# THE GAUHATI HIGH COURT THROUGH THE REGISTRAR GENERAL v. GOTO ETE & OTHERS

- **Citation:** [2018] 10 S.C.R. 261
- **Court:** Supreme Court of India
- **Decided:** 2018-04-23
- **Case number:** Civil Appeal No. 4298 of 2018
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-gauhati-high-court-through-the-registrar-general-v-goto-ete-others-32167
- **Pages:** 28

## Headnote

Judicial Service - Arunachal Pradesh Judicial Service Rules,
2006 - Proviso to r.7 - Consideration for regularisation -
Respondent Nos.1 to 3 were appointed as Additional Deputy
Commissioners with the powers of Additional Sessions Judge, on
contract basis - They were to man Fast Track Courts (FTC) -
Respondents claimed for regularisation to the said posts and to
work as Additional Sessions Judges, invoking the provisions of r.7
of the Rules - However, the Committee consisting of High Court
Judges rejected the claim of the respondents - Thereafter, High
Court issued advertisement on 31.07.2008 for the post of District
and Sessions Judge, in which respondent Nos.2 and 3 appeared
but could not qualify and respondent no.1 did not appear - High
Court took decision on 31.07.2012 to undertake selection process
of the FTC Judges in terms of the Brij Mohan Lal (2) case - None
of the respondents were able to qualify the exam, consequently their
services were dispensed with - Writ Petition filed by the respondents
- High Court set aside the order dispensing the ad hoc services of
the respondents and directed the State to start the consultation
process for absorption of respondents - On appeal, held: The
Committee of High Court Judges was of the opinion that the
respondents were not entitled for appointment to the regular cadre
of the Higher Judicial Service - The said order was not challenged
by the writ petitioners/respondents - Even otherwise, such decision
of the Committee stood vindicated as two respondents who had
appeared in examination vide advertisement dated 31.07.2008 failed
to qualify in the selection process and other respondent did not
appear, and further all the respondents failed to qualify another
test which was conducted pursuant to Brij Mohan Lal (2) case -
This fact pointed out incompetence of the respondents - Proviso to
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r.7 of 2006 Rules provided only to 'consider' the cases of the
respondents for absorption - Cases of the respondents were
considered, but they were not found fit for absorption in the regular
cadre - The proviso never gave any mandate that the respondents
had to be necessarily absorbed.
Allowing the appeal, the Court
HELD: 1.1 It is stated that service records of the writ
petitioners were examined by the Committee consisting of three
High Court Judges and on the said examination the Committee
was of the opinion that the writ petitioners were not entitled for
appointment to the regular cadre of Higher Judicial Service. No
challenge was laid by the writ petitioners to the manner in which
their cases were considered and rejected by the High Court or
that such a consideration suffered from any kind of blemish. Even
otherwise, such a decision of the Committee stands vindicated
inasmuch as:
(i) the two writ petitioners who appeared in the examination
pursuant to an advertisement for the post of Grade-I District and
Sessions Judge failed to qualify in the selection process and the
third writ petitioner did not appear at all; and
(ii) the petitioners even failed to qualify the test which was
conducted pursuant to Brij Mohan Lal (2) in which the writ
petitioners had appeared. This fact is noted just to point out the
incompetence of the writ petitioners. [Para 30] [287-G-H; 288A-C]
1.2 The ratio of Brij Mohan Lal (2) is discussed by this
Court in detail in the case of Mahesh Chandra Verma and there
also the Court was of the opinion that appointment on regular
cadre should be made only on the basis of written examination
etc. as laid down in Brij Mohan Lal (2). [Para 31] [288-D-E]
2.1 Even in terms of proviso to Rule 7 of Arunachal Pradesh
Judicial Service Rules, 2006, the cases of the writ petitioners
were considered, but they were not found fit for absorption in the
regular cadre. [Para 31] [288-E-F]
2.2 Rule 7 of the 2006 Rules, which lays down the procedure
and method of recruitment to the post of Additional Sessions
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Judges

## Text

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[2018] 10 S.C.R. 261
 261
THE GAUHATI HIGH COURT THROUGH
THE REGISTRAR GENERAL
v.
