# TELANGANA JUDGES ASSOCIATION & ANR v. UNION OF INDIA & ORS

- **Citation:** [2018] 13 S.C.R. 176
- **Court:** Supreme Court of India
- **Decided:** 2018-10-03
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/telangana-judges-association-anr-v-union-of-india-ors-32457
- **Pages:** 41

## Headnote

Judiciary: Subordinate judiciary - Recruitment process -
Allocation of subordinate judicial officers to the different cadres in
two States-State of Andhra Pradesh and State of Telangana - Draft
guidelines by respondent no. 1 whereby allocation shall be done in
the order of seniority as available on 02.06.2014 and preference
shall be given first to those who have applied for the State in which
the District declared by them at the time of entering service falls -
After consideration, submission of modified guidelines by the High
Court - Approval of the principles of allocation and officers to be
considered for allocation in the following order, those who have
opted and are senior; those who have opted for the State in which
the district declared by them at the time of entering service falls;
and if allocable posts still remain then allocation to be done in the
reverse order of seniority - Petitioners' case that draft framed by
respondent no. 1 protected the interest of Judicial Officers of
Telangana whereas modified guidelines by the High Court are
prejudicial to the rights of the Judicial Officers of the State of
Telangana - Held: When for entering into Judicial Service, no
condition can be put regarding residence of particular area for
allocation of a State, consequent to Act, 2014, nativity cannot be
sole basis - Judicial Officers belonging to Telangana territorial
area may have desired or expectation to choose or to opt for their
cadre in Telangana area, which is a legitimate aspiration, but giving
pre-dominance to nativity only is not spelled from any statutory
provision or scheme - Aspiration of petitioners that no senior
officer, should come to State of Telangana, which may mar their
prospect of promotion is neither in accord with the constitutional
scheme nor as per ethos of culture of this country - High Court
while formulating the guidelines has tried to balance the right of
option of each Judicial Officer - All the Judicial Officers belonging
to Telangana State have opted and allocated the Telangana State -
[2018] 13 S.C.R. 176
176
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Thus, the Modified guidelines does not suffer from any illegality or
error - Said guidelines is to be accepted and approved - Authorities
directed to finalise options of all the Judicial Officers as per the
modified guidelines and complete the process of allocation within
the stipulated period - Andhra Pradesh Re-organisation Act, 2014
- ss. 77 and 80 - Constitution of India - Art. 371D.
Disposing of the matters, the Court
HELD: 1.1 For preparing guidelines for allocation of the
Judicial officers, the views of the High Court are not to be ignored
and the Union of India, Department of Personnel & Training, has
rightly given due weight to the views of the High Court for
allocation. However, the scheme of the Andhra Pradesh Reorganisation Act, 2014 indicates that final allocation Order is to
be issued as per the statutory provisions, by the Central
Government. The coverage of Section 77 is "Every person who
immediately before the appointed day is serving on substantive
basis in connection with the affairs of the existing State of Andhra
Pradesh..." The coverage of Section 77 is in very wide term which
includes every person who is serving in connection with the affairs
of the existing State. There can be no denial that Judicial Officers
working in the Sub-ordinate Judiciary are serving in connection
with the affairs of the existing State. Thus, there cannot be any
denial that Section 77 also clearly covers the sub-ordinate
judiciary of the State and final allocation Order has to be issued
by the Central Government after due consultation with the High
Court. [Para 39][203-D-F]
1.2 The High Court in preparing draft guidelines and
thereafter issuing modified guidelines for allocation of cadre of
Judicial Officers was well within its jurisdiction and its views
required due weight in giving effect to the provisions of Section
77 of the Act. Section 80 expressly indicates that i

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TELANGANA JUDGES ASSOCIATION & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 85 of 2015)
OCTOBER 03, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Judiciary: Subordinate judiciary - Recruitment process -
Allocation of subordinate judicial officers to the different cadres in
two States-State of Andhra Pradesh and State of Telangana - Draft
guidelines by respondent no. 1 whereby allocation shall be done in
the order of seniority as available on 02.06.2014 and preference
shall be given first to those who have applied for the State in which
the District declared by them at the time of entering service falls -
After consideration, submission of modified guidelines by the High
Court - Approval of the principles of allocation and officers to be
considered for allocation in the following order, those who have
opted and are senior; those who have opted for the State in which
the district declared by them at the time of entering service falls;
and if allocable posts still remain then allocation to be done in the
reverse order of seniority - Petitioners' case that draft framed by
respondent no. 1 protected the interest of Judicial Officers of
Telangana whereas modified guidelines by the High Court are
prejudicial to the rights of the Judicial Officers of the State of
Telangana - Held: When for entering into Judicial Service, no
condition can be put regarding residence of particular area for
allocation of a State, consequent to Act, 2014, nativity cannot be
sole basis - Judicial Officers belonging to Telangana territorial
area may have desired or expectation to choose or to opt for their
cadre in Telangana area, which is a legitimate aspiration, but giving
pre-dominance to nativity only is not spelled from any statutory
provision or scheme - Aspiration of petitioners that no senior
officer, should come to State of Telangana, which may mar their
prospect of promotion is neither in accord with the constitutional
scheme nor as per ethos of culture of this country - High Court
while formulating the guidelines has tried to balance the right of
option of each Judicial Officer - All the Judicial Officers belonging
to Telangana State have opted and allocated the Telangana State -
[2018] 13 S.C.R. 176
176
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Thus, the Modified guidelines does not suffer from any illegality or
error - Said guidelines is to be accepted and approved - Authorities
directed to finalise options of all the Judicial Officers as per the
modified guidelines and complete the process of allocation within
the stipulated period - Andhra Pradesh Re-organisation Act, 2014
- ss. 77 and 80 - Constitution of India - Art. 371D.
