# MAHESH CHANDRA VERMA & ORS v. STATE OF JHARKHAND & ORS

- **Citation:** [2012] 9 S.C.R. 6
- **Court:** Supreme Court of India
- **Decided:** 2012-09-19
- **Case number:** Civil Appeal No. 6647 of 2012
- **Bench:** Aftab Alam, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahesh-chandra-verma-ors-v-state-of-jharkhand-ors-28543
- **Pages:** 48

## Headnote

JUDICIARY:
c
FAST TRACK COURTS (FTC) - Appointments of ADJ,
FTC - Advertisement issued for direct recruitment from the
Bar to regular cadre in Jharkhand Superior Judicial Service
- 17 vacancies being available, appointments given to
candidates at SI. No.. 1 to 17 in the select list - Thereafter
0
candidates from SI. No. 18 to 27 in the select list appointed
ADJ, FTC - Subsequently, 15 more candidates appointed as
ADJ, FTC - Appointment of latter 25 candidates as ADJ, FTC
challenged by Sub-Judges - Held: With the appointment of
17 candidates, the select list came to an end and with it the
selection process for appointment of regular ADJs came to
E an end - When the advertisement for regular posts of ADJs
in Jharkhand Superior Judicial Service was issued, the posts
for FTCs were not sanctioned nor were they even in
contemplation - Therefore, the advertisement was not and
could not have been for FTC Judges - The unexhausted list
F was wrongly used for appointment of 10 FTC Judges - Further,
out of list of unsuccessful candidates, 15 persons were
appointed as FTC Judges - The whole procedure was
irregular - Nevertheless, High Court's decision, however
improper, cannot, in any way, be said to be vitiated by ma/a
G tides. - In the circumstances, the appointments made on 021
0212002 and 1210812002 are held as irregular, made in
ignorance of settled principles underlying service law, in an
anxiety to comply with the desire expressed by the Law
H
6
MAHESH CHANDRA VERMA & ORS. v. STATE OF
7
JHARKHAND
Ministry and to set up FTCs to deal with the problem of A
pendency of cases - Jharkhand Superior Judicial Service
(Recruitment, Appointment and Conditions of Service) Rules,
2001 - Locus Standi..
FAST TRACK COURTS (FTC) - Appointment of FTC
B
Judges - Held: The FTC posts were temporary, ad hoc and
ex-cadre posts and appointees to such posts cannot be said
to have any legal right to the posts - The Rules of 2001 meant
for Jharkhand Superior Judicial Service do not apply to ad hoc
ADJs appointed under a scheme of temporary duration like
Fast Tract Court Scheme - The appellants were appointed to
C
ex-cadre posts for a temporary period - Merely because they
were made to take written examination and viva voce their
appointments cannot be termed as substantive appointments
nor can the nature of work done by them make their
appointments substantive.
D
FAST TRACK COURTS (FTC) - FTC Judges -
Regularisation - Held: The case of the appellants FTC Judges
in the instant matter is covered by the decision in Brij Mohan
Lal-I/ - State Government and High Court will comply with the
E
directions issued in Brij Mohan Lal-If to appoint the appellants
in the regular cadre in the Higher Judicial Service in the State
strictly in the manner laid down in Brij Mohan-I/ - Constitution
of India, 1950 - Art. 142.
The
High
Court of Jharkhand
issued
an
advertisement dated 23.5.2001 inviting applications to fill
F
up the vacancies of regular Additional District Judges
(ADJs) by direct recruitment from Bar in terms of the
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001. On
G
completion of the selection process, 17 candidates were
appointed as ADJs in the regular cadre of Higher Judicial
Service. Subsequently, 10 candidates from Sr.No.18 to 27
of the merit list were appointed as ADJ, Fast Track Court
(FTC) by Notification dated 2.2.2002; and 15 more
H
8
SUPREME COURT REPORTS
(2012] 9 S.C.R.
A candidates were appointed as ADJ, FTC by Notification
dated 12.8.2002. Respondent Nos.5 to 35, who belonged
to the category of Sub Judge in the Judicial Service in
Subordinate Judiciary of the State, filed a writ petition
before the Hig:1 Court contending that the appointment
B of the latter 25 ADJs, FTC was illegal and it affected their
promotional avenues. The affidavit filed on behalf of the
High Court stated that at the time of advertisement (i.e.
23.05.2001) the States of Bihar and Jharkhand were
newly bifurcated and cadre stre

## Text

_Characters 0–39,814 of 96,110. This is a partial read: ask again with offset=39814 for what follows._

A
B
[2012] 9 S.C.R. 6
MAHESH CHANDRA VERMA & ORS.
V.
STATE OF JHARKHAND & ORS.
(Civil Appeal No. 6647 of 2012 ETC.)
