IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO and THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO.11807 of 2008 Between: Annapurnasri, D/o. L. Rama Swamy, R/o. F-4, Judges Quarters, West Marredpally, Kondareddy Street, Secunderabad. ... PETITIONER AND 1 Government of Andhra Pradesh, represented by its Secretary, Law Department, Secretariat Buildings, Saifabad, Hyderabad. 2 High Court of Andhra Pradesh represented by its Registrar (General), High Court of Andhra Pradesh, 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 may be pleased to issue a Writ, Order or Direction(s) essentially in the nature of Writ of Mandamus declaring the action of the Respondents herein in not permitting the Petitioner herein to participate in the selection process for the post of District and Sessions Judge (Entry Level) by direct recruitment as illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India, and pass any such other Order or Orders as this Hon'ble Court may deem fit, proper and necessary in the circumstances of the case. Counsel for the Petitioner: MR.P.R.PRASAD Counsel for the Respondent No.: GP FOR HOME The Court made the following: THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.11807 of 2008 ORDER: (per Hon’ble Sri Justice V.V.S. Rao) An interesting question of importance is raised in the Writ Petition. It is this: Whether a Junior Civil Judge appointed under Rule 11(3)(i)(b) of Andhra Pradesh State Judicial Service, 1958 (the Rules, for brevity), is disqualified under Article 233(2) of the Constitution of India for being selected to the post of District Judge under Article 233(1) of Constitution? To the extent necessary, the brief fact of the matter is as follows. The petitioner was Assistant Public Prosecutor before she was temporarily appointed vide G.O.Ms.No.182, dated 03.02.2004, as Junior Civil Judge to the Andhra Pradesh Judicial Service. She has been working as a Judicial Officer from 21.02.2004 when High Court of Andhra Pradesh issued orders posting number of temporary selectees as Junior Civil Judges in various Courts. The Government of Andhra Pradesh issued notification dated 15.04.2004 inviting applications to 23 posts of District and Sessions Judge in Andhra Pradesh Higher Judicial Service. The petitioner is one of the applicants. By a communication dated 05.05.2008, the State Public Information Officer – cum – Registrar (Judicial), informed the petitioner that her application has been rejected under Article 233(2) of Constitution, aggrieved by which, the present Writ Petition is filed. Learned Counsel for the petitioner placing reliance on Rule 11(3) (i)(b) read with Rule 11(3)(ii) of the Rules submits that a person appointed as temporary Junior Civil Judge under Rule 11 of the Rules has no right to the post, and therefore, such person cannot be said to belong to Judicial Service. According to the learned Counsel, when persons in Judicial Service are barred from competing for District Judge under Article 233(2) of Constitution, it only refers to members holding permanent posts and not otherwise. Therefore, he strenuously made an effort to distinguish the decision of the Supreme Court in Satya Narain Singh v. High Court of Judicature, Allahabad[1], which cover the point. He also placed reliance on Panchayat Raj U.P v. Babu Singh Gaur[2], to support his plea that a temporarily appointed government servant does not get any right to the post, even when such post is subsequently converted to a permanent post. Per contra, the learned Standing Counsel for respondents, who filed a counter affidavit, submits that even a person appointed as Junior Civil Judge under Rule 11 of the Rules is deemed to have been “appointed to service” and that such person is “member of service” under Judicial Service. As noticed supra, Judicial Service Rules govern the post of Judicial Magistrates of Second Class, Junior Civil Judges and Senior Civil Judges. A person is said to be appointed to the service when such person discharges the duties of a post borne on the cadre of the service or commences the probation period (see Rule 2(2) of the Rules). A ‘member of service’, as defined under Rule 2(11) of the Rules, means a person who has been appointed to service and who has not retired or resigned, removed or dismissed and who has been discharged otherwise than for want of a vacancy. Rule 4 of the Rules contains the procedure for making appointment to post of Judicial Magistrate of Second Class, Junior Civil Judges and Senior Civil Judges. Rule 11 of the Rules speaks of temporary promotions and appointments. When there is likely to be delay in making regular appointments under Rule 4, Rule 11(3)(i)(b) of the Rules enables competent authority to make temporary appointments to the category of Junior Civil Judges. It is interesting to notice the language employed under Rule 11(3)(i)(b) of the Rules. The same reads as under. 