Disposing of the matters, the Court
HELD: 1.1 For preparing guidelines for allocation of the
Judicial officers, the views of the High Court are not to be ignored
and the Union of India, Department of Personnel & Training, has
rightly given due weight to the views of the High Court for
allocation. However, the scheme of the Andhra Pradesh Reorganisation Act, 2014 indicates that final allocation Order is to
be issued as per the statutory provisions, by the Central
Government. The coverage of Section 77 is "Every person who
immediately before the appointed day is serving on substantive
basis in connection with the affairs of the existing State of Andhra
Pradesh..." The coverage of Section 77 is in very wide term which
includes every person who is serving in connection with the affairs
of the existing State. There can be no denial that Judicial Officers
working in the Sub-ordinate Judiciary are serving in connection
with the affairs of the existing State. Thus, there cannot be any
denial that Section 77 also clearly covers the sub-ordinate
judiciary of the State and final allocation Order has to be issued
by the Central Government after due consultation with the High
Court. [Para 39][203-D-F]
1.2 The High Court in preparing draft guidelines and
thereafter issuing modified guidelines for allocation of cadre of
Judicial Officers was well within its jurisdiction and its views
required due weight in giving effect to the provisions of Section
77 of the Act. Section 80 expressly indicates that in carrying
exercise by the Central Government as contemplated under
Section 77, there has to be fair and equal treatment to all persons
affected by the provisions of Part VIII of the Act. The guidelines
for allocation of cadre should ensure fair and equal treatment
to all persons affected and they should also conform the
equality clause as enshrined in Article 14 of the Constitution.
[Para 40, 42][203-G; 204-A, B]
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA
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1.3 Special provisions were introduced by way of Article
371D of the Constitution. Now, by virtue of Act, 2014 in place of
the State of Andhra Pradesh "the State of Andhra Pradesh or the
State of Telangana" has been substituted. The basis for Article
371D is to provide equal opportunity to the people of Andhra
Pradesh by introducing domicile as the basis for appointment to
services and admissions in educational institutions, however,
Article 371D has no application in respect of the appointment to
the posts of District Judges and Judges Subordinate thereto, in
view of the constitutional scheme of separation of powers and
express provisions having been made by the Constitution.
[Para 44, 46][204-H; 205-A; 206-H; 207-A-B]
Chief Justice of Andhra Pradesh & Ors. v. L.V.A. Dixitulu
& Others (1979) 2 SCC 34 : [1979] 1 SCR 26 -
referred to.
1.4 Petitioners have referred to guideline No. 18(f) of the
Kamalanathan Committee determining principles guiding
allocations read with guideline No. 18(n), which also read with
the Andhra Pradesh Public Employment Order, 1975 gives
preference in allocation to those who have opted and who are
local candidates to be allocated to that State in which they are
local candidates. The said order dated 29.10.1975 issued under
Article 371D has been relied. The guidelines formulated by
Kamalanathan Committee in context of other Civil Services are
not relevant nor any support can be taken on the basis of said
guidelines. [Paras 48, 49][209-F-H]
1.5 The nativity for public employment runs counter to the
fundamental right guaranteed under Article 16(2) except when it
is provided by a Parliamentary Law as per exception carved out
in Article 16(3) of the Constitution. In Act, 2014, there is no
provision, which expressly provides for allotment of the State on
the basis of place of birth or residence. Sections 77, 78 and 79 of
the Act do not refer to allotment on the basis of place of birth.
