Case: TELANGANA JUDGES ASSOCIATION  Vs. UNION OF INDIA

3. The writ petition has been filed by the Telangana Judges Association, a registered forum, formed to protect the interest of the Judicial Officers of State of Telangana. The petitioner has challenged the recruitment process initiated by the High court of the Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh (hereinafter referred to as the High Court) for filling up the post of Civil Judge (Junior Division). The petitioners case is that consequent to the Andhra Pradesh Reorganisation Act, 2014(hereinafter referred to as Act, 2014) with effect from 02.06.2014 a new State has been formed, namely, State of Telangana without permitting the option envisaged in Section 77(2) of the Act, 2014 and without bifurcation of subordinate judiciary the recruitment process has been initiated which is not in accordance with law. Petitioners case is that from the establishment of the High Court of Andhra Pradesh in the year 1956, there has been inadequate representation of Telangana Judges in the cadres of Junior Civil Judges, Senior Civil Judges, District Judges and even Judges of the High Court. The impugned notification issued by respondent No.2 without constituting Telangana State Judicial Service and without preparing State wise cadre strength of respective States would affect the seniority as well as promotion of the Telangana State Judicial Officers whose strength is at present 25% only in comparison with 3 Andhra Pradesh State Judicial Officers4. An advertisement dated 01.02.2014 for recruitment for 97 vacancies of Civil Judges (Junior Division) was published. The preliminary written examination was notified for 27.04.2014. The State of Telangana was created as the 29th State of the Union of India by the Act, 2014 on 01.03.2014. A representation was submitted to stop the recruitment process as the Central Government had announced, 02.06.2014, the date for the formation of Telangana State. The High Court put on hold the selection process till a clarification is obtained from this Court. An application was filed by the High Court in C.A. No.1867 of 2006 (Malik Mazhar Sultan & Ors. vs. Union Public Service Commission & Ors.) on which this Court on 07.07.2014 passed an order permitting the status quo. However, this Court in Malik Mazhar Sultan passed an order on 20.01.2015 clarifying that the process already initiated for recruitment of Judicial Officers in the States of Andhra Pradesh and Telangana by the High Court be proceeded with. The Chief Justice of the High Court had constituted a Committee of Judges, which Committee decided to ask the Judicial Officers in the State of Andhra Pradesh to exercise option with respect to the newly formed States. Writ Petition(C)No.403 of 2014(Dumpala Dharma Rao vs. High Court of Andhra Pradesh & 4 Ors.) was also filed in this Court challenging the proposed action of the High Court calling for the option of Judicial Officers.An application for impleadment by Telangana Judges Association has been allowed in Writ Petition No.403 of 2014. Petitioners have also submitted suggestions for the purpose of final guidelines for allocation of States services to the Principal Secretary, Government of Andhra Pradesh. Petitioners also submitted representation to the Joint Secretary, Department of Personnel & Training, Government of India dated 02.12.2014 requesting that the guidelines issued by the Government of India may be made applicable to the Personnel of Subordinate Judiciary and to take necessary expeditious steps for allocation of members of Subordinate Judiciary5. In the writ petition petitioner has made the following prayers:(i) Issue writ/writs including a writ in the nature of Mandamus directing the respondents to bifurcate the Lower Judiciary from the erstwhile Andhra Pradesh State Judicial Service and to constitute the Telangana Judicial Service under Articles 233 and 234 of the Constitution of India and fix the cadre strength of each State;(ii) Issue writ/writs including a writ in the nature of certiorari quashing the Notification dated 05.02.2015 and Notification No.54/2015RC dated 09.02.2015 issued by the Honble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh; and(iii) pass such other order or orders as are deemed fit and necessary in the interest of justiceCivil Appeal Nos...............of 2018 (arising out of SLP(C) Nos.1878718790 of 20186. These appeals have been filed by the State of Telangana against the Division Bench judgment dated 29.04.2016 of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh (herein after referred to as the High Court) deciding Public Interest Litigation No.31 of 2015 with three other Writ Petitions. In the Public Interest Litigation filed before the High Court following prayer was made:I therefore pray that this Honble Court may be pleased to issue a Writ, order or direction, more particularly one in the nature of a Writ of Mandamus declaring the action of respondents in not bifurcating the Subordinate Judicial Officers and other Judicial Officers of the erstwhile State of Andhra Pradesh as per Section77 of Andhra Pradesh Reorganisation Act, 2014 and not distributing Subordinate Judicial Officers and other employees to the State of Telangana and to the State of Andhra Pradesh and issuance of impugned notification No.15/2014RC dated 01.02.2014 and consequential notification No.54/2014RC dated 05.02.2014 of the second respondent as null and void, arbirary, illegal and violative of Articles 233 and 234 of Constitution of India and Part VIII of A.P. Reorganisation Act, 2014 and consequently direct respondents to distribute the subordinate judicial officers and other judicial employees to both the States and only thereafter make recruitments to the Subordinate Higher Judicial Service and Judicial Service and pass such other order or orders as this 6 Honble Court may deem fit and proper7. The High Court after elaborately considering all the issues dismissed all the writ petitions. The State of Telangana has by a notification adopted Andhra Pradesh Judicial Service Rules, 2007 without making any consultation with the High Court. The recruitment process initiated by the notification in the year 2014 for 97 posts of Civil Judges and recruitment process for 34 posts in pursuance of 2015 notification were completed. After completing the entire process of selection during pendency of the writ petitions, the High Court noticed in the judgment that the ratio of Judicial Officers selected are in the ratio of 60 : 40 per cent. While dismissing the Public Interest Litigation and Writ Petitions, the High Court in paragraph 18 held:18. In the result, the Public Interest Litigation and the Writ Petitions are dismissed. The respondent – High Court shall compete the process of recruitment initiated in pursuance of 2014 and 2015 Notifications. The respondent – State Governments are directed to take all necessary steps for appointments of the selected candidates, recommended by the High Court at the earliest. 2015 Rules shall not be acted upon and shall not operate since they were not made in consultation with the High Court as provided for under Article 234 of the Constitution. It is open to the State of Telangana to take steps to adapt 2007 Rules afresh, in exercise of the powers under Section 101 of the Act, in consultation with the High Court8. When these appeals(SLPs) were filed against the judgment of the High Court dated 29.04.2016, this Court on 15.07.2016 directed these appeals to be listed along with Writ Petition (C)No.85 of 2015.

Court's reasoning:
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.