Case: TELANGANA JUDGES ASSOCIATION  Vs. UNION OF INDIA

We see no force in this argument because chances of promotion are not conditions of service. It is enough in this connection to refer to the State of Orissa v. Durga Charan Dass (A.I.R. 1966 SC 1547) . 55. To the similar effect is judgment of this Court in Mohammad Shujat Ali and Others Vs. Union of India and Others, in which in Para 15, following has been held: 15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to nongraduate Supervisors from the erstwhile State of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar v. Y. Krishna Reddy1 where this Court, speaking through Mitter, J., said: Any rule which affects the promotion of a person relates to his condition of service. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion - the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit, (1967) 1 SLR 753 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G.B. Purohit was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 subsection (7). This contention was negatived and Wanchoo, J. as he then was, 50 speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to nongraduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirtythree and onethird per cent, then one in eighteen and ultimately one in twentyfour. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115 subsection (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar v. The State of Maharashtra, (1974) 1 SCC 317. 56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014. The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines. 57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State. 58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court. 59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]38. It is true that Section 77 contemplates allotment of State after consideration of option received by an officer but for interpreting Section 77 and Section 80, the existing constitutional scheme that control of Judicial Officer is 33 vested in the High Court can neither be ignored nor given a go by. From the facts on record, it does appear that Department of Personnel and Training has understood the provisions in such manner and has communicated to the High Court to submit a list after taking options from the officers. The reply affidavit filed by Union of India also clearly indicates that stand taken by Union of India is that allocation/distribution of District Judges and Judicial Officers belonging to subordinate judiciary had been carried out under the aegis and supervision of the respective High Courts, on earlier occasions when the reorganisation enactment was passed. Paragraph 10 of the reply affidavit filed by the Union of India is extracted as follows:10. It is most humbly submitted that in so far as the allocation of subordinate judicial officers between the two States in question are concerned, it is necessary to set out factual position and background facts. It is submitted that even on earlier occasions of passing of Reorganisation enactments, the task of allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary – had been carried out under the aegis and supervision of the respective High Courts. For example, in the case of Reorganization of the State of Madhya Pradesh, State of Uttar Pradesh as well as State of Bihar, such process had been followed for the allocation/distribution of District Judges and judicial officers belonging to the subordinate judiciary39. We thus are of the view that for preparing guidelines for allocation of the Judicial officers, the views of the High Court are not to be ignored and the Union of India, Department of Personnel & Training, has rightly given due weight to the views of the High Court for allocation. However, the scheme of Act, 2014 indicates that final allocation Order is to be issued as per the statutory provisions, by the Central Government. The coverage of Section 77 is Every person who immediately before the appointed day is serving on substantive basis in connection with the affairs of the existing State of Andhra Pradesh... The coverage of Section 77 is in very wide term which includes every person who is serving in connection with the affairs of the existing State. There can be no denial that Judicial Officers working in the Subordinate Judiciary are serving in connection with the affairs of the existing State. Thus, there cannot be any denial that Section 77 also clearly covers the subordinate judiciary of the State and final allocation Order has to be issued by the Central Government after due consultation with the High Court40. We are thus of the view that High Court in preparing draft guidelines and thereafter issuing modified guidelines for allocation of cadre of Judicial Officers was well within its jurisdiction and its views required due weight in giving 35 effect to the provisions of Section 77 of the Act42. Section 80 expressly indicates that in carrying excise by the Central Government as contemplated under Section 77, there has to be fair and equal treatment to all persons affected by the provisions of Part VIII of the Act. The guidelines for allocation of cadre should ensure fair and equal treatment to all persons affected and they should also conform the equality clause as enshrined in Article 14 of the Indian Constitution48. Article 371D having been held by this Court not to be applicable to Judicial Service, arguments based on Article 371D cannot help the petitioner. In this context, one of the submissions raised by the petitioners was that Kamalanathan Committee while framing guidelines for allocation of members of Civil Service has taken into consideration the local area or local cadre etc. No exception can be taken to the guidelines finalised by Kamalanathan Committee for allocation