GOTO ETE & OTHERS
(Civil Appeal No. 4298 of 2018)
APRIL 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Judicial Service - Arunachal Pradesh Judicial Service Rules,
2006 - Proviso to r.7 - Consideration for regularisation -
Respondent Nos.1 to 3 were appointed as Additional Deputy
Commissioners with the powers of Additional Sessions Judge, on
contract basis - They were to man Fast Track Courts (FTC) -
Respondents claimed for regularisation to the said posts and to
work as Additional Sessions Judges, invoking the provisions of r.7
of the Rules - However, the Committee consisting of High Court
Judges rejected the claim of the respondents - Thereafter, High
Court issued advertisement on 31.07.2008 for the post of District
and Sessions Judge, in which respondent Nos.2 and 3 appeared
but could not qualify and respondent no.1 did not appear - High
Court took decision on 31.07.2012 to undertake selection process
of the FTC Judges in terms of the Brij Mohan Lal (2) case - None
of the respondents were able to qualify the exam, consequently their
services were dispensed with - Writ Petition filed by the respondents
- High Court set aside the order dispensing the ad hoc services of
the respondents and directed the State to start the consultation
process for absorption of respondents - On appeal, held: The
Committee of High Court Judges was of the opinion that the
respondents were not entitled for appointment to the regular cadre
of the Higher Judicial Service - The said order was not challenged
by the writ petitioners/respondents - Even otherwise, such decision
of the Committee stood vindicated as two respondents who had
appeared in examination vide advertisement dated 31.07.2008 failed
to qualify in the selection process and other respondent did not
appear, and further all the respondents failed to qualify another
test which was conducted pursuant to Brij Mohan Lal (2) case -
This fact pointed out incompetence of the respondents - Proviso to
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r.7 of 2006 Rules provided only to 'consider' the cases of the
respondents for absorption - Cases of the respondents were
considered, but they were not found fit for absorption in the regular
cadre - The proviso never gave any mandate that the respondents
had to be necessarily absorbed.
Allowing the appeal, the Court
HELD: 1.1 It is stated that service records of the writ
petitioners were examined by the Committee consisting of three
High Court Judges and on the said examination the Committee
was of the opinion that the writ petitioners were not entitled for
appointment to the regular cadre of Higher Judicial Service. No
challenge was laid by the writ petitioners to the manner in which
their cases were considered and rejected by the High Court or
that such a consideration suffered from any kind of blemish. Even
otherwise, such a decision of the Committee stands vindicated
inasmuch as:
(i) the two writ petitioners who appeared in the examination
pursuant to an advertisement for the post of Grade-I District and
Sessions Judge failed to qualify in the selection process and the
third writ petitioner did not appear at all; and
(ii) the petitioners even failed to qualify the test which was
conducted pursuant to Brij Mohan Lal (2) in which the writ
petitioners had appeared. This fact is noted just to point out the
incompetence of the writ petitioners. [Para 30] [287-G-H; 288A-C]
1.2 The ratio of Brij Mohan Lal (2) is discussed by this
Court in detail in the case of Mahesh Chandra Verma and there
also the Court was of the opinion that appointment on regular
cadre should be made only on the basis of written examination
etc. as laid down in Brij Mohan Lal (2). [Para 31] [288-D-E]
2.1 Even in terms of proviso to Rule 7 of Arunachal Pradesh
Judicial Service Rules, 2006, the cases of the writ petitioners
were considered, but they were not found fit for absorption in the
regular cadre. [Para 31] [288-E-F]
2.2 Rule 7 of the 2006 Rules, which lays down the procedure
and method of recruitment to the post of Additional Sessions
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Judges. The case of the writ petitioners is not covered by the
main provision. When two posts of Grade-I District and Sessions
Judges, after their creation vide Notification dated December
17, 2007 were advertised, two of the writ petitioners appeared
but failed to qualify in the said selection process while the third
writ petitioner did not appear at all. Adverting to the proviso of
Rule 7, no doubt, it was tailor-made for the writ petitioners.
However, this proviso only suggests that cases of three ad hoc
Additional Sessions Judges, who were none else but the three
writ petitioners, 'may be considered' for absorption in Grade-I of
the service. It is not necessary to go into the question as to
whether the word 'may' would mean that it was entirely within
the discretion of the High Court to even consider or not to
consider the cases of the writ petitioners for absorption or
whether this word has to be read as 'shall' thereby holding that it
was mandatory on the part of the High Court to at least consider
the cases of the writ petitioners for absorption. This is because
of the reason that as matter of fact the cases of the writ petitioners
were considered by the High Court and, in fact, that appears to
be the intention behind the proviso. However, the provision
provided only to 'consider' the cases of the writ petitioner for
absorption. The proviso never gave any mandate that the writ
petitioners had to be necessarily absorbed. Thus, only right of
consideration was there. There was no automatic absorption. Had
that been the intention, the proviso would have been worded
differently. [Para 26] [284-E-H; 285-A-B]
Brij Mohan Lal (1) v. Union of India and Others (2002)
5 SCC 1 : [2002] 3 SCR 810; Madhumita Das and
Others v. State of Orissa and Others (2008) 6 SCC 731 :
[2008] 9 SCR 1126; Brij Mohan Lal (2) v. Union of
India and Others (2012) 6 SCC 502 : [2012]
5 SCR 305; Sarguja Transport Service v. State
Transport Appellate Tribunal, M.P., Gwalior and Others
(1987) 1 SCC 5 : [1987] 1 SCR 200; Mahesh Chandra
Verma and Others v. State of Jharkhand and Others
(2012) 11 SCC 656 : [2012] 9 SCR 6; Rajendra Singh
Verma (Dead) through Lrs. and Others v. Lieutenant
Governor (NCT of Delhi) and Others (2011) 10 SCC 1
: [2011] 12 SCR 496; Ajit Kumar v. State of Jharkhand
THE GAUHATI HIGH COURT THROUGH THE REGISTRAR
GENERAL v. GOTO ETE & ORS.
