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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6105 OF 2013

V. Venkata Prasad & Ors.      ...  Appellants

                               VERSUS

High Court of A.P. & Ors. ... Respondents

J U D G M E N T

Dipak Misra, J.

The appellants were appointed as District Munsifs in

Andhra  Pradesh  Judicial  Service  in  the  years  1985-1987

through A.P. Public Service Commission and in due course

were promoted as Sub-Judges.  Later on their names were

recommended  for  promotion  to  the  post  of  District  and

Sessions Judge, Grade II vide letter dated 23.4.2002 by the

Registrar  General,  High  Court  of  A.P.  and  the  said

recommendations  were  approved  by  the  Government  in

G.O.Ms. No. 64 (LA&J) (SC.F) Department dated 4.5.2002.

REPORTABLE

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Their  temporary  appointments  were  notified  in  the  said

Cadre in G.O.Rt. No. 542 dated 4.5.2002.   

2. While the appellants were functioning as Sub-Judges,

the Ministry of  Law and Justice,  Government of  India on

27.3.2001 sanctioned 86 additional posts to be established

as Fast Track Courts.  Initially, the Registrar General, High

Court  of  A.P.  recommended  for  appointments  of  41

Additional  District  and Sessions Courts  and three  Senior

Civil  Judge-cum-Assistant  Sessions  Court  for  a  period  of

five years w.e.f. 1.4.2001.  The proposal for establishing the

rest  of  the  Courts  could  not  be  fructified  due  to  lack  of

accommodation.  On the basis of communication made by

the Registrar General, the Government accorded sanction of

44 additional  courts  with  specific  staffing  pattern.   Be  it

stated,  41  Additional  District  and  Sessions  Courts  were

sanctioned  and  three  courts  of  Additional  Senior  Civil

Judges court were sanctioned.   

3. After the posts were sanctioned, the Andhra Pradesh

State  Higher  Judicial  Service  Special  Rules  for  Adhoc

Appointments,  2001 (for  short,  ‘2001 Rules’)  were framed

which came into force with effect from 1.3.2001.  Rule 1 of

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2001  Rules  deals  with  the  constitution  of  service  which

stipulates  that  it  shall  consist  of  District  and  Sessions

Judges on adhoc appointment.  Rule 2 of 2001 Rules deals

with appointment.  It reads as follows:-

“Appointment: Notwithstanding  anything  contained  in  the Special  Rules  for  A.P.  State  Higher  Judicial Service  1958,  the  appointment  of  District  and Sessions Judges on ad hoc basis shall be made: (i) by direct recruitment from the members of the bar; (ii)  appointment  by  transfer  from among  Senior Civil Judges in the State Judicial Service; (iii)  by  re-employment  of  retired  District  Judges provided that 33 1/3% of the total number of ad hoc posts shall be filled by direct recruitment.

1. In the determination of 33 1/3% of total number of ad hoc posts, fractions exceeding one half shall be counted as  one and other  tractions shall  be disregarded.

2. Appointments  under  Rule  2  (ii)  shall  be  on grounds  of  merit  and  ability,  seniority  being considered  only  when  merit  and  ability  are approximately equal.

3. Appointments under Rule 2 (iii) shall be made on grounds of merit, ability and fitness.

4. All  appointments made from time to time under Rule 2 shall cease on 31.03.2005.”

Rule 6 of 2001 Rules deals with seniority.  It reads as

follows:-

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“Inter-se seniority of  the promotees from senior Civil Judges to the cadre of District and Sessions Judges shall be as per the seniority fixed at the time of appointment”.

Rule  7  of  2001  Rules  lays  down  the  terms  and

conditions.   Sub-rule 2 of  Rule 7 of  2001 Rules provides

that  a  person  appointed  under  Rule  2(1)  shall  not  be

regarded as a Member of  permanent cadre covered under

Rule 2 of the 1958 Rules and shall not be entitled to any

preferential right to any other appointment to this service or

any other service and their service shall not be treated as

regular or permanent under the State Government nor shall

be a bar for appointment to the post covered by the 1958

Rules or the Andhra Pradesh State Judicial Service Rules,

1962.  

4. After  the  posts  were  sanctioned,  the  Registrar,

Vigilance  communicated  to  the  State  Government  for

appointment  of  District  &  Sessions  Judges  Grade  II  by

transfer.   The letter referred to 36 names.  It  stated that

under Rule 3 of the 1958 Rules appointment to Grade II (i.e.

