Judgment:
ORDER
V. Eswaraiah, J.
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 v. Union of India : (1993)ILLJ723SC 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]2SCR712 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]2SCR35 . 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 Anr. v. U.P. Public Service Commission and Ors.). 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%o 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 v. State of Andhra Pradesh : AIR2008SC1470 . 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 No. of Courts Vacancy positionDistrict and Sessions JudgeCourts------------------------------------------------------------------Permanent 88Temporary 52 2------------------------------------------------------------------Tolal 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 Ors. v. Sreenivasa Rao and Ors. : (1983)IILLJ23SC . 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 Government issued clear instructions for preparation of the panels and ensures that panels are prepared promptly in the month of September every year. It is stated that panels were not prepared as per the Rules as on the specified date and in the meanwhile amendment to the Rules had been incorporated, whereby, the original Rules providing for consideration of Lower Division Clerks for appointment as Sub Registrars Grade-II were done away with and promotion or transfer to that category was to be made from amongst the Upper Division Clerks employed in the Registration and Stamps Department.
It was contended that by the time, the list was prepared in May, 1977, Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules were amended and the list prepared was in accordance with the Rules then prevailing at the time of preparation and therefore, there was nothing wrong with the preparation of the panel. It was further contended that the petitioners in the two representation petitions having not challenged the validity of the amendment to Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, it was not open to challenge the list prepared in May, 1997, which is in accordance with the Rules prevailing at that time. In those circumstances, the Supreme Court held in para 9 as follows:
9. Having heard the Counsel for the parties, we find no force in either of the two contentions. Under the old Rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade-II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondent Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended rules. It is admitted by Counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade-II will be according to the new Rules on the zonal basis and not on the State wide basis and therefore, there was no question of challenging the new rules. But the question is the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended Rules would be governed by the old Rules and not by the new rules.
(emphasis supplied)
Based on the above, the learned Counsel for the petitioners contended that though the new Rules have come into force with effect from 01.01.2007 vacancies arising prior to the said date shall continue to be governed by the old Rules and not by the amended 2007 Rules.
12. To reinforce the aforesaid contention he had relied upon another judgment in the case of P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. : AIR1988SC2068 and contended that all the temporary vacancies in the cadre of District and Sessions Judges Grade-II as on 1-1-2007 shall be filled from among the Senior Civil Judges alone and 33 1/3% of the District and Sessions Judges Grade-II out of permanent posts shall only be filled by direct recruitment. In respect of the vacancies arising after 1-1-2007, the Rules have to be implemented for the recruitment of the District and Sessions Judges in the ratio of 25 : 25 : 50 by way of direct recruitment, accelerated recruitment by transfer and recruitment by transfer. In this regard, it is just and proper to extract the relevant portion of para 7 of the said judgment as follows:
7. ...The only question which has now to be considered is whether the amendment made on April 28, 1980 to the Special Rules applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also. The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on April 28, 1980 were '37 1/2 per cent of the substantive vacancies arising in the category of Assistant Engineers shall be filled by the direct recruitment'. If the above Clause had read '37 1/2 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment' perhaps there would not have been much room for discussion. The said Clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date. We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word 'arising' in the above Clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.
(emphasis supplied)
A careful perusal of the aforesaid Judgment itself gives an answer to the contention of the learned Counsel appearing for the petitioners. Rule 4(2)(b) of the Rules 2007 which deal with Appointment to the category of District Judges mandates that such appointment shall be made in three different modes as provided under Section 4(2)(i), (ii) & (iii). The aforesaid Clause is, therefore, quite different from the wording of amendment to Rule 5 of the Rules 2007, which fell for consideration before the Supreme Court in P. Ganeshwar's case as above. Rule 4 of the 2007 Rules apply to all vacancies from date of enforcement of Rules (1-1-2007). The amendment of the Rules in the aforesaid case was in respect of the vacancies arising subsequent to the amended rule, but not in respect of the vacancies existing prior and subsequent and therefore, the words arising in the amended Rule was interpreted as the vacancies which come into existence subsequent to the date of amendment.
