IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No.530 of 2011 Dated:08-09-2011 Between: K.V.Ramanaji Rao and others. ….Petitioners. And Government of Andhra Pradesh, General Administration Department and another. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No.530 of 2011 JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad) This writ petition is field for issuance of writ of Mandamus declaring the notification dated 10.08.2010 of the High Court of Andhra Pradesh for making recruitment by promotion to the cadre of District and Sessions Judges through limited departmental competitive examination (accelerated recruitment by transfer) from among the Civil Judges (Senior Division) is illegal and direct the High Court of Andhra Pradesh to undertake the recruitment after finalization of seniority under 40 point roster, strictly within the time schedule fixed in the Order dated 04.01.2007 of the Hon’ble Supreme Court in Malik Mazhar Sultan case which is reiterated by the Hon’ble Supreme Court in its Order dated 20.04.2010. The petitioner Nos.1, 2 and 6 are working as temporary District and Sessions Judges in the regular District Courts and petitioner Nos.3, 4 ,5 and 7 are working as Ad hoc District and Sessions in the Fast Track Court. According to the petitioners, the High Court of Andhra Pradesh, respondent No.2 has issued two notifications dated 10.08.2010 one for filling up 18 posts of District and Sessions Judges by direct recruitment and another notification for filling up of 17 posts of District and Sessions Judges by accelerated promotion. The petitioners are questioning the 2nd notification issued for filling up of 17 posts of District and Sessions Judges by accelerated promotion. According to them as on 01.07.2010 the cadre strength of District and Sessions Judges is 165 and as 147 officers are working, the vacancies are only 18. But the two notifications were issued for filling up ‘35’ posts of District and Sessions Judges. According to them in All India Judges Association Case (2002 (4) SCC 247), the Hon’ble Supreme Court directed three modes of recruitment to the category of District and Sessions Judges i.e. 25% by direct recruitment, 25% by promotion through limited departmental competitive examination and 50% by regular promotion. Subsequently, in Malik Mazhar Sultan case, the Hon’ble Supreme Court has issued directions to adhere to the time schedule for filling up the vacancies in various cadres including District and Sessions Judges by order dated 04.01.2007. As per the time schedule, the number of vacancies has to be notified by 31st March, written examination to be completed by 30th June, declaration of results to be made by 15th September and the last date of joining is 31st October. According to them, the A.P.State Judicial Service Rules, 2007 were notified by G.O.Ms.No.119, Law Department, dated 02.08.2008 with retrospective effect from 01.01.2007. According to them, prior to framing of the said rules, on 07.04.2007 the High Court of Andhra Pradesh has notified 35 posts of accelerated promotion. No candidate was selected though vacancies were there. On 02.05.2008 the High Court absorbed as many as 29 service candidates who were temporarily appointed as District and Sessions Judges in the existing vacancies. After such absorption of the service candidates, the 75% quota of recruitment by transfer in the cadre strength was completed. In I.A.Nos.227 and 265 in W.P. ( C) NO.1022 of 1989 in All India Judges Association case, the Hon’ble Supreme Court reiterated that the time schedule prescribed in Malik Mazhar Sultan case shall be strictly adhered to for the purpose of selection and further directed that 25% of the posts shall be filled up by direct recruitment from the Bar, 65% of posts by regular promotion and 10% by accelerated promotion and if the candidates are not available in 10% quota or are not able to qualify in the examination, then the vacant posts shall be filled up by regular promotion and further directed that service rules shall be amended positively with effect from 01.01.2011. They further pleaded that as per the Rule 13 of the Service Rules the seniority of the persons appointed to the cadre of District and Sessions Judges shall be fixed as per 40 point roster specified in Schedule-A. Though the Rules came into force from 01.01.2007 the High Court has not so far fixed the seniority of District and Sessions Judges as per the 40 point roster specified in the rules and has also not notified the vacancies category wise every year. From 02.08.2008 to 31.03.2010 no review of the cadre strength was undertaken on regular basis, which is mandatory as per the Orders dated 20.04.2010 of the Hon’ble Supreme Court in All India Judges Association Case. They further pleaded that after the Order dated 20.04.2010, the quota in the regular