* THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE SAMUDRALA GOVINDARAJULU + W.P.Nos.6323, 6948, 7393, 12426, 14035, 15007, 14587 and 24127 of 2009 % Date of Order: 03--12--2009 CT in W.P.No.6323 of 2009 Between: # K.V.N.Bhupal ..Petitioner and $ 1.The State of A.P. rep. By its Chief Secretary, Secretariat, Hyderabad and another. ..Respondents ! Counsel for the petitioners in W.P.Nos. 6323 & 7393/2009: Sri S.Ramachandra Rao for Mr.K.R.Prabhakar Counsel for petitioner in W.P.No.6948 of 2009 : Sri V.Venkata Ramana Counsel for petitioner in W.P.No.12426 of 2009 : Mr. T.Rajendra Prasad Counsel for petitioner in W.P.No.14035 of 2009 : Sri D.Prakash Reddy for Mr.chavati Ramanand Counsel for the petitioner in W.P.No.15007 of 2009 : Mr.C.S.K.V. Ramana Murthy Counsel for the petitioner in W.P.No.14587 of 2009 : Mr. A.Rama Rao Counsel for the petitioner in W.P.No.24127 of 2009 : Mr.Venkateswarlu Posani Counsel for the respondents in all W.Ps. : Sri G.Vidya agar SC for APHC < GIST > HEAD NOTE ? Cases Referred: 1. (2006) 4 SCC 509 2 (2008) 3 SCC 512 = 2008(2) ALT 85 (SC) 3 (2006) 6 SCC 395 = AIR 2006 SC 2339 4 2009 (3) ALT 240 5 (1993) 2 SCC 573 6 2009 (9) SCALE 310 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.6323, 6948, 7393, 12426, 14035, 15007, 14587 and 24127 of 2009 Date of Order: 03--12--2009 CT in W.P.No.6323 of 2009 Between: K.V.N.Bhupal ..Petitioner and 1.The State of A.P. rep. By its Chief Secretary, Secretariat, Hyderabad and another. ..Respondents The Court made the following Common Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.6323, 6948, 7393, 12426, 14035, 15007, 14587 and 24127 of 2009 Common Order: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. In all these batch of writ petitions, cancellation of notification dated 15-04-2007, issued for recruitment to the post of District and Sessions Judge in the Andhra Pradesh State Higher Judicial Services and the selection made in pursuance of the said notification, by the Full Court is under challenge. 2 . These writ petitions have been heard together because they have common features and raise common issues and they are dealt with common order. 3. W.P.No.6323 of 2009 is filed by a practicing advocate by way of Public Interest Litigation (PIL) and the remaining writ petitions are filed by the candidates, who underwent selection process. 4. In obedience to the general directions issued by the Honourable Supreme Court in MALIK MAZHAR SULTAN v. U.P.PUBLIC SERVICE COMMISSION, fixing the time schedule to be adhered to for filling up of vacancies that may arise in Subordinate Courts and District Courts and to effect suitable amendment in the recruitment rules in terms of the decision taken in the conference of Chief Ministers and Chief Justices; selections have to be conducted by authorities empowered to do so as per the existing Rules, the Committee of the Honourable Judges for recruitment to the post of District and Sessions Judge by direct recruitment (Entry Level) was constituted on 02-02-2007. A note in ROC.No.90/2007-RC, dated 28-03-2007 was put up before the Honourable the Chief Justice calculating the vacancies as 23 as per the Rules. The Chief Justice directed to convene the meeting of the Committee on 29-03-2007. Accordingly, meeting of the Committee was convened on 29-03-2007 and the Committee in its meeting resolved to notify the vacancies for recruitment to the post of District Judge by direct recruitment as well as by promotion as per the directions of the Supreme Court in its order dated 04-1-2007 in MALIK MAZHAR SULTAN’s case (1 supra). The strength of the District Judges was noted as 88 permanent and 51 temporary, total 139 and 25% of the 139 total strength comes to 34.75 and 10% of number posts comes to 13.90, the total is 48.65 it was rounded to 49 and by that date direct recruit District Judges already working are 17 and recommendations sent to the Government for 9 vacancies, after deducting 26 (17+9) total 23 (49–26) vacancies were arrived and put up a note in Roc No.79/2007-RC before the Chief Justice “whether notification has to be issued for 23 posts of District and Sessions Judges by direct recruitment” and the same was approved on 30-03-2007. Subsequently another note in ROC.No.79/2007-RC was put up before the Chief Justice with roster point, enclosing draft notification and proforma application, which was approved on 03-04-2007. On approval of the said note, notification was issued on 15-04-2007. Out of which; OC 13 (5 women) BC—A 2 BC—B 1 BC—D 2 (women) SC 4 (2 women) ST 1 (women) Subsequently, another note in ROC.No.79/2007-RC was put up before the Honourable the Chief Justice specifying 25% of the 139 total strength comes to 34.75 rounded to 35 and 10% of number of posts 3.5; total 38.50 rounded to 39; since 17 direct recruit District Judges were