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and Others (2011) 11 SCC 458 : [2011] 3 SCR 830;
Chandramouleshwar Prasad v. Patna High Court and
Others (1969) 3 SCC 56 : [1970] 2 SCR 666; High
Court of Punjab and Haryana and Others v. State of
Haryana and Others (1975) 1 SCC 843 : [1975] 3 SCR
365 - referred to.
Case Law Reference
[2002] 3 SCR 810
referred to
Para 9
[2008] 9 SCR 1126
referred to
Para 9
[2012] 5 SCR 305
referred to
Para 9
[1987] 1 SCR 200
referred to
Para 22
[2012] 9 SCR 6
referred to
Para 22
[2011] 12 SCR 496
referred to
Para 27
[2011] 3 SCR 830
referred to
Para 27
[1970] 2 SCR 666
referred to
Para 28
[1975] 3 SCR 365
referred to
Para 28
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4298
of 2018
From the Judgment and Order dated 19.01.2016 of the High Court
of Gauhati in Writ Petition No. 776 of 2013.
Vijay Hansaria, Sr. Adv., Ms. Sneha Kalita, Avnish Pandey, Advs.
for the Appellant.
Vikas Singh, Sr. Adv., Ms. Nanda Devi Deka, Ms. Priyanka Das,
Ms. Deepika Kalia, Devesh Kumar Tripathi, Anil Shrivastav, Rituraj
Biswas, Ms. Purnima Jauhari, Ms. Seema P., Prakash Kumar Singh,
Advs. for the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Leave granted.
2. Pursuant to the advertisement dated July 13, 2001 issued by
the Government of Arunachal Pradesh, respondent Nos. 1 to 3
(hereinafter referred to as the 'writ petitioners') were appointed as
Additional Deputy Commissioners with the powers of Additional Sessions
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Judge, on contract basis, with the stipulation that their period of contract
is up to March 31, 2005. They were to man the Fast Track Courts (for
short, 'FTCs'). This contract period was extended for a further period
of five years, i.e. up to March 31, 2010. These respondents put their
claims for regularisation to the said posts and to be allowed to work as
Additional Sessions Judges, invoking the provisions of Rule 7 of the
Arunachal Pradesh Judicial Service Rules, 2006. There has been a
protracted litigation in this behalf, as would be noticed hereinafter at the
relevant stage. At this juncture, while narrating the background in which
the matter has landed in this Court, we may only mention that request
for appointment on regular basis was rejected by the High Court (the
appellant herein) and services of respondent Nos. 1 to 3 were dispensed
with on January 07, 2013. This termination was challenged by the writ
petitioners by filing Writ Petition (Civil) No. 776 of 2013. The proceedings
of this writ petition have culminated in the judgment dated January 19,
2016 passed by the Division Bench of the High Court. Vide this judgment
the writ petition has been allowed, thereby quashing the order of
dispensing the ad hoc services of the writ petitioners with further
direction that the State/respondent No.4 (hereinafter referred to as the
'State Government') should start consultation process for absorption of
the writ petitioners in Grade-I of the Arunachal Pradesh Judicial Service
with effect from January 07, 2013 and directed the appellant, i.e. the
Gauhati High Court (hereinafter referred to as the 'High Court') to
consider the cases of the writ petitioners for absorption in the light of the
observations made in the said judgment. The High Court feels aggrieved
by these directions and that is the reason for challenging the judgment
dated January 19, 2016. Notice in this Special Leave Petition was issued
on August 08, 2016 and simultaneously this Court had granted the stay
of the impugned judgment. The result is that the writ petitioners have
not been taken back into service.
With this background, we now state the factual matrix in some
detail.
