE AND OTHERS. .....RESPONDENT(S)

J U D G M E N T

A.K.SIKRI, J.

Leave granted.

2. Pursuant to the advertisement dated July 13, 2001 issued by the

Government  of  Arunachal  Pradesh,  respondent  Nos.  1  to  3

(hereinafter referred to as the ‘writ petitioners’) were appointed as

Additional Deputy Commissioners with the powers of Additional

Sessions Judge, on contract basis, with the stipulation that their

period of contract is up to March 31, 2005.  They were to man the

Fast Track Courts (for short, ‘FTCs’).  This contract period was

extended for a further period of five years, i.e. up to March 31,

Civil Appeal No. 4298 of 2018 Page 1 of 37 (arising out of SLP (C) No. 23780 of 2016)

2010.  These respondents put their claims for regularisation to the

said  posts  and  to  be  allowed  to  work  as  Additional  Sessions

Judges,  invoking  the  provisions  of  Rule  7  of  the  Arunachal

Pradesh  Judicial  Service  Rules,  2006.   There  has  been  a

protracted litigation in this behalf, as would be noticed hereinafter

at  the  relevant  stage.   At  this  juncture,  while  narrating  the

background in which the matter has landed in this Court, we may

only mention that request for appointment on regular basis was

rejected by the High Court (the appellant herein) and services of

respondent Nos. 1 to 3 were dispensed with on January 07, 2013.

This termination was challenged by the writ petitioners by filing

Writ Petition (Civil) No. 776 of 2013.  The proceedings of this writ

petition have culminated in the judgment dated January 19, 2016

passed  by  the  Division  Bench  of  the  High  Court.   Vide  this

judgment the writ petition has been allowed, thereby quashing the

order of dispensing the ad hoc services of the writ petitioners with

further  direction  that  the  State/respondent  No.4  (hereinafter

referred to as the ‘State Government’) should start consultation

process for  absorption of  the writ  petitioners in  Grade-I  of  the

Arunachal Pradesh Judicial Service with effect from January 07,

2013  and  directed  the  appellant,  i.e.  the  Gauhati  High  Court

(hereinafter referred to as the ‘High Court’) to consider the cases

Civil Appeal No. 4298 of 2018 Page 2 of 37 (arising out of SLP (C) No. 23780 of 2016)

of  the  writ  petitioners  for  absorption  in  the  light  of  the

observations made in the said judgment.  The High Court feels

aggrieved  by  these  directions  and  that  is  the  reason  for

challenging the judgment dated January 19, 2016.  Notice in this

Special  Leave  Petition  was  issued  on  August  08,  2016  and

simultaneously this Court had granted the stay of the impugned

judgment.  The result is that the writ petitioners have not been

taken back into service.

With this  background,  we now state the factual  matrix  in

some detail.

3. An  advertisement  was  issued  on  July  13,  2001  by  the

Government of Arunachal Pradesh inviting applications for filling

up of three posts of Additional Deputy Commissioners with the

powers of Additional Sessions Judge, on contract basis, for the

period  up to  March  31,  2005.   Pursuant  thereto,  on  June 04,

2002, the writ petitioners were selected for the aforesaid posts by

the  High  Court.   The  State  Government  issued  appointment

orders in their favour for the aforesaid post, on contract basis, up

to March 31, 2005.  This term was subsequently  extended for

another five years, i.e. up to March 31, 2010.  The purpose was

to post the incumbents in Fast Track Courts.   

Civil Appeal No. 4298 of 2018 Page 3 of 37 (arising out of SLP (C) No. 23780 of 2016)

4. It  is  relevant  to  point  out  that  at  that  time  there  was  no

segregation of executive branch from the judicial wing in the State

of  Arunachal  Pradesh.   This  was,  however,  accomplished  by

promulgating the Arunachal Pradesh Judicial Service Rules, 2006

(hereinafter referred to as the ‘2006 Rules’), which were notified

on December 06, 2006.  Rule 7 of the 2006 Rules relate to the

method of recruitment and the relevant portion thereof is couched

in the following manner:

“7.  Method  of  recruitment,  qualification,  reservation and age limit.

In respect of each category of posts specified in Column (2)  of  the  Table  below,  the  method  of  recruitment  and minimum qualification,  age limit  etc.  are specified in  the corresponding entries in column (3) and (4) thereof.

Provided  that  the  3  (three)  adhoc  Additional  Sessions Judges  who  were  selected  and  appointed  by  the Government, in consultation with the Gauhati High Court, in the year 2002 as Presiding Officers of the 3(three) Fast Track Courts on contract basis under the specific scheme of the Central Government and have since been rendering services under the control and supervision of the Gauhati High Court, may be considered for absorption in the Grade- I of the Service.

xx xx xx”

5. On  December  13,  2007,  a  representation  was  made  by

respondent Nos. 1 and 2,  inter  alia,  for  being absorbed in the

regular service in terms of Rule 7 of the 2006 Rules.  While this

representation  was pending,  the State  Government  issued the

Civil Appeal No. 4298 of 2018 Page 4 of 37 (arising out of SLP (C) No. 23780 of 2016)

Notification dated December 17, 2007 establishing two Courts of

the District and Sessions Judges.  Thereafter,  on February 25,

2008, the State Government made a proposal to the High Court,

under proviso to Rule 7, for consideration of absorption of the writ

petitioners as FTC judges against the two newly created posts of

District  &  Sessions  Judge,  Grade-I.   On  March  28,  2008,  the

Registrar  General  of  the  High  Court  put  up  a  note  to  the

Committee comprising three High Court Judges for consideration

of the proposal of the State Government.  The Committee, after

consideration  of  the  entire  material,  rejected  the  proposal  for

absorption on May 09, 2008.  Respondent No.1 made another

representation  dated  June  12,  2008  for  reconsideration  of  his

absorption in the regular service, as a special case, in terms of

Rule 7 of the 2006 Rules.  This representation also came to be

rejected by the Committee on June 25, 2008 by reiterating its

earlier resolution dated May 09, 2008.   

6. Thereafter,  on  July  31,  2008,  the  High  Court  issued  another

advertisement for filling up of two posts of District and Sessions

Judge,  Grade-I,  that  were  created  vide  Notification  dated

December 17, 2007.  Respondent Nos. 2 and 3 appeared in the

examination  but  could  not  qualify  in  the  selection  process.