promotion was enhanced to 65% from 50% and the quota of accelerated promotion was reduced to 10% from 25% with effect from 01.01.2011 and the High Court has to undertake the recruitment process for regular promotion and for accelerated promotion simultaneously only in the year 2011. It cannot undertake the recruitment process only for accelerated promotion in the month of August, 2010. They further pleaded that the written examination for both the categories i.e. accelerated promotion and direct recruitment is scheduled to be held on 23.01.2011. The syllabus for both the categories is one and the same. The candidates are all Civil Judges (Senior Division) who have put in 10 and above years which include service in the lower cadre, Civil Judge (Junior Division) and the service in the cadre of Civil Judge (Senior Division). The pattern of examination for the service candidates should be different and distinct from that of direct recruits. The High Court of Andhra Pradesh in the notification dated 10.08.2010 specified that the limited departmental competitive examination comprises of written examination and viva-voce and the candidates are required to secure minimum qualifying in the written examination and viva-voce. Justice Jagannadha Shetty Commission in Chapter X of the recommendations specified that there shall be no cut off marks in the viva-voce. The said recommendations were accepted by the Hon’ble Supreme Court in All India Judges Association Case (2002 (4) SCC 247). Therefore, the prescription of minimum marks in viva-voce is contrary to the directions of the Hon’ble Supreme Court. The High Court by acting against the directions given by the Hon’ble Supreme Court is denying the fair chances of promotion of the petitioners and other Civil Judge (Senior Division) who are temporarily promoted and holding the post of District and Sessions Judges. Hence, the writ petition. On behalf of the High Court of Andhra Pradesh, who is respondent No.2 the Registrar (Recruitment) has filed the counter- affidavit. Subsequently, as per the directions of this Court, the Registrar (General) of High Court of Andhra Pradesh has filed additional counter-affidavit and subsequently filed another affidavit as per the directions given in W.P.M.P.No.658 of 2011 dated 16.06.2011. The pleas taken in all the counters are almost one and the same. According to the said counters, except the 1st petitioner, the other petitioners have applied for the examination pursuant to the notification dated 10.08.2010. According to the respondents, 35 posts of District and Sessions Judges were notified on 31.03.2007 for selection through accelerated promotion and in responses only 2 eligible Senior Civil Judges had applied for the said posts, but they were not selected since one candidate retired from service before conducting written examination and another one did not qualify in the written examination. They denied about the appointment of 29 Senior Civil Judges on temporary basis. According to them they were selected as District and Sessions Judges on regular basis before coming into force of the new Rules viz., Andhra Pradesh State Judicial Service Rules, 2007, but due to want of vacancies they were posted in Fast Track Courts and subsequently they were transferred and posted in Regular District and Sessions Judges Courts. They also denied that after absorption of 29 District and Sessions Judges, the 75% quota meant for recruitment by transfer in the cadre strength was completed. According to them, with regard to 50% quota of recruitment by transfer, already the District and Sessions Judges who are promoted regularly are more than 65%. As on 01.02.2011, 167 District and Sessions Judges are working and among them, 32 District and Sessions Judges are appointed on temporary basis as per G.O.Ms.No.113 and 115 dated 21.08.2010 and 23 District and Sessions Judges are directly recruited under 25% quota. Hence, the regular District and Sessions Judges who are promoted on regular basis from the category of Senior Civil Judges are 112 and by taking into consideration the total cadre strength of 165 District and Sessions Judges, the 65% quota to be filled by giving regular promotions from the category of Senior Civil Judge comes to only 107, whereas, already 112 District and Sessions Judges who are promoted from the category of Senior Civil Judges are working. Hence the recruitment by transfer among 50% (now 65%) quota does not arise. According to them, the same was noted in the Judgment dated 26.03.2009 of the Division Bench of this Court in W.P.No.23719 of 2008. According to them they have filed Review W.P.M.P.No.18169 of 2009 in W.P.No.23719 of 2008 and the said Review Petition was disposed of by the Division Bench of this Court on 02.11.2009 with certain direction for calculation purpose, the Officers who are