11(3)(i)(b). The Governor may in consultation with the High Court make a temporary appointment to the category of Junior Civil Judges of a person who is a full member of an approved probationer in any category specified in the first proviso to sub rule (2) of Rule 4: (Omitted by G.O.Ms.No.711 Home (Cts.A) Dated:24.5.77) Provided that no person shall be appointed or promoted under this clause unless he possesses the qualifications prescribed in rule 12. A person is temporarily appointed to the category of Junior Civil Judges, provided that such person is a full member or an approved probationer in any category specified in first proviso of sub rule (2) of Rule (4) of the Rules. Such person shall have to be replaced as soon as possible by a member of service or an approved candidate qualified to hold the post under the Rules. Therefore, whether it is a regular appointment made under Rule 4(2) of the Rules or temporary appointment under Rule 11(3) of the Rules, insofar as the discharge of the functions as a Judicial Officer is concerned, no distinction is made by the Rules. Further more, Rule 20 of the Rules, which deals with seniority, also refers to the service of a person temporarily appointed under Rule 11 of the Rules. It provides that though a temporary service does not count towards probation, in the discretion of the appointing authority, such service can also be counted for probation in the event of regular appointment. Reckoning the temporary service for the purpose of seniority at the option of competent authority is a condition of service and it does not in any manner reduce the status of a person appointed as a temporary Junior Civil Judge. Both categories of persons discharge the same functions and exercise same judicial powers. No provision of Code of Civil Procedure, 1908, or the Andhra Pradesh Civil Courts Act, 1972, or any other law has been brought to the notice of this Court whereunder a temporary Junior Civil Judge is looked upon as a Judicial Officer with a lower status or exercising powers inferior to the powers exercised by regularly appointed Junior Civil Judges. Therefore, we are not able to appreciate or agree with the submission made on behalf of the petitioner. In the context, the decision of the Supreme Court in Babu Singh Gaur (supra) is of no relevance. It is one thing to say that a temporary Government servant does not have a right to the post even if such post is converted as a permanent post and altogether different to say that a temporary Government servant has no status as a Government servant. The question whether a Judicial Officer appointed to the Judicial Services in the State is disqualified for the post of District Judge under Article 233(2) of Constitution is no more res integra. In Satya Narain Singh (supra), a Division Bench of the Supreme Court after referring to two Constitution Bench decisions in Rameshwar Dayal v. State of Punjab[3] and Chandra Mohan v. State of Uttar Pradesh[4] held that persons already in subordinate service cannot be appointed as District Judges overlooking the claim of other seniors in the subordinate Judiciary. The Supreme Court also held that conferring such eligibility on Judicial Officers would be contrary to Articles 14 and 16 of Constitution. Therefore, we do not find any unconstitutionality or infirmity in the action of the High Court in rejecting the application of the petitioner. The Writ Petition is devoid of any merit, and the same is dismissed accordingly. No costs. ____________ (V.V.S.RAO, J) ________________ (G.CHANDRAIAH, J) 18.06.2008 Note: Issue C.C in two days. B/o. vs To 1 The Secretary, Government of Andhra Pradesh, Law Department, Secretariat Buildings, Saifabad, Hyderabad. 2 The Registar (General), High Court of Andhra Pradesh, High Court of Andhra Pradesh, Hyderabad. 3 2CD copies [1] AIR 1985 SC 308 [2] AIR 1972 SC 420 [3] AIR 1961 SC 816 [4] AIR 1966 SC 1987