Respondent  No.1,  though  applied,  did  not  appear  in  the Civil Appeal No. 4298 of 2018 Page 5 of 37 (arising out of SLP (C) No. 23780 of 2016)

examination.   Instead,  vide Notification dated March 30,  2010,

two other candidates were selected and appointed to the notified

posts.

7. Respondent  No.1  approached this  Court  by  filing  Writ  Petition

(Civil)  No.  401 of  2008 under  Article  32 of  the Constitution of

India, seeking absorption in terms of the proviso to Rule 7 of the

2006 Rules.  On September 15, 2008, this Court issued notice in

the said writ petition.  After completion of pleadings, the matter

was directed to be listed for final hearing.  At that stage, on March

24,  2011,  the  Registrar  General  of  the  High  Court  filed  an

additional affidavit, inter alia, stating that the cases for absorption

of respondent Nos. 1 and 2 were considered twice (on May 09,

2008 and June 25, 2008 respectively) under the aforesaid proviso

to Rule 7, and a decision was taken not to absorb them.  Despite

this, the State Government has, on April 07, 2011, recommended

the  names  of  the  writ  petitioners  for  appointment  to  the  High

Court.  Be that as it may, on May 09, 2011, this Court dismissed

the Writ Petition (Civil) No. 401 of 2008, as withdrawn.  No liberty

was sought for and/or granted to agitate the same issue by filing

a fresh writ petition in the High Court.   

Civil Appeal No. 4298 of 2018 Page 6 of 37 (arising out of SLP (C) No. 23780 of 2016)

8. When the things rested at that, the State Government approved

extension of term of the FTC judges in the State for a period of

five years with effect from April 01, 2011 to March 31, 2015, vide

orders  dated  May  19,  2011.   Few  months  thereafter,  i.e.  on

November  03,  2011,  the  Governor  of  the  State  of  Arunachal

Pradesh, in consultation with the High Court, converted the three

FTCs  into  Regular  Courts  of  Additional  District  and  Sessions

Judges, Grade-I.

9. The Union of India had framed a policy, which was termed as the

FTC Scheme.  The purpose of this FTC Scheme primarily was to

reduce the pendency of criminal cases pending in the respective

courts.   The  anticipated  benefits  of  the  FTC  Scheme,  as

projected,  were  –  speedy trial,  elimination  of  pendency  in  the

District Courts, enormous saving of expenses incurred on under

trials, etc.  Though the FTC Scheme was contemplated to be for

a  definite  period  of  five  years,  it  came  to  be  extended  and

remained in force under the judgment of this Court in Brij Mohan

Lal (1)  v.  Union of India and Others1 and directions passed in

Madhumita Das and Others  v.  State of Orissa and Others2.

Many judicial officers were appointed to do the work of FTCs for

speedy  disposal  of  certain  kinds  of  matters,  including  CBI

1 (2002) 5 SCC 1 2 (2008) 6 SCC 731 Civil Appeal No. 4298 of 2018 Page 7 of 37 (arising out of SLP (C) No. 23780 of 2016)

matters, and this was done on the directions given by this Court

in  Brij Mohan Lal (1).  On the recommendations made by the

Chief Justices and the Chief Ministers Conference, the Cabinet

Committee on Economic Affairs, vide its decision dated April 07,

2005,  extended the  FTC Scheme for  a  period  of  another  five

years with 100% Central funding.  Again, the FTC Scheme was

extended by the decision of the Central Government till March 31,

2011 but  thereafter  the Union of  India  had taken a  conscious

decision not to extend the financing of the FTC Scheme beyond

March 31, 2011.  Despite discontinuation of the FTC Scheme by

the Union of India, some of States decided to continue with the

said Scheme.  Be that as it may, on abandoning the FTC Scheme

by  the  Union  and  other  States,  the  judicial  officers  who  were

appointed under the FTC Scheme felt aggrieved and it resulted in

filing of various petitions in this Court seeking regularisation of

their services and absorption against the vacancies appearing in

the regular cadre.  The controversy was ultimately set to rest by

this Court vide judgment dated April  18, 2012 rendered in  Brij

Mohan Lal (2) v. Union of India and Others3.

10. This Court in Brij Mohan Lal (2), inter alia, directed that all direct

recruits  to  FTCs,  who opt  for  regularisation,  shall  take  written

3 (2012) 6 SCC 502 Civil Appeal No. 4298 of 2018 Page 8 of 37 (arising out of SLP (C) No. 23780 of 2016)

examination  to  be  conducted  by  the  High  Courts,  followed by

interview,  and  those  who  are  successful  in  the  said  selection

process would be entitled for appointment to the regular cadre of

higher judicial service.  As the decision rendered in this case has

some bearing on the issue that confronts this Court in the instant

appeal,  we  reproduce  some  relevant  portions  of  the  said

judgment hereunder:

“160.  These petitioners have also raised a challenge to Rules 4 and 6 of the Gujarat Rules under which they were appointed, on the ground that the same are arbitrary and discriminatory. Firstly, the Rules under which the petitioners were appointed after 2001 themselves were to be in force only  till  31-12-2005.  Till  2005,  none  of  the  appointees challenged these Rules. For these four years, they in fact took full advantage of their appointment under these Rules and received different service benefits thereunder. We are unable to appreciate the contention that these Rules were arbitrary or discriminatory.

161.   The  Rules  themselves  were  temporary  and  were enacted  to  meet  an  emergency  situation.  The appointments  were  made  purely  on  ad  hoc  and  urgent temporary  basis  for  a  period  of  two  years,  terminable without any prior notice. A temporary appointment, which itself was made for a period of two years, can hardly be equated to a tenure appointment and must be construed on such terms. These appointments were to come to an end  by  lapse  of  time.  Such  an  appointment  obviously cannot vest or confer any right upon the appointees to be absorbed  in  the  permanent  cadre,  as  they  were  not appointed in accordance with the provisions of the Gujarat Judicial Service Recruitment Rules, 1961.