Whereas the present rules, 2007 were given retrospective effect with effect from 1-1-2007 and the said Rules are made in super cession of all the existing Rules on the said date. By Rule 26 of the said rules, The Andhra Pradesh State Higher Judicial Service Rules and the special Rules of the Andhra Pradesh State Judicial Service Rules, which were in force immediately before the commencement of the rules, which came into force with effect from 1-1-2007 were repealed. As per Rule 26(2) it is further made clear that appointment made or actions initiated prior to the commencement of the 2007 Rules shall not be effected and are deemed to have been made or initiated under Rules 2007. Therefore, the Andhra Pradesh State High Judicial Service Rules stands repealed with effect from 1-1-2007 and those Rules are not in force.
13. Learned Counsel for the petitioners relied upon another decision of the Supreme Court in Arjun Singh Rathore v. B.N. Chaturvedi 2007 AIR (SCW) 6745 : 2007 Supreme 798. In the aforesaid decision the Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules, 1988 were superceded by fresh Rules 1998. The question, therefore, was whether the vacancies which were existing prior to the enforcement of 1998 Rules were to be governed by the 1988 Rules or 1998 Rules. The appellants before the Supreme Court relied upon a decision of the Supreme Court in State of Rajasthan v. R. Dayal : [1997]2SCR108 for the proposition that vacancies to be filled by promotion were to be filled under the Rules, which were in operation on the date when the vacancies arose and not by the amended Rules. The aforesaid contention of the appellants was, however, not seriously disputed by the respondents and therefore, the Supreme Court expressed an opinion that vacancies which had occurred prior to the enforcement of Rules 1998 had to be filled under the Rules 1988 as per the procedure laid down therein.
14. The decision of State of Rajasthan v. R. Dayal : [1997]2SCR108 was a case where DPC was held on 13.04.1995 under the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 against nine existing and anticipated vacancies as on 01.04.199. The DPC recommended nine candidates in accordance with the eligibility conditions then existing. However, on 24.07.1995 the recruitment rules were amended and the eligibility conditions were changed. The said amendment came into force with immediate effect and issue was whether the selection of the candidates made under the earlier rules was valid when the eligibility conditions have been changed with effect from 24.07.1995. Paragraphs 7 and 8 of the judgment are extracted below, are, however, relevant.
7. The questions, therefore, is: whether the view taken by the High Court in the impugned judgment is correct in law. It is true, as contended by Shri Aruneshwar Gupta, that the determination of vacancies is required to be done under Rule 9 of the Rules and the selection has to be made in accordance with the criteria prescribed under Rule 23 of the Rules. Even Rule 23-A of the Rules prescribes the same procedure and the criteria thereunder was also followed. The revised criteria of eligibility and procedure for promotion of the officers has been prescribed under Rule 24-A of the Rules. Sub-rule (2) of Rule 12 envisages as under:
12. (2) The persons enumerated in Column 5 or the relevant Column regarding 'posts from which promotion is to be made' as the case may be, of the relevant Schedule shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant column regarding 'minimum qualification and experience for promotion', as the case may be.
8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and Clause (11-B) of Rule 24-A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the Rules or in terms of Rule came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A Clause (11-B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith.
(emphasis supplied)
It would be noticed from the above that the amended Rules were applied even to the selections made under the old Rules and ultimate direction was given to revise the panel already prepared in accordance with the amended Rules and made appointments accordingly.