District  &  Sessions  Judge,  Grade  II)  shall  be  made  by

transfer  from  amongst  the  Senior  Civil  Judges  in  the

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Andhra  Pradesh  Judicial  Service.   The  concerned

communication further stated:-

“In this connection, I am to state that at present there are 6 vacancies in the Cadre of District & Sessions Judges and one more vacancy will also arise  consequent  upon  the  retirement  of  Sri  K. Mahalakshmi Rao,  District  and Sessions Judge, Anantapur, on the AN of 30.04.2002 and 24 Fast Track Courts in the cadre of District and Sessions Judges,  are  also  vacant.   Thus  there  are  31 vacancies  in  the  Cadre  of  District  &  Sessions Judges.”

5. The Government of Andhra Pradesh vide order dated

4.5.2002 approved 36 names for appointment as District &

Sessions Judges, Grade II by transfer.  After the approval

was given by the State, the High Court of Andhra Pradesh

vide  order  dated  14.6.2002  issued  posting  orders.   The

appellant nos. 1 to 5 were posted against vacancies in Fast

Track Courts temporarily.  Thereafter, appellant nos. 6 and

7 were posted against the vacancies to Fast Track Courts

temporarily.   The  aforesaid  narration  reflects  how  the

appellants had come to hold the post.   

6. The respondent nos. 3 to 7 were appointed as District

&  Sessions  Judge,  Grade  II  by  direct  recruitment  vide

G.O.Ms. No. 108 (LA&J) (SC-F) Department dated 4.8.2002.

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Their posting orders were issued on 3.1.2003 and they were

directed to undergo training in the Judicial Academy.  On

completion of training, posting orders were  issued vide ROC

No.  73/2003  B.Spl  dated  3.1.2003  and  accordingly  they

took  charge  as  District  and  Sessions  Judge,  Grade-II  at

their respective places of postings in January, 2003.   As the

facts  would  reveal,  the  said  respondents  submitted  a

representation on 13.11.2003 to the High Court,  the first

respondent herein, to fix their seniority over and above the

District and Sessions Judges promoted by way of transfer

from the cadre of Senior Civil Judge. The High Court, vide

ROC No. 207/04-B.Spl dated 24.2.2004 communicated the

seniority  list  fixing  their  seniority  after  one  Sh.  Mohan

Gandhi whose name was at serial no.5.  The final seniority

list  was  published  vide  G.O.Rt.  No.  1748  (LA&J  SC.F)

Department dated 18.9.2008.   

7. At this juncture, a slight digression is necessary.  After

the High Court had prepared a draft seniority list, objections

were  received  and  thereafter  a  Sub-Committee  of  three

Judges  was  constituted  which  considered  the  objections

and  found  that  there  were  six  regular  vacancies  in  the

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category of District & Sessions Judge, Grade II and one was

to arise on the retirement of one Mr. K. Mahalakshmi Rao,

District & Sessions Judge, Ananthapur on 30.4.2002.  The

committee made a distinction about the incumbents  who

had been posted on the post that were created vide letter

dated  4.5.2002.   The  relevant  part  of  the  report  of  the

Sub-Committee is as follows:-

“F)  On  a  true  and  fair  construction  of  the provisions  of  the  2001  Ad  Hoc  Rules,  the conclusion is irresistible that the ad hoc posts of District and Sessions judges to man the FTCs are direct  posts  outside the cadre of  the  AP Higher Judicial Services.  These posts are not part of nor are  composed  within  the  AP  Higher  Judicial Services.  The fixed tenure of the posts and of the appointments,  the  specification  under  Rule  7(3) that persons appointed as District and Sessions Judges under Rule 2 (ii) shall be eligible to salary and  allowances  as  permissible  to  District  and Sessions Judges Grade II and the scheme of the FTC being funded on an Adhoc basis apart from the  title  of  the  rules  which  specify  the  adhoc nature of  the scheme of  the FTC all  at  least to these positions.

G)  The 2001 Adhoc rules came into force w.e.f. 5.3.2002.  On that  day  24 posts  of  District  and Sessions Judges FTC were vacant.   The registry should  have  proposed  Adhoc  appointments  to these vacant posts by transfer from amongst the members  of  A.P.  State  Judicial  Service  (Senior Civil  Judge)  and  under  Rule  2(ii)  of  the  2001 Adhoc Rules.  Erroneously however, it addressed a D.O. letter dated 23.04.2002 to the Government proposing  temporary  appointments  of  30 Senior

