THE HON’BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR <+ WRIT PETITION No.23719 of 2008 % WEDNESDAY, THE TWENTY SIXTHDAY OF MARCH, TWO THOUSA AND NINE # M.Virupaksha Dattatreya Gowda and others ….Petitioners Versus $ The Hon’ble High Court of A.P., Hyderabad rep.by its Registrar (Vigilance) and another …..Respondents ! Counsel for the Petitioners : MR.G.VIDYASAGAR MR.B.ADINARAYANA RAO ^ Counsel for the Respondent No.1 : (SC FOR APHC) D.V.SITHARAM MURTHY < Gist : > Head Note: ? Cases Referred: 1. AIR 1983 Supreme Court 852 2. 1988 (Supp) Supreme Court Cases 740 3. 2007 AIR (SCW) 6745 = 2007 Supreme 798 4. (1997) 10 SCC 419 5. (1990) 3 SCC 157 6. AIR 1972 SC 2175 = (1972) 4 SCC 830 7. (2003) 2 SCC 632 8. (2008) 3 SCC 359 9. (1999) 3 SCC 653 10. 2002 (4) Supreme Court Cases 247 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTHDAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.23719 of 2008 Between: 1 M.Virupaksha Dattatreya Gowda S/o.B.R.D.Gowda Presently working as Secretary, CLSA, Chittoor R/o.Chittoor 2 Mr.R.Niranjan S/o.R.V.Ranga Rao Chirala R/o.Chirala, Prakasam District 3 Mr.M.Venkata Rama Rao S/o.M.Parthasarathi Rao I Additional Senior Civil Judge, Ranga Reddy District 4 Mr.B.David Raju s/.o.Krupamani Principal Senior Civil Judge, Visakhapatnam R/o.Visakhapatnam 5 Smt.K.Shyamala Devi D/o.K.V.Satyanarayana Murthy Principal Senior Civil Judge, Tenali Tenali, R/o.Tenali, Guntur 6 Mr.Shaik Mohd.Ismail S/o.S.Dastagir Saheb Senior Civil Judge, cum Secretary DLSA Nellore R/o.Nellore 7 Mr.M.Seetharama Raju S/o.Hanumanth Rao R/o.Sattenpali, Guntur District 8 Mr.R.Sudhakar naidu S/o.R.Sundaraaiah Naidu Kurnool,R/o.Kurnool 9 Mr.M.Ramalinga Reddy S/o.Sri Papi Reddy Adoni,Kurnoo, R/o.Adoni,Kurnool District 10 Mr.P.Sudhakar S/o.Raghavaiah Presently Working as Secretary, DLSA,Kurnool R/o.Kurnool 11 Mr.S.V.Chalapathi S/o.Ramachandraiah R/o.Kurnool R/o.Kurnool 12 Smt.K.Bhvani D/o.Venkata Ramaiah West Godavari District R/o.Eluru, West Godavari District ..... PETITIONERS AND 1 The Hon`ble High Court of AP., Hyderabad rep.by its Registrar (Vigilance) 2 The Government of AP., rep.by its Secretary Law (LA&K.SC.F)Department, Secretariat,Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order direction or writ particularly one in the nature of writ of mandamus or any other appropriate writ declaring the action of the respondents in not filing up the vacancies of the District and Sessions Judges under AP State Judicial Rules, 2007 Simultaneously from among the Direct Recruitment ,Accelerated Recruitment by Transfer and Recruitment by Transfer among the Senior Civil Judges, is irrational and arbitrary, and consequently direct the respondents to fill up the 39 posts of the District and Sessions Judges, by Accelerated Recruitment by Transfer/Recruitment by Transfer from among the Civil Judges, (Senior Division), Simultaneously along with 13 posts of the District and Sessions judges (Entry Level by Direct Recruitment) and pass such other relief or reliefs as the Hon’ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioners: MR.G.VIDYASAGAR MR.B.ADINARAYANA RAO Counsel for the Respondent No.1: (SC FOR APHC) D.V.SITHARAM MURTHY The Court made the following: THE HON'BLE MR. JUSTICE V.ESWARAIAH AND THE HON’BLE MR. JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.23719 OF 2008 O R D E R: (Per the Hon’ble Mr.Justice V.Eswaraiah) The petitioners twelve in number are the Senior Civil Judges, working in Andhra Pradesh Judiciary, seeking to issue a writ of mandamus, declaring the action of the High Court of Andhra Pradesh and the Government of Andhra Pradesh in not filling up the vacancies of District and Sessions Judges under Andhra Pradesh State Judicial Service Rules, 2007 simultaneously from among the direct recruitment, accelerated recruitment by transfer and recruitment by transfer among the Senior Civil Judges is irrational and arbitrary and direct them to fill up 39 posts of District and Sessions Judges by accelerated recruitment by transfer/recruitment by transfer from among the Civil Judges (Senior Division), simultaneously along with 13 posts of the District and Sessions Judges (Entry Level) by direct recruitment. 