15. Reference may also be made to another decision of the Supreme Court in N.Y. Devin Katti v. Karnataka PSC : (1990)IILLJ456SC . In that case the recruitment to the post of Tahsildar in the State of Karnataka was regulated by Karnataka Administrative Services (Tahsildars) Recruitment (Special) Rules, 1975. For the said post, KPSC issued a notification dated 23.05.1875 and the appellants, who were in service had applied for the said selections and after written test and viva voce, the Commission finalized the list of successful candidates and notified the additional list also. However, the State Government refused to approve the said list on the ground that reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes was not made as per the later order of the Government dated 09.07.1975 and consequently directed the Public Service Commission to prepare a fresh list as per procedure contained in Government Order of 09.07.1975. Accordingly, the Commission prepared a fresh list and published the same, but the appellants name did not figure in the said revised list. Questioning that, writ petition was filed by the appellants, which was dismissed by the Division Bench, hence the appeal before the Supreme Court. The Supreme Court, therefore, considered the question as to whether the earlier Government Order dated 06.09.1969 or the later Order dated 09.07.1975 was required to be followed by the Commission in preparing the select list. Since the order passed by the State Government dated 09.07.1975 specifically stated that 'while superceding all other Government Orders cited in the preamble, the reservations already made to any category of posts or service and advertised before the issue of this Government order shall remain unchanged and shall be deemed to have been validly made....' (emphasis supplied). The Supreme Court, therefore, found that the above Para 11 of the Order expressly saved the pending selections.
In the aforesaid decision the Supreme Court also noticed another decision in B.N. Nagarajan v. State of Mysore 0043/1966 : (1967)ILLJ698SC wherein the Public Service Commission invited applications for appointment to post of Assistant Engineers, the Commission made selections, interviewed the candidates and sent the select list to the Government in October/November 1960. But, however, before the appointment could be made by the Mysore Public Works, Engineering Department Services (Recruitment) Rules, 1960 came into force which prescribed different criteria provisions than those prescribed in the earlier notifications. The validity of the appointments made by the Government on the basis of the selections made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. On appeal to the Supreme Court, the Constitution Bench rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid.
16. It is also necessary to notice another Constitution Bench judgment of the Supreme Court in State of Andhra Pradesh v. T. Ramakrishna Rao : (1972)ILLJ240SC . The aforesaid case involved the selection of candidates for the post of District Munsif. Under Rule 5, then existing, the Public Service Commission was empowered to prepare a list of persons considered for appointment to the post of District Munsif after holding such examination, as the Government would consider necessary. That part of Rule 5 was challenged where Government was to determine whether an examination is necessary or not and the High Court held that that part was in contravention of Article 234 of the Constitution of India. High Court, further, held that the Government orders pursuant to the said Rule for holding of examination by the Commission was also void. Thereafter, the Governor amended Rule 5 after consultation with the High Court in conformity with Article 234 of the Constitution. The Commission, thereafter, issued advertisement inviting fresh applications. Thereupon, some candidates, who had earlier applied, challenged the validity of holding fresh examination on the ground that under the amended Rules they cannot be subjected to written examination once again and the pattern of written examination was also changed and that they acquired right to be considered in accordance with Rule 5 prior to its amendment. The High Court had partly allowed the petition and directed the Commission to hold a separate examination for those, who had applied in 1968 as per the unamended Rule 5 and another separate examination for subsequent vacancies as per the amended Rule 5. On an appeal by the State Government, the Constitution Bench of the Supreme Court set aside the order of the High Court holding that since Rule 5 unamended has been declared void, the advertisements issued by the Commission and all proceeding taken by the Commission including the examination were void. It was also held that the candidates, who had made applications earlier, had not acquired any right. It was also held that there was no question of amended Rule 5 being prospective or retrospective as the Commission had to act afresh on the amended Rule.
17. The issue can be examined in another angle also. It is well settled and the Supreme Court has held in P.U. Joshi v. Accountant General : [2002]SUPP5SCR573 as follows:
10. ...There is no right in any employee of the State to claim that Rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new Rules relating to even an existing service.
To the same effect is another decision of Supreme Court in T.N. Electricity Board v. T.N. Electricity Board Thozhillalar Aykkiya Sangam (2008) 3 SCC 359 as well as State of J&K; v. Shiv Ram Sharma : (1999)ILLJ1080SC wherein Para 6 states as follows:
6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service, the requirement of passing matriculation was not needed and while they are in service, such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those Rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India : (1968)ILLJ576SC it was held by this Court that once appointed, an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by the consent of the parties, but by statue or statutory Rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to the respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as the Rules provide for conditions of service making an avenue for promotion to higher grades, the observations made in T.R. Kothandaraman case stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents.