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Civil  Judges  as  District  and  Sessions  Judges Grade II. This letter clearly shows that statistical position viz., that there are six regular vacancies in the category of District & Sessions Judge Grade II (within the cadre of the AP State Higher Judicial Service)  with  one  more  vacancy to  arise  on the retirement of Sri. K. Mahalakshmi Rao, District & Sessions Judge, Anantapur, on the Afternoon of 30.04.2002.   The  D.O.  letter  dated  23.04.2002 clearly intimated to the State that 24 FTCs in the cadre of District & Sessions Judge were vacant, in all  31  vacancies.   In  conclusion,  the  letter addressed the Government to approve the panel and notify initial temporary appointments of the 30  Senior  Civil  Judges  proposed  as  District  & Sessions Judge, Grade II, by transfer. Proposal for 30 posts were made against the 31 vacancies set out,  since there was an earlier  recommendation for  one  Sri.  K.  David  Wilson  for  temporary appointment as District & Sessions Judge, Grade II. The State Government equally oblivious of the legal position issued G.O. Ms. No. 64 approving 36  Senior  Civil  Judges  starting  from  Sri.C. Vachaspathi  to  Sr.  D.  Prabhakara  Rao  for appointment as District & Sessions Judges Grade II  by transfer,  without stipulating the mandated distinction between appointments to posts within the cadre of the AP State Higher Judicial Service and the ad hoc posts in the FTC stream.”

   x   x x x x x x x x

“J. Pursuant to the recommendation of the High Court, orders were issued in GO Rt No. 542 dated 04.05.2002 for initial temporary appointments of 30  Senior  Civil  Judges  and District  &  Sessions Judges Grade- II and 24 FTC were vacant.  In the circumstances  Sarvasri  C  V  Vachiaspathi  to  G Mohan Gandhi (Serial No 1 to 6 in GO Rt No.542) were appointed to the cadre vacancies in the AP

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State  Higher  Judicial  Services.  The  other  24 officers  Sarvasri  E  Radhakrishna  to  T  Pathabhi Ramarao  were  posted  to  FTC  vacancies  in  the notification of the High Court No. 654 B. Special dated 14.06.2000.

K.  In  GO  Rt  No.1192  dated   3.08.2002  the remaining 6 officers Sarvasri G Chakradhara Rao to D Prabhkar Rao were issued initial temporary appointments as District & Sessions Judge Grade – II by transfer.  By this date 4 cadre vacancies in the AP State Higher Judicial Services and 2 FTC vacancies  were  factually  vacant.   Therefore  4 officers  working  in  the  FTC’s  Savasri  E Radhakrishna,  L.  Ravi  Babu,  M.A.  Sharif  &  V. Venkat Prasad were posts to function in the cadre vacancies  and the  6 officers  specified  in  GO Rt No.1192  were  posted  to  the  available  FTC vacancies,  by  the  notification  of  High  Court No.855 B- Special dated 08.08.2002.

L. After 04.01.2003 on completion of training the direct recruit officers (Smt T Rajani & four others) were given posting orders.  At  this  point  of  time three cadre vacancies and two FTC vacancies were available.   Therefore  Sri  M  A  Sharif  and  Sri  V Venkata  Prasad working  in  the  cadre  vacancies were posted to FTC vacancies and the five direct recruitees were given posting orders in the cadre vacancies.

M. The Seniority of the five direct recruit officers will  have  to  be  reckoned  w.e.f.  21.08.2002  the date  they  reported  for  training  consequent  on appointment.”

8. The aforesaid report was accepted by the full Court of

the High Court and a final seniority list was published on

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18.9.2008 which featured the names of respondent nos. 3 to

7 above the appellants.  

9. After  publication of  the final  seniority  list,  the  same

was challenged before  the High Court of  Andhra Pradesh

invoking  the  writ  jurisdiction  and  the  Division  Bench

analysing the rule position came to hold that they cannot be

conferred the benefit of seniority on the basis of continuous

length of service.  The Court arrived at the said conclusion

that the officers who were appointed by promotion/transfer

from  Civil  Judges  to  the  cadre  of  District  and  Sessions

Judges, Grade – II cannot claim seniority from the date of

initial  appointment  but  can  only  claim so  from the  date

when they were regularly appointed in the cadre vacancies

as they could only be appointed in the said vacancies as

and  when  the  vacancies  arose.  Being  of  this  view  the

Division  Bench  dismissed  the  writ  petition.   Hence,  the

present appeal by special leave.

10. Criticizing the judgment and order passed by the High

Court  it  is  submitted  by  Mr.  P.P.  Rao,  learned  senior

counsel  appearing  for  the  appellants  that  appointments

were  made  by  the  Governor  under  Rule  5(1)  on  the

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recommendations of the High Court and, therefore, they are

to be treated as regular appointees. It is urged by him that

the posting orders issued by the High Court under Rule 5(2)

of the 1958 Rules cannot take away the right conferred by

the order of  appointment issued by the Governor, for the

nature of posting order has to be determined with reference

to  the  terms  and  conditions  mentioned  in  the  order  of

appointment.  