When for entering into Judicial Service, no condition can be put
regarding residence of particular area for allocation of a State,
consequent to Act, 2014, nativity cannot be sole basis, as is
contended by the petitioner. It is true that the State of Telangana
stand formed to realise the democratic aspirations of the people
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of Telangana. The Statement of Objects and Reasons of Act, 2014,
which clearly establish that the creation of a separate State of
Telangana is for the betterment of the social, economic, political
and other aspirations of the people of that region, which
contemplated allocation of separate State of Telangana. The entire
Statement of Objects and Reasons does not indicate that with
respect to public employment, nativity is to play a dominant role.
It is true that Judicial Officers belonging to Telangana territorial
area may have desired or expectation to choose or to opt for
their cadre in Telangana area, which is a legitimate aspiration,
but giving pre-dominance to nativity only is not spelled from any
statutory provision or scheme. [Para 51][210-G-H; 211-A-D]
J. Panduranga Rao v. Andhra Pradesh Public Service
Commission [1963] 1 SCR 707 - referred to.
1.6 When a Judicial Officer has been given a right of option
to choose either of the successor State, right of option has to be
given same meaning and content. Right of option can be defeated
only when there is some impediment in accepting the option.
The seniority of a Judicial Officer is a first criteria for accepting
the option. The seniority in a service is a valuable right of an
employee or officer. In service jurisprudence, several benefits
and perquisites are attached to the seniority. The petitioners are
asking that option be accepted not on the basis of seniority but
only on the basis of nativity, i.e. those who are senior even if they
opt the State option, their option should not be selected and option
of those should be first accepted, who are natives of Telangana.
The petitioner's apprehension is that in event option of senior
officers are accepted and they are posted in State of Telangana,
the future prospects of promotion of the petitioners shall be
marred. Whether the officers, who in the seniority list, which was
prevalent on the date of formation of new State, i.e. on 02.06.2014
where senior should loose their seniority or their seniority cannot
be said to play any role on account of formation of two successor
States is the question to be answered. The aspiration of petitioners
that no senior officer, should come to State of Telangana, which
may mar their prospect of promotion is neither in accord with the
constitutional scheme nor as per ethos of culture of this country.
The modified guidelines submitted by the High Court and
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accepted by the DoPT itself at second place give preference to
nativity. Thus, the High Court while formulating the guidelines
has tried to balance the right of option of each Judicial Officer.
[Para 54][212-B-F]
The State of Mysore and another v. G.N. Purohit and
others (1967) SLR 753; Mohammad Shujat Ali and
Others v. Union of India [1975] SCR (1) 449 - referred
to.
Black's Law Dictionary Tenth Edn. P 1268; Advanced
Law Lexicon by P. Ramanatha Aiyar - referred to.
1.7 The draft guidelines, which were initially circulated by
the High Court on 26.02.2016 has in the first sentence stated
"the allocation shall be done in the order of seniority as available
on 02.06.2014." The second sentence read "Preference shall be
given first to those who have applied for the State in which the
District declared by them at the time of entering service falls".
The above draft guidelines has only been amplified retaining the
initial concept of accepting option on the basis of seniority. Both
the concept are now reflected in modified guidelines as guideline
No. 5(1) and 5(2). Thus, the submission that guidelines have been
substantially changed by the High Court without there being any
reason cannot be accepted. The substance of the guidelines are
same, which were initially contained in the draft guidelines and
modified guidelines. It was the DoPT, which has proposed
guidelines, where content clause 5.2 was 5.1 of modified
guidelines were proposed as 5.1 was 5.2, which was not
accepted by the High Court and Full Court reiterated their earlier
principle, which was initially encapsuled in draft guidelines.
[Para 56][214-G-H; 215-A-B]
1.8 Chart indicating the details of options and showing
details of Judicial Officers working in both the States of Andhra
Pradesh and Telangana from 02.06.2014 and the acceptance
position of their option has been submitted by the High Court,
which indicate that all Judicial Officers belonging to territorial
area of Telangana region have been allocated Telangana State
and the option of all the Judicial Officers, who have opted for
Telangana State have been accepted. [Para 57][215-C-D]
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1.9 All the Judicial Officers belonging to Telangana State
having opted and allocated the Telangana State, practically, there
is no error in the operation of guidelines finalised by the High
Court. Modified guidelines as submitted by the High Court vide
letter dated 08.07.2017, which has been accepted by DoPT does
not suffer from any illegality or error. The said guidelines is to be
accepted and approved. The respondents are directed to finalise
options of all the Judicial Officers as per the above guideline and
complete the process of allocation within the stipulated period.