18. In the light of the above legal position, therefore, on the facts of the present case, it is not as if any selection is finalized in pursuance of the Rules earlier existing prior to 01.01.2007 and as such it cannot be said that a vested right exists in favour of the petitioners to agitate that the vacancies prior to 01.01.2007 should be filled only by the old Rules. As mentioned above, under Rule 26 of the new Rules 2007 all previous Rules, which were in force immediately before commencement of these Rules, stand repealed and as such only the Rules, which are in force with effect from 01.01.2007 are the amended Rules. The amended Rule 4(2)(b) read with Rule 6 does not permit the construction as contended by the petitioners. In fact, Rule 6 of 2007 Rules provides methodology for conducting examination with respect to all three categories. Under Sub-rule (1) of Rule 6 25% of the cadre strength earmarked for direct recruitment has to be filled on the basis of written examination and viva voce as stipulated under the said Rule. The proviso to the said Sub-rule (1) even provides for contingency that High Court may conduct a screening test before conducting written examination. Thus, Sub-rules 1 to 4 of Rule (6) deal with and provide for entire recruitment procedure with regard to 25% of the cadre strength vacancies meant for direct recruitment. Sub-rule (5) applies to other 25% of the cadre strength vacancies to be filled by accelerated promotion and for the said purpose the High Court may prescribe a departmental competitive examination for the purpose of said accelerated promotion. The aforesaid departmental competitive examination, therefore, has to be different from the written examination for direct recruits envisaged under Sub-rule (1) as above. Further, Sub-rule (6) provides for the High Court to prescribe and hold suitability test for filling up 50% of the cadre strength vacancies by transfer. The suitability test under Sub-rule (6) is again different from the written examination under Sub-rule (1) as well as departmental competitive examination under Sub-rule (5) referred to above. Further, Sub-rule (7) to (10) deals with similar recruitment procedure with regard to the post to the category of Civil Judge covering the method with respect to appointment by direct recruitment.
19. The Government of Andhra Pradesh issued notification dated 25-5-2004 for the recruitment of 10 posts of District and Sessions Judges Grade-II and written examinations were conducted on 31-1-2005 and 10 candidates were recommended for appointment as per the report of the Administrative Committee dated 3-4-2006 and the select list was placed before the Full Court on 6-4-2006 and the said selection was questioned in Supreme Court in the case of K. Manjusree v. State of Andhra Pradesh and the Supreme Court held that as per the existing Rules and the resolutions, the minimum percentage of marks are only for the written examination and not for the interview and the High Court was directed to re-draw the merit list without applying minimum marks for interview by applying the marks secured in the written examination and marks secured in the interview and thereafter separate lists have to be prepared for each reservation category and then the final selection of 10 candidates will have to be made. The select list of the High Court was set aside and the High Court was directed to prepare a fresh merit list with reference to their marks in the written test and interview without applying the minimum marks in the interview and thereafter finalise the select list in accordance with law. It was further directed that the appointment of 5 candidates pursuant to the interim order need not be disturbed. The said 5 candidates will find a place in the selection list even without it is redone, though their ranks/reservation category may vary. Their rank and seniority will depend upon the fresh selection list of ten candidates to be drawn and not on the appointment made in pursuance of the interim order. Thus, the appointment of 10 District Judges pursuant to the notification issued in 2004 was already finalized after 2007 Rules came into force. It is stated that 2 notifications have been issued for filling up of the 13 posts by way of direct recruitment and 35 posts by way of accelerated promotion by recruitment by transfer for the year 2007, but as none qualified among the Senior Civil Judges by way of recruitment by transfer.
20. In so far as the direct recruitment of 13 posts is concerned, the records reveals that the selection made by the committee of the Hon'ble Judges constituted for the recruitment to the 13 posts of District and Sessions Judge (Entry Level) by direct recruitment was not approved by the Full Court vide its resolution dated 5-3-2009. The provisional select list dated 17-12-2008 prepared by the committee constituted for direct recruitment of District and Sessions Judges (Entry Level) is not approved and it is resolved to direct the Registry to ascertain the vacancies and initiate the process for direct recruitment of the posts of the District and Sessions Judges (Entry Level) afresh.
