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IN THE SUPREME COURT OF INDIA
A.K. Patnaik and Swatanter Kumar, JJ.
Brij Mohan Lal
Vs.
Union of India (UOI) and Ors.
Transferred Case (Civil) Nos. 22 and 23 of 2001, Writ Petition (C) No. 140 of 2005, Writ Petition (C) No. 28 of 2005, Writ Petition (C) No. 152 of 2011, Writ Petition (C) No. 250 of 2008, Writ Petition (C) No. 254 of 2008, Writ Petition (C) No. 261 of 2008, CA No. 3635 of 2012 (Arising out SLP (C) No. 26148 of 2010), CA No. 3636 of 2012 (Arising out SLP (C) No. 26209 of 2010), CA No. 3637 of 2012 (Arising out SLP (C) No. 26318 of 2010), CA No. 3638 of 2012 (Arising out SLP (C) No. 26363 of 2010), CA No. 3639 of 2012 (Arising out SLP (C) No. 26364 of 2010), CA No. 3640 of 2012 (Arising out SLP (C) No. 26432 of 2010), CA No. 3641 of 2012 (Arising out SLP (C) No. 26444 of 2010), CA No. 3642 of 2012 (Arising out SLP (C) No. 26446 of 2010), CA No. 3643 of 2012 (Arising out SLP (C) No. 26448 of 2010), CA No. 3644 of 2012 (Arising SLP (C) No. 26634 of 2010), CA No. 3645 of 2012 (Arising out SLP (C) No. 26660 of 2010), CA No. 3646 of 2012 (Arising out SLP (C) No. 27437 of 2010), CA No. 3647 of 2012 (Arising out SLP (C) No. 27682 of 2010), CA No. 3648 of 2012 (Arising out SLP (C) No. 28019 of 2010), CA No. 3649 of 2012 (Arising out SLP (C) No. 28130 of 2010), CA No. 3650 of 2012 (Arising out SLP (C) No. 28353 of 2010), CA No. 3651 of 2012 (Arising out SLP (C) No. 30500 of 2010), CA No. 3652 of 2012 (Arising out SLP (C) No. 30577 of 2010), CA No. 3653 of 2012 (Arising out SLP (C) No. 30599 of 2010), CA No. 3654 of 2012 (Arising out SLP (C) No. 30912 of 2010), CA No. 3655 of 2012 (Arising out SLP (C) No. 31485 of 2010), CA No. 3656 of 2012 (Arising out SLP (C) No. 2485 of 2011), CA Nos. 3657-3658 of 2012 (Arising out SLP (C) Nos. 1412-1413 of 2011), CA Nos. 3659-3662 of 2012 (Arising out SLP (C) Nos. 32624-32627 of 2011), Writ Petition (C) No. 203 of 2010 and Civil Appeal No. 1276 of 2005 [Under Article 139 of the Constitution of India]
Decided On : 19.04.2012
(2007) 1 SCC 408; AIR 1958 SC 36; AIR 1984 SC 1854; (1979) 4 SCC 440 – Relied upon
(b) Service Law – Conditions of service – Right to a post – Not a fundamental right – Only a civil or a statutory right – Nevertheless, a person appointed to Government service acquires a status – a (Para 66, 67, 69)
(2003) 2 SCC 632; (2001) 10 SCC 520; (2010) 6 SCC 331; (1985) 3 SCC 398 – Relied upon
(c) Constitution of India – Separation of powers – Court should not interfere in policy matters – Courts can interfere if it is arbitrary or unreasonable – Tests whether Court should interfere restated – Courts can certainly be catalysts, when there is a need for a policy or a change in policy. (Para 70, 71, 73, 74)
(1972) 2 SCC 788; 1989 Supp. (2) SCC 364; (2009) 6 SCC 611 – Relied upon
(d) Constitution of India – Article 32 – Mandamus – Cannot be issued as regards the manner of discharge of public duty – However, Mandamus can be issued with respect to the due exercise of discretion in the course of such duty. (Para 77, 78)
(1981) Supp. SCC 87; (1992) 4 SCC 288; (2002) 4 SCC 247 – Relied upon
(e) Constitution of India – Articles 32 – Mandamus – Fast Track Courts – Government closing the scheme and stopping funding after 31.3.2011 – Some States continuing but not under any policy but on ad hoc basis – Need for Mandamus felt. (Para 80, 81)
(f) Constitution of India – Article 19(1)(g) – Right to practice law – Not absolute right – Restricted by Article 19(6) and Advocates Act, 1961. (Para 82)
(g) FTC Courts – Judges appointed on ad hoc basis claiming continuation and regularization – Ground taken – On termination, such Judges will not be able to practice in courts coordinate or inferior where they presided – Such judges shall still be eligible to practice law in higher courts – Plea rejected. (Para 83, 84)
CA No. 2850 of 2012 – Relied upon
