# BRIJ MOHAN LAL v. UNION OF INDIA & ORS

- **Citation:** [2012] 5 S.C.R. 305
- **Court:** Supreme Court of India
- **Decided:** 2012-04-19
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brij-mohan-lal-v-union-of-india-ors-28268
- **Pages:** 132

## Headnote

Judiciary:
A
B
Fast Track Court Scheme - Appointment to the posts of c
FTC judges under the Scheme as ad hoc judges - Vacancies
in the regular judicial cadre of States - Absorption and
regularisation against such post - Entitlement to - Held: On
analysis of the Rules relating to the different States, the
appointment letters issued and methodology adopted for 0
appointment of the FTC judges, appointees cannot have any
legal, much less an indefeasible right to the posts - Financing
of the FTC Scheme has already been stopped by Central
Government with effect from 31st March, 2011 - Relevant
Rules of the States, and the Notifications state that appointees
E
have been appointed not only on ad hoc and temporary basis
but the entire FTC Scheme itself was ad hoc and for a
duration of five years only - No permanent post was created
- Thus, appointees do not have any absolute right to the post
- Service Law - Constitution of India, 1950 - Articles 233 and
235.
F
FTC Scheme by the Central Government - Financed for
limited period - Some States continuing with the Scheme
while others forced to discontinue it because of nonavailability of funds - Scope of judicial review - Held: It is the
G
constitutional duty of the Government to provide the citizens
of the country with such judicial infrastructure and means of
access to justice so that every person is able to receive an
expeditious, inexpensive and fair trial - Financial limitations
305
H
306
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A or constraints cannot be justified as a valid excuse - Policy
of State has to be in larger public interest and free of
arbitrariness - Adhocism and uncertainty adversely affect any
State policy and its results - Though the Central Government
took a decision to stop financing and consequently to wind
B up the FTC Scheme however, at the same time it allocated
substantial funds for starting morning, evening and shift
courts - Thus, not appropriate to decide upon a comparative
analysis of the policy decisions but whichever policy is taken
up has to be fair in public interest - Constitution of India, 1950
c - Article 21 and 39 - Administrative law - Policy decision.
Administration of justice in States - Decision/
recommendations of the conference of the Chief Ministers of
the States and Chief Justices of the High Courts -
Implementation of - Held: Decision/recommendations of the
D Conference should form the basis of the policy decisions by
the State or the Central Government relating to the
administration of justice - Due weightage should be attached
to these recommendations - On facts, decision taken by the
Government, Union of India who participated in the
E Conference to extend FTC Scheme for the period of 5 years
beyond 31st March 2010 i.e. till 31st March 2015 as a/so
other measures taken to tackle the problem of arrear of cases
- However, decision of the Conference not implemented and
the decision contrary to the minutes taken and placed before
F the Supreme Court that the FTC Scheme would not be
financed by the Central Government beyond 31st March, 2011
- Thus, the Central Government not justified in brushing aside
the minutes and recommendations of such a high level
meeting in a most casual manner.
G
H
Fast Track Courts (FTC) Scheme by Central Government
- Implementation of, by various States - Ad hoc appointment
of District and Session Judges in FTCs made by different
States in different manner - Subsequently Central
Government agreeing to finance the FTC Scheme uptil 30th
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
307
March, 2011 - Challenge to the decision of, various State
A
Governments and praying for continuation of scheme and
absorption in regular cadre - Held: As regards State of
Gujarat, appointment of persons as Judicial Officers to preside
over the FTCs by way of direct recruitment from the Bar were
made purely on ad hoc basis and urgent temporary basis for
8
a pen'od of 2 years terminable without notice, thus, cannot vest
or confer any right upon t

## Text

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[2012] 5 S.C.R. 305
BRIJ MOHAN LAL
v.
UNION OF INDIA & ORS.
(Transfer Case No. 23 of 2001)
APRIL 19, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Judiciary:
A
B
Fast Track Court Scheme - Appointment to the posts of c
FTC judges under the Scheme as ad hoc judges - Vacancies
in the regular judicial cadre of States - Absorption and
regularisation against such post - Entitlement to - Held: On
analysis of the Rules relating to the different States, the
appointment letters issued and methodology adopted for 0
appointment of the FTC judges, appointees cannot have any
legal, much less an indefeasible right to the posts - Financing
of the FTC Scheme has already been stopped by Central
Government with effect from 31st March, 2011 - Relevant
Rules of the States, and the Notifications state that appointees
E
have been appointed not only on ad hoc and temporary basis
but the entire FTC Scheme itself was ad hoc and for a
duration of five years only - No permanent post was created
- Thus, appointees do not have any absolute right to the post
- Service Law - Constitution of India, 1950 - Articles 233 and
235.