SEPTEMBER 19, 2012
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
JUDICIARY:
c
FAST TRACK COURTS (FTC) - Appointments of ADJ,
FTC - Advertisement issued for direct recruitment from the
Bar to regular cadre in Jharkhand Superior Judicial Service
- 17 vacancies being available, appointments given to
candidates at SI. No.. 1 to 17 in the select list - Thereafter
0
candidates from SI. No. 18 to 27 in the select list appointed
ADJ, FTC - Subsequently, 15 more candidates appointed as
ADJ, FTC - Appointment of latter 25 candidates as ADJ, FTC
challenged by Sub-Judges - Held: With the appointment of
17 candidates, the select list came to an end and with it the
selection process for appointment of regular ADJs came to
E an end - When the advertisement for regular posts of ADJs
in Jharkhand Superior Judicial Service was issued, the posts
for FTCs were not sanctioned nor were they even in
contemplation - Therefore, the advertisement was not and
could not have been for FTC Judges - The unexhausted list
F was wrongly used for appointment of 10 FTC Judges - Further,
out of list of unsuccessful candidates, 15 persons were
appointed as FTC Judges - The whole procedure was
irregular - Nevertheless, High Court's decision, however
improper, cannot, in any way, be said to be vitiated by ma/a
G tides. - In the circumstances, the appointments made on 021
0212002 and 1210812002 are held as irregular, made in
ignorance of settled principles underlying service law, in an
anxiety to comply with the desire expressed by the Law
H
6
MAHESH CHANDRA VERMA & ORS. v. STATE OF
7
JHARKHAND
Ministry and to set up FTCs to deal with the problem of A
pendency of cases - Jharkhand Superior Judicial Service
(Recruitment, Appointment and Conditions of Service) Rules,
2001 - Locus Standi..
FAST TRACK COURTS (FTC) - Appointment of FTC
B
Judges - Held: The FTC posts were temporary, ad hoc and
ex-cadre posts and appointees to such posts cannot be said
to have any legal right to the posts - The Rules of 2001 meant
for Jharkhand Superior Judicial Service do not apply to ad hoc
ADJs appointed under a scheme of temporary duration like
Fast Tract Court Scheme - The appellants were appointed to
C
ex-cadre posts for a temporary period - Merely because they
were made to take written examination and viva voce their
appointments cannot be termed as substantive appointments
nor can the nature of work done by them make their
appointments substantive.
D
FAST TRACK COURTS (FTC) - FTC Judges -
Regularisation - Held: The case of the appellants FTC Judges
in the instant matter is covered by the decision in Brij Mohan
Lal-I/ - State Government and High Court will comply with the
E
directions issued in Brij Mohan Lal-If to appoint the appellants
in the regular cadre in the Higher Judicial Service in the State
strictly in the manner laid down in Brij Mohan-I/ - Constitution
of India, 1950 - Art. 142.
The
High
Court of Jharkhand
issued
an
advertisement dated 23.5.2001 inviting applications to fill
F
up the vacancies of regular Additional District Judges
(ADJs) by direct recruitment from Bar in terms of the
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001. On
G
completion of the selection process, 17 candidates were
appointed as ADJs in the regular cadre of Higher Judicial
Service. Subsequently, 10 candidates from Sr.No.18 to 27
of the merit list were appointed as ADJ, Fast Track Court
(FTC) by Notification dated 2.2.2002; and 15 more
H
8
SUPREME COURT REPORTS
(2012] 9 S.C.R.
A candidates were appointed as ADJ, FTC by Notification
dated 12.8.2002. Respondent Nos.5 to 35, who belonged
to the category of Sub Judge in the Judicial Service in
Subordinate Judiciary of the State, filed a writ petition
before the Hig:1 Court contending that the appointment
B of the latter 25 ADJs, FTC was illegal and it affected their
promotional avenues. The affidavit filed on behalf of the
High Court stated that at the time of advertisement (i.e.
23.05.2001) the States of Bihar and Jharkhand were
newly bifurcated and cadre strength was not finalized.
C The High Court was waiting for more officers to be
allocated to Jharkhand cadre. New Posts were also
under the process of creation and, therefore, in the
advertisement exact number of vacancies was not stated.
It further stated that on the date of advertisement, 13
0 clear cut vacancies existed for appointment of ADJs
directly from Bar and when the names were
recommended on 20/10/2001, there were clear cut 17
vacancies for appointment of regular ADJs directly from
Bar. The High Court allowed the writ petition. Aggrieved,
some of the ADJs of FTCs filed the appeals.
E
Disposing of the appeals, the Court
HELD : 1.1 The important features of the
advertisement dated 23.5.2001 are that it was an
F advertisement to fill-in the posts of ADJs; that the
vacancies were not mentioned in the advertisement and
that the appointments were to be finalized as per the
Jharkhand Superior Judicial Service (Recruitment,
Appointment and Conditions of Service) Rules, 2001.
G Thus, the advertisement was not and could not have
been for FTC Judges. The Rules of 2001 were rightly
mentioned in the advertisement because they deal with
regular appointments in Superior Judicial Service cadre
and the advertisement was for appointments of ADJs in
regular cadre. [Para 23) [36-G-H; 37-A]
H
MAHESH CHANDRA VERMA & ORS. v. STATE OF
9
JHARKHAND
All India Judges Association & Ors. v. Union of India &
A
Ors. (2002) 4 SCC 247 = 2002 (2) SCR 712 - referred to.
1.2 From the affidavit filed on behalf of the High Court,
it appears that in the meantime letter dated 14/6/2001 from
the Government of India was received by the High Court
8
forwarding the necessary material on the Fast Track
Court scheme. In the State-wise break-up, 89 additional
courts are shown against the State of Jharkhand.
