Goto Ete, Former Sessions Judge in the Court of Additional District and Sessions Court, Bomdila Arunachala Pradesh and Others Vs. The State of Arunachal Pradesh, represented by the Chief Secretary, Government of Arunachal Pradesh, Itanagar and Others - Court Judgment

Excerpt:
t. vaiphei, cj. 1. in this writ petition, the petitioners are challenging the letter dated 07.01.2013 issued by the registrar general, gauhati high court, informing them that their services from the post of ad-hoc additional district and sessions judge, fast track courts of arunachal pradesh had been dispensed with, with immediate effect, as they could notqualify themselves in the selection for absorption to the post of grade-i of the arunachal pradesh judicial service. they also challenge the legality of the advertisement dated 10.01.2013 issued by the gauhati high court, itanagar permanent bench for filling up the 03(three) vacant posts of grade-i of the arunachal pradesh judicial services and seek the intervention of this court for directing the respondent authorities to allow them to continue in their respective services as per the extension order dated 19.05.2011 of the government of arunachal pradesh w.e.f. 01.04.2010 to 31.03.2011. 2. the facts of the case, as pleaded by the petitioners, may be briefly noticed at the outset. when the judiciary in the state of arunachal pradesh was not yet separated, 03(three) posts of additional deputy commissioner with the powers of ad-hoc additional sessions judge had been created by the government of arunachal pradesh in the year 2002. on 04.06.2002, the petitioners, on the basis of the recruitment process undertaken in consultation with the gauhati high court, were appointed as additional deputy commissioners with the powers of ad-hoc additional district and sessions judges against the three fast track courts of the state of arunachal pradesh initially for a period up to 31.03.2005 in terms of the award of the eleventh finance commission. on the recommendation of the gauhati high court, the ad-hoc services were extended first till 31.03.2010 and was further extended up to 31.03.2015 by the state government vide the order dated 19.05.2011. the last extension of their ad-hoc services was between the state of arunachal pradesh and the petitioners. the orders of the government extending the terms of the fast track courts of the state till 31.03.2015 was not yet recalled/rescinded by the government of arunachal pradesh till the filling of the writ petition. however, the impugned letter cut short their tenure even before the expiry of the extended period up to 31.03.2015 on the ground stated earlier. the petitioners had been discharging their duties continuously for 10 years and 07 months without any break in service at a fixed salary of 19,000/- (rupees nineteen thousand) for 09(nine) years and at an enhanced fixed salary of 60,000/- (rupees sixty thousand) for a little more than two years. it is contended by the petitioners that absorption of their services and the discontinuation, or the dispensing with, of their services are two different aspects. the gauhati high court in hot haste issued the advertisement dated 10.01.2013 and had immediately put up a notice in its website inviting online application from the eligible advocates for appointment of 03(three) vacant posts (actual) in the cadre of grade-i of arunachal pradesh judicial services. 3. according to the petitioners, their services have been brought under the ambit of the provisions of arunachal pradesh judicial services rules, 2006 (rules), while the three fast track courts manned by the petitioners have been converted into regular court of additional district and sessions judges. as per section 4(1) and (2) of the rules, the strength of the service and cadre and the necessity to fill up the posts shall be determined by the governor in consultation with the high court. to hold a particular post as vacant, a notification in that behalf shall have to be issued only by the government of arunachal pradesh after due consultation with the gauhati high court. in other words, according to the petitioners, the gauhati high court, on its own volition, cannot declare a particular post to be vacant as that will contravene the provisions of the aforesaid rules. further, section 6(1) of the rules provides that the appointment to the posts of grade-i, grade-ii and grade-iii shall be made by the governor. the proviso to rule-7 of the rules enables the state /government, in consultation with the high court, to consider the absorption of their ad hoc services in grade-i of the arunachal pradesh judicial service. the second proviso of rule-7 further provides that the high court shall have the power to relax the qualifying period of judicial officers for the purpose of promotion in case the same is considered necessary in the interest of service. 4. it is also the case of the petitioners that the state of arunachal pradesh was not consulted by the high court before dispensing with their services as judges of the fast tract courts and that the state of arunachal pradesh did not send any requisition to the gauhati high court for filling up of the said vacant posts. it is submitted by the petitioners that dispensing with the services of the petitioners without prior consultation with the government of arunachal pradesh and without giving an opportunity of hearing to them during the validity of the extended period of their services is without authority of law, being arbitrary and violative of natural justice. the cases of the petitioners had already been recommended by the state government to the high court for absorption of their services under rule-7 of the rules against the two vacant posts of district and sessions judges created in the state at yupia and tezu districts in the year 2007. however, the high court did not consider the cases for absorption without any reason and filled up the two posts through direct recruitment. on the other hand, the high court rather accepted the proposal to convert the 03(three) fast tract courts into regular courts, but kept the decision on the proposal for absorption of the petitioners pending. 