F
FTC Scheme by the Central Government - Financed for
limited period - Some States continuing with the Scheme
while others forced to discontinue it because of nonavailability of funds - Scope of judicial review - Held: It is the
G
constitutional duty of the Government to provide the citizens
of the country with such judicial infrastructure and means of
access to justice so that every person is able to receive an
expeditious, inexpensive and fair trial - Financial limitations
305
H
306
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A or constraints cannot be justified as a valid excuse - Policy
of State has to be in larger public interest and free of
arbitrariness - Adhocism and uncertainty adversely affect any
State policy and its results - Though the Central Government
took a decision to stop financing and consequently to wind
B up the FTC Scheme however, at the same time it allocated
substantial funds for starting morning, evening and shift
courts - Thus, not appropriate to decide upon a comparative
analysis of the policy decisions but whichever policy is taken
up has to be fair in public interest - Constitution of India, 1950
c - Article 21 and 39 - Administrative law - Policy decision.
Administration of justice in States - Decision/
recommendations of the conference of the Chief Ministers of
the States and Chief Justices of the High Courts -
Implementation of - Held: Decision/recommendations of the
D Conference should form the basis of the policy decisions by
the State or the Central Government relating to the
administration of justice - Due weightage should be attached
to these recommendations - On facts, decision taken by the
Government, Union of India who participated in the
E Conference to extend FTC Scheme for the period of 5 years
beyond 31st March 2010 i.e. till 31st March 2015 as a/so
other measures taken to tackle the problem of arrear of cases
- However, decision of the Conference not implemented and
the decision contrary to the minutes taken and placed before
F the Supreme Court that the FTC Scheme would not be
financed by the Central Government beyond 31st March, 2011
- Thus, the Central Government not justified in brushing aside
the minutes and recommendations of such a high level
meeting in a most casual manner.
G
H
Fast Track Courts (FTC) Scheme by Central Government
- Implementation of, by various States - Ad hoc appointment
of District and Session Judges in FTCs made by different
States in different manner - Subsequently Central
Government agreeing to finance the FTC Scheme uptil 30th
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
307
March, 2011 - Challenge to the decision of, various State
A
Governments and praying for continuation of scheme and
absorption in regular cadre - Held: As regards State of
Gujarat, appointment of persons as Judicial Officers to preside
over the FTCs by way of direct recruitment from the Bar were
made purely on ad hoc basis and urgent temporary basis for
8
a pen'od of 2 years terminable without notice, thus, cannot vest
or confer any right upon the appointees to be absorbed in the
permanent cadre - These appointments were to come to an
end by lapse of time - In case of State of Orissa prayer for
quashing of the caution letter issued to some officers to
C
dispose of eight Session Trials every month, misconceived -
Appointees in the State of Orissa as a/so State of Punjab and
Haryana cannot claim any indefeasible right either to
regularization or absorption against regular vacancies as the
posts were temporary and were bound to come to an end by
efflux of time - As regards the State of Andhra Pradesh, FTC
D
Judges were appointed under a separate set of Rules than
the Rules governing the regular appointment to the State
Higher Judicial Services, thus, such appointments would be
ad hoc and temporary and the appointees shall not derive any
benefit from such appointments - As regards State of E
Rajasthan, the Judicial Officers promoted as FTC Judges who
had not taken any written competitive examination before their
promotion to the post under the Higher Judicial Service, have
to undertake written examination for absorption in the regular
cadre of Higher Judicial Service - Gujarat State Judicial
F
Service Rules, 2005 - Orissa Judicial Service (Special
Scheme) Rules, 2001 - Punjab Superior Judicial Services
Rules, 2007 - Rajasthan Higher Judicial Service Rules, 1969
- Andhra Pradesh State Higher Judicial Service Special Rules
for Adhoc Appointments, 2011 - Administrative Law.