3. An advertisement was issued on July 13, 2001 by the
Government of Arunachal Pradesh inviting applications for filling up of
three posts of Additional Deputy Commissioners with the powers of
Additional Sessions Judge, on contract basis, for the period up to March
31, 2005. Pursuant thereto, on June 04, 2002, the writ petitioners were
selected for the aforesaid posts by the High Court. The State Government
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issued appointment orders in their favour for the aforesaid post, on contract
basis, up to March 31, 2005. This term was subsequently extended for
another five years, i.e. up to March 31, 2010. The purpose was to post
the incumbents in Fast Track Courts.
4. It is relevant to point out that at that time there was no segregation
of executive branch from the judicial wing in the State of Arunachal
Pradesh. This was, however, accomplished by promulgating the
Arunachal Pradesh Judicial Service Rules, 2006 (hereinafter referred to
as the '2006 Rules'), which were notified on December 06, 2006. Rule
7 of the 2006 Rules relate to the method of recruitment and the relevant
portion thereof is couched in the following manner:
"7. Method of recruitment, qualification, reservation and
age limit.
In respect of each category of posts specified in Column (2) of
the Table below, the method of recruitment and minimum
qualification, age limit etc. are specified in the corresponding entries
in column (3) and (4) thereof.
Provided that the 3 (three) adhoc Additional Sessions Judges who
were selected and appointed by the Government, in consultation
with the Gauhati High Court, in the year 2002 as Presiding Officers
of the 3(three) Fast Track Courts on contract basis under the
specific scheme of the Central Government and have since been
rendering services under the control and supervision of the Gauhati
High Court, may be considered for absorption in the Grade-I of
the Service.
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5. On December 13, 2007, a representation was made by
respondent Nos. 1 and 2, inter alia, for being absorbed in the regular
service in terms of Rule 7 of the 2006 Rules. While this representation
was pending, the State Government issued the Notification dated
December 17, 2007 establishing two Courts of the District and Sessions
Judges. Thereafter, on February 25, 2008, the State Government made
a proposal to the High Court, under proviso to Rule 7, for consideration
of absorption of the writ petitioners as FTC judges against the two newly
created posts of District & Sessions Judge, Grade-I. On March 28,
2008, the Registrar General of the High Court put up a note to the
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Committee comprising three High Court Judges for consideration of the
proposal of the State Government. The Committee, after consideration
of the entire material, rejected the proposal for absorption on May 09,
2008. Respondent No.1 made another representation dated June 12,
2008 for reconsideration of his absorption in the regular service, as a
special case, in terms of Rule 7 of the 2006 Rules. This representation
also came to be rejected by the Committee on June 25, 2008 by reiterating
its earlier resolution dated May 09, 2008.
6. Thereafter, on July 31, 2008, the High Court issued another
advertisement for filling up of two posts of District and Sessions Judge,
Grade-I, that were created vide Notification dated December 17, 2007.
Respondent Nos. 2 and 3 appeared in the examination but could not
qualify in the selection process. Respondent No.1, though applied, did
not appear in the examination. Instead, vide Notification dated March
30, 2010, two other candidates were selected and appointed to the notified
posts.
7. Respondent No.1 approached this Court by filing Writ Petition
(Civil) No. 401 of 2008 under Article 32 of the Constitution of India,
seeking absorption in terms of the proviso to Rule 7 of the 2006 Rules.
On September 15, 2008, this Court issued notice in the said writ petition.
After completion of pleadings, the matter was directed to be listed for
final hearing. At that stage, on March 24, 2011, the Registrar General of
the High Court filed an additional affidavit, inter alia, stating that the
cases for absorption of respondent Nos. 1 and 2 were considered twice
(on May 09, 2008 and June 25, 2008 respectively) under the aforesaid
proviso to Rule 7, and a decision was taken not to absorb them. Despite
this, the State Government has, on April 07, 2011, recommended the
names of the writ petitioners for appointment to the High Court. Be that
as it may, on May 09, 2011, this Court dismissed the Writ Petition (Civil)
No. 401 of 2008, as withdrawn. No liberty was sought for and/or granted
to agitate the same issue by filing a fresh writ petition in the High Court.
8. When the things rested at that, the State Government approved
extension of term of the FTC judges in the State for a period of five
years with effect from April 01, 2011 to March 31, 2015, vide orders
dated May 19, 2011. Few months thereafter, i.e. on November 03, 2011,
the Governor of the State of Arunachal Pradesh, in consultation with the
High Court, converted the three FTCs into Regular Courts of Additional
District and Sessions Judges, Grade-I.
THE GAUHATI HIGH COURT THROUGH THE REGISTRAR
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9. The Union of India had framed a policy, which was termed as
the FTC Scheme. The purpose of this FTC Scheme primarily was to
reduce the pendency of criminal cases pending in the respective courts.