(h) FTC scheme – Government policy – Despite good results, Central and State not unanimous about continuation or closure of the scheme – Central Government stopping funding of FTC – On the other hand providing substantial funds for the starting of Evening Courts and Gram Nyalayas, etc. – Apparently arbitrary and lacking objectivity – Government duty bound under Articles 21 and 39A of the Constitution to provide expeditious and fair trial and free legal aid – It cannot be avoided on ground of financial limitations – Such policies are amenable to judicial review. (Para 92, 94, 99, 101, 107)
AIR 1965 SC 1595; (1997) 6 SCC 339; (2010) 11 SCC 1; (1995) 6 SCC 765; (2008) 6 SCC 1 – Relied upon
(i) FTC scheme – Decision in Conference of Chief Ministers and Chief Justices presided by CJI and Union Minister for Law – Central Government agreeing to extend for five years – Closing in two years – Not proper. (Para 117, 118)
(j) Gujarat Rules – Rules 4 and 6 – Scheme for limited period up to 2005 – Rules providing for termination of services without notice – Petitioner availing all benefits and never challenging validity of the rules – Posts itself temporary – Appointment temporary – Petitioners not having any right to posts – Appointments coming to end with closure of scheme – Not entitled to any relief. (Para 119 and 120)
AIR 1958 SC 36; (2009) 6 SCC 611 – Relied upon
(k) Service law – Appointment – FTC Judges – Candidate in waiting list for regular appointment to the Higher Judicial Services but appointed to FTC – Later, advertisement for regular appointment to Higher Judiciary issued – FTC Judge challenging the same and praying for absorption to regular cadre – Processes and rules for two appointments being different, the cases cannot be treated at par – Advertisement cannot be quashed. (Para 121, 122, 123)
Uma Devi (3) – Referred
(l) Constitution of India – Article 14 and 16 – FTC Judges asked to dispose eight sessions trial every month – No such requirement for regular courts – Challenge under article 14 and 16 – Both cases are different and not comparable – Regular Judges subject to different limitations and restrictions not applicable to FTC judges – Challenge misconceived. (Para 121, 122)
(n) Service law – Promotion/absorption to higher judiciary – Judicial Officers from the cadre of Civil Judge, Senior Division, promoted as FTC Judges and continued to hold those posts for a considerable period – Promotion rules for higher judiciary requiring limited competitive examination and interview – State directing promoted FTC judges to undertake the examination – No infirmity. (Para 127)
AIR 2008 SCW 4274 – Referred
(o) Service Law – Regularisation/absorption in regular cadre – Direct recruit TFC Judges – Have no right to the post – Posts also coming to end in 2011 – No question of regularization/absorption in regular cadre. (Para 128)
(p) Constitution of India – Article 21 – Right to speedy trial – Essential ingredient of reasonable, fair and just procedure – Numerous under trial prisoners languishing for want of speedy trial – Any such policy depriving the under trial prisoners of their right to speedy trial – Court duty bound to judicially review the policy – Factors compelling the Court to undertake judicial review of the policy of FTC and issue directions stated – Government of India not disclosing reasons for stopping financing of FTC scheme – Due weightage not given to advice of the highest judiciary in taking policy decision to stop financing FTC scheme – However as this decision has already been implemented, Court not inclined to strike it down. (Para 131, 134, 135, 136, 139)
(1980) 1 SCC 98; (1992) 4 SCC 288; (2002) 4 SCC 247; (2003) 1 SCC 49; (2006) 8 SCC 1 – Relied upon
(q) Constitution of India – Article 21 and 142 – Right of under trial prisoners to speedy trial – FTC scheme initially for five years extended for another five years and thereafter for one year – Raising legitimate expectation in FTC Judges about continuation of their services – Result of the FTC scheme – Need to improve justice delivery system – All these require the Court to issue directions in exercise of its power under Article 142 – Directions issued. (Para 145, 146)
(2002) 5 SCC 1; AIR 2008 SCW 4274 – Referred
Facts of the case:
This case challenges the validity of appointment of the retired District and Sessions Judges as ad hoc Judges of the Fast Track Courts.