already working and recommendations sent to the Government for 9 posts, (17+9=26)) notification has to be issued only for 13 (39—26) and the same was approved by the then Chief Justice which reveals that the “recorded office note shows that the calculation made at the time of notification was wrong and directed the matter be placed before the 1st Committee on 28-06-2007”. Accordingly, the 1st Committee in its meeting held on 28-06-2007 approved the office note and resolved to address the Government to issue corrigendum to notify 13 vacancies instead of 23 and accordingly, corrigendum dated 28-07-2007 was issued. The details of which are as under: OC 8 (3 women) BC—A 1 BC—B 1 SC 2 (1 women) ST 1 (women) 5. In the notification issued on 15-04-2007 and corrigendum dated 28-07-2007 the authorities have specified the qualification that the applicant should a practicing advocate having not less than seven years at Bar and must not have completed 45 years of age as on 01-04-12007. The pattern of selection was written examination followed by an interview. While issuing corrigendum notification the authorities have prescribed 20 marks for viva-voce (oral test) and minimum qualifying marks specified for viva-voce as 50% for OCs.; 40% for BCs.; and 35% for SC & STs. 6 . The above notifications were given vide publicity and published in different modes, apart from displaying on the notice board of the association hall in district unit heads and High Court official web site for information of the candidates. After conducting written examination the results were published on 29-09-2008 and the same were also displayed in the High Court web site. Accordingly 1:3 candidates were short listed to be qualified for oral interviews from 03-11-2008 to 07-11-2008. 7 . In the Andhra Pradesh State Higher Judicial Service Rules issued in G.O.Ms.No.1556 General Administration (Special-A) Department, dated 10-10-1958 and G.O.Ms.No.2207 Home (Personal-A) Department, dated 04-12-1962 there was no specific procedure for recruitment to the post of District and Sessions Judge by direct recruitment. Since the old Rules are in vogue, the High Court followed the procedure by way of written examination and also viva-voce in tune with the directions issued by the Honourable Supreme Court in MALIK MAZHAR SULTAN’s case (1 supra). As directed by the Supreme Court, Rules were also framed called “Andhra Pradesh State Judicial Rules, 2007” (for brevity “New Rules”) notified in G.O.Ms.No.119, dated 02-08-2008 with retrospective effect i.e. w.e.f. 01-01-2007 prescribing methodology for conducing examination in the light of the directions of the Supreme Court. 8 . The Committee constituted for recruitment to the cadre of District Judge short listed 40 candidates at the ratio of 1:3 for the 13 vacancies, which were notified, since the last two candidates secured the same marks. After finalization of the selection, provisional select list was placed before the Full Court for approval. The Full Court in its meeting held on 17-11-2008 deferred the subject for reconsideration by the Administrative Committee. Accordingly, the Committee reconsidered the subject/issue in its meeting held on 17-12-2008 and prepared a provisional select list of even date and the matter was again placed before the Full Court on 22-12- 2008, which was deferred by the Full Court. Again it was placed before the Full Court for approval on 05-03-2009 and on the said date the Full Court has not approved the selection so made and directed to ascertain the vacancies and initiate the process of recruitment to the post of District and Sessions Judge (Entry Level) by direct recruitment afresh. 9. Questioning the same the present writ petitions have been filed contending that Rules which were in existence as on the date of issuance of notification do not provide for specification of minimum qualifying marks in the interview which was introduced for the first time that too after commencement of the selection process. The New Rules issued in G.O.Ms.No.119, dated 02-08-2008 superseding the Rules issued in G.O.Ms.Nos.1556 General Administration (Special-A) Department, dated 10-10-1958 and G.O.Ms.No.2207 Home (Personal-A) Department, dated 04-12- 1962 were given retrospective effect i.e. with effect from 01-01-2007 keeping in mind the ongoing selections which were taken place in pursuance of the notification dated 15-04-2007. No reasons were assigned for giving the retrospective effect while repealing the earlier Rules. Therefore, the application of New Rules issued in G.O.Ms.No.119, dated 02-08-2008 cannot be made applicable to the selection process commenced earlier to issuance of said G.O. Cancellation of notification is violative of Article 14. As a result of undoing the selection process, advocates belonging to BC, SC and ST, who are in merit, were scuttled. 