The anticipated benefits of the FTC Scheme, as projected, were - speedy
trial, elimination of pendency in the District Courts, enormous saving of
expenses incurred on under trials, etc. Though the FTC Scheme was
contemplated to be for a definite period of five years, it came to be
extended and remained in force under the judgment of this Court in Brij
Mohan Lal (1) v. Union of India and Others1 and directions passed in
Madhumita Das and Others v. State of Orissa and Others2. Many
judicial officers were appointed to do the work of FTCs for speedy
disposal of certain kinds of matters, including CBI matters, and this was
done on the directions given by this Court in Brij Mohan Lal (1). On
the recommendations made by the Chief Justices and the Chief Ministers
Conference, the Cabinet Committee on Economic Affairs, vide its decision
dated April 07, 2005, extended the FTC Scheme for a period of another
five years with 100% Central funding. Again, the FTC Scheme was
extended by the decision of the Central Government till March 31, 2011
but thereafter the Union of India had taken a conscious decision not to
extend the financing of the FTC Scheme beyond March 31, 2011. Despite
discontinuation of the FTC Scheme by the Union of India, some of States
decided to continue with the said Scheme. Be that as it may, on
abandoning the FTC Scheme by the Union and other States, the judicial
officers who were appointed under the FTC Scheme felt aggrieved and
it resulted in filing of various petitions in this Court seeking regularisation
of their services and absorption against the vacancies appearing in the
regular cadre. The controversy was ultimately set to rest by this Court
vide judgment dated April 18, 2012 rendered in Brij Mohan Lal (2) v.
Union of India and Others3.
10. This Court in Brij Mohan Lal (2), inter alia, directed that all
direct recruits to FTCs, who opt for regularisation, shall take written
examination to be conducted by the High Courts, followed by interview,
and those who are successful in the said selection process would be
entitled for appointment to the regular cadre of higher judicial service.
As the decision rendered in this case has some bearing on the issue that
1 (2002) 5 SCC 1
2 (2008) 6 SCC 731
3 (2012) 6 SCC 502
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confronts this Court in the instant appeal, we reproduce some relevant
portions of the said judgment hereunder:
"160. These petitioners have also raised a challenge to Rules 4
and 6 of the Gujarat Rules under which they were appointed, on
the ground that the same are arbitrary and discriminatory. Firstly,
the Rules under which the petitioners were appointed after 2001
themselves were to be in force only till 31-12-2005. Till 2005,
none of the appointees challenged these Rules. For these four
years, they in fact took full advantage of their appointment under
these Rules and received different service benefits thereunder.
We are unable to appreciate the contention that these Rules were
arbitrary or discriminatory.
161. The Rules themselves were temporary and were enacted
to meet an emergency situation. The appointments were made
purely on ad hoc and urgent temporary basis for a period of two
years, terminable without any prior notice. A temporary
appointment, which itself was made for a period of two years,
can hardly be equated to a tenure appointment and must be
construed on such terms. These appointments were to come to
an end by lapse of time. Such an appointment obviously cannot
vest or confer any right upon the appointees to be absorbed in the
permanent cadre, as they were not appointed in accordance with
the provisions of the Gujarat Judicial Service Recruitment Rules,
1961.
162. The expression "liable to be terminated at any time without
any notice" could be susceptible to objections if it was used in the
case of a quasi-permanent or permanent employee of a
government servant (sic). However, we have already noticed that
there were no permanent posts contemplated under the FTC
Scheme. The entire FTC Scheme was ad hoc and formulated to
operate only until the year 2005. It was continued beyond that
period in accordance with the directions of this Court but now a
decision has been taken not to continue the FTC Scheme beyond
31-3-2011.
163. Even if for the sake of argument, we accept the contention
that the expression "liable to be terminated at any time without
any notice" is arbitrary and opposed to the basic rule of law, it still
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has to satisfy the twin tests laid down in Parshotam Lal Dhingra
i.e. firstly, whether the government servant being terminated or
reduced in rank thereby had a right to the post or to the rank, as
the case may be and, secondly, whether he had been visited with
evil consequences. Both of these tests have to be answered in
the negative, in the facts and circumstances of the present case.
164. We have already held above that these officers had no right
to their posts and consequently, discontinuation of their services
in the facts of the present case cannot be construed as punitive or
one visiting the petitioners with civil consequences. This holds
true even though in some cases, it has been recorded that the
performance of these appointees was found to be unsatisfactory
but that is not the lone reason given by the High Court for dispensing
with their services. It is the discontinuation of the FTC Scheme
itself that is the principal reason for terminating the services of all
these officers.
xx xx xx
176. We have already noticed that the FTC Judges were appointed
under a separate set of Rules than the Rules governing the regular
appointment to the State Higher Judicial Services. It has been
clearly stipulated that such appointments would be ad hoc and
temporary and that the appointees shall not derive any benefit
from such appointments.