However, the posts were not sanctioned. It is the case of
the High Court, stated on affidavit, that at that time only C
70 officers were available in the sub-judge cadre and as
such the posts in FTCs could not have been filled-up by
ad hoc promotion from service cadre. There is no reason
to disbelieve this stand of the High Court. [Para 24] [37B-D]
1.3 It is important to note that posts of FTC Judges
were created only when Government of Jharkhand
issued notification dated 29/11/2001. Thus, on the date
when advertisement dated 23/5/2001 was issued, FTCs
were not even sanctioned and, therefore, were not even
in anticipation of the High Court. From the affidavit filed
on behalf of the High Court it is evident that on the date
of recommendation, there were clear cut 17 vacancies for
appointment of regular ADJs directly from Bar. After
written examination, oral interviews were conducted in
pursuance to the said advertisement. In October, 2001 the
High Court prepared a select list of 27 candidates for
superior judicial service which was duly notified as per
Rule 21 of the Rules of 2001. [Para 28-30] [38-G-H; 39-CD]
1.4 By notification dated 29/11/2001, the State
Government constituted 89 FTCs of Additional District &
Sessions Judges for 5 years with immediate effect. On 14/
12/2001, 20 promotee officers were appointed by the
State as FTC Judges on ex cadre temporary posts. On
D
E
F
G
H
10
SUPREME COURT REPORTS
[2012] !:! S.C.R.
A 15/12/2001, 17 candidates whose names were found at
Sr.Nos.1 to 17 of the merit list were appointed as ADJs
in the regular cadre of Higher Judicial Service.
Appointments of these persons cannot be faulted,
because it is stated on oath that there were 17 clear cut
B vacancies. [Para 31] (39-E-G]
2.1 On 02/02/2002, ten candidates from Sr.Nos.18 to
27 of the merit list were appointed as FTC Judges. It is
disclosed from the affidavit filed on behalf of the High
Court that in the Full Court meeting held on 02/07/2002,
C it was resolved to fill up the remaining 45 posts of ADJs
to preside over FTCs in addition to 30 FTCs already,
functioning in the State. Thirty were to be by promotion
from Sub-judges and 15 by direct recruitment from the
panel prepared during selection process of regular
D District Judges. On 12/08/2002, 15 persons were
appointed as FTC Judges from Bar on ad hoc basis in
ex-cadre posts. The names of these 15 persons do not
find place in the select list prepared by the High Court
pursuant to advertisement dated 23/05/2001. [Para 32] (39E G-H; 40-A-C]
2.2 Since a select list of 27 persons was duly notified
as per Rules of 2001, after candidates from Sr. No. 1 to
17 were appointed as regular ADJs on 15.12.2001, the
F select list came to al) end because as per the affidavit
filed on behalf of the High Court though vacancies were
not mentioned in the advertisement, 17 posts of ADJs
were available on the date of recommendation i.e. on
20/10/2001. On the appointment of 17 regular ADJs, the
G selection process for appointment of regular ADJs came
to an end.The unexhausted select list was wrongly used
for appointment of 10 FTC Judges. The persons from
select list prepared for recruitment to posts of regular
ADJ, can not be appointed as FTC Judges. Again, out of
list of unsuccessful candidates, 15 persons were
H appointed as FTC Judges. Their names were not there
MAHESH CHANDRA VERMA & ORS. v. STATE OF
11
JHARKHAND
in the select list. The whole procedure was irregular. [Para
A
33 and 39] [40-D-F; 43-F]
Rakhi Ray v. High Court of Delhi 2010 (2 ) SCR 239 =
488 (2010) 2 SCC 637; and Surinder Singh v. State of
Punjab 1997 ( 3 ) Suppl. SCR 538 = (1997) 8 SCC - relied
on.
3.1 It cannot be said that the appellants were
appointed under r.4(a) of the Rules of 2001 or that they
can get advantage of r.25 thereof. The Rules of 2001 and
B
the regulations which are meant for Jharkhand Superior C
Judicial Service do not apply to ad hoc ADJs appointed
under a scheme of temporary duration like Fast Track
Court scheme. The Rules of 2001 were not amended to
make them applicable to FTCs. The appellants were
appointed in ex-cadre posts for a temporary period. This
D
is clear from their appointment letters. Therefore, their
appointments were not under Rules of 2001. Merely
because they were made to take written examination and
viva voce, their appointments cannot be termed as
substantive appointments nor can the nature of work
E
done by them make their appointments substantive.
[Para 33] [41-C-F]
3.2 Nevertheless, the High Court's decision, however
improper, cannot, in any way, be said to be vitiated by
mala tides. The Full Court Resolutions of the High Court
F
and the correspondence of the Chief Justice with the Law
Ministry also indicate that the High Court was ill-equipped
to put the Fast Track Court Scheme in action in the State
because of several difficulties, prominent amongst them
being cadre bifurcation not having been completed and
G
unavailability of officers from service cadre. The High
Court was bona fide trying to comply with the Central
Law Ministry's desire and in that it overstepped its limits.
[Para 34] [42-B-D]
H
12
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
3.3 In the circumstances, this Court is of the view that
the appointments made on 0210212002 and 12/08/2002 are
irregular, made in ignorance of settled principles
underlying service law, in an anxiety to comply with the
desire expressed by the Law Ministry and to set up FTCs
B to deal with the problem of pendency of cases. [Para 34]
[42-E-F]
Brij Mohan Lal v. Union of India & Ors. (Brig Mohan Lall) (2002) 5 SCC 1=2002 ( 3 ) SCR 810 and Brij Mohan Lal
C v. Union of India & Ors. (Brij Mohan Lal-(11) (2012) 6 SCC 502
- relied on.