[Para 58, 59][215-E-G]
1.10 In the Civil Appeals, appellants have not pressed the
quashing of Recruitment 2014 and 2015. Further, Andhra Pradesh
Judicial Service Rules, 2007 as adopted by State of Telangana,
which was quashed by the High Court is now substituted by fresh
Rules namely, Telangana State Judicial Service Rules, 2017. All
the issues raised in the Civil Appeals have become academic
and needs no consideration. [Para 60][216-A]
State of U.P. v. Batuk deo Pati Tripathi (1978) 2 SCC
102; State of Bihar and Another v. Bal Mukund sah
and Others (2000) 4 SCC 640 : [ 2000] 2 SCR 299;
Mangal Singh v. Union of India (1967) 2 SCR 109 -
referred to.
Case Law Reference
[1979] 1 SCR 26
referred to
Para 32, 46, 47
(1978) 2 SCC 102
referred to
Para 33
[2000] 2 SCR 299
referred to
Par 34
[1967] 2 SCR 109
referred to
Para 36
[1963] 1 SCR 707
referred to
Para 50
[1967] SLR 753
referred to
Para 54
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
85 of 2015
Under Article 32 of the Constitution of India.
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA
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Maninder Singh, Ms. Pinky Anand, ASGs, Salman Khurshid,
Huzefa Ahmadi, Harin P. Raval, R. Venkatramani, V. V. S. Rao,
B. Adinarayana Rao, Sr. Advs., Ms. Bina Madhavan, T. Sudhakar Reddy,
Krishna K. Singh, Rohan Sharma, Ms. Alisha Panda, Ms. Ayesha Jamal,
Mrs. Elizabeth Antony, M. P. Shorawala, S. Udaya Kumar Sagar,
Mrityunjai Singh, Ms. Divya Anand, Aditya P. Arora, Ms. Anitha Shenoy,
Ms. Srishti Agnihotri, Yashraj B, Praveen Vignesh, Ms. Remya Raj, R.
Balasubramanian, Ms. Vimla Sinha, A. K. Sharma, Ms. Aarti Sharma,
Prabhas Bajaj, Ms. Kanika S., Mukesh Kumar Maroria, Ms. Prerna
Singh, Prashant Mathur, Guntur Prabhakar, Ms. Saudamini Sharma,
Nishant Katneshwarkar, Y. Raja Gopala Rao, Ms. Y. Vismai Rao, K.
Sharat Kumar, Ms. M. Yesasvi, C. S. N. Mohan Rao, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. The bifurcation of lower judiciary by State wise strength of
combined State of Andhra Pradesh, consequent to the Andhra Pradesh
Reorgnisation Act, 2014 is the issue which has arisen in these two cases
which have been heard together and are being decided by this common
judgment.
Facts: Writ Petition (C) No.85 of 2015
3. The writ petition has been filed by the Telangana Judges
Association, a registered forum, formed to protect the interest of the
Judicial Officers of State of Telangana. The petitioner has challenged
the recruitment process initiated by the High court of the Judicature at
Hyderabad for the State of Telangana and the State of Andhra Pradesh
(hereinafter referred to as 'the High Court') for filling up the post of
Civil Judge (Junior Division). The petitioner's case is that consequent to
the Andhra Pradesh Reorganisation Act, 2014(hereinafter referred to
as 'Act, 2014') with effect from 02.06.2014 a new State has been formed,
namely, State of Telangana without permitting the option envisaged in
Section 77(2) of the Act, 2014 and without bifurcation of subordinate
judiciary the recruitment process has been initiated which is not in
accordance with law. Petitioner's case is that from the establishment of
the High Court of Andhra Pradesh in the year 1956, there has been
inadequate representation of Telangana Judges in the cadres of Junior
Civil Judges, Senior Civil Judges, District Judges and even Judges of
the High Court. The impugned notification issued by respondent No.2
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without constituting Telangana State Judicial Service and without
preparing State wise cadre strength of respective States would affect
the seniority as well as promotion of the Telangana State Judicial Officers
whose strength is at present 25% only in comparison with Andhra Pradesh
State Judicial Officers.
