HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.23902 of 2008 Dated: 16-12-2011 Between: M.A.Shareef and others …Petitioners AND The Hon’ble High Court of A.P., Hyderabad rep. by its Registrar (Vigilance) And others. Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.23902 of 2008 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) Inter se seniority among the promotees to the Cadre of District and Sessions Judge, Grade-II (petitioners herein) and direct recruitees to the said cadre (respondents 3 to 7 herein) is the question which is the subject-matter of dispute in the present writ petition. Petitioners were appointed as District Munsif in Andhra Pradesh Judicial Service in the years 1985 and 1987 through A.P. Public Service Commission and were promoted as Sub-Judges. Later on their names were recommended for promotion to the post of District and Sessions Judge, Grade-II vide letter in D.O.No.3433/2002 B.Spl. dated 23.4.2002 by the Registrar (General), High Court of A.P. and the said recommendations were approved by the Government in G.O.Ms.No.64 (LA & J) (SC.F) Department dated 4.5.2002. Their temporary appointments were notified in the said Cadre in G.O.Rt.No.542 dated 4.5.2002. Consequent to their appointment by transfer, they were given posting orders vide notification No.654-B.Spl. dated 14.6.2002 and consequently, they were relieved from the post of Sub-Jude and were promoted to the post of District and Sessions Judge, Grade-II during June and July 2002. While so, the respondents 3 to 7 herein were appointed as District and Sessions Judges in Grade-II by direct recruitment vide G.O.Ms.No.108 Law (LA & J) (SC-F) Department dated 4.8.2002 and on such appointment, necessary posting orders were issued by first respondent on 3.1.2003 and they were directed to undergo training in the Judicial Academy. On completion of the training, necessary posting orders were issued in ROC.No.73/2003 B.Spl dated 3.1.2003 and accordingly they took charge as District and Sessions Judge, Grade-II at their respective places of postings in the month of January 2003. On the representation made by the respondents 3 to 7 dated 13.11.2003 to the first respondent to fix their seniority over and above the District and Sessions Judges promoted by way of transfer from the cadre of Senior Civil Judge, first respondent vide ROC.No.207/04-B.Spl. dated 24.2.2004 communicated the seniority list fixing the seniority of the respondents 3 to 7 after Sri Mohan Gandhi, whose name was at Serial No.5 and above L.Ravi Babu, whose name was at serial No.1. On petitioners submitting objections and additional objections requesting the first respondent for providing an opportunity of personal hearing, the impugned final seniority list was issued in G.O.Rt.No.1748 (LA & J SC.F) Department dated 18.9.2008 which was also displayed in the web-site of first respondent placing the respondents 3 to 7 in the seniority list below L.Ravi Babu and above M.A.Shareef (first petitioner herein) based on the letter addressed by the Registrar (Vigilance) dated 7.2.2008. Questioning the same, the present writ petition is filed contending that the recommendations of the Registrar (Vigilance) in letter, dated 7.2.2008 to the Government-second respondent is contrary to the Andhra Pradesh State Higher Judicial Service Rules, 1958 (for brevity ‘Rules, 1958’) and contrary to the earlier judgment of this Court in T.H.B. Chalapathi and others v. Hon’ble High Court of A.P. and others[1] and G. Govindarajulu v. High Court of A.P. and others in W.P.No.24989 of 2001 and also the decisions of the Supreme Court. By the date of appointment of petitioners and other 35 Senior Civil Judges as District and Sessions Judges, Grade-II (District and Sessions Judges at entry level) by transfer vide G.O.Ms.No.64 dated 4.5.2002 the respondents 3 to 7 did not join in judicial service and they were appointed as District and Sessions Judges in Grade-II vide G.O.Ms.No.108 dated 14.8.2002 and reported to Judicial Academy on 21.8.2002 for training. They were given posting orders on 3.1.2003 and they joined in service after 3.1.2003, by which time, all the petitioners are already working as District and Sessions Judge, Grade-II and therefore, the respondents 3 to 7 cannot claim any seniority over and above the petitioners. Rule 6 of the Rules, 1958 provides for determination of seniority with reference to the date from which an officer continuously be on duty in that category, which is a guiding factor for determining inter se seniority among the promotees and direct recruitees. The seniority of the respondents 3 to 7 in the cadre of District and Sessions Judge, Grade-II has to be reckoned from 6.1.2003 and other respective dates, on which they assumed charge. It is their case that in view of the law laid down by this Court as confirmed by the Supreme Court, the letter addressed by the Registrar (Vigilance), dated 7.2.2008 on which