Central Inland Water Transport Corporation Ltd. & Anr.
v. Brojo Nath Ganguly & Anr. AIR (1986) SC 1571 = 1986
(2) SCR 278; O.P. Sing/a v. Union of India (1984) 4 SCC
D 450=1985 (1) SCR 351; Rudra Kumar Sain v. Union of India
(2000) 8 SCC 25= 2000 (2) Suppl. SCR 573 and 0. Ganesh
Rao Patnaik v. State of Jharkhand (2005) 8 SCC 454=2005
(4) Suppl. SCR 102; Naseem Ahmad & Ors. v. State of Uttar
Pradesh & Anr. (2011) 2 SCC 734= 2010 (14) SCR 822;
E Prem Singh v. State of Haryana (1996) 4 SCC 319=1996 (2)
Suppl. SCR 401 and State of Jammu & Kashmir & Ors. v.
Sanjeev Kumar & Ors. (2005) 4 SCC 148=2005 (2) SCR 400
- held inapplicable.
4.1 In Brij Mohan Lal-II, this Court has, after
F considering the entire matter in its proper perspective,
held that the FTC posts were temporary and ex-cadre
posts and the appointees cannot be said to have any
legal right to the posts. This settled position cannot be
reopened. [Para 43 and 47] [44-F; 46-F]
G
4.2 In Brij Mohan Lal-II, this Court has given certain
directions in terms of Art.142 of the Constitution to
improve justice delivery system, to attain the
constitutional goals and to do complete justice. One of
H the directions pertain to regularization of the FTC Judges
MAHESH CHANDRA VERMA & ORS. v. STATE OF
13
JHARKHAND
in the manner laid down therein. This Court observed that
A
if the FTC ad hoc direct recruits, who have over the years
gained a lot of judicial experience, are regularized and
absorbed in the regular cadre of ADJs in different States,
the problem of arrears of cases can be handled to some
extent. While considering the claim of the appointees who
B
were directly appointed as FTC Judges from Bar for
regularization of their services and absorption in the
regular cadre, this Court observed that the relief of
regularization/ absorption cannot be granted to the
petitioners in the manner in which they have prayed. They c
have no right to the post. They were solely appointed on
the basis of an interview and, therefore, must undergo the
requisite examination. Making it clear that it had no
intention to interfere with the policy decision taken by the
Union of India, this Court gave certain directions under 0
Art.142 of the Constitution, as quoted in the instant
judgment. It cannot be said that the appellants' case is
not governed by the said judgment. 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. Brij Mohan LalE
II considers this grievance. So far as persons like the
appellants, who are appointed by way of direct
recruitment from the Bar are concerned, this Court made
it clear that they shall be entitled to be appointed to the
regular cadre in the manner provided in Brij Mohal Lal-II.
F
[Para 43, 44, 48 and 49] [45-A; 48-E; 45-C; 49-B]
4.3 Indisputably, the appellants were not appointed
on any permanent post. The notification of their
appointment dated 12/08/2002 clearly states they were
G
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
H
14
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A by Brij Mohan Lal-II. The directions given therein,
particularly those contained in paragraph 207.9 quoted
in the instant judgment, will clearly apply to them. In Brij
Mohan Lal-II, this Court even considered the plea that the
direct recruits had taken all the tests and, therefore, they
8 should not be made to undergo them again, and 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
C necessary posts I FTCs by the S~ate of Jharkhand, the
High Court will consider the appellants' case afresh in
terms of the decision of this court in Brij Mohan Lal-11. The
High Court has also taken-up the matter with the State
Government. [Para 50] [52-B-E]
D
4.4 The State of Jharkhand will now have to take
steps to comply with directions issued in Brij Mohan Lal11, if it has not complied with them so far. The State
Government and the High Court will have to work in sync
to ensure that the directions to appoint the appellants in
E the regular cadre in Higher Judicial Service are complied
with strictly in the manner laid down in Brij Mohan Lal-II.
[Para 51] [53-C]
4.5 The grievance of the contesting respondents that
F if the appellants are absorbed in regular cadre, their
promotional avenues will get affected or they will suffer
monetary loss, cannot be entertained in view of Brij
Mohan Lal-II. The directions given by this Court in Brij
Mohan Lal-II are under Art. 142 of the Constitution, to do
complete justice and while issuing directions, obviously
G this Court has considered the entire issue in its proper
perspective. This Court concurs with the view taken by
the High Court and there is no reason to interfere with it.
The State Government and the High Court are directed
to comply with the directions to appoint the appellants
H in the regular cadre in Higher Judicial Service in the State
MAHESH CHANDRA VERMA & ORS. v. STATE OF
15
JHARKHAND
strictly in the manner laid down in Brij Mohan Lal-II. [53A
D-G]
B. Prabhakar Rao and others v. State of Andhra Pradesh
and others 1985 (Suppl) SCC 432= 1985 Suppl. SCR 573;
Hari Bansh Lal v. Sahadar Prasad Mah to and others (2010)
8
9 SCC 655= 2010 (10 ) SCR 561; Narender Chandha & Ors.
v. Union of India & Ors. (1986) 2 SCC 157= 1986 ( 1 ) SCR
211; N.K. Chauhan & Ors. v. State of Gujrat & Ors. (1977) 1
SCC 308= 1977 (1) SCR 1037; G.S. Lamba & Ors. v. Union
of India & Ors. (1985) 2 SCC 604= 1985 ( 3 ) SCR 431; Satya
Narain Singh v. High Court of Judicature at Allahabad & Ors.
C
(1985) 1 SCC 225= 1985 ( 2 ) SCR 112; Sushma Suri v.