G
Policy decision as regard Fast Track Courts (FTC) by
Central Government for an initial period of five years - FTCs
Scheme implemented by various States - Subsequently with
the intervention of this Court, Scheme extended by another
H
308
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A five years and it stood extended upto March, 2011 - Decision
of Central Government to discontinue the Scheme beyond
31st March 2011 - Some States continuing with the Scheme
and some discontinuing with it due to non-availability of funds
- Directions sought for extension of the Scheme - Interference
B with - Held: Normally courts do not interfere with the policy
decisions taken by the Government but, to protect the
guarantees of Article 21, to improve the Justice Delivery
System, to fortify the independence of judiciary, while ensuring
attainment of constitutional goals as well as to do complete
C justice, certain orders and directions issued - Directions
issued for creation of additional courts and 10 per cent of the
total regular cadre of the State as additional posts - Persons
appointed by way of direct recruitment from the Bar as FTCs
Judges entitled to be appointed to the regular cadre of the
0 Higher Judicial Services of the respective State in the manner
stated - Candidates promoted as FTC Judges having
requisite experience in service, to be absorbed and promoted
to the Higher Judicial Services of that State subject to the
given conditions - Policy decision not to finance the FTC
Scheme beyond 31st March, 2011 not struck down since it
E has already taken effect - However, the States having taken
a policy decision to continue the FTC Scheme beyond 31st
March 2011 to adhere to the same - States free to take a
policy decision whether or not to continue the FTC Scheme
as a permanent feature - Hereafter, all the States, shall not
F take a decision to continue the FTC Scheme on ad hoc and
temporary basis - Union of India and the State Governments
to re-allocate and utilize the funds apportioned by the 13th
Finance Commission to regularize FTC judges -
Recommendations made at the Chief Justices and Chief
G Ministers Conference to be placed before the Cabinet of the
Centre or the State for consideration and not be rejected at
bureaucratic level - Constitution of India, 1950 - Articles 21
and 142.
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
309
Constitution of India, 1950:
Articles 32 and 226 - Issuance of mandamus in policy
decision - Decision by the Central Government not to finance
the FTC Scheme beyond 31st March 2011 - Power of court
A
to issue mandamus - Held: Any policy or decision of the
8
Government which would undermine or destroy the .
independence of the judiciary would not only be opposed to
public policy but would also impinge upon the basic structure
of the Constitution - Thus, the Government should not frame
any policies or do any acts which shall derogate from the very
ethos of the stated basic principle of judicial independence -
C
If the policy decision is likely to prove counter-productive and
increase the pendency of cases it would tantamount to
infringement of their basic rights and constitutional protection
- Thus, the Court is competent to issue a writ of mandamus -
Administrative Law - Policy decision.
D
Articles 19(1)(g), 19(6), 233 to 235 - Right to practice law
- Reasonable restriction - Appointment of retired District and
Session Judges as ad hoc judges in Fast Track Courts
(FTCs) - Discontinuance of FTCs - Appointees on ceasing
E
to be judges debarred from practicing in District and
Subordinate Courts- Challenge to - Held: Right to practice law
is not an absolute right - It is subject to possession of requisite
qualifications as contemplated under the Advocates Act, 1961
and to the limitations prescribed in the Bar Council of India
Rules - Appointee's right to practice is abridged with respect
F
to the courts in which they acted as judges and courts of the
equivalent or lower grade - They can still practice in higher
courts - It does not amount to complete and absolute
restriction on their right to practice but is only a partial G
restriction - It cannot be a consideration for compelling the
Government to continue their appointments, if they are
otherwise not entitled under law to continue - Judiciary -
Administrative law - Advocates Act, 1961 - Bar Council of
India Rules.
H
310
SUPREME COURT REPORTS
[2012) 5 S.C.R.
.A
The Central Government took a decision to
implement the Fast Track Courts Scheme (FTCs) for a
limited period particularly to deal with the arrears of
criminal cases in the country. The entire scheme was to
be financed by the Central Government. The policy
B decision was accepted by various State Governments. It
was implemented by appointing ad hoc Judges to
preside over FTCs, from amongst the retired Judges, by
promotion from Civil Judges (Senior Division), and by
direct recruitment from the Bar. Thereafter, the Central
c Government took a decision not to finance the FTC
Scheme beyond 31st March, 2011. However, some of the
State Governments took a decision at their own level to
continue with the FTC Scheme, for the time being.
Writ petition was filed in the High Court of Punjab and
D Haryana challenging inter alia the scheme and policy of
appointment of the retired District and Sessions Judges
as ad hoc Judges of the FTCs in the State Judicial
Services; and in the High Court of Andhra Pradesh
seeking the direction that the constitution of the FTCs
E and 32 presiding officers in the State of Andhra Pradesh
and the G.O.Ms. be declared as unconstitutional and
should be set aside. These writ petitions were transferred
to this Court and were taken up as Transferred Cases.
Other parties who had filed similar petitions in different
F High Courts also intervened. Transferred Cases were
disposed of with certain directions. The directions were
also issued for filing quarterly status reports regularly
from time to time about the functioning of the FTCs in the
entire country and the same were filed. Meanwhile,
G instant writ petitions and special leave petitions were
filed against various judgments of different High Courts
seeking inter alia issuance of appropriate writ or direction
to the respondents to extend the FTC Scheme for another
five years or even till 31.03.2015 and to release the
necessary funds for that purpose; that the decision of the
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
311
Union of India to discontinue the FTC Scheme beyond A
31st March, 2011 be declared as arbitrary, discriminatory
and violative of the fundamental rights under Article 21
of the Constitution; that the direct recruits from the Bar,
appointed as ad hoc Additional District Judge under the
FTC Scheme whose services were terminated be B
continued in employment; that they should be absorbed
against vacant posts in the regular cadre; that the
notification issued calling for applications from eligible
candidates for direct recruitment from the Bar to the cadre
of the District Judge be quashed; and that they are not c
liable to take the limited competitive examination for
promotion to the cadre of District Judges and be treated
as regular members of the State Judicial Service.