basis the impugned seniority list is prepared is liable to be set aside being contrary to the Rules, 1958. The appointment of the petitioners and others as District and Sessions Judge, Grade-II as per Rule 2 (a) (i) of Rules, 1958 in G.O.Ms.No.64, dated 4.5.2002 was not on ad hoc basis and were appointed to preside over the regular courts functioning in the State of A.P. Sri C.V.Vachaspathi appointed as District and Sessions Judge, Grade-II vide G.O.Ms.No.64 dated 4.5.2002 was posted as I Additional District and Sessions Judge, Grade-II at Adilabad. Likewise Sri P.M.M.Siddarthi appointed as District and Sessions Judge, Grade-II was posted as Judge, Family Court-cum-V Additional District and Sessions Judge, at Visakpahatnam. Sri V.Balaram appointed as such was posted as I Additional District and Sessions Judge, Ongole and whereas, Sri K.Siva Prasad was posted as IV Additional Metropolitan Sessions Judge, Hyderabad. Sri Mohan Gandhi, who was also appointed under the same G.O. was posted as Judge, Family Court, Waranal. Had really the officers appointed as District and Sessions Judges, Grade-II on transfer were promoted purely on ad hoc basis to act as District and Sessions Judges, Grade-II to preside over the Fast Track Courts as contended by the respondents 3 to 7, there is no scope for the first respondent to post the said officers in those regular courts. In the absence of any rule that the officers appointed under G.O.Ms.No.64 dated 4.5.202 as District and Sessions Judges, Grade-II shall be posted as Fast Track Court Judges, depending upon the availability of vacancies, the first respondent posted some of those officers to preside over the Fast Track Courts and merely because posting of some of the officers to preside over Fast Track Courts will not amount to treat their promotion as ad hoc promotion. Sri D.Prabhakar, who was promoted as District and Sessions Judge, Grade-II under the same G.O., who is junior to the petitioners, was posted as Registrar of A.P., Electricity Tribunal and later as Additional Director of Prosecution, Govt. of A.P., which posts were sanctioned long prior to sanction of Fast Track Courts and they were treated as regular posts. Therefore, the seniority of the petitioners has to be reckoned in the category from the date of their joining in the said posts and the seniority of the direct recruitees like respondents 3 to 7, who were put on probation for a period of one year from the date of their joining in duty has to be reckoned from the date of their joining in the post of District and Sessions Judge and therefore, the respondents 3 to 7 cannot claim any seniority against the petitioners. First respondent filed a counter affidavit inter alia stating that the State Government issued orders vide G.O.Ms.No.38, Law Department dated 27.3.2001 for establishment of 86 additional District and Sessions Judge Courts and Senior Civil Judge-cum-Assistant Sessions Judge Courts (Fast Track Courts) in the state for trial of under-trial prisoners on priority, and as per the Government orders, appointments to these posts are to be made from retired judicial officers in the cadre of District and Sessions Judge and Senior Civil Judge respectively. Later the A.P. State Higher Judicial Service Special Rules for Ad hoc appointment, 2001 (for brevity ‘Ad hoc Rules’) were issued in G.O.Ms.No.286, Law Department dated 5.3.2002. Under the Ad hoc Rules, ad hoc appointments to the posts of District and Sessions Judge, Grade-II for Fast Track Courts are to be made from three sources: (1) Direct recruitment from the Bar; (ii) Appointment by transfer from the category of Senior Civil Judges in the State Judicial Service; and (iii) by reemployment of retired District and Sessions Judges. Rule 2(4) of Ad hoc Rules specifically provides that all appointments made from time to time under Rule 2 shall cease on 31.3.2005. Under the said Rules, 33 1/3% of the total number of ad hoc posts must be filled up by direct recruitment. The Ad hoc Rules came into force with effect from 5.3.2002. As on that date, 24 posts of Fast Track Court Judges were vacant. The High Court recommended to the Government for temporary appointment of 30 Senior Civil Judges as District and Sessions Judges, Grade-II as 6 posts of regular District and Sessions Judges, Grade-II were vacant. In addition, there were 24 posts of Fast Track Courts. Pursuant to the recommendation of the High Court, the Government issued G.O.R.T.No.542 dated 4.5.2002 for initial appointments of 30 Senior Civil Judges, Grade-II by transfer. Sambani Vachaspati to G.Mohan Gandhi (serial No.1 to 6) were appointed to the cadre vacancies in the A.P. State Higher Judicial Service and were issued initial temporary appointments as District and Sessions Judge, Grade-II by transfer and the remaining 24 officers were posted to Fast Track Court vacancies in the notification of High Court No.654 B.Spl. dated 14.6.2000. By the said