1. It is the case of the petitioners that they are initially appointed as Civil Judges (Junior Division) and subsequently promoted as Civil Judges (Senior Division). Senior Civil Judges are eligible for further promotion to the post of District and Sessions Judges Grade-II in terms of Andhra Pradesh State Higher Judicial Service Rules. As per Rule 2, the appointment to the post of District and Sessions Judges Grade-II is to be made by transfer from among the Senior Civil Judges in Andhra Pradesh Judicial Service and from the Bar. 33 1/3% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. All promotions are to be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 2. It is stated that the Hon’ble Supreme Court in All India Judges Association Vs. Union of India (1992 (1) SCC page 119) gave various directions with regard to the working conditions, benefits to be given to the members of the subordinate judiciary. In terms of the said directions, the Government of India have constituted the First National Judicial Pay Commission under the chairmanship of Justice K.J.Shetty. The Commission has submitted its report on 11- 11-1999. Some of the recommendations made by the said Commission include the recommendations made with regard to the recruitment to the cadre of Civil Judges and appointment to the post of District Judges, which includes the Additional District Judges in the Higher Judiciary. The Commission also recommended that direct recruitment to the Higher Judicial Service i.e., the District Judges cadre from among the judiciary should be 25% and the process of recruitment is to be by a competitive examination both written and viva-voce. In respect of appointment by promotion, the Commission recommended that 50% of the total posts in the Higher Judiciary must be filled by promotion on the principle of merit-cum-seniority, for which purpose, the High Court should advise and evaluate a test in order to ascertain and examine the legal knowledge of those candidates and assess their continued efficiency with adequate knowledge of case law. For the remaining 25% of the posts the Commission recommended to fill up by promotion strictly on the basis of merit through limited departmental competitive examination, for which the qualifying service as Civil Judge (Senior Division) should be not less than 5 years. The Hon’ble Supreme Court in its order dated 21-3-2002 commonly known as Second All India Judges Association Case (2002 (4) SCC 247) at para 28 directed the recruitment to the Higher Judicial Service in the cadre of District Judges, which reads as under:- “(1)(a)… 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit cum seniority and passing a suitability test; (b)… 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less then five years’ qualifying service; and (c)… 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.” The Supreme Court also directed that appropriate rules shall be framed by the respective High Courts as early as possible and to suitably amend and promulgate seniority rules on the basis of roster principle as approved in R.K.Sabharwal case (1995(2) SCC 745). The Supreme Court directed that appropriate rules and methods to be adopted by the High Court and approved by the States, wherever necessary by 31-3-2003. 3. It is stated that in spite of the afore said specific directions given by the Hon’ble Supreme Court in All India Judges Association Case, number of States including the State of Andhra Pradesh have not taken steps for framing the rules. The said issue came up again for consideration before the Hon’ble Supreme Court in Civil Appeal No.1867 of 2006 (Malik Mazhar Sultan and another Vs. U.P.Public Service Commission and others). In the said case, the Supreme Court by order dated 4-01-2007 issued general directions to adhere the time schedule for filling up the vacancies as per the existing Judicial Service Rules. The Supreme Court directed to fill up the vacancies in the cadre of District Judges as follows:- (a) 25% of the vacancies to be filled up by direct recruitment from the Bar, (b) 25% by promotion through limited competitive examination of Civil Judges (Senior Division) who are not having less than 5 years of qualifying service and (c) 50% of the vacancies in the cadre of District Judge to be filled by promotion. As per the time schedule, the number of vacancies are to be identified by 31st March, written examination to be completed by 30th June and declaration of final results by 15th September after conducting viva voce and appointment orders to be issued by 30th September and last date for joining is 31st October. Similarly for filling up the vacancies in the cadre of District Judges in respect of 50% of the vacancies to be filled by promotion, starts by issuance of the notification by 31st March and issuance of appointment orders by 30th September. The Hon’ble Supreme Court further requested the concerned Chief Justices of the High Courts to constitute a committee of 2 or 3 Judges to monitor and oversee the timely selection and appointment of the judicial officers is made. The Registrar of the concerned selection and appointment committee shall send a report to the Supreme Court by 31st January every year as regard the filling up of the vacancies with copies to the Minister for Justice in the Central Government and the Law Minister of the concerned State. The State Governments are directed to issue appointment letters within one month of receipt of the recommendations from the respective High Courts. The select list prepared shall be valid till the next select list is published. 