5. the high court, in the meantime, sought for the acrs of the petitioners along with the acrs of the two district and sessions judges of the state by treating the petitioners as judicial officers along with the two district and sessions judges in the state. the high court, thereafter, by the letter dated 29.09.2011 returned the acrs of all the judicial officers of the state including that of the petitioners by stating that a lot of discrepancies were found in respect of the 05(five) judicial officers of the arunachal pradesh judicial service. the acr s of the petitioners were again re-submitted to the high court as per its direction. the contention of the petitioners is that, the high court having already described the petitioners as judicial officers of the arunachal pradesh judicial service in the previous correspondences, surprisingly, sought for the option of the petitioners as to whether they were ready for appearing in a written examination and interview in terms of the judgment of the supreme court in brij mohan lal case and that this decision was taken without prior communication to the government of arunachal pradesh and without considering the reques of the government of arunachal pradesh for absorption of the services of the petitioners under rule-7 of the rules. 6. the aforesaid examination was for the purpose of determining whether the petitioners could be absorbed in the arunachal pradesh judicial services but had nothing to do with whether the ad-hoc services being rendered by the petitioners are to be continued or not. the petitioners, having no alternative, opted for appearing in the written examination as well as the interview. on the basis of the option exercised by the petitioners, the high court by the letter dated 07.08.2012 communicated to the petitioners about the date and venue of the written examination. the high court, after 02(two) months and 13(thirteen) days of the written examination, communicated to the petitioners vide the letter dated 15.11.2012 calling them for interview on 22.11.2012 at 4.30 p.m at guwahati. when they duly appeared for the interview, the interview was not held, but they were informed by the chairman that their answer scripts had not been checked and directed the petitioners to go back. much to their consternation, the high court informed the secretary (law and judicial) government of arunachal pradesh subsequently vide the letter dated 07.01.2013 that the high court had dispensed with the services of the 03(three) petitioners from the posts of ad-hoc additional district and sessions judge with immediate effect, on the ground that they could not qualify themselves in the selection for absorption and required them to hand over the charges to the respective district and sessions judges. immediately thereafter, the 03(three) posts were advertised as already noted. aggrieved by this, they are approaching this court for appropriate relief. 7. opposing the writ petition, the high court filed their affidavits-in-opposition through the registrar general of the high court. it is asserted therein that the judicial service of the state of arunachal pradesh is under the control and supervision of the gauhati high court and the high court has, therefore, the authority to decide as to the continuity of the services of the petitioners irrespective of the extension of their ad hoc services already given by the government of arunachal pradesh. length of continuation of appointment on ad-hoc capacity does not confer the petitioners with any right to regular appointment. the high court in the impugned order dispensed with the services of the petitioners with immediate effect as they could not qualify in the written examination conducted by the high court for their absorption in terms of the direction of the apex court in brij mohan lal v. uoi and others, (1999) 3 scc 396. the answering respondents state that the dispensing with the service of the petitioners is the immediate fall out of their failure to secure the minimum qualifying marks in the examination for their absorption into the services. it is denied that the absorption of the services of the petitioners is not automatic as contended by them and is rather subjected to their facing the recruitment examination conducted by the high court for the composite papers of 150 marks and 100 marks for the interview. the minimum qualifying marks is 40% for the general candidates and 35% for the st/sc/obc candidates. another direction of the apex court in brij mohan lal case (supra) was that the written examination and interview should be held in accordance with the relevant rules enacted by the states for direct appointment to higher judicial services. keeping in mind the aforesaid direction, the high court conducted the examination consistent with the existing arunachal pradesh judicial services rules, but the petitioners failed to secure even the minimum 35% qualifying marks in the examination meant for sc/st/obc candidates. accordingly, there was no option but to dispense with their services. it is asserted by the high court that though the strength of service and cadre and the necessity to fill up the post are to be determined by the government in consultation with the high court, but the decision of the high court in the matter of appointment and promotion of judicial officers prevails over the authority of the government. 