177. In the case of State of Rajasthan, it is the judicial officers
from the cadre of Civil Judge, Senior Division, who were promoted
as FTC Judges. They have continued to hold those posts for a
considerable period. According to these petitioners, they were
promoted to the Higher Judicial Services as per the Rules and,
therefore, keeping in view the order of this Court in Madhumita
Das as well as the very essence of the FTC Scheme, they should
be absorbed as members of the regular cadre of Higher Judicial
Services of the State of Rajasthan. The State Government had
issued a directive that they should undertake the limited competitive
examination for their regular promotion/absorption in the higher
cadre. These officers questioned the correctness of this directive
on the ground that they were promoted as Additional Sessions
Judges (FTC) under the Rules and, therefore, there was no
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question of any further requirement for them to take any written
examination after the long years of service that they have already
put in in the Higher Judicial Services.
178. The Rajasthan Judicial Service Rules, 2010 are in force for
appointment to the Higher Judicial Services of the State. The
judgment of this Court in All India Judges' Assn. (3) case as
well as the relevant Rules contemplate that a person who is to be
directly appointed to the Higher Judicial Services has to undergo
a written examination and appear in an interview before he can
be appointed to the said cadre. As far as appointment by promotion
is concerned, the promotion can be made by two different modes
i.e. on the basis of seniority-cum-merit or through out-of-turn
promotion wherein any Civil Judge, Senior Division who has put
in five years of service is required to take a competitive
examination and then to the extent of 25% of the vacancies
available, such Judges would be promoted to the Higher Judicial
Services.
179. It was admitted before us by the learned counsel appearing
for the petitioners that these officers who were promoted as ad
hoc FTC Judges had not taken any written competitive examination
before their promotion to this post under the Higher Judicial
Services. In other words, they were promoted on ad hoc basis
depending on the availability of vacancy in FTCs. Once the Rules
required a particular procedure to be adopted for promotion to the
regular posts of the Higher Judicial Services, then the competent
authority can effect the promotion only by that process and none
other. In view of the admitted fact that these officers have not
taken any written examination, we see no reason as to how the
challenge made by these judicial officers to the directive issued
by the State Government for undertaking of written examination
may be sustained. Thus, the relief prayed for cannot be granted in
its entirety.
180. In the case of the States of Punjab and Haryana, the
appointees were directly appointed as FTC Judges by way of
direct recruitment from the Bar and they prayed for regularisation
of their services and absorption in the regular cadre as well as for
continuation of the FTC Scheme till their absorption. For the
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reasons already recorded by us in relation to other States mentioned
above, we do not think that the relief of regularisation/absorption
can be granted to these petitioners also in the manner in which
they have prayed. They too have no right to the post. Admittedly,
these candidates also did not pass any written competitive
examination and were appointed solely on the basis of an interview
and must now undergo the requisite examination.
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207. Without any intent to interfere with the policy decision taken
by the Governments, but unmistakably, to protect the guarantees
of Article 21 of the Constitution, to improve the justice delivery
system and fortify the independence of judiciary, while ensuring
attainment of constitutional goals as well as to do complete justice
to the lis before us, in terms of Article 142 of the Constitution, we
pass the following orders and directions:
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207.9 All the persons who have been appointed by way of direct
recruitment from the Bar as Judges to preside over FTCs under
the FTC Scheme shall be entitled to be appointed to the regular
cadre of the Higher Judicial Services of the respective States
only in the following manner:
(a) The direct recruits to FTCs who opt for regularisation shall
take a written examination to be conducted by the High Courts
of the respective States for determining their suitability for
absorption in the regular cadre of Additional District Judges.
(b) Thereafter, they shall be subjected to an interview by a
Selection Committee consisting of the Chief Justice and four
seniormost Judges of that High Court.
(c) There shall be 150 marks for the written examination and
100 marks for the interview. The qualifying marks shall be
40% aggregate for general candidates and 35% for SC/ST/
OBC candidates. The examination and interview shall be held
in accordance with the relevant Rules enacted by the States
for direct appointment to Higher Judicial Services.
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(d) Each of the appointees shall be entitled to one mark per
year of service in the FTCs, which shall form part of the
interview marks.
(e) Needless to point out that this examination and interview
should be conducted by the respective High Courts keeping in
mind that all these applicants have put in a number of years as
FTC Judges and have served the country by administering
justice in accordance with law. The written examination and
interview module, should, thus, be framed keeping in mind the
peculiar facts and circumstances of these cases.