11. Learned senior counsel would submit that the order of

approval of the Governor is a common order consisting of 36

names  including  the  appellants  herein  and  it  does  not

mention  that  any  one  of  them  has  been  approved  for

appointment as an ad hoc Judge in a Fast Track Court. It is

his further submission that the appellants were appointed

by  the  Governor  under  the  Rules  to  the  post  of

District/Sessions Judges, Grade II of the service on transfer

and posted by the High Court to Fast Track Courts.  It is

argued by Mr. Rao, that when orders are passed in exercise

of statutory authority, it cannot be constituted otherwise in

the light of the explanation subsequently given by the officer

making the order of what he meant or of what was in his

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mind, or what he intended to do.  For the said purpose, he

has  placed  reliance  on  Commissioner  of  Bombay  v.

Goverdhandas  Bhanji1and M.S.  Gill  v.  Chief  Election

Commissioner2. It has been further argued that it was open

to the appointing authority to appoint some of the Senior

Civil Judges as ad hoc Additional District & Session Judges

for the Fast Track Courts on a consolidated salary of Rs.

10,000/- per month as against the posts sanctioned vide

the Govt. order dated 27.03.2001 read with 2001 rules on

ad hoc basis.  It was also open to the appointing authority

to recruit by transfer Senior Civil Judges to regular cadre of

District and Sessions Judges, Category II of the service and

thereafter post some of them in the Fast Track Courts, but

the appointing authority in its wisdom availed the second

option of appointment of appellants to the cadre of District

and Sessions  Judges,  Category  II  by  transfer  and posted

some of them to regular posts in the cadre and others in the

Fast Track Court and hence, they are entitled to the benefit

of  seniority  of  continuous  service.  In  essence,  the

submission is that the nature of appointment is under the

1 (1952) SCR 135 2 (1978) 1 SCC 405

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1958 Rules and not under 2001 Rules as a result of which

concept of ad hoc appointment does not arise.

12. Mr.  Rao,  would  further  submit  that  a  stop-gap

arrangement of this nature would not have been continued

for such a long span and the material  brought on record

clearly show that it was not a temporary arrangement.  For

the said purpose he has commended us to the Constitution

Bench decision in  D.R. Nim v. Union of India3.  It is his

further submission that if an appointment is made to meet

the contingency arising on account of delay in completing

the process of regular recruitment to the post due to any

reason and it  is not possible to leave the post vacant till

then, and to meet this contingency an appointment is made

then  it  can  appropriately  be  called  as  a  stop-gap

arrangement  and  appointment  in  the  post  as  ad  hoc

appointment. To substantiate the said stand he has placed

reliance  on  Rudra  Kumar  Sain  v.  Union  of  India4.

Highlighting  the  language  employed  in  Rule  6,  learned

senior  counsel  would  contend  that  seniority  has  to  be

determined with reference to the date from which an officer

3 (1967) 2 SCR 325 4 (2000) 8 SCC 25

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is  continuously  in  service  in  Category  II  and  as  the

appellants  have  continued  without  any  break  prior  to

Respondent Nos. 3 to 7, the High Court has erred in not

granting the relief to the appellants.  In this regard, he has

drawn inspiration from V. Bhasker Rao & Ors v. State of

A.P. & Ors5 and Direct Recruitment Class II Engineering

Officers’ Association v. State of Maharashtra6.

13. Mr.  Parasaran,  learned  senior  counsel  appearing  for

the respondent no.1,  would submit that the appellants are

not entitled to seniority over the respondents who are direct

recruits in regular vacancies because they were appointed

in ad hoc capacity in respect of  the vacancies created in

Fast Track Courts.  It is urged by him that the controversy

is covered by the decision in Direct Recruitment Class II

Engineering Officers’ Association (supra) and Debabrata

Dash v. Jatindra Prasad Das7 and the principle laid down

in  V. Bhasker Rao  (supra) does not apply to the case at

hand.  It is because, submits Mr. Parasaran, the appellants

were  not  substantially  appointed  against  any  vacancy  in

their cadre and hence, their case would be governed by the

5 (1993) 3 SCC 307 6 (1990) 2 SCC 715 7  (2013) 3 SCC 658

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Constitution  Bench  decision  in  the  Direct  Recruitment

Class  II  Engineering  Officers’  Association (supra)  and

the pronouncement in  Debabrata Dash (supra).  It is his

submission that six vacancies came to be filled up by way of

transfer/promotion  from  amongst  Sub-Judges  in  the

Andhra Pradesh State Judicial Service and the respondent

nos.  3  to  7  were  appointed  as  direct  recruits  when  the

vacancies had arisen in their quota but the appellants were

never appointed in respect of a substantial post prior to the

point  in respect  of  the said vacancies and,  therefore,  the

claim of seniority over them is misconceived.  The learned

senior  counsel  has  seriously  opposed  the  stand  of  the

appellants to claim benefit under Rule 6 which postulates

for seniority on the basis of continuous service.  It has been

argued  that  the  Fast  Track  Courts  were  of  a  different

character and were constituted for a specific purpose and

appointments in respect of the said courts cannot confer the

benefit of seniority on the appellants.  He has supported the

findings of the report of the sub-committee which has been

brought on record and the judgment and order passed by

the High Court.  