8. it is true that the judiciary of arunachal pradesh needs competent and experienced judges, but it does not mean that the petitioners should be absorbed automatically in the service merely on the ground that they have past experiences unless they undergo a selection process. the high court contends that as the petitioners could not qualify for the written examination conducted on 20.09.2012, in terms of the direction of the apex court, their services had to be dispensed with. according to the answering respondents, the letter issued by the secretary, law legislative and justice department of government of arunachal pradesh is not the final recommendation; it is a request made to the high court for absorption of the petitioners in terms of the direction of the apex court. it is not that the high court did not consider the case for absorption of the petitioners without assigning any reason; they were given adequate opportunity for their absorption into the services, but they could not even secure the minimum prescribed qualifying marks in the written examination. the answering respondents contend that describing the petitioners as judicial officers in the correspondences and calling their acrs do not necessarily mean that they should be absorbed automatically into the services. the high court has followed the established practice and procedure in the matter of appointment of officers, and there is no violation of principles of natural justice or of article 14 and 16 of the constitution of india. according to the respondents, the allegations made in the writ petition are baseless and are misleading, and the petitioners are to put to strict proof thereof. the high court has no intention to keep grade-i post of the judicial service in the state of arunachal pradesh for 8/10 years vacant just to deprive the candidates of arunachal pradesh from being appointed to the post of high court judge. though rule 7 provides that the case of the ftc judges may be considered for absorption in grade-i of the service, this is neither absolute nor without condition. these are the sum and substances of the case of the respondent authorities. the private respondents have also filed their affidavits in opposition, which need not be reproduced inasmuch as they are substantially similar to the stance taken by the high court in the affidavit-in-opposition filed by the high court, which are already noted. 9. having heard me. k.n. choudhury, the learned senior counsel for the petitioners, mr. s.s. dey the learned senior standing counsel for the high court, mr. kardak ete, the learned additional advocate general of arunachal pradesh and mr. i. choudhury, the learned counsel for the private respondents and having perused the pleadings of the parties and the materials available on record, it is obvious that the vital point to be decided in this writ petition is whether the ad hoc services of the petitioners can be regularised in accordance with the proviso to rule 7 of arunachal pradesh judicial service rules, 2006 ( the rules for short)? the petitioners were initially appointed as additional deputy commissioner on contract basis with the powers of ad-hoc additional district and sessions judge in the year 2001 at a fixed pay of 19,000/-. there can be no dispute that the posts held by them were advertised by the government of arunachal pradesh on 13-7-2007. the petitioners applied for the posts, appeared in the written test and interview conducted by the high court. in the minutes of meeting held on 21-9-2001, the full court approved the appointments of the petitioners as additional deputy commissioner with the powers of ad-hoc sessions judge of the arunachal pradesh. the high court vide the letter dated 6-10-2001 approved the recommendations made by the selection committee for their appointments for the fast track courts to be established in the state of arunachal pradesh. the government of arunachal pradesh thereafter issued the order dated 4-6-2002 appointing them as the presiding officer of the fast track courts. their services were extended for a period of five years w.e.f. 1-4-2005. before the expiry of the terms of the ftc, the high court vide the letter dated 19-2-2010 recommended to the state government for extension of the terms of the ftc w.e.f. 1-4-2010 for 10 years, and the same was approved by the state government vide its communication dated 19-5-2011 for a period of five years up to 31-3-2015. in the meantime, the arunachal pradesh judicial service rules, 2006 ( the rules for short) came into force, which, among others, as already noted, contained the proviso to rule 7 for consideration of the petitioners for absorption to grade-i of the service. the state government vide the letter dated 25-2-2008 proposed to absorb the petitioners to the newly created posts of grade-i in the state judicial service by invoking the proviso to rule 7 of the rules by pointing out that they were appointed after due selection in consultation with the high court and had been working under thecontrol and supervision of the high court. the proposal was not accepted by the high court. to cut the long story short, the chief secretary of arunachal pradesh by his letter dated 25-8-2008 requested the high court for absorption of the petitioners in terms of the proviso to rule 7 of the rules based on their performance, integrity, etc. after reminder, the committee of judges of the high court rejected the request of the chief secretary. 