Partly allowing the appeals and the writ petitions, the
Court
D
HELD:
Whether any of the appointees to the post of ad hoc
judges under the FTC Scheme have a right to the post in
context of the facts of the instant case:
E
1.1 Upon an analysis of the Rules relating to the
different States, the appointment letters issued to the
appointees and the methodology that was adopted for
appointment of the Fast Track Court Judges, it becomes
clear that the appointees cannot be said to have any legal, F
much less an indefeasible, right to the posts in question.
Firstly, the posts themselves were temporary, as they
were created under and within the ambit and scope of the
FTC Scheme sponsored by the Union of India, which was
initially made only for a limited period of five years. Now, G
financing of the FTC Scheme has already been stopped
by the Central Government with effect from 31st March,
2011. No permanent posts were ever created. In other
words, their appointments were temporary appointments
against temporary posts. The relevant Rules of the States H
312
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A clearly postulate that the appointments made under the
Rules were purely on ad hoc basis and urgent temporary
basis and were terminable without notice. The Rules as
well as the respective notifications of appointment issued
to these appointees, unambiguously stated that no right
B would be conferred upon the appointees for regular
promotion on the basis of working on ad hoc basis under
the FTC Scheme. It clearly demonstrates that these were
temporary and, in some cases, even time-bound
appointments, terminable without prior notice. [Para 60]
c [376-E-H; 377-A-C]
1.2 Normally, there are three kinds of posts that may
exist in a cadre-(1) permanent posts; (2) temporary posts;
and (3) quasi-permanent posts. Accordingly, there can be
a temporary employee, a permanent employee or an
o employee in quasi-permanent capacity. Whereas a
permanent employee has a right to the post, a temporary
employee has no right to the post. Thus, it follows that
for a person to have a right to the post, the post itself has
to be a permanent post duly sanctioned in the cadre. The
E person should be permanently appointed to that post.
Normally, it is only under these circumstances that such
an employee gets a right to the post, but even when a
temporary employee is appointed against a permanent
post, he could get a right to the post provided he had at
F
least acquired the status of a quasi-permanent employee
under the relevant Rules. Where neither the post is
sanctioned nor 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
G appointees, akin to those of permanent employees. [Para
61] (377-D-H; 378-A-B]
Indian Drugs and Pharmaceuticals Ltd. v. Workmen
(2007) 1 SCC 408: 2006 (9) Suppl. SCR 73; Parshotam Lal
Dhingra v. Union of India AIR 1958 SC 36: 1958 SCR 828;
H Champaklal Chimanlal Shah v. Union of India AIR 1984 SC
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
313
1854; Jaswant Singh v. State of Haryana (1979) 4 SCC 440:
A
1980 (1) SCR 420 - referred to.
1.3 There should be a right vested in an employ~e,
which is duly recognized and declared in accordance
with the Rules governing the conditions of service of
such employee before such relief is granted. Unless the B
Government employee holds any status, it may not be
possible to grant relief to the Government employee,
particularly, when such relief is not provided under the
relevant Rules. These Rules had been framed under
Article 309 of the Constitution and had the force of law. C
[Paras 64 and 65] [379-E-G]
1.4 The doctrine of pleasure, under Constitution,
deals with three different categories of posts. First,
offices which are held during the pleasure of the
President or Governor, as the case may be; second, D
offices held during pleasure of the President or Governor
but subject to some restrictions against removal; and
third, offices held for a specified term but with immunity
against removal, except by impeachment. The third
category of posts is not subject to the doctrine of E
pleasure. Having regard to the Constitutional scheme, it
is not possible to extend the type of protection against
removal granted to one category of officers, to another
category. It is believed that, where Rule of Law prevails,
there can be nothing like unfettered discretion or F
unaccountable action. The degree of reasoning required
in support of the decision may vary. The degree of
scrutiny during judicial review may vary. But the need for
reasoning exists. As a result, when the Constitution of
India provides that some offices will be held during the G
pleasure of the President, without any express limitations
or restrictions, this power should, however, necessarily
be read as being subject to the fundamentals of
constitutionalism. [Paras 67, 68] [380-H; 381-A-E]
B.P. Singha/ v. Union of India (2010) 6 SCC 33; Union
H
314
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
of India & Anr. v. Tulsiram Patel (1985) 3 SCC 398 - referred
to.