Govt. of National Capital Territory of Delhi & Anr. (1999) 1
SCC 330= 1998 ( 2) Suppl. SCR 187; Satish Kumar Sharma
v. Bar Council of H.P (2001) 2 SCC 365= 2001 ( 1 ) SCR 34;
Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11
D
=2008 (5 ) SCR 1066; Uttar Pradesh Public Service
Commission v. Satya Narayan Sheohare & Ors. (2009) 5
SCC 473= 2009 (4) SCR 491; Ravinder Kumar v. State of
Haryana & Ors. (2010) 5 SCC 136= 2010 (5 ) SCR 116;
Bhakra Beas Management Board v. Krishan Kumar Vij & Anr.
E
(2010) 8 SCC 701= 2010 (10) SCR 462; Girjesh Shrivastava
& Ors. v. State of Madhya Pradesh & Ors. (2010) 10 SCC
707= 2010 (12) SCR 839; Secy. A.P. Public Service
Commission v. Y. V. V.R. Srinivasu/u & Ors. (2003) 5 SCC
341= 2003 (3) SCR 742; State of Uttar Pradesh v. Johri Mal
F
(2004) ·4 SCC 714= 2004 (1) Suppl. SCR 560; Malik Mazhar
Sultan and another v. UP. Public Service Commission and
others. (2006) 9 SCC 507= 2006 (3) SCR 689; State of Bihar
v. Madan Mohan (1994) Supp. (3) SCC 308= 1993 ( 3 )
Suppl. SCR 242; Smt. K. Lakshmi v. State of Kera/a (2012)
G
4 SCC 115; Arup Das v. State of Assam2012(5) SCC 559 -
cited
Case Law Reference:
2010 (10) SCR 561
Cited
Para 9
H
16
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
1986 (1) SCR 211
cited
Para 13
1977 (1)" SCR 1037
cited
Para 13
1985 (3) SCR 431
cited
Para 13
8
1985 (2) SCR 112
cited
Para 13
1998 (2) Suppl. SCR 187
cited
Para 13
2001 (1) SCR 34
cited
Para 13
2008 (5) SCR 1066
cited
Para 14
c
2009 (4) SCR 491
cited
Para 14
2010 (5) SCR 116
cited
Para 14
2010 (10) SCR 462
cited
Para 14
D
2010 (12) SCR 839
cited
Para 14
2003 (3) SCR 742
cited
Para 16
2004 (1) Suppl. SCR 560
cited
Para 17
E
2006 (3) SCR 689
cited
Para 17
1993 (3) ~u'ppl. SCR 242
cited
Para 18
(2012) 4 sec 115
cited
Para 18
2012 (5) sec 559
cited
Para 18
F
2002 (3) SCR 810
relied on
Para 35
(2012) 6 sec 502
relied on
Para 35
1986 (2) SCR 278
inapplicable
Para 37
G
1985 (1) SCR 351
inapplicable
Para 38
2000 (2) Suppl. SCR 573
inapplicable
Para 38
2005 (4) Suppl. SCR 102
inapplicable
Para 38
H
2010 (14) SCR 822
inapplicable
Para 39
MAHESH CHANDRA VERMA & ORS. v. STATE OF
17
JHARKHAND
1996 (2) Suppl. SCR 401
inapplicable
Para 40
A
2005 (2 ) SCR 400
inapplicable
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6647 of 2012.
From the Judgment and Order dated 07.03.2011 of the
High Court of Jharkhand at Ranchi in W.P. (s) No. 2872 of 2009.
WITH
C.A. No. 6648 and 6649 of 2012.
B
c
Nidesh Gupta, Kamal Nayan Choubey, Amarendra
Sharan, Sunil Kumar, Vijay Hansaria, K.K. Rai, Ajit Kumar
Sinha, Amit Kumar, Atul Kumar, Ashish Kumar, Rekha, Bakshi,
Rituraj Kumar, Anil Kumar, Ritu Priyadarshany, Madhusmita
Bora, Shiv Ram Sharma, Sweety Singh, Archana Kumari, N.
D
Batray, T.N. Singh, V.K. Singh, H.L. Srivastava, Jayesh Gaurav,
Chhaya Kumari, (For Anil K. Jha), Sneha Kalia, Akhilesh Kumar
Pandey, Ajay Amrit Raj, Rajeev Singh, Shiv Ram Sharma,
Asha Gopalan Nair, Ambhoj Kumar Sinha for the Appearing
Parties.
E
The Judgment of the Court was delivered by
(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
2. These appeals, by special leave, are directed against
the judgment dated 07/03/2011 delivered by the Division Bench
of the Jharkhand High Court. They involve the same questions
F
of law and facts and hence can be disposed by a common
judgment. The appellants in these appeals were posted as
G
Additional District Judges, Fast Track Courts. They are direct
recruits from the bar. By the impugned order, the High Court
disposed of the Writ Petition filed by the Judicial Officers who
are members of the Subordinate Judiciary of the State of
Jharkhand, challenging the appointment of the appellants to the
H
18
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
posts of Additional District Judge (for short, "ADJ"), Fast Tract
Courts (for short, "FTC"). The writ petitioners before the High
Court, inter alia, claimed that they were eligible for being
appointed as ADJs and that they are directly affected persons
in monetary terms as well as in terms of their future promotional
B avenues because of the appellants' appointments. They sought
a declaration that the entire selection process for appointment
of the appellants to the post of ADJs, FTCs pursuant to
advertisement dated 23/5/2001 is illegal. They prayed that the
Notifications dated 21212008 and 12/8/2002 whereby the
C appellants were appointed be quashed. They are respondents
before this court. The High Court by the impugned judgment
allowed the writ petition.