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14. Mr.  Gurukrishna  Kumar,  learned  senior  counsel

appearing for respondent nos. 3 to 7 has contended that if

2001 Rules are scrutinised in proper perspective, it is quite

vivid that the ad hoc posts of District & Sessions Judges to

man the Fast Track Courts are posts outside the cadre of

the A.P. Higher Judicial Services and are neither part of nor

composed  within  the  A.P.  Higher  Judicial  Services  and

hence,  the  appellants  cannot  claim  benefits  of  being

appointed under the said rules.  It is his further submission

that  assuming  there  as  an  erroneous  proposal  of  the

Registry of the High Court to fill up the posts on temporary

basis from amongst the Senior Civil  Judges as District &

Sessions Judges, Grade-II, that really does not help, for the

said proposal also clearly indicates that there are six regular

vacancies  in  the  category  of  District  &  Sessions  Judge,

Grade-II  with one more vacancy to arise on retirement of

another  officer.   Thus,  submits  Mr.  Gurukrishna Kumar,

the  appellants  were  appointed  on  the  Fast  Track  Courts

under  2001  Rules  and  the  respondents  were  appointed

under the 1958 Rules and, therefore,  the seniority of  the

respondents,  who are  direct  recruits,  has  to  be reckoned

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w.e.f.  21.8.2002,  the  date  they  reported  for  training

consequent upon their appointment.  It is canvassed by him

that as per the authority in Brij Mohanlal – II v. Union of

India8, the Fast Track Court Judges were appointed on ad

hoc basis and they would not derive any benefit from such

appointment.  Lastly,  it  is  submitted  that  the

pronouncement in Debabrata Dash (supra) is the last nail

in the coffin in the submission advanced by the appellants

and, the judgment rendered by the High Court deserves to

be accepted.  

15. To appreciate the rivalised submissions raised at the

Bar  which  have  been  astutely  canvassed,  it  is  extremely

essential to project the real plinth of the litigation.  The 11 th

Finance  Commission  allocated  Rs.502.90  crores  under

Article 275 of the Constitution for the purpose of setting up

1734 courts  in  various  States  to  deal  with  long  pending

cases,  particularly sessions cases.   The funds were to be

allocated  by  the  Finance  Commission  which  stipulated  a

time-bound utilisation within a period of five years and the

State Governments were required to take necessary steps to

8  (2012) 6 SCC 502

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establish such courts.  The Finance Commission had stated

that States may consider re-employment of retired Judges

for  limited  period  since  these  courts  were  ad  hoc  in  the

sense that there would be no permanent addition of courts

within  a  particular  State.   The  High  Courts  framed Fast

Track  Courts  Scheme  for  employment  of  retired  Judges.

Certain  litigations  were  filed  in  various  High  Courts  and

eventually  the  matter  travelled  to  this  Court  after  cases

being transferred and also otherwise in Brij Mohan Lal v.

Union of India - I9.  It was highlighted before this Court

that  infrastructural  facilities  were  not  available  so  as  to

make the scheme a reality.  It was also pleaded that instead

of  retired officers,  eligible  members  of  the  Bar should be

considered for appointment.  Be it stated, the constitutional

validity  of  the  Fast  Track  Court  Scheme  was  also

challenged.   The  Court  negatived  the  said  plea.   After

referring to the authorities in  All India Judges’ Assn. v.

Union  of  India10,  P.  Ramachandra  Rao  v.  State  of

Karnataka11, All India Judges’ Assn. v. Union of India12

9  (2002) 5 SCC 1 10  (2002) 4 SCC 247 11  (2002) 4 SCC 578 12  (1992) 1 SCC 119

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and  All  India  Judges’  Assn.  v.  Union  of  India13,  the

three-Judge Bench issued certain directions.  Some of the

relevant directions are necessitous to be reproduced:-

1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers. While  giving  such  promotion,  the  High  Court shall follow the procedures in force in the matter of  promotion  to  such posts  in  Superior/Higher Judicial Services.

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14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted  to  higher  grade  in  the  parent  cadre during his tenure in Fast Track Courts, the ser- vice  rendered  in  Fast  Track  Courts  will  be deemed to be service in such higher grade.

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18.  The High Court  and the  State  Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and nec- essary steps in that regard shall be taken within three months from today. In other words, steps should  be  taken  to  set  up  all  the  Fast  Track Courts within the stipulated time.