21. We have perused the records. The strength of District and Sessions Judges in the State is 163, out of which, 88 permanent and 75 temporary District and Sessions Judges. As per the Andhra Pradesh State Judicial Service Rules, 2007, which are inconformity with the Judgment of the Supreme Court in the case of Malik Mazhar Sultan, 25% of the cadre strength of the vacancies have to be filled by direct recruitment from the Bar. Cadre Strength means, permanent as well as temporary posts. The cadre strength of the District Judges in the State of Andhra Pradesh is 163 (88 permanent + 75 temporary), 25% of 163 cadre strength is 40.75 - say 41. It is stated that 41 vacancies are to be filled up by direct recruitment from the Bar. Presently 26 direct recruitment District and Sessions Judges are working. The existing 15 vacancies are to be filled. In addition to above, 10% of the posts for future vacancies as laid down in the judgment of the Supreme Court in Malik Mazhar Sultan are also required to be filled in.
22. Similarly 25% of the posts of District and Sessions Judges (Entry Level) have to be filled through the limited competitive examination of the Senior Civil Judges not having less than 5 years of qualifying service. 25% of 163 total strength will be 41. So far, no one is recruited under 25% quota of District and Sessions Judges by way of promotion through limited competitive examination of Senior Civil Judges who are having more than 5 years of the qualifying service.
23. It is stated that 50% of the District and Sessions Judges (Entry Level) shall be filled by promotion from the cadre of the Senior Civil Judges. 50% of 163 come to 81.5 - say 82. The existing District Judges promoted from the Senior Civil Judges are presently working 127 and their quota under 50% cadre strength under these Rules will be 81 and therefore there are no vacancies available for the further promotion under 50% quota meant for them for the present.
24. The learned standing Counsel appearing for the High Court submitted that when the Law Clerks/Legal Assistants were denied selection as Junior Civil Judges on the ground that they were not the practicing Advocates as required under Rule 12(2)(b) of the Andhra Pradesh State Judicial Service Rules notified under G.O.Ms. No. 2207, Home (Personal-A) Department dated 4-11-1962, but this Court in W.P. No. 9874 of 2008 held that as per 2007 Rules, a holder of a Degree in Law is only required qualification for the appointment to the category of the Civil Judge and any selection process initiated for the appointment to the posts under the notification dated 14-5-2007 is deemed to be governed by the new Rules of 2007 and 1962 Rules are substituted by 2007 rules. Therefore, it was Held mat n me Law Clerks who are not practicing Advocates and holders of degree in law are eligible.
25. As rightly contended by the learned Counsel appearing for the petitioners, the Government of India by resolution dated 21-3-1996 constituted First National Pay Commission under the Chairmanship of Mr. Justice K.J. Shetty mainly to evolve the principle which should govern the hike of pay and emoluments of the Judicial Officers and the commission submitted its report on 11-11-1999. The Supreme Court by its Judgment dated 21-3-2002 in All India Judges Association (III) v. Union of India and Ors. v. Union of India and Ors. : [2002]2SCR712 accepted the recommendations of Justice Shetty Commission subject to the modification mentioned in the said Judgment. The High Courts and the State Governments were required to amend their Rules and bring them inconformity with the directions issued by the Supreme Court of India in All India Judges Association case. Pursuant to the said judgment and the judgment of Malik Mazhar Sultan, either to amend the existing Rules or to make Rules inconformity with the directions of the Supreme Court, the committee of Judges was appointed and the committee submitted the proposals and the same were considered and accepted by the Full Court of the Andhra Pradesh High Court. Accordingly, the High Court forwarded the said proposed Rules to the Government vide its letter dated 15-4-2008 and His Excellency the Governor of Andhra Pradesh approved the said Rules in G.O.Ms. No. 119 dated 2-8-2008. The said Rules are framed in super cession of all the existing Rules on the subject and the Andhra Pradesh State Judicial Service Rules and the Special Rules of Andhra Pradesh State Higher Judicial Service Rules are-repealed and the said Rules are deemed to have come into force with effect from 1-1-2007. Therefore, any recruitment after 1-1-2007 either in the cadre of Civil Judges (Junior Division) or for promotion to the Civil Judges (Senior Division) or for appointment to the category of District Judges by way of direct recruitment and through the limited departmental competitive examination (accelerated recruitment by transfer) and recruitment by transfer from among the Senior Civil Judges must be in the ratio of 25 : 25 : 50 of the cadre strength.