(f) The candidates who qualify the written examination and
obtain consolidated percentage as aforeindicated shall be
appointed to the post of Additional District Judge in the regular
cadre of the State.
(g) If, for any reason, vacancies are not available in the regular
cadre, we hereby direct the State Governments to create such
additional vacancies as may be necessary keeping in view the
number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly
appointed from the Bar and are desirous of taking the
examination and interview for regular appointment shall be given
age relaxation. No application shall be rejected on the ground
of age of the applicant being in excess of the prescribed age.
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11. Reverting to the developments in the present case, it may be
stated that though the representations of writ petitioners for absorption
on regular basis were earlier rejected twice, the High Court still took a
decision on July 31, 2012 to undertake selection process of FTC Judges
in terms of the aforesaid judgment of this Court in Brij Mohan Lal (2).
Accordingly, written examination was held in which the writ petitioners
appeared. These writ petitioners could secure only 22.33%, 33.66% and
25% marks respectively as against the qualifying marks of 35% required
in the said examination. In this way, none of these writ petitioners could
qualify this examination. On their failure to quality, the High Court, vide
orders dated January 07, 2013, dispensed with their services. Within
three days thereafter, i.e. on January 10, 2013, the High Court issued an
advertisement inviting applications from eligible candidates for
THE GAUHATI HIGH COURT THROUGH THE REGISTRAR
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appointment to three vacant posts in the Grade-I cadre of the Arunachal
Pradesh Judicial Service created on November 03, 2011.
12. The writ petitioners filed Writ Petition (Civil) No. 776 of 2013
in the High Court on February 05, 2013, challenging the order dated
January 07, 2013 dispensing their services. Challenge was also laid to
the legality of the advertisement issued on January 10, 2013 and claimed
absorption on the basis of proviso to Rule 7 of the 2006 Rules. In the
meantime, written examination was held on March 23, 2013 pursuant to
the aforesaid advertisement, in which seven candidates were found eligible
having secured more than the cut-off marks of 60% for the General
Category candidates and 50% for the ST Candidates. None of the writ
petitioners appeared in the said examination. Oral interview of the
qualified candidates was held on April 09, 2013 by the four sitting High
Court Judges (including the Chief Justice) and the names of respondent
Nos. 6 to 8 were recommended consequent upon their qualification.
13. The writ petition along with the stay application was listed
before the Court on April 11, 2013 when the Division Bench of the High
Court was pleased to admit the same. However, since no interim relief
was sought, no such order came to be passed. On that date, the High
Court recommended for appointment the names of respondent Nos. 6 to
8 having been selected both in written and viva voce examination. Exactly
one month thereafter, i.e. on May 11, 2013, the State Government created
further three posts in Grade-I of the Arunachal Pradesh Judicial Service.
Pursuant to the recommendation dated April 11, 2013 of the High Court,
respondent Nos. 6 to 8 were appointed as Grade-I officers by the State
Government under the 2006 Rules. The writ petitioners sought
amendment of the writ petition by challenging appointment of respondent
Nos. 6 to 8. On August 13, 2013, the High Court allowed the writ
petitioners to amend the writ petition by inserting challenge to the
appointment order dated April 11, 2013 in favour of respondent Nos.
6 to 8.
14. After hearing the said writ petition, vide the impugned judgment
dated January 19, 2016, the High Court has allowed the relief claimed
therein and set aside the order dated January 07, 2013 dispensing the
ad hoc services of the writ petitioners as Additional District and Sessions
Judge of FTCs in the State of Arunachal Pradesh. It has further directed
the State Government to start consultation process for absorption of the
writ petitioners in Grade-I of the Arunachal Pradesh Judicial Service
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with effect form January 07, 2013 and directed the High Court to consider
their absorption in the light of the observations made in the impugned
judgment.
15. A perusal of the impugned judgment of the High Court would
reveal that it posed the following question for determination which arose
in the said writ petition:
"Whether the ad hoc services of the petitioners can be regularised
in accordance with the proviso to Rule 7 of Arunachal Pradesh
Judicial Service Rules, 2006 ("the Rules" for short)?"
16. The High Court noted that initial appointment of the writ
petitioners as Additional Deputy Commissioners on contract basis with
the powers of ad hoc Additional Sessions Judge in the year 2001 at a
fixed pay of Rs.19,000/- was pursuant to an advertisement by the
Government. The writ petitioners had applied for the said post, had
appeared in the written test and were interviewed by the High Court.
