1. Ad hoc District Judges appointed to Fast Track Courts challenge the denial of seniority from their initial appointment date upon being appointed to the regular cadre. (Para 3 , 4 , 6 )
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2019 Supreme(SC) 878
SUPREME COURT OF INDIA
S.A. BOBDE, R. SUBHASH REDDY, B.R. GAVAI, JJ.
Kum C. Yamini – Appellant
Versus
The State of Andhra Pradesh & Anr. – Respondents
Civil Appeal No.6296 of 2019 [Arising out of S.L.P.(C)No.20990 of 2017] with Civil Appeal No.6297 of 2019 [Arising out of S.L.P.(C)No.12535 of 2018]; Civil Appeal No.6298 of 2019 [Arising out of S.L.P.(C)No.13046 of 2018]; And Civil Appeal No.6299 of 2019 [Arising out of S.L.P.(C)No.28302 of 2018]
Decided on : 14-08-2019
Important Points
IMPORTANT POINTS
(1) Claim of seniority will depend upon several factors, nature of appointment, rules as per which appointments are made and when appointments are made, were such appointments to cadre posts or not.
(2) If a person is not appointed to any post in the cadre, such person cannot claim any seniority over persons who are appointed in vacant posts in the cadre.
(1) Claim of seniority will depend upon several factors, nature of appointment, rules as per which appointments are made and when appointments are made, were such appointments to cadre posts or not.
(2) If a person is not appointed to any post in the cadre, such person cannot claim any seniority over persons who are appointed in vacant posts in the cadre.
Subject
Judgement - SERVICE
Act Referred
ANDHRA PRADESH STATE HIGHER JUDICIAL SERVICE SPECIAL RULES: R.2, R.6, R.7
ANDHRA PRADESH STATE JUDICIAL SERVICE RULES: R.9
CONSTITUTION OF INDIA: Art.309
SPECIAL RULES: R.2
ANDHRA PRADESH STATE JUDICIAL SERVICE RULES: R.9
CONSTITUTION OF INDIA: Art.309
SPECIAL RULES: R.2
Headnote
(A) Service Law – Seniority – Higher Judicial Service – Rejection of claim of seniority from date of her initial appointment as ad hoc District Judge – Claim of appellants that they were appointed as ad hoc District Judges by following procedure which is similar to procedure for appointments to sanctioned posts in regular cadre, is no ground to accede to their request to reckon their seniority in permanent cadre of District Judges, from their initial appointment as District Judges for Fast Track Courts – Appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service – If a person is not appointed to any post in the cadre, such person cannot claim any seniority over persons who are appointed in vacant posts in the cadre – Fast Track Courts which were sanctioned initially for five years from grants of 11th Finance Commission, were continued in some States beyond such period with assistance, from States and such Fast Track Courts were discontinued in some other States – Merely on the ground that they were selected by following same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from date of initial appointment – When their claim for regularisation/absorption and challenge to notification issued in year 2004 for making selections to vacant regular posts of District Judges is rejected by High Court and confirmed by this Court, appellants have no basis to claim seniority from date of initial appointment – Though appellant claims seniority over persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties – On this ground also, claim of appellants deserves rejection. (Para 13)
(B) Service Law – Seniority – Higher Judicial Service – Rejection of claim of seniority from date of her initial appointment as ad hoc District Judge – Claim of seniority will depend upon several factors, nature of appointment, rules as per which appointments are made and when appointments are made, were such appointments to cadre posts or not – When appellants were not appointed to any regular posts in A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts – However, appellants and all others who are similarly placed are to be given benefit of counting their service rendered as Fast Track Judges, for the purpose of pensionary and other retiral benefits. (Paras 14 and 17)
Facts of the Case:
Appellant was appointed to a Fast Track Court, as an ad hoc District Judge in the year 2003. The appellant was practising as an advocate at the relevant time, and the appointment was made pursuant to selections made for appointment to the post of ad hoc District Judges. Relief claimed in these matters is same, as such they are heard together and disposed of by this common judgment and order.
Findings of Court:
We are in agreement with the view taken by a two Judge Bench of this Court. Resultantly, while rejecting their claim for grant of seniority from the date of their initial appointment as Fast Track Court District Judges and other reliefs, we direct that the appellants and all others who are similarly placed are to be given benefit of counting their service rendered as Fast Track Judges, for the purpose of pensionary and other retiral benefits.