3. It is necessary to state case of respondents 5 to 35
D before the High Court for better appreciation of the issues
involved in these appeals.
On 15/11 /2000 Bihar Reorganisation Act, 2000 was
passed, whereby the State of Jharkhand was carved out of the
State of Bihar. By Notification dated 22/02/2001, 90 Superior
E Judicial Officers (ADJs and District Judges) were transferred
from the State of Bihar to the State of Jharkhand. Out of these
90 Judicial Officers, 62 were promotees and 28 were direct
recruits. On 10/05/2001 the Governor of Jharkhand, in
consultation with the High Court, framed Jharkhand Superior
F Judicial Service (Recruitment, Appointment and Conditions of
Service) Rules, 2001 under Article 233 read with proviso to
Article 309 of the Constitution of India ("Rules of 2001 ", for
brevity). Rule 9 thereof prescribed the eligibility for appointment
as an ADJ in the State of Jharkhand, which reads as under:
G
H
"9.
Eligibility: A candidate shall be eligible to be
appointed as an ADJ under these Rules, if:-
( a)
he is above the age of 35 years and below the age
of 45 years as on the last day of January preceding
the year in which the examination is held; provided
MAHESH CHANDRA VERMA & ORS. v. STATE OF
19
JHARKHAND [RANJANA PRAKASH DESAI, J.]
that in the case of a candidate belonging to
A
scheduled caste or scheduled tribe, there may be
a relaxation of upper age limit by three years;
(b)
is a graduate in law from a University recognized
for the purpose of enrolment as an Advocate under
8
the Advocates' Act, 1961;
(c)
has an experience of more than seven years at the
Bar as a practicing Advocate after having been duly
enrolled as such under the Advocates Act, 1961;
(d)
possesses good health, is of sound moral character
and is not involved in, or related to any criminal case
of any type involving moral turpitude."
c
4. In order to bring all the facts on record, it would be
necessary to state here that Rule 5 of Rules of 2001 was
D
amended on 20/08/2004, whereby the percentage from
different sources was modified in terms of the direction of this
Court in Al/ India Judges Association & Ors. v. Union of India
& Ors. 1 and it was fixed as 50% by promotion, 25% by
promotion through a limited competitive examination and 25%
E
by direct recruitment.
5. On 23/05/2001 the High Court of Jharkhand issued an
advertisement inviting applications in the prescribed format
from the eligible candidates to fill-up the vacancies in the post
F
of ADJs. The prescribed eligibility criteria was as under:
"(i)
Qualification - Graduate in law from University
recognized for the purpose of enrolment as an
Advocate under the Advocates Act, 1961.
(ii)
Age - above 35 years, but below 45 years as on
31st January, 2001. The upper age limit is relaxable
by three years in the case of SC/ST candidates.
1.
(2002) 4 sec 247.
G
H
20
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A
(iii)
Experience - more than 7 years at the Bar as a
practicing advocate after having been duly enrolled
as such."
6. The advertisement, however, did not disclose as to how
B many posts in the regular cadre of ADJs were sought to be
filled. The number of vacancies was not mentioned. On 19/08/
2001 written examination was held in which approximately
4,000 candidates appeared. On 20/09/2001 a list of successful
candidates who were qualified to appear for oral interview was
C published. The list contained names of candidates upto merit
serial number 134.
7. According to the respondents, the number of candidates
called for the interview was much higher than the legally
recognized ratio. Ultimately, out of the candidates whose
D names appeared in the list of successful candidates, 17
candidates were appointed as ADJs in the regular cadre of
Higher Judicial Services. Upon issuance of their appointment
letters the selection process pursuant to the advertisement
dated 23/05/2001 should have come to an end, but 10
E candidates from Sr. Nos.18 to 27 of the merit list were
appointed as FTC Judges. No such panel was ever published
by the respondents therein. In August, 2002, without any
advertisement, 15 persons were appointed as FTC Judges
from the Bar vide Notification dated 12/08/2002. Names of
F these persons were not mentioned in the select list prepared
by the High Court pursuant to the advertisement dated 23/05/
2001. The subsequent appointments of 10 & 15 ADJs in FTCs
in February and August, 2002 by way of direct recruitment from
amongst the members of the Bar were in violation of the rules
G of fairness, equality and fair play as enshrined in Articles 14
and 16 of the Constitution of India. They were also in derogation
of directions given by this Court in Brij Mohan Lal v. Union of
India & Ors. (Brig Mohan Lal-1)2. The respondents pointed out
that in the counter affidavit filed by the Jharkhand High Court
H
2.
(2002) s sec 1.
MAHESH CHANDRA VERMA & ORS. v. STATE OF
21
JHARKHAND [RANJANA PRAKASH DESAI, J.]
in WP (S) No. 5613 of 2001, it was stated that the Full Court
A
of the High Court in the meeting held on 18/10/2001
recommended the names of 17 candidates for regular
appointments as ADJs in FTCs. FTCs were constituted in the
State of Jharkhand vide Notification dated 29/11/2001. But even
before creation of the FTCs, 10 names were recommended in
B
October, 2001 for making appointments against non-existent
posts. On 23/05/2001 when advertisement was issued, Fast
Track Courts Scheme was not in vogue. Some of those
appointed as ADJs, FTCs were working as Assistant Public
Prosecutors in terms of Section 25 of the Code of Criminal
C
Procedure, 1973 (for short, "the Code"). They could not have
been appointed ADJs as they were not advocates within the
meaning of Section 2 (1) (a) of the Advocates Act and they
cannot be said to have fulfilled the mandatory eligibility criteria
of having experience of more than 7 years at. the Bar. While
0
deciding eligibility criteria, Rule 9 (a) of the Rules of 2001 was
breached. The candidates who were not above the age of 35
years on the last day of January of the preceding year in which
the examination was held were selected. It was contended that
though there was no provision for preparation of a panel for
future appointment, a panel was prepared.