162. The expression “liable to be terminated at any time without any notice” could be susceptible to objections if it was used in the case of a quasi-permanent or permanent employee of a government servant (sic). However, we have already  noticed  that  there  were  no  permanent  posts contemplated  under  the  FTC  Scheme.  The  entire  FTC

Civil Appeal No. 4298 of 2018 Page 9 of 37 (arising out of SLP (C) No. 23780 of 2016)

Scheme was ad hoc and formulated to operate only until the  year  2005.  It  was  continued  beyond  that  period  in accordance  with  the  directions  of  this  Court  but  now  a decision has been taken not to continue the FTC Scheme beyond 31-3-2011.

163.   Even  if  for  the  sake  of  argument,  we  accept  the contention that the expression “liable to be terminated at any time without any notice” is arbitrary and opposed to the basic rule of  law, it  still  has to satisfy the twin tests laid down  in  Parshotam  Lal  Dhingra  i.e.  firstly,  whether  the government servant being terminated or reduced in rank thereby had a right to the post or to the rank, as the case may be and, secondly, whether he had been visited with evil  consequences.  Both  of  these  tests  have  to  be answered in the negative, in the facts and circumstances of the present case.

164.  We have already held above that these officers had no right to their posts and consequently, discontinuation of their services in the facts of the present case cannot be construed as punitive or  one visiting the petitioners  with civil consequences. This holds true even though in some cases, it has been recorded that the performance of these appointees was found to be unsatisfactory but that is not the lone reason given by the High Court for dispensing with their services. It is the discontinuation of the FTC Scheme itself that is the principal reason for terminating the services of all these officers.

xx xx xx

176.  We have already noticed that the FTC Judges were appointed under a separate set of Rules than the Rules governing  the  regular  appointment  to  the  State  Higher Judicial Services. It has been clearly stipulated that such appointments would be ad hoc and temporary and that the appointees  shall  not  derive  any  benefit  from  such appointments.

177.  In the case of  State of  Rajasthan, it  is the judicial officers from the cadre of Civil Judge, Senior Division, who were promoted as FTC Judges.  They have continued to hold those posts for  a considerable period.  According to these  petitioners,  they  were  promoted  to  the  Higher Judicial Services as per the Rules and, therefore, keeping in view the order of this Court in Madhumita Das as well as

Civil Appeal No. 4298 of 2018 Page 10 of 37 (arising out of SLP (C) No. 23780 of 2016)

the  very  essence  of  the  FTC  Scheme,  they  should  be absorbed  as  members  of  the  regular  cadre  of  Higher Judicial  Services  of  the  State  of  Rajasthan.  The  State Government  had  issued  a  directive  that  they  should undertake  the  limited  competitive  examination  for  their regular  promotion/absorption  in  the  higher  cadre.  These officers questioned the correctness of this directive on the ground  that  they  were  promoted  as  Additional  Sessions Judges (FTC) under the Rules and, therefore, there was no question of any further requirement for them to take any written examination after the long years of service that they have already put in in the Higher Judicial Services.

178.  The Rajasthan Judicial  Service Rules,  2010 are in force for appointment to the Higher Judicial Services of the State. The judgment of this Court in All India Judges' Assn. (3) case as well as the relevant Rules contemplate that a person  who  is  to  be  directly  appointed  to  the  Higher Judicial Services has to undergo a written examination and appear in an interview before he can be appointed to the said  cadre.  As  far  as  appointment  by  promotion  is concerned,  the promotion can be  made by  two different modes i.e. on the basis of seniority-cum-merit or through out-of-turn  promotion  wherein  any  Civil  Judge,  Senior Division who has put in five years of service is required to take a competitive examination and then to the extent of 25% of  the  vacancies  available,  such  Judges  would  be promoted to the Higher Judicial Services.

179.   It  was admitted before us by the learned counsel appearing for the petitioners that these officers who were promoted as ad hoc FTC Judges had not taken any written competitive examination before their promotion to this post under  the Higher  Judicial  Services.  In  other  words,  they were  promoted  on  ad  hoc  basis  depending  on  the availability of vacancy in FTCs. Once the Rules required a particular  procedure  to  be  adopted  for  promotion  to  the regular  posts  of  the  Higher  Judicial  Services,  then  the competent authority can effect the promotion only by that process and none other. In view of the admitted fact that these officers have not taken any written examination, we see no reason as to  how the challenge made by these judicial  officers  to  the  directive  issued  by  the  State Government for undertaking of written examination may be sustained. Thus, the relief prayed for cannot be granted in its entirety.

Civil Appeal No. 4298 of 2018 Page 11 of 37 (arising out of SLP (C) No. 23780 of 2016)

180.  In the case of the States of Punjab and Haryana, the appointees were directly appointed as FTC Judges by way of  direct  recruitment  from  the  Bar  and  they  prayed  for regularisation  of  their  services  and  absorption  in  the regular  cadre  as  well  as  for  continuation  of  the  FTC Scheme  till  their  absorption.  For  the  reasons  already recorded by us in relation to other States mentioned above, we do not think that the relief of regularisation/absorption can be granted to these petitioners also in the manner in which they have prayed. They too have no right to the post. Admittedly, these candidates also did not pass any written competitive examination and were appointed solely on the basis of an interview and must now undergo the requisite examination.

xx xx xx

207.  Without any intent to interfere with the policy decision taken by the Governments, but unmistakably, to protect the guarantees of Article 21 of the Constitution, to improve the justice  delivery  system  and  fortify  the  independence  of judiciary, while ensuring attainment of constitutional goals as well as to do complete justice to the lis before us, in terms  of  Article  142  of  the  Constitution,  we  pass  the following orders and directions:

xx xx xx

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.

Civil Appeal No. 4298 of 2018 Page 12 of 37 (arising out of SLP (C) No. 23780 of 2016)

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

xx xx xx”

Civil Appeal No. 4298 of 2018 Page 13 of 37 (arising out of SLP (C) No. 23780 of 2016)

11. Reverting to the developments in  the present  case,  it  may be

stated  that  though  the  representations  of  writ  petitioners  for

absorption on regular basis were earlier rejected twice, the High

Court still took a decision on July 31, 2012 to undertake selection

process of FTC Judges in terms of the aforesaid judgment of this

Court in Brij Mohan Lal (2). Accordingly, written examination was

held in which the writ petitioners appeared.  These writ petitioners

could secure only 22.33%, 33.66% and 25% marks respectively

as  against  the  qualifying  marks  of  35%  required  in  the  said

examination.   In  this  way,  none of  these writ  petitioners could

qualify  this  examination.   On  their  failure  to  quality,  the  High

Court, vide orders dated January 07, 2013, dispensed with their

services.  Within three days thereafter, i.e. on January 10, 2013,

the High Court issued an advertisement inviting applications from

eligible candidates for appointment to three vacant posts in the

Grade-I cadre of the Arunachal Pradesh Judicial Service created

on November 03, 2011.   