Continuation or otherwise of the FTC is also in issue.
Finding of the Court:
FTC scheme closed under a policy decision and already implemented need not be struck down. In view of utility of the scheme some action has to be taken for improving justice delivery system.
Result: All petitions partially allowed.
Certainly. Based on the provided legal document, the key points are as follows:
Judges appointed to Fast Track Courts (FTC) on ad hoc and temporary basis do not have any legal right to the post, as their appointments are purely on a temporary and urgent basis, terminable at any time without notice (!) (!) .
The FTC scheme was initially intended for limited periods and was to be discontinued once the scheme ended, with no automatic right of regularization or absorption in the permanent judicial cadre (!) (!) .
Appointments made under the FTC scheme are on a purely ad hoc basis, and such appointees have no right to claim regular promotion, absorption, or permanent status based solely on their temporary service (!) (!) .
The nature of these appointments is temporary, time-bound, and without any guarantee of continuation or regularization, and the appointments are governed by specific rules that emphasize their ad hoc and terminable character (!) (!) .
The distinction exists between permanent, temporary, and quasi-permanent posts; only those with a recognized status as permanent or quasi-permanent hold rights to the post, which is not applicable in the case of purely ad hoc FTC appointments (!) (!) .
The right to practice law is a statutory right and is not absolute; restrictions such as disqualification rules or rules governing the practice of law after serving as FTC judges are valid and do not amount to an unreasonable restriction, provided they are reasonable and based on public interest (!) (!) .
The appointment of FTC judges and their service conditions were made under specific rules that clearly state their temporary and non-permanent nature, and no right to regularization can be inferred from these rules (!) (!) (!) .
Discontinuation of the FTC scheme and termination of services of appointees are lawful when based on the scheme's expiry or policy decisions, and such actions are not punitive or stigmatic in nature (!) (!) .
The scheme's implementation and the appointments were based on a policy decision by the government, which courts generally do not interfere with unless it is arbitrary, capricious, or mala fide (!) (!) (!) .
The courts recognize their limited jurisdiction in policy matters but can issue directions to ensure constitutional rights, such as the right to a speedy trial, are protected, especially when government actions threaten these rights (!) (!) (!) .
The constitutional independence of the judiciary is paramount, and policies or decisions that undermine judicial independence or impede the effective functioning of courts are subject to judicial review (!) (!) .
The right to a speedy trial is a fundamental right, and the government has a constitutional obligation to provide the necessary infrastructure, judicial personnel, and facilities to ensure fair and expeditious trials. Financial constraints cannot justify the denial of this right (!) (!) (!) .
The decision to discontinue the FTC scheme was taken at a high policy level, and courts generally do not interfere with such policy decisions unless they are arbitrary or violate constitutional principles (!) (!) .