26. It is stated that the issuance of the notification for filling up of posts of the District Judges under category of direct recruitment, recruitment by transfer on the basis of merit through limited departmental competitive examination (accelerated recruitment by transfer) and recruitment by transfer among the Senior Civil Judges is under the active consideration by the High Court and issuance of notification simultaneously.
27. We are of the opinion that as per 2007 rules, appointment to the category of District Judges shall be in proportion of 25 : 25 : 50 of cadre strength by way of direct recruitment, by transfer strictly on the basis of merit through a limited departmental competitive examination (accelerated recruitment by transfer) and by recruitment by transfer from among the Senior Civil Judges.
28. The further question that arises for consideration as to whether the recruitment of the District Judges to be made in proportion of 25 : 25 : 50 by direct recruitment, recruitment by transfer on the basis of merit through departmental competitive examination (accelerated recruitment by transfer) and recruitment by transfer from among the Senior Civil Judges based on the cadre strength or in the future vacancies under the Andhra Pradesh State Higher Judicial Service Rules, 2007.
Cadre strength means; the number of posts permanent as well as temporary in the cadre of the District Judges as defined under Rule 2(d). The method of appointment to the category of the District Judges is as per Rule 4(2)(b), which is extracted as follows:
Rule 4(2)(b): Appointment to the category of District Judges shall be made:
i) By Direct recruitment.
ii) By transfer strictly on the basis of merit through a limited departmental competitive examination (accelerated recruitment by transfer), and
iii) By recruitment by transfer from among the Senior Civil Judges.
Provided that 25% of the cadre strength shall be filled up by direct recruitment from among the eligible Advocates on the basis of written and viva voce tests as prescribed by the High Court;
25% of the cadre strength shall be filled up by means of recruitment by transfer on the basis of merit through departmental competitive examination (Accelerated recruitment by transfer) 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
50% of the cadre strength shall be filled up by recruitment by transfer from among the category of Senior Civil Judges on the basis of merit-cum-seniority and by conducting a suitability 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.
The said Rule is also inconformity with the judgment of Malik Mazhar Sultan's case. In the said case, the Supreme Court directed to fill up the vacancies in the cadre of the District Judges in the proportion of 25 : 25 : 50 under the aforesaid cadres and it was clearly directed that 50% of the vacancies in the cadre of the District Judges by way of promotion. The aforesaid Rules which have been framed in exercise of the powers conferred by Articles 233, 234, 235 and 237 read with proviso to Article 309 and proviso to Clause (3) of Article 320 of the Constitution of India and in consultation with the High Court of Andhra Pradesh. Therefore, it cannot be said that the vacancies liable to be filled up are not in accordance with Rule 4(2)(b) based on the cadre strength, but as against the vacancies arising after the Rules came into force. Rule 4(2)(b) is mandatory in nature and there is no discretion left to the High Court for deviation of the said rules. Of course, seniority of the District Judges shall be as per the 40 point roster prescribed in Schedule-A under Rule 13 of the said rules.
29. The method of appointment to the class of selection grade and super time scale shall be made by promotion on the basis of merit-cum-seniority from among the permanent cadre of the District Judges. The permanent cadre of the District Judges is only 88. In the case of Senior Civil Judges Courts and Junior Civil Judges Court also, there is permanent as well as temporary cadre.