date, four cadre vacancies in the A.P. State Higher Judicial Service and two Fast Track Court vacancies were factually vacant and therefore, four officers working in the Fast Track Courts i.e. E.Radhakrishna, L.Ravi Babu, M.A.Shareef and V.Venkata Prasad were posted to function in the cadre vacancies and the six officers specified in G.O.Rt.No.1192 were posted to the available Fast Track Court vacancies, by the notification of the High Court No.885 B.Spl. dated 8.8.2002. Respondents 3 to 7 were appointed as District and Sessions Judges, Grade-II by direct recruitment and to the said effect, Government issued G.O.Ms.No.108. On such appointment, respondents 3 to 7 reported for training on 21.8.2002 and after completion of training on 4.1.2003, they were given posting orders. At that point of time, three cadre vacancies and two Fact Track Court vacancies were available and therefore, M.A.Shareef and V.Venkata Prasad, petitioners 1 and 2 herein working in the cadre vacancies were posted to Fast Track Court vacancies and the five direct recruitees were given posting orders in the cadre vacancies. In the seniority list, the direct recruited District and Sessions Judges i.e. respondents 3 to 7 were placed after the District and Sessions Judges who were promoted earlier from the Senior Civil Judge cadre and were posted to the Fast Track Courts. On the representation made by respondents 3 to 7 dated 30.11.2003 to fix their seniority among the District and Sessions judges, the Administrative Committee of the High Court took up the matter on 28.1.2004 wherein it was resolved to call for the objections from the affected officers. Accordingly, on receipt of the objections, the Administrative Committee resolved to place the matter before the Sub- Committee of three Judges constituted by the Hon’ble Chief Justice. On placing the matter before it, the Sub-Committee resolved that as per the Rule 6 of the Rules, seniority of a person appointed to the category shall be determined with reference to the date from which he was continuously on duty in that category. Thus the respondents 3 to 7 must rank in the seniority below L.Ravi Babu and that the officials from M.A. Shareef to Dr.D.Prabhakar Rao will have to rank below the 5 direct recruit officers. The report of the Sub-Committee was approved by the Administrative Committee in its meeting held on 24.12.2007 and the first respondent addressed a letter to the Government for fixation of the seniority of respondents 3 to 7 i.e. direct recruit District and Sessions Judges to rank in the seniority list below L.Ravi Babu and above M.A.Shareef and accordingly, the seniority has been fixed and impugned list has been published. A counter affidavit has been filed on behalf of respondents 3 to 7 stating that as per the amended Rule issued in G.O.Ms.No.25 dated 7.2.2002 appointment of Senior Civil Judges as District and Sessions Judges on promotion is purely on ad hoc basis made to preside over the temporary Fast Track Courts. As the appointment of District and Sessions Judges on ad hoc basis is not permissible under Rules, 1958, special rules are framed to appoint District and Sessions Judges to preside over Fast rack Courts as per G.O.Rt.No.286 dated 5.3.2002 and the said Special Rules are called as A.P. State Higher Judicial Service Special Rules for Ad hoc appointment, 2001 which came into effect from 1.3.2001. The petitioners herein were not appointed as District and Sessions Judges on promotion from Senior Civil Judges under Rules, 1958 and they were purely appointed as per Ad hoc Rules. By the time, the petitioners were promoted on ad hoc basis to preside over the Fast rack Courts, there were no vacancies whether permanent or temporary in the cadre strength under Rules, 1958 and therefore, the petitioners cannot claim any rights under Rules, 1958 as their appointment is not made under the said Rules. Respondents 3 to 7 were appointed in the existing substantive vacancies under the Rules, 1958 as direct recruitees and that they are appointed in the permanent cadre strength. They joined in the service on 21.8.2002 and they underwent training from 21.8.2002 to 4.1.2003 in the A.P. Judicial Academy and thereafter postings were given to them. By the time they joined in service, all the petitioners herein were only working as ad hoc judges to preside over the Fast Track Courts and they are not in the cadre strength under the Rules, 1958. On giving posting orders to respondents 3 to 7 on completion of training, petitioners 1 and 2, who were absorbed in the temporary cadre strength, as vacancies were available, were subsequently reverted as Senior Civil Judges, to enable the first respondent to post the respondents 3 to 7, who are direct recruitees. Necessary reply affidavits were filed by the petitioners to the above counters reiterating their earlier stand taken in the writ petition. According to them, the establishment of 86 Courts