4. An advertisement dated 01.02.2014 for recruitment for 97
vacancies of Civil Judges (Junior Division) was published. The preliminary
written examination was notified for 27.04.2014. The State of Telangana
was created as the 29th State of the Union of India by the Act, 2014 on
01.03.2014. A representation was submitted to stop the recruitment
process as the Central Government had announced, 02.06.2014, the date
for the formation of Telangana State. The High Court put on hold the
selection process till a clarification is obtained from this Court. An
application was filed by the High Court in C.A. No.1867 of 2006 (Malik
Mazhar Sultan & Ors. vs. Union Public Service Commission & Ors.) on
which this Court on 07.07.2014 passed an order permitting the status
quo. However, this Court in Malik Mazhar Sultan passed an order on
20.01.2015 clarifying that the process already initiated for recruitment
of Judicial Officers in the States of Andhra Pradesh and Telangana by
the High Court be proceeded with. The Chief Justice of the High Court
had constituted a Committee of Judges, which Committee decided to
ask the Judicial Officers in the State of Andhra Pradesh to exercise
option with respect to the newly formed States. Writ Petition(C)No.403
of 2014(Dumpala Dharma Rao vs. High Court of Andhra Pradesh &
Ors.) was also filed in this Court challenging the proposed action of the
High Court calling for the option of Judicial Officers. An application for
impleadment by Telangana Judges Association has been allowed in Writ
Petition No.403 of 2014. Petitioners have also submitted suggestions for
the purpose of final guidelines for allocation of States services to the
Principal Secretary, Government of Andhra Pradesh. Petitioners also
submitted representation to the Joint Secretary, Department of Personnel
& Training, Government of India dated 02.12.2014 requesting that the
guidelines issued by the Government of India may be made applicable to
the Personnel of Subordinate Judiciary and to take necessary expeditious
steps for allocation of members of Subordinate Judiciary.
5. In the writ petition petitioner has made the following prayers:
"(i) Issue writ/writs including a writ in the nature of Mandamus
directing the respondents to bifurcate the Lower Judiciary from
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA
[ASHOK BHUSHAN, J.]
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the erstwhile Andhra Pradesh State Judicial Service and to
constitute the Telangana Judicial Service under Articles 233 and
234 of the Constitution of India and fix the cadre strength of each
State;
(ii) Issue writ/writs including a writ in the nature of certiorari
quashing the Notification dated 05.02.2015 and Notification No.54/
2015-RC dated 09.02.2015 issued by the Hon'ble High Court of
Judicature at Hyderabad for the State of Telangana and the State
of Andhra Pradesh; and
(iii) pass such other order or orders as are deemed fit and
necessary in the interest of justice."
Civil Appeal Nos...............of 2018 (arising out of
SLP(C)Nos.18787-18790 of 2018
6. These appeals have been filed by the State of Telangana against
the Division Bench judgment dated 29.04.2016 of the High Court of
Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh (herein after referred to as 'the High Court') deciding
Public Interest Litigation No.31 of 2015 with three other Writ Petitions.
In the Public Interest Litigation filed before the High Court following
prayer was made:
 "I therefore pray that this Hon'ble Court may be pleased to
issue a Writ, order or direction, more particularly one in the nature
of a Writ of Mandamus declaring the action of respondents in not
bifurcating the Subordinate Judicial Officers and other Judicial
Officers of the erstwhile State of Andhra Pradesh as per Section77
of Andhra Pradesh Reorganisation Act, 2014 and not distributing
Subordinate Judicial Officers and other employees to the State of
Telangana and to the State of Andhra Pradesh and issuance of
impugned notification No.15/2014-RC dated 01.02.2014 and
consequential notification No.54/2014-RC dated 05.02.2014 of the
second respondent as null and void, arbirary, illegal and violative
of Articles 233 and 234 of Constitution of India and Part VIII of
A.P. Reorganisation Act, 2014 and consequently direct respondents
to distribute the subordinate judicial officers and other judicial
employees to both the States and only thereafter make
recruitments to the Subordinate Higher Judicial Service and Judicial
Service and pass such other order or orders as this Hon'ble Court
may deem fit and proper."
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7. The High Court after elaborately considering all the issues
dismissed all the writ petitions. The State of Telangana has by a notification
adopted Andhra Pradesh Judicial Service Rules, 2007 without making
any consultation with the High Court. The recruitment process initiated
by the notification in the year 2014 for 97 posts of Civil Judges and
recruitment process for 34 posts in pursuance of 2015 notification were
completed. After completing the entire process of selection during
pendency of the writ petitions, the High Court noticed in the judgment
that the ratio of Judicial Officers selected are in the ratio of 60 : 40 per
cent. While dismissing the Public Interest Litigation and Writ Petitions,
the High Court in paragraph 18 held:
"18. In the result, the Public Interest Litigation and the Writ Petitions
are dismissed. The respondent - High Court shall compete the
process of recruitment initiated in pursuance of 2014 and 2015
Notifications. The respondent - State Governments are directed
to take all necessary steps for appointments of the selected
candidates, recommended by the High Court at the earliest. 2015
Rules shall not be acted upon and shall not operate since they
were not made in consultation with the High Court as provided
for under Article 234 of the Constitution. It is open to the State of
Telangana to take steps to adapt 2007 Rules afresh, in exercise of
the powers under Section 101 of the Act, in consultation with the
High Court."