4. Pursuant to the aforesaid directions issued by the Supreme Court in Malik Mazher’s case, notification dated 7-4- 2007 was issued, inviting applications from the Civil Judges (Senior Division) who have put in not less than 5 years of qualifying service as on 31-7-2007 for the appointment of 35 posts of District and Sessions Judges. The notification did not give any details whether the said notification is among the 50% of the vacancies by promotion or among 25% of the vacancies through limited competitive examination. Having issued the notification dated 7-4-2007 for filling up the posts of District Judges from among the Civil Judges (Senior Division), no further steps have been taken. In so far as the filling up of the vacancies in the cadre of District Judges of 25% by direct recruitment from the Bar is concerned, pursuant to the aforesaid directions of the Supreme Court, notification dated 15-4-2007 was issued inviting applications for filling up of 23 posts of District and Sessions Judges. A corrigendum dated 28-7-2007 was issued notifying total number of posts of District and Sessions Judges by direct recruitment to be filled up are only 13 instead of 23 vacancies as notified by the Government of Andhra Pradesh on 15-4-2007 and the written examination was conducted and among the successful candidates, interviews were also held in the month of November, 2008. 5. It is stated that the High Court of Andhra Pradesh forwarded the recommendations for framing special rules in tune with the aforesaid directions of the Supreme Court to the Government of Andhra Pradesh vide letter dated 15-4-2008 and His Excellency, the Governor of Andhra Pradesh in exercise of the powers conferred under Articles 233, 234, 235 and 237 read with Article 309 and 320 of Constitution of India and in super-cession of the existing rules, framed the rules on the subject in consultation with the High Court of Andhra Pradesh known as Andhra Pradesh State Judicial Service Rules, 2007 and notified vide G.O.Ms.No.119 LAW (LA & J) SC.F) Department dated 2-9-2008. As per Rule 1(2), the said rules are deemed to have come into force with effect from 1-1-2007. Rule 3 deal with consideration of the services which is known as Andhra Pradesh State Judicial Services. The service consists of the categories (i) District Judges (ii) Senior Civil Judges and (iii) Civil Judges. Rule 4(2)(b) deal with appointment to the category of District Judges. 25% of the cadre strength shall be filled up by direct recruitment from among the eligible Advocates. 25% of the cadre strength shall be filed by means of Accelerated Recruitment by Transfer through Departmental Competitive examination 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 remaining 50% of the cadre strength to be filled by recruitment by transfer from among the category of the Senior Civil Judges on the basis of merit cum seniority and by conducting suitable 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. As per Rule 2(c) of the Andhra Pradesh State Judicial Service Rules 2007, “Cadre” means the post in each category of service; as per Rule 2(d) “Cadre Strength” means the number of posts permanent as well as temporary in the cadre. Rule 6 deals with methodology for conducting examination. Rule 7 deals with reservation, Rule 13 deals with seniority. As per Rule 13(a): Seniority of the persons appointed to the category of District Judges by direct recruitment as well as recruitment by transfer shall be fixed as per the forty point roster prescribed in Schedule-A. Forty point roster giving seniority of the District Judges for direct recruitment, accelerated recruitment by transfer and recruitment by transfer is fixed. It is stated that Andhra Pradesh State Judicial Service Rules, 2007 having been deemed to have come into force with effect from 1-1-2007 and the said rules are in tune with the directions of the Supreme Court in All India Judges Association Case and Malik Mazhar’s case in Civil Appeal No.1867 of 2006 and all the vacancies as on and after 1-1- 2007 in the cadre of District Judges are to be filled strictly in the ratio of 25 : 25 : 50 among the direct recruitees, accelerated recruitment by transfer and recruitment by transfer among the category of Senior Civil Judges on the basis of the merit cum seniority. It is stated that however, the High Court has not been adhering to the said ratio. 