12. The writ petitioners filed Writ Petition (Civil) No. 776 of 2013 in

the High Court on February 05, 2013, challenging the order dated

January 07, 2013 dispensing their services.  Challenge was also

laid to the legality of  the advertisement issued on January 10,

2013 and claimed absorption on the basis of proviso to Rule 7 of Civil Appeal No. 4298 of 2018 Page 14 of 37 (arising out of SLP (C) No. 23780 of 2016)

the 2006 Rules.  In the meantime, written examination was held

on March 23, 2013 pursuant to the aforesaid advertisement, in

which seven candidates were found eligible having secured more

than  the  cut-off  marks  of  60%  for  the  General  Category

candidates and 50% for  the ST Candidates.   None of  the writ

petitioners appeared in the said examination.  Oral interview of

the qualified candidates was held on April 09, 2013 by the four

sitting High Court  Judges (including the Chief  Justice) and the

names of respondent Nos. 6 to 8 were recommended consequent

upon their qualification.   

13. The writ petition along with the stay application was listed before

the Court on April 11, 2013 when the Division Bench of the High

Court was pleased to admit the same.  However, since no interim

relief was sought, no such order came to be passed.  On that

date, the High Court recommended for appointment the names of

respondent Nos. 6 to 8 having been selected both in written and

viva voce examination.  Exactly one month thereafter, i.e. on May

11, 2013, the State Government created further three posts in

Grade-I of the Arunachal Pradesh Judicial Service.  Pursuant to

the  recommendation  dated  April  11,  2013  of  the  High  Court,

respondent Nos. 6 to 8 were appointed as Grade-I officers by the

State Government  under  the 2006 Rules.   The writ  petitioners Civil Appeal No. 4298 of 2018 Page 15 of 37 (arising out of SLP (C) No. 23780 of 2016)

sought amendment of the writ petition by challenging appointment

of respondent Nos. 6 to 8.  On August 13, 2013, the High Court

allowed the writ petitioners to amend the writ petition by inserting

challenge to the appointment order dated April 11, 2013 in favour

of respondent Nos. 6 to 8.

14. After hearing the said writ petition, vide the impugned judgment

dated January 19, 2016, the High Court  has allowed the relief

claimed therein and set aside the order dated January 07, 2013

dispensing the ad hoc services of the writ petitioners as Additional

District and Sessions Judge of FTCs in the State of Arunachal

Pradesh.  It  has further directed the State Government to start

consultation  process  for  absorption  of  the  writ  petitioners  in

Grade-I  of  the  Arunachal  Pradesh  Judicial  Service  with  effect

form January 07, 2013 and directed the High Court to consider

their  absorption  in  the  light  of  the  observations  made  in  the

impugned judgment.

15. A perusal  of  the impugned judgment  of  the High  Court  would

reveal that it posed the following question for determination which

arose in the said writ petition:

“Whether  the  ad  hoc  services  of  the  petitioners  can  be regularised  in  accordance with  the  proviso  to  Rule  7  of Arunachal  Pradesh  Judicial  Service  Rules,  2006  (“the Rules” for short)?”

Civil Appeal No. 4298 of 2018 Page 16 of 37 (arising out of SLP (C) No. 23780 of 2016)

16. The  High  Court  noted  that  initial  appointment  of  the  writ

petitioners as Additional Deputy Commissioners on contract basis

with the powers of ad hoc Additional Sessions Judge in the year

2001  at  a  fixed  pay  of  Rs.19,000/-  was  pursuant  to  an

advertisement  by  the  Government.   The  writ  petitioners  had

applied for the said post,  had appeared in the written test and

were interviewed by the High Court.  The Full Court had approved

the appointment of the writ petitioners and pursuant to the said

recommendation the Government issued orders of appointment

appointing  them as  the  Presiding  officers  of  the  FTCs.   Their

services were extended for a period of five years with effect from

April 01, 2005.  Before the expiry of the terms of the FTC, the

High Court, vide its letter dated February 19, 2010, recommended

to the State Government for extension of the terms of the FTC

with effect from  April 01, 2010 for a further period of ten years

and the same was approved by the State Government vide its

communication dated May 19, 2011 for a period of five years, i.e.

up to March 31, 2015.  In the meantime, the 2006 Rules came

into force, which, among others, contained the proviso to Rule 7

for consideration of the writ petitioners for absorption to Grade-I

service.  The State Government, vide letter dated February 25,

Civil Appeal No. 4298 of 2018 Page 17 of 37 (arising out of SLP (C) No. 23780 of 2016)

2008, proposed to absorb the writ petitioners against the newly

created posts of Grade-I in the State Judicial Service by invoking

the aforesaid proviso to Rule 7 of the 2006 Rules by pointing out

that they were appointed after due selection in consultation with

the  High  Court  and  had  been  working  under  the  control  and

supervision of the High Court.  This proposal was not accepted by

the High Court.  The Chief Secretary of the State Government

thereafter sent another letter dated August 25, 2008 requesting

the High Court to absorb the writ petitioners in terms of proviso to

Rule 7 of the 2006 Rules based on their performance, integrity,

etc.  However, this proposal was once again rejected by the High

Court.   Thereafter,  the  writ  petitioners  approached  the  State

Government  for  conversion  of  the  post  of  ad  hoc  FTCs  into

regular  courts  of  Additional  District  and Sessions Judge.   This

request  was  acceded to  by  the  State  Government  and  it  was

decided  to  convert  the  FTCs  into  regular  courts  of  Additional

District and Sessions Judge along with their incumbents, i.e. the

writ petitioners, and the same was forwarded to the High Court.