16. The directions given in the  Brij Mohanlal –I (supra) 13  (1993) 4 SCC 288

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were further analysed in  Brij  Mohanlal –II (supra).   The

two-Judge Bench scrutinising the directions observed that

appointment to FTCs were to be made on ad hoc basis.  It

has been observed  therein that there are three sources of

recruitment.   Firstly,  by  promotion  from  amongst  the

eligible judicial officers, secondly by appointment of retired

Judges  with  good  service  records  and  lastly  by  direct

recruitment from amongst the members of the Bar between

the age group of 35 to 45 years.  In the last category, the

selection was to be made in the manner similar to that of

direct  recruitment  to  the  Higher  Judicial  Services.    The

Court further observed:-

“This  Court  had  foreseen  the  possibility  of  the closure  of  the  Fast  Track  Courts  Scheme (FTC Scheme). It directed that the service in FTCs will be deemed as service of the promoted judicial offi- cers rendered in the parent cadre. However, no right  would  accrue  to  such  recruits promoted/posted on ad hoc basis from the lower judiciary  for  regular  promotion on  the  basis  of such appointment. For direct recruits, continua- tion in service will be dependent on review by the High Court and there could be possibility of ab- sorption  in  the  regular  vacancy  if  their  perfor- mance  was  found  to  be  satisfactory.  Besides these two aspects, the directions also dealt with the management of FTCs, timely and appropriate utilisation  of  funds  and  monitoring  of  smooth functioning of  FTCs by the State-Level  Empow-

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ered Committee headed by the Chief Secretary of the State; the disposal of cases was to be moni- tored by one Administrative Judge, nominated by the High Court.  It  was expected that each FTC will  at  least  have  one  Public  Prosecutor  ear- marked. This was the sum and substance of the directions issued by this Court in Brij Mohan Lal case while  disposing  of  both  these  transferred cases”.  

17. The  basic  prayer  in  the  said  case  pertained  to

extension of FTC scheme.  The Court adverting to various

precedents  and facets  relating  to  scope of  interference in

policy matters in exercise of power of  judicial review and

many other aspects, came to hold that:-

“172. The prayer for regularisation of service and absorption  of  the  petitioner  appointees  against the vacancies appearing in the regular cadre has been made not only in cases involving the case of the State of Orissa, but even in other States. Ab- sorption in service is not a right. Regularisation also is not a statutory or a legal right enforceable by the persons appointed under different rules to different posts. Regularisation shall depend upon the facts and circumstances of  a given case as well as the relevant rules applicable to such class of persons.

xxxxxxxxxx 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 ab-

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sorbed  against  those  vacancies.  In  view  of  the above discussion, we find no merit even in these submissions.

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

18. The  two-Judge  Bench  issued  certain  directions  for

regularisation of the direct recruits from the Bar as Judges

to  preside  over  FTCs  on  certain  terms  and  conditions.

Certain directions were also given in respect of candidates

who were promoted as FTC Judges from the post of Civil

Judges  (Senior  Division)  having  requisite  experience  in

service to be entitled to be absorbed and remain promoted

to the Higher Judicial Service subject to the rule position

and certain other conditions.  

19. 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

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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.   

20. Now we shall focus on the relevant Rules that governs

the appointments to judicial service in the State of Andhra

Pradesh.  The  Andhra  Pradesh  Higher  Judicial  Service  is

governed  by  the  Andhra  Pradesh  State  Higher  Judicial

Service Rules, 1958 (for short, ‘the 1958 Rules’) framed by

the Governor of  Andhra Pradesh in consultation with the

High Court and the said Rules have come into force w.e.f.

10.10.1958.  According to Rule 1, the service shall consist of

two categories.  Category 1st deals with District & Sessions

Judge, First Grade and category 2nd deals with District &

Sessions  Judge,  Second  Grade.   Rule  2  provides  for

appointment.   The  said  Rule  which  is  required  to  be

deliberated upon is reproduced below:-

“Rule 2 : Appointment: (a)  Appointment to Category I  shall  be made by promotion from Category  II  and appointment  to Category II shall be made:-

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(i) by transfer from among: Sub-Judges  in  the  Andhra  State  Judicial

Service;  or  in  the  Hyderabad  State  Judicial Service; and

(ii) by direct recruitment from the Bar: Provided that 33 1/3% of the total number of

permanent posts shall be filled or reserved to be filled by direct recruitment. Explanation: In the determination of 33 1/3% of the  total  number  of  permanent  posts,  fractions exceeding one-half  shall  be counted as one and other fractions shall be disregarded. (b)  All  promotions  shall  be  made  of  grounds  of merit and ability, seniority being considered only when merit and ability are approximately equal.”

21. Rule 3 provides for  qualification.   Rule 4 deals with

probation.  Rule 5(1) stipulates that all first appointments,

and  reappointments  of  persons  under  reversion  to  the

category of District & Sessions Judge, Second Grade, shall

be  made  by  the  Governor  in  consultation  with  the  High

Court.  Rule 5(2) provides that all postings, other than first

appointments  or  reappointments  to  the  service,  and

transfers in the service shall be made by the High Court.