1.5 Right to a post is not a fundamental right but is a
civil or a statutory right. That the creation of a post,
8
absorption and payment of salaries on regular pay
scales are purely Executive functions. It is primarily the
nature of the post, the method and manner of
appointment to the said post and the Rules governing the
conditions of service of that post which would be the
C
precepts to deal with such situations. [Para 66] [380-B,
D]
D
P. U. Joshi v. Accountant General (2003) 2 SCC
632:2002 (5) Suppl. SCR 573; Union of India v. S.N.
Pa nicker (2001) 10 SCC 520 - referred to.
1.6 The appointees in the instant case had been
appointed not only on ad hoc and temporary basis but
the entire FTC Scheme itself was ad hoc and for a
duration of five years only as declared by the Central
E
Government. Despite that, some of the States declared
the FTC Scheme for two years only. In these
circumstances, it is not possible to hold that the
appointees had any right to the post. The submission
that there was indication, in the Rules or otherwise, that
F
the said appointments were permanent and that the
appointees were entitled to be absorbed regularly in
those posts cannot be accepted. [Para 60, 61] [377-C-D;
378-B-C]
Whether writ of mandamus can at all be issued in the
G instant case:
2.1 The Central Government took a decision not to
finance the FTC Scheme beyond 31st March, 2011.
However, some of the State Governments have still taken
a decision at their own level to continue with the FTC
H Scheme, for the time being. None of the States have
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
. 315
stated that, as a matter of policy or otherwise, they have A
decided to continue the FTC Scheme at their own
expense
as
a
permanent feature of Justice
Administration System. Matters relating to framing and
implementation of policy primarily fall in the domain of the
Government. It is an established requirement of good B
governance that the Government should frame policies
which are fair and beneficial to the public at large. The
Government enjoys freedom in relation to framing of
policies. It is for the Government to adopt any particular
policy as it may deem fit and proper and the law gives it c
liberty and freedom in framing the same. Normally, the
Courts would decline to exercise the power of judicial
review in relation to such matters. But this general rule
is not free from exceptions. The Courts have taken the
view that they would not refuse to adjudicate upon policy 0
matters if the policy decisions are arbitrary, capricious or
mala fide. [Para 70) [382-E-H; 383-A-B]
Bennett Coleman & Co. and Others. v. Union of India
and Others (1972) 2 SCC 788: 1973 (2) SCR 757; Asif
Hameed v. State of Jammu & Kashmir and Anr. 1989 E
Suppl.(2) SCC 364: 1989 (3) SCR 19 - referred to.
2.2 The Government has the authority and power to
not only frame its policies, but also to change the same.
The power of the Government, regarding how the policy F
should be shaped or implemented and what should be
its scope, is very wide, subject to it not being arbitrary
or unreasonable. In other words, the State may formulate
or reformulate its policies to attain its obligations of
governance or to achieve its objects, but the freedom so
granted is subject to basic Constitutional limitations and G
is not so absolute in its terms that it would permit even
arbitrary actions. The correct approach in relation to the
scope of judicial review of policy decisions of the State
can hardly be stated in absolute terms. It will always
depend upon the facts and circumstances of a given H
316
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A case. Furthermore, the Court would have to examine any
elements of arbitrariness, unreasonableness and other
Constitutional facets in the policy decision of the State
before it can step in to interfere and pass effective orders
in such cases. A challenge to the formation of a State
B policy or its subsequent alterations may be raised on very
limited grounds. Again, the scope of judicial review in
such matters is a very limited one. One of the most
important aspects in adjudicating such a matter is that the
State policy should not be opposed to basic Rule of Law
c or the statutory law in force. This is termed as the
philosophy of law, which must be adhered to by valid
policy decisions. [Para 72, 75] [384-C-E; 386-B-D]
Mohd. Abdul Kadir and Anr. v. Director General of Police,
D Assam and Ors. (2009) 6 SCC 611 - referred to.
2.3 The independence of the Indian Judiciary is one
of the most significant features of the Constitution. Any
policy or decision of the Government which would
undermine or destroy the independence of the judiciary
E would not only be opposed to public policy but would
also impinge upon the basic structure of the
Constitution. The State policies should neither defeat nor
cause impediment to discharge of judicial functions. To
preserve the doctrine of separation of powers, it is
F
necessary that the provisions falling in the domain of
judicial field are discharged by the Judiciary and that too,
effectively. It is, thus, clear that it is the constitutional duty
of this Court to ensure maintenance of the independence
of Judiciary as well as the effectiveness of the Justice
G Delivery System in the country. The data and statistics
placed on record, of which this Court can even otherwise
take judicial notice, show that certain effective measures
are required to be taken by the State Governments to
bring down the pendency of cases in the lower courts. It
H necessarily implies that the Government should not frame
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
317
any policies or do any acts which shall derogate from the A
very ethos of the stated basic principle of judicial
independence. If the policy decision of the State is likely
to prove counter-productive and increase the pendency
of cases, thereby limiting the right to fair and expeditious
trial to the litigants in this country, it will tantamount to B
infringement of their basic rights and constitutional
protections. Thus, this Court is possessed of the
jurisdiction and is competent to issue a writ of mandamus
and/or appropriate directions. [Paras 76, 80 and 81] [386E-G; 391-G-H; 392-A-D]
C
S.P. Gupta v. Union of India (1981) Supp. SCC 87; All
India Judges' Association v. Union of India & Ors. (1992) 4
SCC 288; All India Judges' Association v. Union of India
(2002) 4 SCC 247: 2002 (2) SCR 712 - referred to.