10. A detailed counter affidavit has been filed by the 2nd respondent explaining what was transpired from the date of issuance of notification till the provisional list is placed before the Full Court and the resolution passed by the Full Court disapproving the selection and directing the Registry to initiate process of recruitment afresh. The Writ Petitioner in W.P.No.6323 of 2009 does not have any locus standi for seeking the relief and writ petition as such filed in the form of PIL is not maintainable. Mere participation of a candidate in the selection process will not entail any right, much less a vested right, for appointment unless the selection process is completely finalized in accordance with the procedure established by law. 11. After hearing the arguments on both sides, on 11-11-2009 this Court wanted to know how many direct recruitees were functioning as on the date of issuance of notification and posted the matter to 17-11-2009. On the said date, the learned Standing Counsel for High Court agreed to furnish information required by way of additional affidavit and filed the same stating that as per A.P. State Higher Judicial Service Rules, 1958, which were in force on the date of issuance of notification, 33 1/3 of the total vacancies of permanent posts are to be filled up by direct recruitment. As on 01-01-2007 permanent cadre strength of District and Sessions Judge Grade—II are 88; out of which 29 (88 x 1/3) posts have to be filled up by direct recruitment; and as on 31-03-2007, 18 direct recruit District and Session Judges are working and recommendations were sent to the Government on 30-10-2007 for filling up of 9 vacancies which was pending. It is also stated that Civil Appeal No.1313 of 2008 was pending before the Honourable Supreme Court challenging the notification dated 25-05-2004 issued for filling up of 10 vacancies of District and Sessions Judge (Grade—II). The Supreme Court granted interim orders on 24-08-2007 to appoint 5 candidates and accordingly on 31-10-2007 appointment orders were issued to 5 candidates. Later the Supreme Court allowed the said Civil Appeal by order dated 15-02-2008 with a direction to prepare fresh merit list and finalise the selection and further directed the appointment of 5 candidates made in pursuance of the interim orders need not be disturbed. In pursuance of the said directions, 6 candidates were appointed and they joined in service in November, 2008, 11 vacancies of direct recruitees have been filled in place of 9 posts to which notification was ordered. 12. Sri S.Ramachandra Rao, learned senior counsel for Mr.K.R.Prabhakar, learned counsel for the petitioners in W.P.Nos.6323 and 7393 of 2009, would contend that in the notification issued on 15-04-2007 no minimum marks were prescribed for viva- voce; once notification is issued prescribing mode of examination, introducing minimum marks by Errata notification is illegal; no power to amend the Rules with retrospective effect to cover the notification already issued and no reasons were assigned by the Full Court to undone the selection. When the High Court is not the appointing authority and it is the Government, which issued the notification, it (Government) alone can cancel the notification but not the High Court. To buttress the said submission strong reliance is placed on the judgment of the Supreme Court in K.MANJUSREE v. STATE OF A.P.. 1 3 . Sri T.Rajendra Prasad, learned counsel appearing for the petitioner in W.P.No.12426 of 2009 (selected candidate) while supporting the notification, prescribing minimum marks, would contend that no reasons were assigned by the Full Court for cancelling the selection which is arbitrary and illegal. 14. Sri C.S.K.V.Ramana Murthy, learned counsel for the petitioner in W.P.No.15007 of 2009, who is the selected candidate under BC-B category, would contend that after commencement of selection process prescribing the cut off marks is arbitrary and illegal, but fairly conceded issuance of notification, prescribing cut off marks for oral interview, has not been challenged. 15. Sri A.Rama Rao, learned counsel for the petitioner in W.P.No.14587 of 2009 contends that petitioner got 7.6% in oral interview; 0.5 and above should be treated as one and if the same is taken into consideration, the petitioner will be selected. Therefore, not selecting the petitioner is arbitrary and illegal. 