of cadre of members of Civil Services of the State, other than Judicial Service, taking clue from Article 371D. Petitioners have referred to guideline No. 18(f) of the Kamalanathan Committee determining principles guiding allocations read with guideline No. 18(n), which also read with the Andhra Pradesh Public Employment Order, 1975 gives preference in allocation to those who have opted and who are local candidates to be allocated to that State in which they are local candidates. The said order dated 29.10.1975 issued under Article 371D has been relied49. For the reasons already indicated above, the guidelines formulated by Kamalanathan Committee in context of other Civil Services are not relevant nor any support can be taken on the basis of said guidelines51. The nativity for public employment runs counter to the fundamental right guaranteed under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution of India. No Parliamentary Law is relied by the petitioner, which provides residence as an eligibility to the employment in Judicial Service. In Act, 2014, there is no provision, which expressly provides for allotment of the State on the basis of place of birth or residence. Sections 77, 78 and 79 of the Act do not refer to allotment on the basis of place of birth. When for entering into Judicial Service, no condition can be put regarding residence of particular area for allocation of a State, consequent to Act, 2014, nativity cannot be sole basis, as is contended by the petitioner. It is true that the State of Telangana stand formed to realise the democratic aspirations of the people of Telangana. We have noticed the Statement of Objects and Reasons of Act, 2014, which clearly establish that the creation of a separate State of Telangana is for the betterment of the social, economic, political and other aspirations of the people of that region, which contemplated allocation of separate State of Telangana. The entire Statement of Objects and Reasons does not indicate that with respect to public employment, nativity is to play a dominant role. It is true that Judicial Officers belonging to Telangana territorial area may have desired or expectation to choose or to opt for their cadre in Telangana area, which is a legitimate aspiration, but giving predominance to nativity only is not spelled from any statutory provision or scheme54. When a Judicial Officer has been given a right of option 47 to choose either of the successor State, right of option has to be given same meaning and content. Right of option can be defeated only when there is some impediment in accepting the option. The seniority of a Judicial Officer is a first criteria for accepting the option. The seniority in a service is a valuable right of an employee or officer. In service jurisprudence, several benefits and perquisites are attached to the seniority. The petitioners are asking that option be accepted not on the basis of seniority but only on the basis of nativity, i.e. those who are senior even if they opt the State option, their option should not be selected and option of those should be first accepted, who are natives of Telangana. The petitioners apprehension is that in event option of senior officers are accepted and they are posted in State of Telangana, the future prospects of promotion of the petitioners shall be marred. Whether the officers, who in the seniority list, which was prevalent on the date of formation of new State, i.e. on 02.06.2014 where senior should loose their seniority or their seniority cannot be said to play any role on account of formation of two successor States is the question to be answered. The aspiration of petitioners that no senior officer, should come to State of Telangana, which may mar their prospect of promotion is neither in accord with the con48 stitutional scheme nor as per ethos of culture of this country. The modified guidelines submitted by the High Court and accepted by the DoPT itself at second place give preference to nativity. Thus, the High Court while formulating the guidelines has tried to balance the right of option of each Judicial Officer56. The petitioners submission that High Court has modified the guidelines for accepting option without there being any valid reason and further no valid reasons have been indicated by the High Court for modifying the guidelines. In this context, it is relevant to notice that the draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated the allocation shall be done in the order of seniority as available on 02.06.2014The second sentence read Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept as noted above are now reflected in modified guidelines as guideline No. 5(1) and 5(2) as extracted above. Thus, the argument of the petitioners that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines57. We, during course of the submissions, had asked Shri Venkatramani, learned senior counsel appearing for the High Court to give a chart indicating the details of options and chart showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option. Detailed chart has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region 52 have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. A list of all officers belonging to District Judge Cadre; Civil Judge Senior Division cadre and Civil Judge, Junior Division cadre has been submitted, which indicate all officers, who have opted for Telangana State have been allocated Telangana State58. All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, we do not find any error in the operation of guidelines finalised by the High Court59. In view of foregoing discussions, we are of the view that modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The above guidelines is to be accepted and approved.