Even Notification dated November 03, 2011 was issued in this

behalf.

17. After  taking  note  of  the  aforesaid  chronology  of  events,  the

Division Bench of the High Court has observed that in view of Civil Appeal No. 4298 of 2018 Page 18 of 37 (arising out of SLP (C) No. 23780 of 2016)

these  developments,  the  writ  petitioners  should  have  been

regularised.  However, instead of considering the cases of the writ

petitioners  for  absorption,  the  High  Court  decided  to  hold  the

written and viva voce tests in terms of the decision in Brij Mohan

Lal (2).  The writ petitioners appeared, but failed.  According to

the Division Bench of the High Court, there was no reason for

conducting such a test as the matter had to be examined in terms

of  proviso  to  Rule  7  of  the  2006  Rules,  which  provision  was

perfectly tailor-made for the writ petitioners.  The Division Bench

has further opined that the case of the writ petitioners could not

be dealt with on the basis of the directions given by this Court in

Brij Mohan Lal (2) having regard to the specific rule in the form

of Rule 7, as can be seen from the following discussion:

“13.  There is no dispute that dispensing with the services of the petitioners is the immediate fall out of the failure on their  part  to secure the minimum qualifying marks in the examination  for  their  absorption  into  the  service. Undoubtedly,  judicial  service  of  the  State  of  Arunachal Pradesh is now under the control and supervision of the Gauhati  High  Court;  the  High  Court  has  the  undoubted authority  to  decide  as  to  whether  the  services  of  the petitioners should be continued or not irrespective of the terms of extension of the ad-hoc services of the petitioners by the State Government.  However, in this case, what is of significance is the question of absorption of the services of the  petitioners  in  the  posts  of  Grade-I  in  the  Arunachal Pradesh Judicial Service Rules in terms of the proviso to Rule 7 of the Rules.  The question is whether the decision of the Apex Court in Brij Mohan Lal case (supra) read as a whole  can  be  construed  to  mean  that  any  form  of absorption irrespective of the nature of the appointment of ad hoc Judges of Fast Track Court is prohibited.  The law is

Civil Appeal No. 4298 of 2018 Page 19 of 37 (arising out of SLP (C) No. 23780 of 2016)

well-settled.   A  judgment  of  court  cannot  be  read  like Euclid’s theorem and shall have to be read in the context in which it was decided.  In the case at hand, it  cannot be disputed that the petitioners were given the appointments on contract basis after the posts were advertised, and they underwent selection process conducted by the High Court. In Brij Mohan Lal case (supra), the Apex Court apparently distinguished appointment by back door and appointment made after written competitive examination.”

18. Thereafter, the High Court discussed the nature of appointments

to FTCs made by various States, including the States of Punjab

and Haryana, and found that in those cases persons were not

appointed as judicial officers through any written examination but

were appointed solely on the basis of an interview.  In contrast,

insofar as these persons are concerned, the Division Bench of

the  High  Court  has  held  that  in  the  instant  case,  the  writ

petitioners  had  admittedly  appeared  and  got  selected  in  the

recruitment examination and the interview conducted by the High

Court  on  the  basis  of  the  advertisement  made  by  the  State

Government.   Their  appointments  were  also  made  after  the

approval of the High Court.  Therefore, the writ petitioners were

needlessly  required  to  undergo  written  and  oral  test  some 10

years  or  more after  service as  ad  hoc  Judges,  against  whom

there were nothing on record to show that they were incompetent

or corrupt in the discharge of their judicial works.   

Civil Appeal No. 4298 of 2018 Page 20 of 37 (arising out of SLP (C) No. 23780 of 2016)

19. Giving  the  aforesaid  reasons,  the  Division  Bench  of  the  High

Court has allowed the writ petition in the following terms:

“16. For what has been stated in the foregoing, this writ petition is allowed in the following terms:

(a) The State-respondents are directed to start forthwith the consultation process for absorption of the petitioners in Grade-I  of  the  Arunachal  Pradesh  Judicial  Service  with effect from 7-1-2013.

(b) On receipt of the proposal for the absorption from the State Government,  the High Court  shall  consider for  the approval of the absorption of the petitioners in the light of the observations made by us in the foregoing.

(c)  If  and  when  the  absorption  of  the  petitioners  in Grade-I of the  Arunachal Pradesh Judicial Service is done, they will not disturb the seniority of the private respondents.

(d) The past services rendered by the petitioners during the period of their ad-hoc services shall be counted for all purposes except for seniority and monetary benefits.

(e) The entire exercise shall be completed by both the State respondents and the High court  within a period of three months form the date of receipt of this judgment.

(f) The  parties  are  directed  to  bear  their  respective costs.”

20. Mr. Vijay Hansaria, learned senior counsel appearing for the High

Court, questioned the correctness of the aforesaid reasoning and

submitted that some glaring aspects have been glossed over and

due weightage is not given to these aspects which are sufficient

to turn the scales in favour of the High Court and against the writ

petitioners.  He highlighted the following aspects of the case:

Civil Appeal No. 4298 of 2018 Page 21 of 37 (arising out of SLP (C) No. 23780 of 2016)

(a)   All  these  writ  petitioners  were  appointed  on  ad  hoc  and

contractual  basis  for  a  specific  term,  that  too  in  FTCs,  which

scheme  itself  was  temporary  in  nature.   Such  a  kind  of

appointment, in normal course, would not confer any legal right

upon the writ petitioners to seek regular appointment.

(b)  At the time of contractual engagement of the writ petitioners

there  was  no  division  between  the  executive  and  the  judicial

branch of the State.  This separation came into effect in the year

2006 with  the  promulgation  of  the  Arunachal  Pradesh Service

Rules,  2006.   Rule  7  of  these  Rules  provided  method  of

recruitment, etc.  Proviso thereto was only an enabling provision

which  gave  discretion  to  the  High  Court  to  consider  writ

petitioners for absorption in Grade-I of the service.  It was argued

that the words  ‘may be considered’  clearly suggest that if at all

these three writ petitioners only had a right to be considered but

there was no right to get absorption automatically.

(c)  Their cases were duly considered by the Committee of three

High Court Judges, which Committee, after consideration of the

entire material, rejected the proposal twice for absorption of the

writ petitioners in the regular cadre.