E
8. The case of respondents 3 to 3o found favour with the
High Court. The High Court inter alia held that the appointments
which were offered to the members of the Bar pursuant to the
advertisement dated 23/05/2001 were meant for ADJs. On that
F
day, whatever posts were existing or contemplated could have
been made the subject matter of selection. On that day, there
was no sanction from the State Government for those posts,
therefore, those posts were not contemplated vacancies which
can be covered by the advertisement in question. The High
G
Court observed that the appellants were appointed on ex-cadre
posts created for a temporary purpose and for a temporary
period for an entirely different objective which was not the
dominant object of Rules of 2001. The High Court further held
·that selection process by way of requisition and advertisement
H
22
SUPREME COURT REPORTS
[2012) 9 S.C.R.
A can be started for clear vacancies and also for anticipated
vacancies but not for future vacancies. That is exactly what was
done in this case. The High Court, in the circumstances,
quashed the appointments.
8
9. The impugned order of the High Court has been severely
criticized by the counsel for the appellants. By and large the
counsel are unanimous on grounds of attack. We shall
therefore, avoid repetition. Written submissions have been filed
which reflect the submissions of the counsel. We shall give a
gist thereof. On behalf of some of the appellants, senior
C advocate Mr. Choubey submitted that the appellants have been
appointed under Rule 4(a) of the Rules of 2001. Placing heavy
reliance on Rule 25 thereof, he submitted that the appellants
are entitled to be treated on par with the first list of 17
appointees. Counsel submitted that the appellants have already,
D a decade back, passed the rigorous examination comprising
preliminary test, main written test, viva-voce test and orientation
course. The 17 persons who have undergone the same course
are working as District Judges in the cadre. Counsel submitted
that the appellants should not, therefore, be made to undergo
E any more tests. Relying on the Central Inland Water Transport
v. Brojo Nath Ganguly3; O.P. Sing/a v. Union of lndia4; Rudra
Kumar Sain v. Union of lndia5 and D. Ganesh Rao Patnaik
v. State of Jharkhand6, counsel submitted that the appellants
are performing the same duties as are being performed by the
F
regular ADJs. Therefore, their description as ex-cadre,
temporary or ad hoc is unjustified. The appellants did not
agitate the same issue as their names were shown in the
seniority list consistently. Counsel submitted that from the record
produced by the High Court, it is clear that the appellants were
G
appoint~d on anticipated and contemplated vacancies and their
3.
AIR 1986 SC 1571.
4.
(1984) 4 sec 450.
5.
(2000) 8 sec 25.
H 6.
(2005) 8 sec 454.
MAHESH CHANDRA VERMA & ORS. v. STATE OF
23
JHARKHAND [RANJANA PRAKASH DESAI, J.]
appointments were legal. Counsel submitted that the impugned
A
judgment is based on case laws relating to specified
vacancies. The impugned judgment, therefore, deserves to be
set aside. Besides, there is inordinate delay and !aches in filing
the petition in the High Court and on that ground alone, the High
Court should have rejected the petition. Counsel's criticism
B
about the High Court's conduct was trenchant. It was submitted .
that unfortunately the High Court has chosen to take
prevaricating and even inconsistent stand at different stages
of the proceedings. In this connection counsel relied on B.
Prabhakar Rao and others v. State of Andhra Pradesh and c
others7 and Hari Bansh Lal v. Sahadar Prasad Mahto and
others8• Finally, counsel submitted that in light of Brij Mohan
Lal v. Union of India & Ors. (Brij Mohan Lal-(1/)9, the services
of the appellants must be regularized.
10. Mr. Sharma, learned counsel appearing for some of D
the appellants, submitted that from the documents, copies of
which have been produced by the High Court and also from the
submissions of the State of Jharkhand, it is clear that the
vacancies of FTCs were anticipated and contemplated and that
the appellants were in the select list of the examination process
E
conducted in pursuance to advertisement dated 23/05/2001.
The process of appointment cannot be said to have been
· completed after appointment of first lot of 17 as the posts of
FTC Judges was still to be filled-up and the panel was valid
for a year. Counsel submitted that the High Court never intended
F
that the appointments would be ex-cadre appointments.
Selection letters issued by the High Court state that names of
the appellants have been included in the select list of Jharkhand
Superior Judicial Service for appointment as ADJs, but
appointment shall, initially be on ad hoc basis in the regular
G
scale of ADJ. The selection letters further state that the
7.
1985 (Suppl) sec 432.
8.
c2010) 9 sec 655.
9.
(2012) 6 sec 502.
H
24
SUPREME COURT REPORTS
[2012] 9 S.C.R.
A appointments were likely to continue and in the first instance
they will be posted as Presiding Officers of the FTCs. Counsel
submitted that from the selection letters it is clear that the
appointments were ad hoc initially, but were likely to continue
and were, in fact, substantive appointments.