8. When these appeals(SLPs) were filed against the judgment of
the High Court dated 29.04.2016, this Court on 15.07.2016 directed these
appeals to be listed along with Writ Petition (C)No.85 of 2015.
This Court on 18.07.2016 took up both, the writ petitions and these
appeals and after hearing learned counsel for the parties passed a detailed
order on 28.04.2017 where this Court issued following directions:
"....In the background of the above mentioned suggestion, we
deem it appropriate to direct that the guidelines issued by the
existing High Court be treated as the draft guidelines for the purpose
of allotment of the judicial officers to the different cadres in two 4
states. Telangana Judges Association and the State of Telangana
as well as the State of Andhra Pradesh and any one of the judicial
officers subject to the control of the existing High Court and not
belonging to Telangana Judges Association either individually or
in their representative capacity may make suggestions within a
TELANGANA JUDGES ASSOCIATION v. UNION OF INDIA
[ASHOK BHUSHAN, J.]
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period of four weeks from today. Any representation made by
anyone of the above mentioned bodies shall be made both to the
Government of India and the existing High Court and also the
copies of the same shall be furnished simultaneously to all the
parties before this Court in these two matters.
 The Union of India shall thereafter examine the various
suggestions made by anyone of the above mentioned bodies and
prepare the draft guidelines in consultation with the existing High
Court on or before the 17th of June, 2017 and place the draft
guidelines before this Court on the next date of hearing for
appropriate further orders."
9. Consequent upon the above order dated 28.04.2017 an affidavit
of compliance has been filed by the Union of India. In pursuance of the
order of this Court dated 28.04.2017 respondent No.1 prepared a draft
guidelines for allocation of Subordinate Judicial Officers which was
submitted to the High Court. The High Court after consideration of the
draft guidelines and other inputs decided to submit a revised guidelines.
The revised guidelines as suggested by the High Court have been brought
on record as Encl.E to the affidavit of the Union of India filed in
compliance of order dated 28.04.2017. For the purposes of this case, we
need only to notice the modified guidelines submitted by the High Court
in reference to which submissions have been made by the learned counsel
for the petitioners. The draft sent by the Department of Personnel &
Training and as modified by the High Court and final decision taken by
the respondent has been filed in the Tabular form. Relevant part of
paragraphs 7, 8 and 9 of the affidavit of Union of India may also be
noticed which are as follows:
"7. It is humbly submitted that the Ld. Registrar General of the
Hon'ble High Court of Judicature at Hyderabad, vide letter dated
8.7.2017, had forwarded the modified guidelines and the option
form as approved by the Hon'ble High Court, for further necessary
action. The Draft Guidelines, thus duly modified by the Hon'ble
the High Court, as stated above, is annexed as ANNEXURE-D.
8. It is respectfully submitted that while the Hon'ble High Court
has accepted most of the Principles for allocation as incorporated
by the Central Government in the Draft Guidelines, a few
modifications have been made by the Hon'ble High Court. The
significant modification(s) inter-alia include as under:-
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a.
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b.
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...
...
c. Modification in descending order of Priority of the
principles to be adopted for allocation of empoloyee by
the Full Court.
The Hon'ble existing High Court of Judicature at
Hyderabad has modified the Central Government guidelines
and approved the principles of allocation as under:
(a) those who have opted and are senior;
(b) those who have opted for the State in which the district
declared by them at the time ofentering service falls;
(c) if allocable posts still remain, then allocation would be
done in the reverse order of seniority.
 The above modifications have been approved by the Full Court
of the Hon'ble existing High Court. The DoPT, Govt. of India
accepts the above-mentioned modifications which have been
approved by the Hon'ble existing High Court.
9. The draft guidelines as modified by the Hon'ble High Court
and received by the DoPT [vide letter dated 8/7/2017] alongwith
the Department's proposed modification as mentioned in para 8(a)
above, is submitted for consideration of this Hon'ble Court, in
compliance with this Hon'ble Court's order dated 28/4/2017. This
Affidavit is submitted on behalf of the DoPT, Govt. of India in
compliance with the order dated 28.04.2017 for kind consideration
by this Hon'ble Court towards finalization of the Guidelines for
allocation/ distribution of judicial officers between the two States."