6. It is further stated that after 1-1-2007, five District and Sessions Judges were appointed by direct recruitment. Further five more District and Sessions Judges are also appointed pursuant to the directions of the Supreme Court in the case of Smt.Manjusri Vs. State of Andhra Pradesh (2008 (3) SCC 512). For filling up of 13 vacancies of the District and Sessions Judges (Entry Level) by direct recruitment from among the eligible Advocates, written examination was conducted and interviews were held, but whereas, in respect of recruitment by transfer and Accelerated recruitment by transfer, no steps have been taken. The said inaction of the High Court adversely affects the interest of the Senior Civil Judges who are eligible to be recruited by transfer in 50% of the vacancies and accelerated recruitment by transfer in 25% of the vacancies. The High Court is under obligation to adhere to the time frame prescribed by the Supreme Court. As per Rule 13 of the Andhra Pradesh State Judicial Service Rules, 2007, seniority of the persons appointed to the category of District Judges shall be strictly as per forty point roster prescribed in Schedule-A. Thus, the High Court by making recruitment to 13 posts of the District and Sessions Judges (Entry Level) by direct recruitment, the 40 point roster would not be adhered to, which is wholly irrational, arbitrary and illegal. 7. The learned counsel appearing for the petitioners Sri B.Adinarayana Rao submits that if the 13 posts are treated to be filled by direct recruitment, equal number of posts should be made available for accelerated recruitment by transfer and 26 posts should be made available for recruitment by transfer, however, no such steps have been taken to fill up the said posts. The High Court having issued the notification dated 7-4-2007 for filling up of 35 posts of District and Sessions Judges in the State Higher Judicial Service by conducting written examination from among the Civil Judges (Senior Division), having not less than 5 years of qualifying service, the said vacancies have not been filled up. The petitioners therefore request to fill up the said posts in terms of the rules which came into force with effect from 1-1-2007. He further submits that 40 point roster as per Schedule-A has to be adhered to maintain the ratio of 25 : 25 : 50 and accordingly prays for the simultaneous recruitment from among the direct recruitment, accelerated recruitment by transfer and recruitment by transfer among the Senior Civil Judges instead of filling up of 13 posts by direct recruitment. 8. The High Court represented by its Registrar (Vigilance) filed a counter and admitted the averments made in the writ petition with regard to the directions issued by the Hon’ble Supreme Court in the aforesaid cases and framing of the rules adhering the time schedule, notification issued for filling up of the District Judges by direct recruitment and recruitment by transfer through the limited competitive examination from among the Senior Civil Judges who are having not less than five years of service is not disputed. It is stated that there were only two officers who are found eligible, but only one officer appeared for the examination, but he could not secure the qualifying marks in the written examination, therefore, he was not called for the oral interview by the High Court, which fact was also intimated by the Registrar General by his letter dated 21-11-2008. Thus it is stated that the High Court in strict compliance of the directions given by the Apex Court, issued notifications and conducted examination after obtaining necessary extension of time from time to time due to several contingencies. Thus, the said material allegations with regard to the steps said to have been not taken for filling up of the 25% of the vacancies by accelerated recruitment by transfer is denied. 9. It is specifically stated that the committee of the Hon’ble Judges of the High Court took a decision to absorb the officers who are promoted as District and Sessions Judges from the cadre of the Senior Civil Judges who are presiding over the Fast Track Courts in the regular Courts. The officers were already appointed as District and Sessions Judges on various dates as shown in the relevant Government Orders, in respect of each of the officer and they were given posting by the proceedings of the High Court dated 2-5-2008. The total number of regular District Judges Courts and Vacancy Position as on 31-12-2006 is as follows:- Permanent/Temporary District and Sessions Judge Courts No. of Courts Vacancy position Permanent Temporary 88 52 2 Total 140 2 