The Full Court had approved the appointment of the writ petitioners and
pursuant to the said recommendation the Government issued orders of
appointment appointing them as the Presiding officers of the FTCs. Their
services were extended for a period of five years with effect from April
01, 2005. Before the expiry of the terms of the FTC, the High Court,
vide its letter dated February 19, 2010, recommended to the State
Government for extension of the terms of the FTC with effect from
April 01, 2010 for a further period of ten years and the same was approved
by the State Government vide its communication dated May 19, 2011 for
a period of five years, i.e. up to March 31, 2015. In the meantime, the
2006 Rules came into force, which, among others, contained the proviso
to Rule 7 for consideration of the writ petitioners for absorption to GradeI service. The State Government, vide letter dated February 25, 2008,
proposed to absorb the writ petitioners against the newly created posts
of Grade-I in the State Judicial Service by invoking the aforesaid proviso
to Rule 7 of the 2006 Rules by pointing out that they were appointed
after due selection in consultation with the High Court and had been
working under the control and supervision of the High Court. This
proposal was not accepted by the High Court. The Chief Secretary of
the State Government thereafter sent another letter dated August 25,
2008 requesting the High Court to absorb the writ petitioners in terms of
proviso to Rule 7 of the 2006 Rules based on their performance, integrity,
etc. However, this proposal was once again rejected by the High Court.
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Thereafter, the writ petitioners approached the State Government for
conversion of the post of ad hoc FTCs into regular courts of Additional
District and Sessions Judge. This request was acceded to by the State
Government and it was decided to convert the FTCs into regular courts
of Additional District and Sessions Judge along with their incumbents,
i.e. the writ petitioners, and the same was forwarded to the High Court.
Even Notification dated November 03, 2011 was issued in this behalf.
17. After taking note of the aforesaid chronology of events, the
Division Bench of the High Court has observed that in view of these
developments, the writ petitioners should have been regularised.
However, instead of considering the cases of the writ petitioners for
absorption, the High Court decided to hold the written and viva voce
tests in terms of the decision in Brij Mohan Lal (2). The writ petitioners
appeared, but failed. According to the Division Bench of the High Court,
there was no reason for conducting such a test as the matter had to be
examined in terms of proviso to Rule 7 of the 2006 Rules, which provision
was perfectly tailor-made for the writ petitioners. The Division Bench
has further opined that the case of the writ petitioners could not be dealt
with on the basis of the directions given by this Court in Brij Mohan Lal
(2) having regard to the specific rule in the form of Rule 7, as can be
seen from the following discussion:
"13. There is no dispute that dispensing with the services of the
petitioners is the immediate fall out of the failure on their part to
secure the minimum qualifying marks in the examination for their
absorption into the service. Undoubtedly, judicial service of the
State of Arunachal Pradesh is now under the control and supervision
of the Gauhati High Court; the High Court has the undoubted
authority to decide as to whether the services of the petitioners
should be continued or not irrespective of the terms of extension
of the ad-hoc services of the petitioners by the State Government.
However, in this case, what is of significance is the question of
absorption of the services of the petitioners in the posts of GradeI in the Arunachal Pradesh Judicial Service Rules in terms of the
proviso to Rule 7 of the Rules. The question is whether the decision
of the Apex Court in Brij Mohan Lal case (supra) read as a whole
can be construed to mean that any form of absorption irrespective
of the nature of the appointment of ad hoc Judges of Fast Track
Court is prohibited. The law is well-settled. A judgment of court
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cannot be read like Euclid's theorem and shall have to be read in
the context in which it was decided. In the case at hand, it cannot
be disputed that the petitioners were given the appointments on
contract basis after the posts were advertised, and they underwent
selection process conducted by the High Court. In Brij Mohan
Lal case (supra), the Apex Court apparently distinguished
appointment by back door and appointment made after written
competitive examination."
18. Thereafter, the High Court discussed the nature of appointments
to FTCs made by various States, including the States of Punjab and
Haryana, and found that in those cases persons were not appointed as
judicial officers through any written examination but were appointed
solely on the basis of an interview. In contrast, insofar as these persons
are concerned, the Division Bench of the High Court has held that in the
instant case, the writ petitioners had admittedly appeared and got selected
in the recruitment examination and the interview conducted by the High
Court on the basis of the advertisement made by the State Government.
Their appointments were also made after the approval of the High Court.
Therefore, the writ petitioners were needlessly required to undergo
written and oral test some 10 years or more after service as ad hoc
Judges, against whom there were nothing on record to show that they
were incompetent or corrupt in the discharge of their judicial works.
19. Giving the aforesaid reasons, the Division Bench of the High
Court has allowed the writ petition in the following terms:
"16.