10. Shri Salman Khurshid and Shri Huzefa Ahmadi, learned senior
counsel have appeared for the writ petitioners. Shri R. Venkatramani
has appeared for the High Court. Shri Maninder Singh, learned Additional
Solicitor General of India has appeared for Union of India. Shri V.V.S.
Rao, learned senior counsel has appeared for the State of Andhra
Pradesh. Shri B. Adinarayana Rao, learned senior counsel has appeared
for the Andhra Pradesh Judicial Officers Association. We have also
heard learned counsel for the State of Telangana.
11. Learned counsel for the parties have confined their submissions
only to the guidelines for allocation as modified by the High Court.
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12. Shri Salman Khurshid and Shri Huzefa Ahmadi learned senior
counsel appearing for the petitioners contends that modified guidelines
issued by the High Court whereunder option of those who are senior has
to be first accepted, causes prejudice to officers of Telangana. It is
submitted that the ratio of Judicial Officers from Telangana as compared
to those from State of Andhra Pradesh has always been less. The main
object of bifurcation of existing State of Andhra Pradesh and formation
of Telangana State is for betterment of socio-economic conditions and
to fulfill the political and other aspirations of the people of Telangana
and to do the justice to the people of Telangana on various fronts. The
High Court by modifying the guidelines for accepting the option had
watered down the enactment of Act, 2014. The guidelines proposed by
DoPT for option were fully acceptable to the petitioners where initially
in accepting the option preference was to be given to those who had
opted to the State in which District declared at the time of service falls,
which has been subsequently modified by the High Court. He submitted
that by permitting seniors to opt for State of Telangana, there being large
number of senior Judicial Officers from Andhra Pradesh, the prospects
of promotion of Officers who belong to Telangana region is being marred
which will be nothing but perpetuating the injustice meted out to them.
13. Learned counsel for the petitioners has also come up with a
submission that Judicial Officers belonging to State of Andhra Pradesh
may be accommodated in the State of Telangana on deputation basis.
The Officers who have opted State/District of Telangana can be sent
back in the native State of Andhra Pradesh. It is submitted that by the
said suggestion no prejudice will be caused to either of the parties. The
petitioner has also relied on proviso to Section 77(2) of the Act, 2014 in
support of their submission.
14. The petitioners have also relied on Article 371D of the
Constitution which according to the petitioners was inserted to give
recognition to the aspirations of the people of Andhra Pradesh. Article
371D permits domicile as the basis for appointment to the services.
15. Shri Maninder Singh, learned Additional Solicitor General of
India submits that Union of India has already filed compliance affidavit
in pursuance of the order dated 28.04.2017 and the Union of India will
implement the guidelines for allocation which may be approved by this
Court. Although, Department of Personnel & Training has accepted the
revised guidelines submitted by the High Court submitted with the approval
of the full Court as has been indicated in the compliance affidavit.
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16. Shri R.Venkatramani, learned senior counsel appearing for
the High Court submits that it is the High Court which has control over
the Subordinate Judiciary as per the constitutional scheme which has to
lay down the guidelines for allocation of State. The High Court while
finalising the guidelines has taken a fair and equitable decision for all
Judicial Officers. It is submitted that domicile has not been provided as
any special factor for allocation and the emphasis on domicile as exclusive
criterion to allocation cannot be sustained. The declaration given by the
Officers at the time of entering into the service relating to home District
in the context of service requirement cannot be exhorted to the status of
criteria or norm.
17. It is further submitted that submission of the petitioner that
Judicial Officers pertaining to State of Telangana are much less as
compared to State of Andhra Pradesh, is not fully correct. It is submitted
that recruitment of Judicial Officers is on all India basis, Officers from
other States including Karnataka, Orissa, Bihar, Tamil Nadu are also in
the service and in allocation of State, thus nativity or home District
declared cannot serve any substantial basis. Shri Venkatramani submits
that in effect there is no difference in allocation of cadre in respect to
those who had declared District in the State of Telangana as there home
District and under both, the guidelines that is unrevised and revised the
result is same. During the course of submission, Shri Venkatramani was
permitted to submit a chart reflecting the position of allocation of all
Judicial Officers as per their options. The above chart has also been
submitted by the learned counsel for the respondent.
18. Shri B. Adinarayana Rao, learned senior counsel appearing
for Andhra Pradesh Judicial Officers Association submits that the High
Court has exclusive power and jurisdiction over District Courts and
Subordinate Courts thereto. In the Constitutional scheme as delineated
by Article 235, it is the High Court who has control over Judicial Service.