1 6 . Similarly, Vedula Venkata Ramana, learned counsel for the petitioner in W.P.No.6948 of 2009 would contend that once the selection process is commenced, though the persons who are in select list will not have any right, but the selection cannot be abandoned and it should be ended to a logical conclusion. The decision not to fill up the vacancies has to be taken for appropriate reasons. Since the Full Court for disapproving the selection assigned no reasons, the selection has to be continued and the candidates who have selected should be given appointment orders. He further contended that prescribing minimum marks for viva-voce (oral test), as taken by the Committee, can be justified and there is no illegality in prescribing minimum marks in the viva-voce. To buttress the said submission reliance is placed on the judgment of the Supreme Court in K.H.SIRAJ v. HIGH COURT OF KERALA. 17. Sri D.Prakash Reddy, learned senior counsel for Mr.Chavati Ramanand, learned counsel for the petitioner in W.P.No.14035 of 2009, contended that no separate counter has been filed in his case. But by referring the reasons for cancellation of the selection made in paragraphs 6 and 7 of the counter filed in W.P.No.6948 of 2009 he contended that as per the judgment of this Court in M.VIRUPAKSHA DATTATREYA GOWDA v. HIGH COURT OF A.P. there should be 18 vacancies earmarked for direct recruitees under New Rules which were came into force from 01-01-2007. Therefore, cancellation of the selection for non-availability of vacancies as on the date of issuance of notification does not arise. By placing reliance on the judgment of the Supreme Court in ASHA KAUL v. STATE OF J&K he further contended that mere inclusion in the select list though an indefeasible right of appointment does not confer on the candidate, but the whole exercise cannot be reduced to a farce and the entire selection cannot be nullified without good and valid reasons and tell the candidates when they complain that they have no legal right to appointment. 18. Sri G.Vidyasagar, learned Standing Counsel for the High Court contended that notification dated 15-04-2007 was issued keeping in mind the guidelines issued in MALIK MAZHAR SULTAN’s case (1 supra) on 04-01-2007 fixing the time schedule for filling up of vacancies as per the existing Rules on the date of issuance of notification. As per Rule 2(ii) of the Andhra Pradesh State Higher Judicial Service Rules, 33 1/3 of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. As on 04-01-2007, out of 88 vacancies, 29 have to be filled up or reserved to be filled up by direct recruitment. On the said date 18 direct recruit District and Sessions Judges are working. A notification was issued on 28-05-2004 for filling up of 10 vacancies and out of which 10 candidates were selected on 03-04-2006 and 9 names were forwarded to the Government on 28-01-2006. Meanwhile, Civil Appeal No.1313 of 2008 was filed before the Supreme Court in which interim orders were passed on 24-08-2007 to appoint 5 candidates and accordingly 5 candidates were appointed on 13-10-2007. On allowing the Civil Appeal on 15-02-2006, all the remaining five candidates, who are selected, were appointed. Since 5 candidates were given appointment pursuant to interim orders, one candidate was appointed in excess making 11, which comes to 29 vacancies. Since all the 29 vacancies (18+11), which are earmarked under direct recruitment as per Rules in existence, were filled up there are no vacancies, so the Full Court did not approve the select list since they (direct recruits) exhaust quota. He also contended that the judgment rendered by this Court in M.VIRUPAKSHA DATTATREYA GOWDA (4 supra) will not govern the notification; if at all it will be a future guidance and the candidates selected will not have any vested right for appointment. He further contended that temporary vacancies couldn’t be accounted for arriving the percentage of direct recruitment as held by the Supreme Court in HIGH COURT OF JUDICATURE FOR RAJASTHAN v. VEENA VERMA. 19. From the rival submissions, as referred to above, the points that arise for consideration in this batch of writ petitions are as under: 1. Whether the selected candidates will have any vested right for appointment irrespective of the vacancies available? 2. Whether the cancellation of the selection process initiated by the Full Court without assigning any reasons is justified or not? Point No.1: 20. Before we answer the above two points, it is apt to quote the directions issued by the Supreme Court in MALIK MAZHAR SULTAN’S case (1 supra) pursuant to which notification was issued by the High Court and the relevant Rules existed as on the date of issuance of notification. 21. In MALIK MAZHAR SULTAN’s case (1 supra) the Supreme Court was of the view that the directions contained in the judgment reported in ALL INDIA JUDGES ASSOCIATION v. UNION OF INDIA ((2002) 4 SCC 247) for filling up of vacancies in Subordinate Courts by amending the Rule is not adhered to in true letter and sprit and directed for filling up of vacancies in the cadre of District Judge in respect of 25% vacancies to be filled by direct recruitment from the Bar as per the existing Rules and the number of vacancies to be notified by the High Court to be calculated as under: (a) existing vacancies (b) future vacancies that may arise within one year due to retirement (c) future vacancies that may arise due to elevation to the High court, death or otherwise, say ten percent of the number of posts (d) vacancies arising due to deputation of judicial officers to other department may be considered as temporary vacancy by 31st march and advertisement should be issued by 15th April inviting applications from the eligible candidates. 