The government’s policies regarding judicial appointments, regularization, and scheme continuance must be fair, reasonable, and made in accordance with constitutional limitations, with due regard for the independence of the judiciary and the rights of litigants (!) (!) (!) .
The courts can issue directions to ensure the effective functioning of the justice system, including the appointment of additional judges, setting up of courts, and measures to reduce pendency and backlog, provided such directions align with constitutional principles and are not merely policy interventions (!) (!) .
The allocation of funds and policy decisions regarding judicial infrastructure and schemes are primarily within the domain of the executive, but courts can intervene to prevent violations of fundamental rights or to uphold the rule of law (!) (!) .
The right to practice law is subject to regulations and restrictions that serve the larger public interest, and restrictions imposed on FTC judges after their service does not amount to an unreasonable or arbitrary deprivation of their right to practice, provided they are reasonable and lawful (!) (!) .
The overall approach emphasizes that appointments under schemes like FTC are temporary, with no inherent right to regularization, and that government policies should be based on reasonableness, fairness, and constitutional principles, with judicial review limited to cases of arbitrariness or violation of fundamental rights (!) (!) (!) .
These points collectively reflect the legal principles and rulings related to the nature of FTC appointments, government policy decisions, judicial review scope, and fundamental rights concerning speedy trials and practice rights.
JUDGMENT
Swatanter Kumar, J.
1. Leave granted in the all the above SLPs.
2. The Writ Petition being CWP No. 5740 of 2001 titled Brij Mohan Lal v. Union of India and Ors. was filed in the High Court of Punjab and Haryana at Chandigarh under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of quo warranto and prohibition, requiring the Respondents to stop the scheme and policy of appointment of the retired District and Sessions Judges as ad hoc Judges of the Fast Track Courts (hereinafter referred to as the 'FTCs') in the State Judicial Services. It was also prayed in that petition that in order to maintain the standards of judicial system, the scheme of appointing the retired Judges, as opposed to the regular appointment of Judges to the posts of District and Sessions Judges from the members of the Bar or from the lower judiciary, should be given up. The principal submission made in the writ petition was that the constitutional scheme contained under Articles 233 to 235 read with Articles 308 and 309 of the Constitution do not contemplate and permit appointment of retired judges as ad hoc District and Sessions Judges. Even otherwise, there is no constitutional provision which empowers the authorities concerned to make such appointments. The purpose of this petition obviously was to ensure that only the members of the Bar are appointed by direct recruitment to the post of ad hoc District and Sessions Judges.
3. A writ petition being Writ Petition No. 8903 of 2001 titled Bar Council of Andhra Pradesh v. Union of India also came to be filed before the High Court of Andhra Pradesh at Hyderabad praying that the Court may issue appropriate order, writ or direction declaring that constitution of the FTCs and 32 presiding officers in the State of Andhra Pradesh and the G.O.M. Nos. 38 Law (LA & J. Courts.C) Department, dated 27th March, 2001 and G.O. Rt. No. 412, Law (LA & J. SC.F) Department dated 27th March, 2001 was unconstitutional and consequently should be set aside.
4. The Union of India filed two transfer petitions before this Court being Transfer Petition Nos. 331-332 of 2001 for transfer of both the Brij Mohan Lal case and the Bar Council of Andhra Pradesh case (supra) from the High Courts of Punjab and Haryana and Andhra Pradesh respectively, to the Supreme Court. These petitions came to be allowed vide order dated 3rd August, 2001. By the same order, a Bench of this Court even permitted the intervention by other parties who might have filed similar petitions in different High Courts of the country.
5. Both these writ petitions upon transfer to this Court were numbered as Transferred Cases Nos. 22 and 23 of 2001, respectively.
6. On 6th May, 2002, a detailed order was passed by this Court in Transferred Case No. 22 of 2001 and the directions issued therein read as under:
1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Article 233(2) and 309 of the Constitution. The concerned High Court shall take a decision with regard to the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts.
3. No Judicial Officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme.
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