Result : Appeals disposed of with observations and directions.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):Sridhar Potaraju, Shweta Parihar, G.Usha Sri, Venkateswara Rao Anumolu, Advocates
For the Respondent(s):Guntur Prabhakar, Uttara Babbar, S. Udaya Kumar Sagar, Swati Bhardwaj, Tanmaya Agarwal, Advocates
For the Petitioner(s):Sridhar Potaraju, Shweta Parihar, G.Usha Sri, Venkateswara Rao Anumolu, Advocates
For the Respondent(s):Guntur Prabhakar, Uttara Babbar, S. Udaya Kumar Sagar, Swati Bhardwaj, Tanmaya Agarwal, Advocates
Table of Contents
2. Appellants claim seniority based on similar selection procedures; respondents argue ad hoc appointments under special rules create no right to seniority in the regular cadre. (Para 8 , 9 )
3. Ad hoc appointments for Fast Track Courts under special rules are distinct from regular cadre appointments and do not confer membership or preferential rights in the permanent service. (Para 11 , 12 , 13 , 14 , 15 )
4. Ad hoc appointments under separate special rules for limited-term courts do not entitle appointees to seniority in the regular cadre, regardless of the selection procedure used. (Para 13 , 15 )
5. Claim for seniority from initial ad hoc appointment rejected, but service rendered in Fast Track Courts shall count toward pensionary and retiral benefits. (Para 17 )
6. Does appointment as an ad hoc judge in Fast Track Courts entitle the appointee to seniority in the regular judicial cadre?
No. Appointments to Fast Track Courts are ad hoc in nature, governed by separate special rules, and do not confer membership in the permanent cadre or any preferential right to seniority over regular appointees. (Para 11 , 13 , 15 )
7. Does a selection procedure similar to that of regular appointments justify granting seniority from the date of ad hoc appointment?
No. The nature of the appointment and the rules governing the cadre are the determining factors. Similarity in the selection process does not bridge the distinction between ad hoc and regular cadre posts. (Para 13 , 14 )
8. Can service rendered as a Fast Track Court judge be counted for pensionary benefits?
Yes. Service rendered as Fast Track Court judges is to be counted toward the total length of service for the purpose of determining pension and other retiral benefits. (Para 16 , 17 )
JUDGMENT :
R. Subhash Reddy, J.
1. Leave granted.
2. Relief claimed in these matters is same, as such they are heard together and disposed of by this common judgment and order. For the purpose of disposal, we C.A .@ S.L.P(C) No.20990/17 etc. etc. refer to the facts stated in the civil appeal arising out of S.L.P.(C)No.20990 of 2017.
3. This civil appeal is filed, aggrieved by the impugned judgment and final order dated 17.04.2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh whereby writ petition filed by the appellant in Writ Petition No.13022 of 2017 was dismissed. In the writ petition, appellant has questioned paragraph nos.5 and 6 of G.O.MS. No.68 dated 02.07.2013 of Law (LA & J-SC.F) Department as unconstitutional and illegal.
4. The appellant was appointed to a Fast Track Court, as an ad hoc District Judge in the year 2003. The appellant was practising as an advocate at the relevant time, and the appointment was made pursuant to selections made for appointment to the post of ad hoc District Judges. Pursuant to her selection to preside over a Fast Track Court, she joined duty on 25.10.2003. On 28.05.2004, the second respondent-High Court issued notification, inviting applications for regular appointments to the posts of District & Sessions Judges in the A.P. Higher Judicial Service. A set of ad hoc District Judges appointed to the Fast Track Courts filed writ petition in W.P.No.11273 of 2004 questioning such notification. In the aforesaid writ petition all the ad hoc District Judges who were selected to preside over the Fast Track Courts, prayed for absorption against regular vacancies. The writ petition was dismissed by the High Court by order dated 13.07.2004. Aggrieved by the aforesaid judgment, a Special Leave Petition (C)No.17338 of 2004 was filed by the ad hoc District Judges. While granting leave, this Court, by interim order dated 09.03.2006 passed in Civil Appeal No.1276 of 2005, has observed that any appointments that would be made in regular selections, will be subject to the result of the civil appeal. Subsequently, the above said civil appeal was disposed of along with a batch of matters, which were decided on 19.04.2012 which is reported as Brij Mohan Lal (2) v. Union of India & Ors., (2012) 6 SCC 502. While considering the validity of notification dated 28.05.2004, which was issued for making appointments to the posts of District & Sessions Judges and the claim of absorption made by the ad hoc District Judges, who are appointed to preside over Fast Track Courts, this Court in paragraph 175 has observed as under :
“175. The petitioners from the State of Andhra Pradesh have also prayed for identical relief claiming that the advertisement dated 28-5-2004 issued for filling up the vacancies in the regular cadre should be quashed and not processed any further and the petitioners instead should be absorbed against those vacancies. In view of the above discussion, we find no merit even in these submissions.”
5. In the aforesaid judgment, while considering their claim for absorption in the regular cadre, while declining to grant the relief of absorption certain directions were issued as contained in paragraph 207.9. The directions issued in the aforesaid paragraph read as under :
“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 Cou