Rule 6 deals with seniority.  It reads as follows:-

“The seniority of a person appointed to Category I or Category II shall be determined with reference to the dated from which he may continuously be on duty in that category”.

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22. In the  instant  case,  we are  not  concerned with  any

other  Rule.  The 2001 Rules are  specific  rules for  ad hoc

appointments.  Rule 7(1)(b) of the 2001 Rules lays down as

follows:-

“ A person appointed under Rule 2 (i) shall not be regarded  as  a  Member  of  permanent  cadre covered  under  Rule  2  of  the  Special  Rules  for Andhra  Pradesh  State  Higher  Judicial  Service, 1958, and shall not be entitled to any preferential right to any other appointment to this service or any other service and their service shall not be treated as regular or permanent under the State Government nor shall be a bar for appointment to the posts covered by the Special Rules for Andhra Pradesh  Higher  Judicial  Service,  1958  or  the Andhra  Pradesh  State  Judicial  Service  Rules, 1962.”

As  the  fact  situation  would  exposit,  there  were  six

vacancies in the regular cadre.  Because of introduction of

the Fast Track Court Scheme, the promotional avenues on

ad  hoc  basis  became  available.   The  conditions  in  Brij

Mohanlal –I (supra) and Brij Mohanlal –II (supra) make it

absolutely clear.  The submission of Mr. Rao, learned senior

counsel  for  the  appellants  is  that  the  appellants  were

appointed  under  the  1958  Rules  as  the  letter  of

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appointment  would  show and  whole  thing  would  depend

upon the letter of appointment and not the posting orders

issued by the High Court.   According to the learned senior

counsel,  if  a  candidate  is  appointed  on  ad  hoc  basis  in

respect of a vacancy, he would be regarded as senior to the

direct recruit.  Both the submissions, as we perceive, are

interwoven but the singular answer to the same would be

“fundamentally fallacious”.

23. In  Debabrata  Dash (supra),  almost  in  a  similar

situation,  the  three-Judge  Bench  reproduced  a  passage

from O.P. Singla v. Union of India14:-  

“21. … This Rule shows that two conditions must co-exist  in  order  that  a  person  can  become  a ‘Member of the Service’. Firstly, his appointment has to be in a substantive capacity and secondly, the appointment has to be to the Service, that is, to a post in the Service. Persons who hold posts bearing designations similar to the designations of posts comprised in the Service cannot, for that reason alone, become members of the Service. It is only when they are appointed in a substantive capacity to a post in the Service,  that they be- come members of the Service.”

24. After  referring  to  the  said  paragraph,  the  Court

observed that:-

14  (1984) 4 SCC 450

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“Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules leave no manner of doubt that a person can be- come a member of the Senior Branch of the Su- perior  Judicial  Service  only  if  his  appointment has been made to a post in the service. If there is no  vacancy to  be  filled  in  by  promotion in the cadre of Senior Branch service, there is no ques- tion of any appointment being made to the ser- vice. The membership of service is limited to the persons  who  are  appointed  within  the  cadre strength  by  direct  recruitment  and  by promotion”.

25. Thereafter,  the  Court  referred  to  the  Constitution

Bench  judgment  in  Direct  Recruitment  Class  II

Engineering  Officers’  Association (supra)   and  after

adverting to the legal position (Clauses A, B and C) stated

thus:-

“The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed  to  a  post  according  to  the  rules.  In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority”.

26. Be  it  noted,  the  three-Judge  Bench  referred  to  the

authority  in  Rudra  Kumar  Sain (supra),  reproduced  a

passage therefrom and opined that though the High Court

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had  quoted  the  relevant  paragraph,  yet  had  applied  it

wrongly.  

27. Be it noted, in State of West Bengal v. Aghore Nath

Dey15 the  Court  perceived  an  apparent  contradiction  in

Conclusions A and B and while clarifying stated thus:-

“19. The  Constitution  Bench  in  Direct  Recruit case,  while  dealing  with  Narender  Chadha  v. Union of India16 emphasised the unusual fact that the promotees in question had worked continu- ously for long periods of nearly fifteen to twenty years on the  posts  without  being reverted,  and then proceeded to state the principle thus:  

‘13. … We, therefore, confirm the princi- ple of counting towards seniority the period of  continuous  officiation  following  an  ap- pointment  made  in  accordance  with  the rules prescribed for regular substantive ap- pointments in the service.’

20.  The  Constitution  Bench  having  dealt  with Narender Chadha in this manner, to indicate the above principle, that decision cannot be construed to  apply  to  cases  where  the  initial  appointment was not according to rules.