The learned Counsel appearing for the respondents submits that the existing permanent Courts in 3 cadres of District Judges, Senior Civil Judges and Junior Civil Judges were sanctioned some decades back and some of them were established even before independence. In the year 1995, the High Court placed proposals for permanent retention of some of the temporary Courts along with their staff before the Implementation Committee of the Government and the committee having examined the recommendations of the High Court in the meeting held on 6-9-1995 and decided to make 131 temporary Courts permanent in the aforesaid 3 categories and issued orders in G.O.Ms.No.347, Home (Court A) Department dated 2-11-1995. Thereafter the Implementation Committee issued orders in G.O.Ms. No. 43, Law (LA & J Home Courts C) Department dated 29-2-2000 making 24 temporary Courts in 3 cadres permanent. Thereafter, no temporary Courts are made permanent and as on now, the break-up of 823 regular Courts is as follows:
--------------------------------------------------------------------Permanent Temporary Total--------------------------------------------------------------------District Courts 88 77 165--------------------------------------------------------------------Senior Civil 125 49 174Judges Courts--------------------------------------------------------------------Junior Civil 323 161 484Judges Courts--------------------------------------------------------------------Total 536 287 823--------------------------------------------------------------------
Out of the said Courts, some of the Courts are sanctioned more than 10 years back and some of the Courts are sanctioned during the last 5 years. After 2000, no temporary Court is made as permanent, though 9 years have been elapsed. The temporary Courts are being continued from time to time without making any attempt to consider the proposals sent by the High Court, by the Government. It is stated that the Government requested the High Court to prepare a list of permanent Courts and temporary Courts along with their staff now functioning in the State and to furnish the same to the Government so as to issue a blanket order for all the temporary and permanent Courts in the State and to direct the authorities concerned to pass pay bills. Accordingly, the High Court prepared a list of permanent Courts and temporary Courts separately which are to be made permanent and some of the temporary Courts to be continued on temporary basis and submitted proposals to the Government for issuance of orders for all the temporary and permanent Courts with staff. The aforesaid proposal is under process for being placed before the Implementation Committee of the Government for scrutiny and issuance of necessary orders in this-regard.
It is stated that based on the report of the Hon'ble Judges constituted by the Supreme Court in pursuance of the resolutions passed in the Chief Justices Conference held on 4th and 5lh September, 2004, the High Court recommended to the Government for establishing 79 Additional Courts in the cadre of District and Sessions Judges, 85 Courts in the cadre of Senior Civil Judges and 614 Courts in the cadre of Junior Civil Judges, but out of the said recommendations, 39 Additional District and Sessions Court, 19 Additional Senior Civil Judges Courts and 75 Junior Civil Judges Courts,, altogether 133 Courts alone are sanctioned from 2004 to 2009. It is stated that the pendency of the cases in the District Courts is 1,45,274, Senior Civil Judges Courts is 2,14,875 and Junior Civil Judges Courts is 5,99,285 and the litigation is increasing every year. Therefore, taking into consideration of the delay in disposal of the cases and long pendency of various disputes and increase in the number of filing of the case, temporary Courts have been sanctioned and there cannot be any justification to make them permanent by placing the proposals sent by the High Court before the Implementation Committee of the Government. Accordingly, we direct the second respondent to consider the proposals of the High Court to make the temporary cadre District and Sessions Judge Courts, Senior Civil Judge Courts and Junior Civil Judge Courts as permanent as expeditiously as possible by passing appropriate orders within 8 weeks from the date of receipt of this order.
For the foregoing reasons, we direct the respondents to fill up 25% of the cadre strength District Judges by way of direct recruitment among the eligible Advocates and 25% of the cadre strength by transfer strictly on the basis of the merit through a limited departmental competitive examination (Accelerated recruitment by transfer) from among the cadre of the Senior Civil Judges who have put in not less than five years of qualifying service and 50% of the cadre strength by recruitment by transfer from among the Senior Civil Judges on the basis of merit-cum-seniority.
So far as the 50% of the cadre strength to be filled up by recruitment by transfer among the Senior Civil Judges is concerned, the Judges from the cadre of the Senior Civil Judge are working more than 50% of the cadre strength meant for them and therefore, further recruitment by transfer among the Senior Civil Judges under 50% of the cadre strength will not arise now.
With the aforesaid directions, the writ petition is disposed of accordingly. No order as to costs.