in the cadre of District and Sessions Judges and in the cadre of Assistant Sessions Judges (Fast Track Courts) through G.O.Ms.No.38, Law Department, dated 27.3.2001 has no relevancy to the claim of the petitioners for seniority over respondents 3 to 7. Similarly, the Ad hoc Rules of 2001 have no relevancy as the petitioners were not appointed as District and Sessions Judges, Grade-II under the said Ad hoc Rules. Petitioners and other officers were appointed as District and Sessions Judges, Grade-II by transfer as per Rule 2(a)(i) of Rules, 1958 but not on ad hoc basis. In part-II of half yearly list of members of A.P. State Higher Judicial Services issued by the Government of A.P. on the recommendations of High Court from time to time, the petitioners and other officers are shown as members of A.P. State Higher Judicial Services, but not as members of A.P. State Higher Judicial Services on Ad hoc basis. Appointment of officers in the cadre of District and Sessions Judges has nothing to do to their postings to a particular Court. There is no mention either in G.O.Ms.No.64 dated 4.5.2002 or in G.O.Rt.No.542 dated 4.5.2002 that the officers appointed as District and Sessions Judges, Grade-II shall be posted as Fast Track Court Judges only. The appointment of petitioners is on temporary basis but not on ad hoc basis as contended by the respondents 3 to 7. They cannot import a language, which is not borne out in G.O.Ms.No.64 dated 4.5.2002. First petitioner was appointed to act as District and Sessions Judge, Grade-II and posted as III Additional District and Sessions Judge (Fast Track Court), Kadapa, a new court sanctioned under G.O.Ms.No.38 dated 23.7.2001. Among the temporary appointments made of the Senior Civil Judges as District and Sessions Judges, C.V.Vachaspathy was posted as I Additional District and Sessions Judge, Adilabad. Similarly, P.M.M.Siddanthi, V.Balram, Patil Vittal Rao, K.Siva Prasad and G.Mohan Gandhi were posted as District and Sessions Judges vide posting orders dated 14.6.2002. Subsequently, the first petitioner was posted as I Additional District and Sessions Judge, Nizamabad and later he was transferred and posted as II Additional District and Sessions Judge (Fast Track Court), Nizamabad. Similarly, V.Venkata Prasad was appointed as VI Additional District and Sessions Judge (Fast Track Court), Rajahmundry, a new court sanctioned vide G.O.Ms.No.35 dated 27.3.2001 by proceedings of first respondent in ROC No.5136/2002.B.Special dated 14.6.2002. Later on in proceedings No.7088/02 B.Special dated 8.8.2002 he was posted as Presiding Officer, Labour Court-I, Hyderabad and again vide proceedings in ROC No.75/03.B.Special dated 3.1.2003 he was posted as III Additional District and Sessions Judge (Fast Track Court), Nellore. The above said proceedings clearly discloses that the services of the petitioners are being utilized wherever the vacancies arose in the cadre of District and Sessions Judges. The objections submitted by the petitioners were not at all considered either by the Committee constituted or by the High Court and therefore, the proceedings dated 7.2.2008 and consequential impugned proceedings of the Government dated 18.9.2008 are to be declared as illegal and contrary to the Rules, 1958. Sri G.Vidyasagar, learned counsel appearing for the petitioners contends that the revised seniority list placing the respondents 3 to 7 above the writ petitioners as per the recommendations of the High Court is in violation of principles of natural justice and the same is contrary to the Rules, 1958. There is no whisper to the objections submitted by the petitioners dated 5.3.2004 in the Committee report. Petitioners’ appointment falls under Rules, 1958 and in the absence of any proceedings to show that the petitioners were appointed under Ad hoc Rules, they are deemed to be appointed by way of transfer under the Rules, 1958. The Government on approving the appointment of the petitioners as District and Sessions Judges Grade-II by transfer ordered that the appointments will take effect from the date on which the respective officers assume charge, vide G.O.Rt.No.542 dated 4.5.2002. On such appointment, the High Court issued posting orders to the officers through notification dated 14.6.2002. On issuing the posting orders, the petitioners were relieved and were appointed to the promoted posts on various dates during June and July, 2002. Whereas the respondents 3 to 7 were appointed by way of direct recruitment as District and Sessions Judges, Grade-II under A.P. State Higher Judicial Services, 1958 vide G.O.Ms.No.108 Law (LA & J) (SC- F) Department dated 4.8.2002 and were directed to undergo raining at Judicial Academy and on completion of such training posting orders were issued to them and that they took charge at their respective place of posting in the month of January, 2003, by which time, the petitioners have joined and were working as