(d)   Even  when  advertisement  for  two  posts  of  District  and

Sessions Judge (Grade-I)  were created vide Notification dated

Civil Appeal No. 4298 of 2018 Page 22 of 37 (arising out of SLP (C) No. 23780 of 2016)

December 17, 2009 and two of the writ petitioners (respondent

Nos. 2 and 3 herein) appeared in the examination, they did not

qualify in the selection process.  Respondent No.1 did not even

appear in the examination.  This, according to the learned senior

counsel, shows that they did not have sufficient competence and,

therefore, failed to qualify the examination.

(e)   Brij  Mohan  Lal  (2) lays  down the  law and specifies  the

procedure which has to be followed for  regularisation of  those

appointed to FTCs.  As per this, regularisation can take place only

after  the  written  examination  is  conducted  by  the  High  Court

followed  by  the  interview  and  the  incumbents/candidates  are

successful in the said selection process.  After this judgment, this

process  was undertaken in  which  all  the  three  writ  petitioners

appeared, but again failed to get the qualifying marks of 35%.

21. By  highlighting  the  aforesaid  facts,  it  was  submitted  that  the

cases of the writ petitioners were considered under Rule 7 of the

2006 Rules as well as in terms of the judgment in Brij Mohan Lal

(2) and on both  the occasions the writ  petitioners  were found

unsuccessful for regularisation.  The learned senior counsel also

submitted  that  the  Division  Bench  of  the  High  Court  in  the

impugned judgment has proceeded on the basis as if the proviso

Civil Appeal No. 4298 of 2018 Page 23 of 37 (arising out of SLP (C) No. 23780 of 2016)

to Rule 7 mandatorily required the High Court to absorb these writ

petitioners in the regular cadre whether they are fit for the same

or not.  That was not the intention of the proviso to Rule 7 of the

2006 Rules.

22. Mr.  Hansaria  even  questioned  the  maintainability  of  the  writ

petition  insofar  as  respondent  No.1  is  concerned  with  the

submission that he had earlier filed the petition in this Court which

was withdrawn by him after full scale hearing and no liberty was

given to the said writ petitioner to file another writ petition.  The

writ petition filed by this writ petitioners in the High Court was,

therefore, barred by principles of res judicata, as held in Sarguja

Transport Service v. State Transport Appellate Tribunal, M.P.,

Gwalior  and  Others4.   He  also  placed  reliance  upon  the

judgment of this Court in Mahesh Chandra Verma and Others v.

State of Jharkhand and Others5, which case again pertained to

regularisation of those appointed as Additional District Judges in

FTCs directly from the Bar.   The Court  in  that  case had draw

distinction between irregular and illegal appointments and further,

going by the nature of these appointments, laid down the manner

of regularisation of such persons, if permissible.  He also pointed

out that  Brij Mohal Lal (2) was specifically taken note of and it 4 (1987) 1 SCC 5 5 (2012) 11 SCC 656 Civil Appeal No. 4298 of 2018 Page 24 of 37 (arising out of SLP (C) No. 23780 of 2016)

was clarified that the directions given in the said judgment were in

exercise of powers of the Supreme Court under Article 142 of the

Constitution of India, as can be see from the following discussion:

“53. In Brij Mohan Lal (2), this Court has, after considering the entire  matter  in  its  proper  perspective,  held  that  the Judges of  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 that case, in Brij Mohan Lal  (2),  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  the regularisation of  the appellants in the manner laid down therein. It is impossible to hold that the appellants' case is not governed by the said judgment.

54.   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  (2) considers  this  grievance. Hence, it is not necessary to refer to the cases cited on this point.

55. We have repeatedly referred to Brij Mohan Lal (1) and Brij Mohan Lal (2). 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 was challenged on various grounds. The said challenge was dealt with by this Court in Brij Mohan Lal (1). This Court issued a number of

Civil Appeal No. 4298 of 2018 Page 25 of 37 (arising out of SLP (C) No. 23780 of 2016)

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: (Brij Mohan Lal (1) case, SCC p. 8, para 10)

“10.  … (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.”

56.  The Fast Track Courts Scheme was in operation till 31- 3-2011. But thereafter the Union of India took a decision not  to  continue  the  financing  of  the  Fast  Track  Courts Scheme  beyond  31-3-2011.  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 Courts Scheme  and  release  necessary  funds  for  that  purpose. Some of the petitioners who were direct recruits claimed absorption in the regular cadre.

57.  While dealing with the points raised in the petitions, this Court in  Brij  Mohan Lal (2) 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  State  Higher Judicial Services. This Court observed that the cumulative effect of the notifications appointing the petitioners therein

Civil Appeal No. 4298 of 2018 Page 26 of 37 (arising out of SLP (C) No. 23780 of 2016)

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  it  is  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.”

23. Insofar as the case at hand is concerned, after noticing that the

appointments  were  of  irregular  nature,  the  Court  passed  the

following directions:

“62.   Indisputably,  the appellants  were not  appointed on any permanent post. The notification of their appointment dated 12-8-2002 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  (2).  The directions  given  therein,  particularly  those  contained  in para 207.9 which we have quoted above, will clearly apply to them. In Brij Mohan Lal (2), 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  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 posts/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 (2). 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  the  13th Finance Commission the Jharkhand High Court has

Civil Appeal No. 4298 of 2018 Page 27 of 37 (arising out of SLP (C) No. 23780 of 2016)

requested  the  State  Government  to  constitute  31 alternative  courts  in  the  cadre  of  Superior  Judicial Service  coterminous  with  the  Holiday  Courts/Shift Court  Scheme of  the 13th Finance Commission as the  terrain  and  deteriorating  the  law  and  order situation  was  not  congruent  for  holding morning/evening/shift  courts.  However,  after  the direction of the Hon'ble Apex Court in Brij Mohan Lal (2) case, 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 courts  coterminous  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  Brij Mohan Lal (2) case  in response to the direction dated 19-4-2012.”

63. The State of Jharkhand will now have to take steps to comply with directions issued in Brij Mohan Lal (2), 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  Judicial  Service  are  complied  with  strictly  in  the manner laid down in Brij Mohan Lal (2).”