22. From the above directions it is clear that vacancies have to be arrived for filling up as per the existing Rules 25% of the cadre strength. Further, it is clear that the vacancies arising due to deputation of judicial officers to other departments will be considered as temporary vacancy, which clearly indicate on such of those officers who are directly recruited went on deputation those vacancies should be treated as temporary vacancies and which can be included in the notification to fill up such vacancies with an seldom obligation to see that the posts should not be kept vacant. Since the lien of deputationist cannot be terminated, temporary appointments can be made to such vacancies. 23. It is the fundamental principle of service jurisprudence if a permanent direct recruitee is on deputation, he will not forgo his lien for the post to which he was selected; as and when he returns to his parent department, the temporary candidate who was selected in his place has to vacate his seat. 24. Rule 2 of the Andhra Pradesh State Higher Judicial Service Rules issued in G.O.Ms.No.1556, dated 10-10-1958, which deals with appointment to Category—I and Category—II of District and Sessions Judge, reads thus: Rule 2 Appointment: (a) Appointment to Category I shall be made by promotion from Category II and appointment to Category II shall be made:- i. by transfer from among Senior Civil Judge in the Andhra State Judicial Service; or in the Hyderabad State Judicial Service; and ii. by direct recruitment from the Bar: Provided that 331/3% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. Explanation: In the determination of 33 1/3 of the total number of permanent post, fraction exceeding one-half shall be counted as one and other fractions shall be disregarded. b. All promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 2 5 . From the directions issued by the Supreme Court in MALIK MAZHAR SULTAN’s case (1 supra) and the Rule 2 quoted above it is clear that the vacancies have to be notified as per the existing Rules to fill up the vacancies in the cadre of District Judge by way of direct recruitment from the Bar and 33 1/3 of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment. 26. Indisputably, as on the date of issuance of notification 28-05-2004 in all, there are 88 permanent vacancies. Out of which 33 1/3 of the total permanent posts comes to 29; 18 direct recruit District and Sessions Judges were already working as on the date of notification so, notification to fill up the remaining 10 vacancies was already issued; for which selection was completed and recommendations were also made to Government for filling up of 9 vacancies making it to 27. 27. The candidates whose names found in the first list and who got excluded in the second list, namely, K.Manju Sree (Sl.No.3) and M.Lakshman (Sl.No.7) filed W.P.Nos.10061 and 10062 of 2006 in the High Court challenging the action of the High Court in preparing the selection list by prescribing minimum qualifying marks for the interview as arbitrary and illegal and seeking a direction to redraw the selection list without adopting minimum qualifying marks for the interview. On dismissal of said writ petitions by the High Court by a common judgment dated 30- 10-2006, the matter was carried to the Supreme Court by way of Civil Appeal No. 1313 of 2008 and batch in which interim directions were issued by the Honourable Supreme Court on 24-08-2007 for appointment of 5 candidates and accordingly appointment orders for 5 candidates from among 9 recommended to the Government were issued on 13-10-2007. On allowing Civil Appeal by the Supreme Court on 15- 02-2008, fresh merit list was prepared and the appointments of five candidates made pursuant to the interim order was not disturbed. Sri A.Hari Haranatha Sarma though not entitled to be selected his appointment was not disturbed pursuant to interim order. 28. In the process, 11 candidates were given appointment, which comes to 29. Once there are no vacancies available as on the date of issuance of notification, how the administration of the High Court arrived the number of vacancies at 23 initially and reduced to 13 is a mystery. In effect, the administration of the High Court totally misunderstood the directions issued by the Supreme Court and also existing statutory