such. On the representation made by the respondents 3 to 7 on 13.11.2003 for fixing their seniority, High Court in its proceedings dated 24.2.2004 communicated seniority list calling for objections. Thereafter the petitioners made objections to the proposed seniority list and also requested for personal hearing, which has not been given and four yeas after such objections, the impugned G.O.Rt. has been issued fixing the seniority list. As per Rule 6 of the Rules, 1958, seniority of a person appointed to category-I or category-II shall be determined with reference to the date from which he may continuously be on duty in that category. Therefore, the present seniority list issued is contrary to the said Rule. In support of his submissions, he placed reliance on T.H.B. Chalapathi (1 supra), V.Bhasker Rao v. State of Andhra Pradesh[2], S.Govindarajulu D.J. v. High Court of A.P.[3]. Further he contends that length of service rendered in the Fast Track Court is deemed to be a service in high Court as held by the Apex Court in Brij Mohan Lal v. Union of India[4]. Rule 15 of the A.P.State Judicial Service Rules, 2007 issued in G.O.Ms.No.119 deals with Ad hoc appointment of Fast Track Court Judges which came into force with effect from 1.1.2007. As per the said Rule the persons appointed on Ad hoc basis shall be regarded as members of the category. The Committee which sat on 28.8.2007 has not taken into consideration of the said Rule. The petitioners were not appointed in accordance with the Special Rules framed in 2002 and their appointments are governed by Rule 6 of the Rules, 1958. In the absence of any proceedings to show that the petitioners were appointed under Rules, 2002, their appointments were deemed to be made under Rule 6 of the Special Rules, 1958. Therefore, the principles laid down by the Supreme Court in C.K.Antony v. B.Muraleedharan[5] cannot be applied in view of the Judgment in V. Bhaskara Rao (2 supra). The Ad hoc Rules came into force on 5.3.2002, and the petitioners were not appointed under the Said Rules, but were appointed under the old Rules i.e. Rules, 1958. To substantiate the submission, reliance is placed on B.S.Mathur v. Union of India[6], Brij Mohan Lal (4 supra) and Rudra Kumar Sain v. Union of India[7]. He further contended that the show-cause notice dated 24.2.2004 is vague and does not contain any reasons. On the other hand, Sri D.Prakash Reddy, learned senior counsel representing the contesting respondents contended that when the Ad hoc Rules came into force on 5.3.2002 and as on the date of appointment, when there were no regular vacancies, the petitioners were appointed to the Fast Track Courts and therefore, their appointments are deemed to be only under 2002 Rules. Only after regular promotion, the services rendered in Fast Track Court will be reckoned as per the judgment of the Apex Court in Brij Mohan Lal (4 supra). All the petitioners were absorbed in regular posts of District and Sessions Judges before 31.3.2005 except Seetarama Avadhani. The length of service rendered in the Fast Track Court deemed to be the service in the High Court. Out of 30 candidates, only 6 were given regular postings and the remaining 24 were appointed in 24 Fast Track Courts. Further fresh appointment should have been made when the petitioners were regularly appointed to the regular posts. The petitioners were not appointed as District and Sessions Judges on promotion from the cadre of Senior Civil Judges under 1958 Rules, but were purely appointed under the Ad hoc Rules. The Ad hoc appointments are totally different and not governed by the service Rules of 1958, which consists of both permanent and temporary appointments. Even after appointment of the respondents in service on 21.8.2002 and after their completion of training, petitioners, who were absorbed in the temporary cadre strength, were reverted to enable the High court to post respondents 3 to 7 which clearly establishes that petitioners’ appointment as District and Sessions judges is not made as per Rules, 1958. Therefore, the petitioners cannot claim any seniority over the respondents 3 to 7, who are directly recruited. Smt. Bhaskara Laxmi, learned standing counsel for High Court contends that Ad hoc Rules came into force with effect from 5.3.2002. As 24 posts of Fast Track Court Judges were vacant, High Court recommended to the Government for temporary appointment of 30 Senior Civil Judges as District and Sessions Judges, Grade-II as 6 posts of regular District and Sessions Judges, Grade-II were vacant in addition to the above 24 posts. That resulted in appointing the 30 Senior Civil Judges as District and Sessions Judges, Grade-II by transfer. Serial No.1 to 6 were appointed to the Cadre in the vacancies available in Higher Judicial Service and the remaining 24 officers were given postings to preside over the Fast Track Courts. On receiving objections from the affected officers to