On that basis, it was argued that passing of the examination

in terms of Brij Mohan Lal (2) was incumbent.

24. Mr. Vikas Singh, learned senior counsel appearing for these writ

petitioners, on the other hand, submitted that the High Court is

right in observing that proviso to Rule 7 of the 2006 Rules was

tailor-made for these writ petitioners and also keeping in view the

spirit  of  the  decision  in  Brij  Mohan  Lal  (2).   He  laid  great

emphasis on the fact that the State Government had considered

the case of the writ petitioners and recommended the High Court

Civil Appeal No. 4298 of 2018 Page 28 of 37 (arising out of SLP (C) No. 23780 of 2016)

two  times  to  absorb  the  writ  petitioners,  but  the  High  Court

adopted  adamant  attitude  in  ignoring  those  recommendations.

He  also  submitted  that  the  case  of  the  writ  petitioners  was

different from the cases which were dealt with by this Court in

Brij Mohan Lal (2), whereas in Brij Mohan Lal (2) this Court was

confronted with  the  situation  where  the appointments  to  FTCs

were made without following proper procedure and those cases

were in the nature of back-door entries, it was not so insofar as

the writ petitioners are concerned.  He, thus, argued that the High

Court had rightly distinguished Brij Mohan Lal (2) by specifically

noticing the aforesaid difference inasmuch as the writ petitioners

are  appointed  after  proper  written  test  as  well  as  interview,

whereas no written test was taken in respect of those persons

who  were  appointed  by  the  State  of  Haryana,  etc.  and  their

appointments were made only on the basis of interview.

25. After taking note of the facts of this case, we may observe at the

outset  that  if  the matter  of  regularisation of  the writ  petitioners

was to be considered in terms of  Brij  Mohan Lal (2),  the writ

petitioners have remained unsuccessful.  This is because of the

reason that in terms of  Brij Mohan Lal (2), written examination

was  undertaken by  the  High  Court  in  which  all  the  three  writ

Civil Appeal No. 4298 of 2018 Page 29 of 37 (arising out of SLP (C) No. 23780 of 2016)

petitioners  appeared,  but  they  failed  to  achieve  the  qualifying

marks.   Therefore,  if  that  standard  is  to  be  applied,  the  writ

petitioners  have  not  been able  to  qualify  the  examination  and

cannot claim absorption in the regular service.  However, whether

Brij Mohan Lal (2)  would apply or not is a moot question.  The

High Court has distinguished the judgment of Brij Mohal Lal (2)

and has held that that is not applicable.  However, since the High

Court Bench has examined the matter in terms of the proviso to

Rule 7 of the 2006 Rules, we may first consider as to whether its

approach relating to this facet is correct in law.

26. Rule 7 has already been reproduced above, which lays down the

procedure and method of  recruitment  to  the post  of  Additional

Sessions Judges.  The case of the writ petitioners is not covered

by  the  main  provision.   As  noticed  above,  when two posts  of

Grade-I  District  and Sessions Judges,  after  their  creation vide

Notification dated December 17, 2007 were advertised, two of the

writ petitioners appeared but failed to qualify in the said selection

process  while  the  third  writ  petitioner  did  not  appear  at  all.

Adverting to the proviso of Rule 7, no doubt, it was tailor-made for

the  writ  petitioners.   However,  this  proviso  only  suggests  that

cases  of  three  ad hoc  Additional  Sessions  Judges,  who were

none else but the three writ petitioners, ‘may be considered’ for Civil Appeal No. 4298 of 2018 Page 30 of 37 (arising out of SLP (C) No. 23780 of 2016)

absorption in Grade-I of the service.  It is not necessary to go into

the question as to whether the word ‘may’ would mean that it was

entirely within the discretion of the High Court to even consider or

not to consider the cases of the writ petitioners for absorption or

whether this word has to be read as ‘shall’ thereby holding that it

was mandatory on the part of the High Court to at least consider

the cases of the writ petitioners for absorption.  This is because of

the reason that as matter of fact the cases of the writ petitioners

were considered by the High Court and, in fact, that appears to

be  the  intention  behind  the  proviso.   However,  the  provision

provided  only  to  ‘consider’  the  cases  of  the  writ  petitioner  for

absorption.  The proviso never gave any mandate that the writ

petitioners had to be necessarily absorbed.  Thus, only right of

consideration was there.   There was no automatic  absorption.

Had that been the intention, the proviso would have been worded

differently.

27. Insofar as consideration is concerned, the position prevalent on

record of this case is somewhat curious.  A Committee of three

High Court  Judges had considered twice the cases of  the writ

petitioners.  As per the High Court this consideration was done by

looking into the entire material,  but the proposal for absorption

was rejected on both occasions.  On the other hand, insofar as Civil Appeal No. 4298 of 2018 Page 31 of 37 (arising out of SLP (C) No. 23780 of 2016)

the Government is concerned, it had recommended the case of

the  writ  petitioners  for  absorption.   It  is  this  factor  which  has

weighed with the Division Bench of the High Court.  However, we

are  of  the  opinion  that  this  approach  is  unsustainable  in  law,

having  regard  to  the  mandate  of  Articles  233  to  235  of  the

Constitution of India.  These provisions are aimed at securing the

independence of the Judiciary from the Executive.  These Articles

provide  a  complete  code  for  regulating  recruitment  and

appointment  to  the  District  Judiciary  and  the  Subordinate

Judiciary.  It  has been held in  Rajendra Singh Verma (Dead)

through  Lrs.  and  Others  v.  Lieutenant  Governor  (NCT  of

Delhi) and Othes6 that the scheme envisaged in the aforesaid

provisions  of  the  Constitution  does  not  permit  the  State  to

encroach upon the area covered by these Articles.  We may also

reproduce, with benefit, following discussion from Ajit Kumar  v.