Commonwealth ex rel. Carroll v. Tate et al. 442 Pa.45;
27 4 A.2d 193 - referred to.
Right to practice
D
3.1 Article 19(1 )(g) of the Constitution provides a E
fundamental right to practice any profession or to carry
on any occupation, trade or business. This right is
subject to the limitations contained under Article 19(6) of
the Constitution. The State is empowered to make any
law imposing, in the interest of general public, reasonable
F
restrictions on the exercise of the rights conferred by the
said sub-clause. This power specifically refers to the
professional or technical qualifications necessary for
practicing any profession or carrying on any occupation.
The right to practice law is not an absolute right and is G
subject to the possession of requisite qualifications as
contemplated under the Advocates Act, 1961. This right
to practice is further subject to the limitations prescribed
in and the regulatory regime of the Bar Council of India
Rules. Therefore, the submission that once a lawyer
H
318
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
possesses the requisite qualifications, he has an
unrestricted and unregulated right to practice, is not
tenable. [Para 82] [392-E-H]
B
3.2 The appointees submitted that in terms of the Bar
Council of India Rules, after they cease to be judges of
the FTCs for any reason whatsoever, they shall be
debarred from practicing in the district and subordinate
courts. Their right to practice is abridged with respect to
the courts in which they acted as judges and courts of
the equivalent or lower grade. They can still practice in
C
the higher courts, i.e., permissible Tribunals, High Courts
and the Supreme Court of India. Thus, there is no
complete and absolute restriction on their right to
practice. It is only a partial restriction which is based
upon securing the larger public interest and the interest
D of ensuring transparency in the administration of justice.
This by itself, therefore, cannot be a consideration for
compelling the Government to continue their
appointments, if they are otherwise not entitled under law
to continuation. There is no merit in the submission that
E
the appointees/petitioners would suffer an irreparable
loss by termination of their services as FTC judges and
that the restriction contained in Rule 7 of the Bar Council
of India Rules amounts to an absolute unreasonable
restriction upon their right to practice in the event of such
F
termination. [Paras 83, 84] [393-A-D; 394-B-C]
G
H
N.K. Bajpai v. Union of India & Anr. CA No. 2850 of 2012
decided on 15th March 2012 - relied on.
Power of judicial review:
4.1 The FTC Scheme was started in the year 2001 for
an initial period of five years. However, it was
subsequently extended and the Central Government
agreed to finance the FTC Scheme uptil 30th March, 2011.
Thereafter, the various State Governments have either
decided to wind up the FTC Scheme or have extended
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
319
the FTC Scheme at their own expense. A few States are
A
even considering the continuation of the FTC Scheme as
a permanent feature in their respective States. This, to a
large extent, created an anomaly in the administration of
justice in the States and the entire country. Thus, there
is no unanimity between the Union Government and the
8
States either on continuation or the closure of the FTC
Scheme. Some of the States would continue with the
FTC Scheme while others have been forced to
discontinue or close it because of non-availability of
funds. [Paras 92, 93] [396-G-H; 397-A-C]
4.2 Judicial functions and judicial powers are one of
the essential attributes of a sovereign State and on
considerations of policy, the State transfers its judicial
functions and powers, mainly to the courts established
c
by the Constitution, but that does not affect competence
D
of the State to, by appropriate measures, transfer a part
of its judicial functions or powers to Tribunals or other
such bodies. However, as far as functioning of the courts,
i.e., dispensation of justice by Courts is concerned, the
Government has no control whatsoever over the courts.
E
In relation to matters of appointments to the Judicial
Services of the States and even to the Higher Judiciary
in the country, the Government has some say, however,
the finances of Judiciary are entirely under the control of
the State. These controls should be minimized to maintain
F
the independence of the Judiciary. The courts should be
able to function free of undesirable administrative and
financial restrictions in order to achieve the constitutional
goal of providing social, economic and political justice
and equality before law to its citizens. [Para 99] [398-FG
H; 399-A-B]
Associated Cements Co. Ltd. v. P.N. Sharma AIR 1965
SC 1595:1965 SCR 366 - referred to.