on O.D. are also to be taken into account. Thereafter, the High Court, as per the Full Court Resolution, preferred Special Leave Petition in the Hon’ble Supreme Court of India against the Orders in the above said writ petition and Review Petition. The Hon’ble Chief Justice, constituted a committee of three Judges on the above said issue and in the meeting held on 25.03.2010 suggested inter alia to fill up vacant posts of District and Sessions Judges immediately by making temporary appointments and Ad hoc appointments from the category of Senior Civil Judges under Rules 14 and 15 of the A.P. State Judicial Service Rules, 2007. The committee also suggested that further action for notification of vacancies in different categories and making regular appointments in all the three categories of offices in accordance with 2007 Rules and the Judgment in Malik Mazhar Sultan v. U.P. Public Service Commission dated 04.01.2007 and further suggested that undisputed vacancies to be notified for direct recruitment of District Judges be arrived at on the basis of the cadre strength plus the anticipated vacancies arising till 31.12.2010 less the direct recruit District Judges in service. The said resolutions have also been approved by the Full Court of High Court of Andhra Pradesh. In view of the suggestion of the committee the vacant posts of District and Sessions Judges have been filled up by giving Temporary and Ad hoc appointments to eligible Senior Civil Judges as per G.O.Ms.No.113 and 115, Law (LA & J-SCF) Department, dated 21.08.2010, respectively. The High Court did not make regular appointment to the posts of District and Sessions Judges under 50% (now 65%) quota meant for recruitment by transfer from the category of Senior Civil Judges as the Officers promoted from the cadre of Senior Civil Judges are more than 65% of the cadre strength. Further, notification was issued for filling up of 18 posts of District and Sessions Judges by way of direct recruitment and 17 posts of District and Sessions Judges on the basis of merit through Limited Departmental Competitive Examination (Accelerated Recruitment by Transfer). The recruitments in the cadre of District and Sessions Judges are being conducted as per the directions dated 20.04.2010 of the Hon’ble Supreme Court in I.A.No.77 in Civil Appeal No.1867 of 2006. As per the Judgment dated 20.04.2010 in All India Judges Association Case, 25% of posts are to be filled up by direct recruitment from the Bar, 65% by regular promotions of Civil Judges (Senior Division) and 10 % by Limited Departmental Competitive Examination and if the candidates are not available for 10% or are not able to qualify in the examination those vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable and also directed to amend the service Rules positively by 01.01.2011, if the rules are not amended the Order dated 20.04.2010 would prevail and further recruitment shall be continued accordingly as directed by them. As per the said directions, the High Court sent necessary proposals on 31.12.2010 for amendment of the A.P. State Judicial Service Rules, 2007. According to them, the total number of Courts sanctioned are 165 (88 permanent and 77 temporary), and 10% of the total number of posts of District and Sessions Judges comes to 16.5 and the same is rounded to 17 posts. As regards 18 posts of District and Sessions Judges notified for recruitment, it is submitted that since the total number of Courts sanctioned are 165 and 25% of the total number of posts of District and Sessions Judges comes to 41 and from this, 23 direct recruit District and Sessions Judges already working are deducted, there remains 18 vacancies, as such the said vacancies have been notified. According to them, 11 District and Sessions Judges were appointed by direct recruitment and the process of recruitment of 18 post of District and Sessions Judges by Direct Recruitment and 17 posts of District and Sessions Judges by accelerated promotions is in progress, therefore, the High Court could not take up the matter of fixing up of 40-point roster as specified in new rules, i.e. Andhra Pradesh State Judicial Service Rules, 2007. They further pleaded that as on today 32 District and Sessions Judges are working on temporary basis and 60 District and Sessions Judges are working on ad hoc basis and 32 Courts in the category of District and Sessions Judges are vacant and therefore, the newly recruited District and Sessions Judges can be accommodated after completion of selection process. They further pleaded that with regard to the time schedule, it was brought to the notice of the Hon’ble Supreme Court by the Registrar General in I.A.No.77 of 2010 by way of affidavit dated 25.11.2010 that the notification was issued on 10.08.2010 by the High Court of Andhra Pradesh for 18 posts of District Judges