State of Jharkhand and Others7:

“17.  It  cannot  be  disputed  that  the  power  under  the aforesaid  articles  is  to  be  exercised  by  the  Governor  in consultation with the High Court. Under the scheme of the Indian Constitution the High Court is vested with the power to  take  decision  for  appointment  of  the  subordinate judiciary under Articles 234 to 236 of the Constitution. The High Court is also vested with the power to see that the high  traditions  and  standards  of  the  judiciary  are maintained by the selection of proper persons to run the District Judiciary. If a person is found not worthy to be a

6 (2011) 10 SCC 1 7 (2011) 11 SCC 458 Civil Appeal No. 4298 of 2018 Page 32 of 37 (arising out of SLP (C) No. 23780 of 2016)

member of  the judicial  service or it  is found that he has committed  a  misconduct  he  could  be  removed from the service by following the procedure laid down. Power could also  be  exercised  for  such  dismissal  or  removal  by following  the  preconditions  as  laid  down  under  Article 311(2)(b) of the Constitution of India. Even for imposing a punishment of dismissal or removal  or reduction in rank, the  High  Court  can  hold  disciplinary  proceedings  and recommend  such  punishments.  The  Governor  alone  is competent  to  impose  such  punishment  upon  persons coming under Articles 233-235 read with Article 311(2) of the Constitution of India. Similarly, such a power could be exercised by the High Court to dispense with an enquiry for a reason to be recorded in writing and such dispensation of an enquiry  for  valid  reasons when recommended to  the Governor, it  is within the competence of the Governor to issue such orders in terms of the recommendation of the High Court in exercise of power under Article 311(2)(b) of the Constitution of India.”

28. It  has  also  been  authoritatively  held  in  Chandramouleshwar

Prasad v. Patna High Court and Others, which is now a settled

position of law, that the Governor cannot appoint a nominee of his

without obtaining the views of the High Court, even where he is

not  prepared  to  accept  the  nominee of  the High  Court8.   The

reason is, whether in the case of promotion from the Subordinate

Judiciary or of direct recruitment from the Bar, the performance of

the candidate would be best known to the High Court.  This is so

succinctly brought out  in  High Court of Punjab and Haryana

and Others  v.  State of Haryana and Others9 in the following

words:

8 (1969) 3 SCC 56 9 (1975) 1 SCC 843 Civil Appeal No. 4298 of 2018 Page 33 of 37 (arising out of SLP (C) No. 23780 of 2016)

“49.  The  confirmation  of  persons  appointed  to  be  or promoted to be District Judges is clearly within the control of  the High Court  for  these reasons.  When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion  of  appointment.  Such  a  meaning  of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment  of  District  Judges  the  Governor  will  retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor  would  have  control  over  unconfirmed  District Judges. That is not Article 235.

50.  In the recent decision in  Samsher Singh v.  State of Punjab this Court held that the High Court under Article 235 is vested with the control over subordinate Judiciary. This Court  said  that  before  a  probationer  is  confirmed  the authority  concerned  is  under  an  obligation  to  consider whether the work of the probationer is satisfactory or he is suitable for the post. In the absence of any rules governing the probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude  the  probationer  is  unsuitable  for  the  job  and hence must be discharged. No punishment is involved in this. The suitability of a person to a post is of paramount importance in considering the question of confirmation.”

Thus, the control vests with the High Court.

29. We  are  also  of  the  opinion  that  the  Division  Bench  in  the

impugned  judgment  has  given  undue  credence  to  the  initial

recruitment  process  wherein  the  writ  petitioners  were  selected

inasmuch  as  it  has  held  that  at  the  time  of  their  recruitment

written examination and interview were held pursuant to which Civil Appeal No. 4298 of 2018 Page 34 of 37 (arising out of SLP (C) No. 23780 of 2016)

the writ petitioners were selected.  What is to be borne in mind is

that the said process was for appointment for a limited purpose

and that too on contract basis and if that was so, proviso to Rule

7 of the 2006 Rules would have specifically made provision to this

effect,  which  was  not  done.   Such  a  kind  of  appointment,

normally, would not confer any right of regularisation.

30. The impugned judgment also does not look the matter in proper

perspective  by  observing  that  since  the  writ  petitioners  had

worked for ten years approximately, as ad hoc Judges, and since

there was nothing on record to show that they were incompetent

or corrupt  in discharge of  their  judicial  work,  they should have

been absorbed in the regular cadre.  It  is stated at the cost of

repetition  that  their  service  records  were  examined  by  the

Committee consisting of three High Court Judges and on the said

examination  the  Committee  was  of  the  opinion  that  the  writ

petitioners were not entitled for appointment to the regular cadre

of  Higher  Judicial  Service.   No challenge was laid by the writ

petitioners to the manner in which their cases were considered

and  rejected  by  the  High  Court  or  that  such  a  consideration

suffered  from  any  kind  of  blemish.   Even  otherwise,  such  a

decision of the Committee stands vindicated inasmuch as:

Civil Appeal No. 4298 of 2018 Page 35 of 37 (arising out of SLP (C) No. 23780 of 2016)

(i) the two writ  petitioners who appeared in the examination

pursuant to an advertisement for the post of Grade-I District and

Sessions Judge failed to qualify in the selection process and the

third writ petitioner did not appear at all; and

(ii) the  petitioners  even  failed  to  qualify  the  test  which  was

conducted  pursuant  to  Brij  Mohan  Lal  (2)  in  which  the  writ

petitioners had appeared.  This fact is noted just to point out the

incompetence of the writ petitioners.  Otherwise, our decision is

based on the analysis of proviso to Rule 7.   

31. Having regard to the above, it is not even necessary to discuss as

to whether ratio of  Brij Mohan Lal (2)  applies or not.  However,

suffice is to state that ratio of Brij Mohan Lal (2) is discussed by

this Court in detail in the case of  Mahesh Chandra Verma and

there  also  the  Court  was  of  the  opinion  that  appointment  on

regular  cadre  should  be  made  only  on  the  basis  of  written

examination etc. as laid down in Brij Mohan Lal (2).  We again

clarify that,  in any case, we have come to the conclusion that

even in terms of proviso to Rule 7 of 2006 Rules the cases of the

writ petitioners were considered, but they were not found fit for

absorption in the regular cadre.

Civil Appeal No. 4298 of 2018 Page 36 of 37 (arising out of SLP (C) No. 23780 of 2016)

32. As a result, this appeal succeeds and is allowed thereby setting

aside the impugned judgment.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; APRIL 23, 2018.

Civil Appeal No. 4298 of 2018 Page 37 of 37 (arising out of SLP (C) No. 23780 of 2016)