4.3 Article 21 of the Constitution of India takes in its
H
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A sweep the right to expeditious and fair trial which is an
essential ingredient of such reasonable, fair and just
procedure. Even Article 39A of the Constitution
recognizes the right of citizens to equal justice and free
legal aid. Thus, it is the constitutional duty of the
B Government to provide the citizens of the country with
such judicial infrastructure and means of access to justice
so that every person is able to receive an expeditious,
inexpensive and fair trial. The State cannot be permitted
to deny the constitutional right to speedy trial to the
c accused on the ground that the State does not have
adequate financial resources to incur the necessary
expenditure needed, for improving the administrative and
judicial apparatus to ensure speedy trial. [Para 100, 131]
[399-C-D; 419-E-F]
D
Hussainara Khatoon and Ors. (IV) v. Home Secretary,
State of Bihar, Patna (1980) 1 SCC 98: 1979 (3) SCR 532;
Sheela Barse (II) and Ors. v. U.0.1. and Ors. (1986) 3 SCC
632; Salem Advocate Bar Association v. Union of India (2003)
1 SCC 49: 2002 (3) Suppl. SCR 353; Prakash Singh Badal
E v. State of Punjab and Ors. (2006) 8 SCC 1: 2006 (6) Suppl.
SCR 473; High Court of Judicature at Bombay, Through its
Registrar v. Shirishkumar Rangrao Patil and Anr. (1997) 6
SCC 339: 1997 (3) SCR 1131 - referred to.
F
Jackson v. Bishop 404 F Supp. 2d 571 - referred to.
4.4 Judicial review is recognized as a basic feature
of the Constitution and independence of judiciary is
integral to the constitutional structure, as an essential
attribute of the Rule of law. Judiciary must, therefore, be
G free from pressure and influences from any quarter. It can
be stated with certainty that any impediments to the
continued and independent functioning of the judiciary
would result in damaging the institution of justice as well
as adversely affecting the faith of the public in the
H functioning of the Courts/Tribunals. Only if continued
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
321
judicial independence is assured, the Courts/Tribunals A
would be able to discharge their functions in an impartial
manner. [Para 102] [403-0-G)
Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 1: 2010 (6) SCR 857; Union of
India & Ors. v. Pratibha Bonnerjea & Anr. (1995) 6 SCC
B
765:1995 (5) Suppl. SCR 511; Ashoka Kumar Thakur v.
Union of India & Ors. (2008) 6 SCC 1: 2008 (4) SCR 1 -
referred to.
4.5 Wherever the right which is being affected is a c
basic or a fundamental right, the State cannot be
permitted to advance an argument of financial constraints
in such matters. The policy of the State has to be in the
larger public interest and free of arbitrariness. Adhocism
and uncertainty are the twin factors which are bound to 0
adversely affect any State policy and its results. Reasons
for taking a policy decision would squarely fall in the
domain of the State, but it should be free from element of
arbitrariness and mala fide. The State cannot in, an ad hoc
manner, create new systems while simultaneously giving
E
up or demolishing the existing systems when the latter
have even statistically shown achievement of results.
[Para 107] [404-G-H; 405-A]
4.6 In reference to the cases at hand, the Central
Government took a decision to stop financing and
F
consequently to wind up the FTC Scheme. However, at
the same time, it allocated Rs.2500 crores for operation
of the Morning, Evening and Shift Courts in the country
besides providing funds under other heads, as per the
13th Finance Commission Report for the period 2010G
2011 to 2014-2015. Again, this is a policy decision and
though the Government has the jurisdiction to decide on
such policy matters, there has to be some rationale and
reasonableness in the same. It may not be appropriate for
this Court to decide upon a comparative analysis of the H
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[2012] 5 S.C.R.
A policy decisions as to which policy has greater merit and
which policy the Government should adopt, but certainly
whichever policy is eventually taken up by the State, it
has to be fair, in public interest and also satisfy the
constitutional limitation of ensuring independence of
8 Judiciary. [Paras 94, 108 and 109) [397-D-E; 405-8-D]
4.7 With the passage of time, owing to the
tremendous growth in the population of the country and
greater awareness among citizens of their rights, civil
and criminal litigation before the Courts have increased
C manifold, without there being an equivalent increase in
the strength of Judges and enhancement in the
infrastructure of the Courts. Thus, it is essential that
some kind of consistent and systematized approach is
adopted by all the concerned Governments, including the
D Union of India, so as to take effective measures to remedy
this situation as well as to prevent further undesirable
increase in the pendency of cases before the Courts.