B
11. Counsel pointed out that the notification of creation of
the posts of FTCs does not state that these posts will be excadre posts. Notification of appointments which mentions the
word ex-cadre was issued subsequently. The appellants ha_ve
C left their jobs, attended the orientation course and completed
it successfully. Counsel urged that this court should go by the
rules of appointment, the manner of appointment and the nature
of work performed by the appointees and not by the
subsequent nomenclature of deployment occurring in the letters
of appointment which fall within the exclusive domain of the
D employer against which the appointees had no bargaining
power.
12. Counsel submitted that the case of the appellants is
on much better footing than those FTC Judges who were
E before this Court in Brij Mohan Lal-II because those FTCs were
not appointed after completing the process stipulated in the
rules for regular ADJs. Their appointments were under special
schemes. They were appointed either after they took cursory
written examination followed by an interview or only on the basis
F of interview and none of them underwent the orientation course.
Counsel pointed out that the appellants in this case were
selected after exhaustive process provided in the Rules of 2001
for appointment of regular ADJs. In addition to sessions trial,
they were also doing the work of civil appeals, criminal appeals,
G revisions and MACT cases etc. The 17 officers who underwent
the same process of selection are still in the service and are
holding the posts of District Judges in selection grade. It will
not be, therefore, proper to make the appellants take the written
examination or viva voce for their confirmation. Counsel
H submitted that this court should direct the State of Jharkhand
MAHESH CHANDRA VERMA & ORS. v. STATE OF
25
JHARKHAND [RANJANA PRAKASH DESAI, J.]
and the High Court of Jharkhand to regularize the services of A
the appellants with all consequential benefits.
13. Shri Amrendra Sharan, senior counsel on behalf of
appellant-Sanjay Kumar Chandhariyavi, submitted that finding
of the High Court that there was no anticipated vacancy as on
B
the date of advertisement is ex-facie wrong. He submitted that
from the Full Court Resolution dated 07/10/2001 and affidavit
of the High Court dated 07/08/2012 it is clear that the High
Court was conscious of anticipated vacancies. Because the
High Court wanted to take into account the anticipated C
vacancies, it deliberately did not mention the number of
vacancies in the advertisement. Counsel submitted that cadre
division was not finalized between the State of Bihar and State
of Jharkhand, therefore, quota of direct recruits and vacancy
of direct recruits could not be ascertained. Counsel pointed out
D
that as per Rule 21 of the Rules of 2001 the select list is valid
for a period of one year from the date of the notification.
Counsel submitted that unless the number of vacancies is
certain, it cannot be held that examination process started only
for 17 posts of ADJs and with recruitment of 17 ADJs,
recruitment process came to an end. Counsel submitted that
E
the contesting respondents who are from Subordinate Services
could not participate in the process of direct recruitment from
Bar and hence, they had no locus to file petition in the High
Court. Relying on Narender Chandha & Ors. v. Union of India
& Ors. 10, N.K. Chauhan & Ors. v. State of Gujrat & Ors. 11 and
F
G. S. Lamba & Ors. v. Union of India & Ors. 12, counsel
submitted that as per Rule 5 of the Rules of 2001 quota can
be deviated in either direction. As the appointments have been
made on the recommendation of the High Court by the
Jharkhand Government, there is deemed relaxation of quota.
G
Counsel submitted that this is supported by the averment made
by the High Court in its affidavit to the effect that total number
10. (1986) 2 sec 157.
11. (1977) 1 sec 308.
12. (1985) 2 sec 604.
H
26
SUPREME COURT REPORTS
[2012) 9 S.C.R.
A of vacancies sought to be filled through advertisement dated
23/5/2001 was 46. Counsel pointed out that as initially
appointment of Shri Chandhariyavi was not for fixed period of
five years but appointment was with further stipulation to the
effect that regarding continuity further order would be passed,
B appointment in real sense was not a pure temporary
appointment. Relying on Rudra Kumar Sain v. Union of lndia13
it was urged that Shri Chandhariyavi was appointed after going
through the entire selection process for regular appointment
after recommendation of the High Court under Article 233. He
c tried all types of cases which is sufficient to establish that he
was not appointed for particular purpose. His appointment was
not on ad hoc basis. Counsel submitted that as per Rule 3 of
the Rules of 2001, cadre strength and composition of the
service along with pay-scale of different categories have not
0
been specified by the State Government in consultation with the
High Court. Seniority of 20 promotees and 10 direct recruits
has been fixed which is sufficient to establish that Shri
Chandhariyavi is holding cadre post. Counsel submitted that it
was not the intention of the Jharkhand State to create courts
E only for sessions trial, if that was so, there would have been no
mention of Sections 13 and 14 of the Bengal Agra and Assam
Civil Court Act, 1887, which deals with powers of ADJ to deal
with civil matters. The notification contains the words "in
supersession of all previous orders issued on the subject".
Pertinently, all previous orders are regarding regular courts.
F
Besides, the notification did not mention that 89 posts would
be ex-cadre posts. Counsel submitted that Public Prosecutor
can apply for the post in the Higher Judicial Services. They are
eligible for recruitment under Article 233. In support of this
submission he relied on Satya Narain Singh v. High Court of
G Judicature at Allahabad & Ors. 14, Sushma Suri v. Govt. of
National Capital Territory of Delhi & Anr. 15 and Satish Kumar
13. c2000) 8 sec 25.
14. (1985) 1 sec 225.
H 15. (1999) 1 sec 330.
MAHESH CHANDRA VERMA & ORS. v. STATE OF
27
JHARKHAND [RANJANA PRAKASH DESAI, J.]
Sharma v. Bar Council of H.P16.