In allocation of the Judicial Officers, it is the High Court which is
competent to finalise guidelines and the revised guidelines submitted by
the High Court are perfectly in accordance with law. The due weightage
to the seniority of the Judicial Officers have to be given which seniority
cannot be taken away to prejudice the Judicial Officers. Those Officers
who had been senior in the combined seniority list cannot be made junior
by accepting guidelines for accepting options as contended by the
petitioners. He further submitted that there is no relevance of place of
birth in public employment. He submits that appointment for Judicial
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Service is made on all India basis, hence, petitioners cannot claim any
special privilege and right in the service only on the ground that they are
native of District which now falls in newly created State of Telangana.
Shri Rao further submits that scheme of allotment as envisaged by Part
VIII of Act, 2014 has no application for the allotment of Judicial Officers
of the District Courts and Courts Subordinate thereto. He submits that
power under Article 2, 3 and 4 of the Constitution of India is not absolute.
He submits that revised guidelines approved by the full Court of the
High Court are fully in consonance with Articles 14 and 16 of the
Constitution and protect the rights of Judicial Officers which need no
interference in these writ petitions.
19. The submission on behalf of State of Telangana is that
expression "Affairs of the State" featuring in Section 77 of the Act,
2014 necessarily have to be construed to mean all the three organs of
the State including judiciary. In order to render justice to the service
personnel allotted to the two States and to completely eliminate the
possibility of discrimination it may be prudent to entrust the powers
mentioned in Section 77 to the Central Government because the said
power is in nature of a special power contemplated to meet the exigencies.
The criterion of Domicile is in consonance with the Legislative intent
and the Constitutional spirit embedded in principle of territoriality which
is the heart and soul of any State Reorganisation Act.
20. It has also been brought to our notice that the State of
Telangana has already framed new set of Rules, The Telangana State
Judicial Service Rules, 2017. In view of the framing of the Rules, 2017
and further on completion of recruitment in pursuance of order of this
Court which was challenged in the writ petition before the High Court,
which has been dismissed, nothing survives in the SLP to decide.
21. We have considered the submissions of the learned counsel
for the parties and perused the records.
22. The issue which needs to be considered in the writ petition
lies in the very narrow compass, i.e., whether the revised guidelines as
submitted by the High Court to respondent No.1 for allocation deserve
to be accepted or not. It is useful to notice the guidelines proposed by
the High Court that is initially proposed and modified guidelines.
23. The High Court's guidelines which were initially proposed on
26.02.2016 are as follows:
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"1. The allocation shall be done in the order of seniority as available
on June 02, 2014.Preference shall be given first to those who
have applied for the State in which the District declared by them
at the time of entering service falls."
24. The guidelines dated 26.02.2016 were sent to the Department
of Personnel & Training. Representation and objections were also
submitted to the draft guidelines dated 26.02.2016 proposed by the High
Court. The DoPT after considering the objections and representation to
the proposed guidelines sent proposed guidelines by letter dated 29.06.2017
to the High Court. The High Court deliberated on the proposed guidelines
sent by DoPT and vide its letter dated 08.07.2017 communicated the
modified guidelines. The Union of India in its affidavit filed in compliance
with the order dated 28.07.2017 has brought on record the draft guidelines
as proposed by DoPT, modified guidelines by the High Court and the
decision taken by DoPT in a Tabular Chart filed in Annexure-E to the
affidavit.
25. We may first notice the relevant provisions of Andhra Pradesh
Re-organization Act, 2014 assented by the President of India and gazetted
on 01.03.2014. By Section 3 of the Act, Telangana State was formed
comprising of territories of existing State of Andhra Pradesh of several
districts as enumerated therein. Section 30 provided that on and from
appointed day, High Court of Judicature at Hyderabad shall be the
common High Court for the State of Telangana and the State of Andhra
Pradesh till a separate High Court for the State of Andhra Pradesh is
constituted. Part VIII of the Act dealt with provisions as to Services.
Section 76 dealt with All India Services. Section 77 dealt with other
services and Section 78 contains other provisions related to services.
Section 77 and Section 78 which are relevant are extracted as below:-
 "77. Provisions related to other services:(1) Every person
who immediately before the appointed day is serving on
substantive basis in connection with the affairs of the existing
State of Andhra Pradesh shall, on and from that day
provisionally continue to serve in connection with the affairs
of the State of Andhra Pradesh unless he is required, by
general or special order of the Central Government to serve
provisionally in connection with the affairs of the State of
Telangana:
TELANGANA JUDGES ASSOCIATION v.