by direct recruitment and 17 posts of District Judges through limited Departmental competitive examination (Accelerated Recruitment by Transfer of Civil Judge (Senior Division)) having not less than 5 years of qualifying service in A.P. State Judicial Service and the same was taken note of by the Hon’ble Supreme Court in the Order dated 03.12.2010. With regard to the pattern of examination of service candidates, respondents pleaded that the Hon’ble Supreme Court directed that the written examination may be a) objective type questions with multiple choice with can be scrutinized by the computer and b) subjective/narrative. As per Rule 6 (5) of the A.P. State Judicial Service Rules, 2007 the High Court may prescribe departmental competitive examination for accelerated recruitment by transfer. The High Court adopted the same mode of examination for the posts of District and Sessions Judges by direct recruitment and by limited departmental competitive examination of Civil Judges (Senior Division) having not less than 5 years of qualifying service. With regard to fixing of minimum marks in viva voce, they pleaded that the law is settled that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence and in case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum bench marks for written test as well as for viva voce. Hence, they pleaded justification in fixing the minimum qualifying marks in viva voce. Hence, prayed for dismissal of the writ petition. Sri G.Vidyasagar, learned counsel appearing for the writ petitioners has pleaded that there are no vacancies of District and Sessions Judges for issuing notifications for filling up 17 posts by accelerated promotion as the working District and Sessions Judges by transfer are more than 75% of the total strength of the District and Sessions Judges. As such, the impugned notification dated 10.08.2010 is liable to be set aside. He further pleaded that in Malik Mazhar Sultan case the Hon’ble Supreme Court by judgment dated 04.01.2007 has fixed the time schedule for filling up the posts of judicial officers including the District and Sessions Judges and as per the schedule, the notification has to be issued by 31st March of each year by ascertaining the vacancies as on that date, but the present notification was issued in the month of August, 2010, which is contrary to the time schedule fixed by the Hon’ble Supreme Court of India. He further pleaded that without finalizing the 40-point roster as per the schedule (A) attached to A.P. State Judicial Service Rules, 2007 further vacancies of District and Sessions Judges cannot be notified. He further pleaded that the prescribed minimum marks for viva-voce is contrary to the directions issued by the Hon’ble Supreme Court of India, on the above said ground he sought for setting aside the notification dated 10.08.2010. The Standing Counsel appearing for the High Court of Andhra Pradesh has pleaded that notification dated 31.03.2007 was issued for filling up of 35 posts of District and Sessions Judges through accelerated promotion and in response only 2 eligible Senior Civil Judges had applied for the said posts, buy they were not selected since one candidate retired from service before conducting written examination and another one did not qualify in the written examination. As such, they could not fill up any post of District and Sessions Judges through accelerated promotion. She also further pleaded that no candidate was appointed as District and Sessions Judge by regular promotion after 2007, but only promoted 32 District and Sessions Judges on temporary basis and 60 District and Sessions Judges on ad hoc basis as per the Rules 14 and 15 of A.P. State Judicial Service Rules. As per the report of the 3 Judges committee appointed by the Hon’ble Chief Justice, which was approved by the Full Court, the said vacant posts of District and Sessions Judges were filled up under Rules 14 and 15 and by taking into consideration of the cadre strength issued 2 notifications for filling up of 18 posts of District and Sessions Judges by direct recruitment and 17 posts of District and Sessions Judges through limited departmental competitive examination as per the Rules and there is no violation of any Rules existing as on that date. She further pleaded that with regard to not adhering to schedule fixed by the Hon’ble Supreme Court of India in Malik Mazhar Sultan case, the Registrar General has filed affidavit in Hon’ble Supreme Court in I.A.77 of 2010 and the same was noted by the Hon’ble Supreme Court in its Order dated 03.12.2010, as such there is no violation of Supreme Court directions. The recommendations of the Shetty Commission with regard to pay, allowances and other service conditions of judicial officers were approved by the Hon’ble Supreme Court of India in All India Judges Association Case (2002 (4) SCC 247). The Hon’ble Supreme Court of India has directed three modes of recruitment to the category of District and Sessions Judges i.e. 25% by direct recruitment, 25% by promotion through limited departmental competitive examination and 50% by regular promotion and also directed for framing of proper Rules by the respective High Courts. Subsequently, in Malik Mazhar Sultan v. U.P. Public Service Commission ((2008) 17 SCC 703), the Hon’ble Supreme Court of India has fixed the time schedule for filling up the vacancies in various categories including the District and Sessions Judges by Order dated 04.01.2007. As per the time schedule, the number of vacancies has to be notified by 31st March, written examination to be completed by 30th June, declaration of results to be made by 15th September and the last date of joining is 31st October. Subsequently, the Hon’ble Supreme Court of India in I.A.Nos.227 and 265 in W.P.( C) NO.1022 of 1989 in All India Judges Association case, reiterated that the time schedule prescribed in Malik Mazhar Sultan case shall be strictly adhered to for the purpose of selection and further directed that 25% of the posts shall be filled up by direct recruitment from the Bar, 65% of posts by regular promotion and 10% by accelerated promotion and if the candidates are not available in 10% quota or are not able to qualify in the examination, then the vacant posts shall be filled up by regular promotion and further directed that service rules shall be amended positively with effect from 01.01.2011, failing which the Order dated 20.04.2010 would prevail. The impugned notification was issued by the 2nd respondent – High Court of Andhra Pradesh on 10.08.2010 for filling up of 17 posts of District and Sessions Judges by limited departmental competitive examination (accelerated recruitment by transfer). As per direction given in All India Judges Association Case, the service Rules were suitably amended and the Andhra Pradesh State Judicial Service Rules 2007 even though notified on 02.08.2008 having retrospective effect from 01.01.2007. As per the Rule 4 (1) (b) the appointment to the category of District Judges shall be made (i) by direct recruitment, (ii) by transfer strictly on the basis of merit through a limited departmental competitive examination (accelerated recruitment by transfer), and (iii) by recruitment by transfer from among the Senior Civil Judges, provided that 25% of the cadre strength shall be filled up by direct recruitment from among the eligible Advocates on the basis of written and viva voce tests as prescribed by the High Court. 25% of the cadre strength shall be filled up by means of recruitment by transfer on the basis of merit through departmental competitive examination (Accelerated recruitment by transfer) as prescribed by the High Court from among the category of Senior Civil Judges, who have put in not less than five years of qualifying service; and 50% of the cadre strength shall be filled up by recruitment transfer from among the category of Senior Civil Judges on the basis of merit- cum-seniority and by conducting a suitability test as prescribed by the High Court in order to ascertain and examine the legal knowledge of the candidates and to assess their continued efficiency with adequate knowledge of case law. Therefore, as per the above said rules, 25% of the cadre strength shall be filled up by means by means of recruitment by transfer on the basis of merit through departmental competitive examination (Accelerated recruitment by transfer). Subsequently, the Hon’ble Supreme Court by Order dated 20.04.2010 has reduced the quota from 25% to 10% and directed to amend the rules suitably by 01.01.2011, failing which, the said directions have to be followed. As per the said directions, the High Court sent necessary proposals on 31.12.2010 for amendment of Andhra Pradesh State Judicial Service Rules, 2007 and the same is pending. Admittedly, so far the posts of District and Sessions Judges were not filled up through limited departmental competitive examination even though notification was issued for filling up of 35 posts under the said category in 2007. According to the Standing Counsel of the High Court of Andhra Pradesh promoted candidates are in excess of 50% of the cadre strength of the District and Sessions Judges and this was mainly due to less representation of direct recruits, non-availability of eligible/qualified candidates through limited competitive examination of Civil Judges (Senior Division) having not less than 5 years of qualifying service, and as and when vacancies arise in regular courts, the officers who are working in Fast Track Courts, are being posted as regular District and Sessions Judges. 38 District and Sessions Judges were posted in the regular District and Sessions Courts after 01.01.2007