* * * 22. There can be no doubt that these two conclu- sions have to be read harmoniously, and Conclu- sion (B) cannot cover cases which are expressly excluded by Conclusion (A).  We may,  therefore, first refer to Conclusion (A). It is clear from Con- clusion (A) that to enable seniority to be counted from the date of initial appointment and not ac- cording to the date of  confirmation, the incum- bent of the post has to be initially appointed ‘ac- cording to rules’. The corollary set out in Conclu-

15  (1993) 3 SCC 371 16  (1986) 2 SCC 157

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sion (A), then is, that ‘where the initial appoint- ment is only ad hoc and not according to rules and made as a stopgap arrangement, the officia- tion in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in Conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in Conclusion (A), which says that the officiation in such  posts  cannot  be  taken  into  account  for counting the seniority.”

* * * “26. … Admittedly,  this  express requirement  in Rule  11  was  not  followed  or  fulfilled  subse- quently,  and,  therefore,  the  initial  ad  hoc  ap- pointments cannot be treated to have been made according to the applicable rules.  These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stopgap ar- rangement for fixed period, as expressly stated in the appointment order itself.”

28. In  State  of  Haryana  v.  Vijay  Singh17,  the  issue

emerged  with  regard  to  determination  of  seniority  in  the

backdrop  of  ad  hoc  initial  appointment  made  dehors  the

seniority  rules  which  were  regularised  by  the  State

Government.  The Court appreciating the fact situation held

that ad hoc period would not be counted for the purpose of

fixation of seniority.  

29. We will be failing in our duty if we do not  refer to the 17  (2012) 8 SCC 633

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authorities cited by Mr. Rao, learned senior counsel for the

appellants.  He has commended us to a passage from O.P.

Singla (supra).  It reads as follows:-

“It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to sub- stantive vacancies in the Service on the recom- mendation of the High Court under Rule 5(2) and the promotees who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17.  Rule  16 provides for  the ap- pointment of promotees to temporary posts in the Service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Ser- vice on a temporary basis. Promotees who are ap- pointed to the Service under either of these two Rules  must  be  considered  as  belonging  to  the same  class  as  direct  recruits  appointed  under Rule  5(2).  They  perform  similar  functions,  dis- charge  identical  duties  and  bear  the  same  re- sponsibilities  as  direct  recruits.  They  are  ap- pointed on a regular basis to posts in the Service in  the  same manner  as  direct  recruits  are  ap- pointed, the only distinction being that whereas the latter are appointed on the recommendation of  the  High  Court,  promotees  are  appointed  in consultation with the High Court. Therefore, no distinction can be made between direct recruits on one hand and promotees appointed to the Ser- vice on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list  of  those  promotees  who  are  appointed  to posts in the Service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a viola- tion of the equality rule since, thereby, persons who are situated similarly shall have been treated

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dissimilarly in a matter which constitutes an im- portant facet of their career”.

30. The principle stated in the aforesaid paragraph, we are

afraid,  does  not  assist  learned  senior  counsel  for  the

appellants.  It is simply so because the appellants were not

appointed  to  substantive  vacancies.  That  has  also  been

clearly stated in the majority opinion in O.P. Singla (supra)

which has been placed reliance upon by the three-Judge

Bench in Debabrata Dash (supra).  Learned senior counsel,

as has been indicated earlier, heavily relied on the decision

in  Rudra Kumar Sain (supra). On a perusal of the same,

we do not find it to be remotely helpful to the issue that has

arisen here.  The appellants who are aspirant to structure

the case solely on the basis of the words used in the letter of

appointment  ignoring  the  letter  of  posting,  we  are

constrained to say, they are bound to remain in the realm of

unnecessary  undiminished  hope.   Their  promotion  came

because of the introduction of the Fast Track Court Scheme

and under the 2001 Rules framed by the High Court.  They

were the beneficiaries of a Scheme.  While continuing in the

post under the scheme, the regular posts in the cadre fell

vacant  and  they  were  regularised  but  prior  to  that,  the

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respondents were appointed as direct recruits in respect of

substantive  posts  in  their  quota.   The appellants,  in our

considered opinion, should have been in a position to accept

the  distinction.   But  the  inter  se  dispute  between  the

promotees and the direct recruits seems to be a ceaseless

affair.  In O.P. Singla (supra), Y.V. Chandrachud, C.J. had

observed:-

“There  are  many  decisions  bearing  upon  the familiar  controversy  between  promotees  and direct  recruits  and  this  will  be  one  more. Perhaps, just another.”

31. We share the said fond hope.   

32. Consequently,  the  appeal,  being  devoid  of  merit,

stands dismissed.  However, in the facts and circumstances

of the case, there shall be no order as to costs.  

............................J. (Dipak Misra)

.............................J. (Shiva Kirti Singh)

New Delhi. June 29, 2016

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