Expeditious disposal of cases is obviously the first
answer to this multifarious problem. [Para 112) [406-8E D)
The conference of the Chief Ministers of the States and
the Chief Justices of the High Courts.
5.1 In order to resolve various administrative and
F allied issues relating to the administration of justice in the
States, it has been the practice to hold the Chief Justices
and Chief Ministers Conference, which is presided over
by the Chief Justice of India. In these meetings, various
steps are discussed, for which an agenda is circulated
G and suggestions from the High Courts as well as the
State Governments are invited. This Conference is
normally attended by the Chief Ministers and/or the Law
Ministers of the State, Chief Justices of the High Courts
and various other authorities from the bureaucracy and
H the High Courts. Upon due deliberations, decisions are
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
323
taken, whereafter Minutes of the same are prepared and
circulated. The decisions are recorded and circulated to
the States and the Union of India specifically for their
information and further action. Unfortunately, the practice
has shown that these decisions have hardly been
implemented by the concerned authorities. One such 8
Conference was held and the matter in regard to setting
up of Evening, Morning and Shift Courts was also
discussed and it was required that the State Government
shall set up at least one Family Court in each district.
[Paras 113 and 115) [406-E-H; 408-A-B]
c
5.2 There is nothing placed on record to show that
the FTCs at the level of the Magistrate Courts have no
further efficacy. All the concerned governments,
including the Union of India, which duly participated in
the Conference, had decided to extend the FTCs for a D
period of five years beyond 31st March, 2010 i.e. till 31st
March, 2015. It was further contemplated that other
measures should also be taken by the respective State
Governments and Union of India to tackle the problem of
arrear of cases. Hardly any decision in that regard was E
implemented, but on the other hand, a decision contrary
to the minutes was taken with certainty and was placed
before this Court that the FTC Scheme would not be
financed by the Central Government beyond 31st March,
2011. [Para 116) [409-B-E]
F
5.3 As regards the question whether it is justified for
the Central Government, or any other Government, to
brush aside the Minutes and recommendations of such
a high level meeting in a most casual manner or whether G
such Minutes require favourable consideration by all
concerned and proper and complete policy decisions
taken in furtherance thereto and such minutes form the
foundation for major policy decisions relating to judiciary,
the latter perspective demands an affirmative answer as H
324
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[2012] 5 S.C.R.
A
these decisions and recommendations should be
favourably considered by all concerned. Rather, they
should form the basis of the policy decisions relating to
the administration of justice. The Chief Justices and the
Chief Ministers are the constitutional heads of the
B Judiciary and the Executive, respectively. The matters are
discussed by all States, Union of India and Judiciary. The
decisions are taken on the basis of the collective wisdom.
One can hardly comprehend a constitutional body of a
higher normative significance than the Chief Justices and
c the Chief Ministers of the respective High Courts/States
to take such policy decisions at the National level. The
meeting is held under the umbrella of the Union of India
and is presided over by the Chief Justice of India, Union
Minister for Law and Justice and other high dignitaries
0
to deliberate upon issues which relate to the justice
delivery system, ultimately affecting the basic and
fundamental rights of the citizens of this country at large.
[Para 116, 117) [409-D-H; 410-A-B]
5.4 It would not only be unfair but unacceptable that
E these Minutes be placed in the shelves of the Government
archives without attaching any significance to them. It
would neither be fair nor proper for any level in the
bureaucratic hierarchy of the Government to reject such
suggestions at the threshold, that too, without any proper
F
reasoning in support thereof. At least, the Cabinet of the
Government of India or the State Government, as the
case may be should take into consideration the decisions
and recommendations of this meeting. Due weightage
should be attached to these recommendations and
G preferably, they should form the basis of the policy
decision by the State or the Central Government in
relation to the matters concerning Judicial administration.
[Para 118) [410-C-E]
H
BRIJ MOHAN LAL v. UNION OF INDIA & ORS.
325
Merits of respective cases:
6.1 In the case of the State of Gujarat, a number of
persons were appointed as Judicial Officers to preside
over the FTCs by way of direct recruitment from the Bar.
Their services have been terminated on the ground of
unsatisfactory performance. The High Court declined to
set aside the termination of services of most officers. In
the impugned judgment, the High Court noted
unsatisfactory performance as the cause for termination
A
B
of their services. Entries of their service records has been
reproduced. All these officers had been appointed as ad
C
hoc and temporary FTC Judges. At no point of time was
anything done, directly or indirectly, by the State to give
rise to a legitimate expectation of the appointees that
their services would be regularized and they would be
absorbed in the regular cadre. On the basis of the
Confidential Records referred to by the High Court, in its
judgment, it is difficult to take any different view,
particularly when these judicial officers were only
temporary and ad hoc appointees with no vested right to
D
the post. Certainly, this is not a case of mala fide
termination.