Thereafter 8 District and Sessions Judge Courts have fallen vacant due to retirement of the officers and 22 new District and Sessions Judge Courts are sanctioned by the Government and all 30 District Courts are vacant as on 1- 1-2007. It is stated that for filling up of 25% of the cadre strength of the District and Sessions Judges by promotion through limited competitive examination among the Civil Judges (Senior Division) out of the total cadre strength of 88 permanent and 52 temporary posts existing as on 31-12- 2006, not having less than five years of qualifying service for the year 2007, only 2 officers were found eligible for the examination, among them, one was not qualified and other was retired from service and therefore, the 25% of vacancies in the cadre of District and Sessions Judges by promotion from the cadre of Senior Civil Judges pursuant to the notification dated 31-3-2008 could not be filled up as per the resolution of the committee of the Judges held on 1-4-2008. It is further stated that in fact 29 Senior Civil Judges working in Fast Track Courts are posted to regular Courts as Entry Level District and Sessions Judges, hence, no notification was issued during the year 2008. Insofar as the on going direct recruitment of 13 vacancies of the District and Sessions Judges are concerned, it is stated that 25% of the cadre strength shall be filled up by direct recruitment from among the members of the Bar and basing on the 140 cadre strength, 35 posts are meant for direct recruitment and at the time of the notification only 9 vacancies are there for direct recruitment and as per the directions of the Supreme Court, 10% of the posts of unforeseen vacancies should be added. Hence 9 (already vacant) + 4 (10% of 35 posts) i.e., 13 posts were notified. Thus, it is submitted that the 13 posts notified as per the corrigendum to the notification issued in July, 2007 to fill up the 13 posts of District and Sessions Judges by direct recruitment is inconformity with the Andhra Pradesh State Judicial Service Rules, 2007, which came into force with effect from 1-1-2007. 10. Mr.D.V.Seetharama Murthy-learned counsel appearing for the High Court submits that the present cadre strength of District and Sessions Judges is 163, out of which, 88 are permanent District and Sessions Courts and 75 are temporary District and Sessions Courts. There are 17 vacancies meant for the direct recruitment as on date. Mr.B.Adinarayana Rao-learned counsel appearing for the petitioners submits that the Andhra Pradesh State Judicial Service Rules 2007 shall be deemed to have come into force with effect from 1-1-2007 and the said rules are inconformity with the Judgment of the Apex Court, accepting the recommendations of Justice K.J.Shetty commission and as per Rule 2(a)(ii) of the Andhra Pradesh State Higher Judicial Service Rules, 33 1/3% of the total number of permanent posts shall be filled by the direct recruitment and the total number of posts are 88 alone as on 1-1-2007 and all the temporary posts have to be filled by way of promotion on the ground of merit and ability among the Senior Civil Judges. 11. He also relied on the Judgment of the Supreme Court in the case of Y.V.Rangaiah and others Vs. Sreenivasa Rao and others[1]. In the said case, Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules lays down that all first appointments to a service, State or Subordinate, and all promotions in a service otherwise than in accordance with clause (ii) of Sub Rule (b) of Rule 34 shall be made by the appointing authority or the authority specified in sub-rule (c) , as the case may be from the list of the approved candidates. The rule further provides that such list shall be prepared in the prescribed manner by the appointing authority or any other authority empowered in the special rules in that behalf. The list of approved candidates for the appointment by transfer, where the Public Service Commission is not consulted or the suitability of a candidate shall be prepared in the month of September every year so as to be in force until the list of approved candidates for the succeeding year is prepared and for the purpose of preparing the said list, the claims of as many eligible candidates as such authority considers necessary shall be considered. The rule further enjoins that the list of approved candidates shall contain such number of candidates as is approximately equal to the number of vacancies expected to arise during the currency of that list. Rule 4 (a)(2) requires that persons who are included in the previous year’s list of approved candidates but who have not commenced their probation should be considered for inclusion in the next year’s list. The