10. having failed to elicit favourable response from the high court with regard to request for their absorptions, the petitioners approached the state government for conversion of the post of adhoc ftcs into regular courts of additional district and sessions judge. the state government in the cabinet acceded to their request and proposed to convert the ftcs into regular courts of additional district and sessions judge along with the incumbents i.e. the petitioners, and the same was forwarded to the high court. thereafter, the state government, in consultation with the high court, issued the notification dated 3-11-2011 converting the three ftcs into regular courts and encadred the posts of additional district and sessions in grade i of the service, but no posts were created. instead of considering the petitioners for absorption, the high court asked them to seek option for written test and viva voce in terms of the decision in brij mohan lal v. union of india and others, (2012) 6 scc 502 (supra). as already noticed, the petitioners were found to be not fit for the regular appointment. the following are the guidelines issued by the apex court in brij mohan lal case (supra) for absorption of fast track court judges into the service:- a) the direct recruits to ftcs who opt for regularization shall take a written examination to be conducted by the high courts of the respective states for determining their suitability for absorption in the regular cadre of additional district judges. b) thereafter, they shall be subjected to an interview by a selection committee consisting of the chief justice and four senior most judges of that high court. c) there shall be 150 marks for the written examination and 100 marks for the interview. the qualifying marks shall be 40% aggregate for general candidates and 35% for sc/st/obc candidates. the examination and interview shall be held in accordance with the relevant rules enacted by the states for direct appointment to higher judicial services. d) each of the appointees shall be entitled to one mark per year of service in the ftcs, which shall form part of the interview marks. e) needless to point out that this examination and interview should be conducted by the respective high courts keeping in mind that all these applicants have put in a number of years as ftc judges and have served the country by administering justice in accordance with law. the written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases. f) the candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of additional district judge in regular cadre of the state. g) if, for any reason, vacancies are not available in the regular cadre, we hereby direct the state governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected. h) all sitting and/or former ftc judges who were directly appointed from the bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. no application shall be rejected on the ground of age of the applicant being in excess of the prescribed age. 11. for better appreciation of the controversy, we may refer to the proviso to rule 7 of the rules, which is in the following terms: provided that the 3 (three) ad-hoc additional sessions judges who were selected and appointed by the government, in consultation with the gauhati high court, in the year 2002 as presiding officers of the 3 (three) fast track courts on contract basis under the specific scheme of the central government and have since been rendering services under the control and supervision of the gauhati high court, may be considered for absorption in the grade-i of the service. needless to say, the aforesaid provision is perfectly tailor-made for the petitioners, but then the absorption contemplated therein is not automatic; they can only be considered for the absorption. it is contended by the learned senior counsel for the petitioners that the policy of the state in engrafting the proviso was to start the process of separation of the judiciary from the executive; the position of the state of arunachal pradesh is distinctly different from other parts of the country. according to him, when there were no experienced judicial officers to take over the posts of the state judiciary after its separation from the executive, it was thought that the petitioners, having gained sufficient experiences as presiding officers of the ftc, could without difficulty take over and discharge the functions of district judiciary immediately. he reminds this court time and again that the petitioners were appointed after undergoing due selection process after advertising the posts and with the approval of the high court and that their appointments were not through back door entry. he contends that the injunction against absorption/regularization of the ad-hoc judges of the ftc in other states issued by the apex court should be confined to the peculiar facts of those cases since those appointees were never appointed after undergoing a regular selection process. refuting the contentions of the learned counsel for the petitioners, mr. s.s. dey, the learned senior counsel for the high court, maintains that the cases of the petitioners cannot be distinguished from the cases of other states, and must satisfy the conditions of appointment laid down by the apex court in brij lal mohan case, failing which they had to be retrenched as is done here; they are free to go back to their practice. 12. according to the learned senior counsel, the high court was simply adhering to the conditions imposed by the apex court for recruitment in accordance with law; petitioners, who have proved themselves to be utterly incompetent by not even getting the relaxed qualifying marks keeping in view their past services cannot be expected to competently administer justice according to law. mr. k. ete, the learned additional advocate general, however, drawing our attention to paras 179 and 180 of brij lal mohan case (supra), submits that these paragraphs cannot be read in isolation and shall have to be read with para 207.9 of the same judgment, and so read, the cases of the petitioners are clearly distinguishable, and regard being had of the nature of their appointments, which were done after they went through due process of selection after the posts were duly advertised, albeit, for contractual appointment, there could not be any insurmountable difficulty in absorbing them as grade-i in the state judicial service. he informs this court that the state government is ready and willing to create additional posts to accommodate them. mr. i. choudhury, the learned counsel for the private respondents, however, opposes the absorption of the petitioners as the additional district and sessions judge as they could not even qualify for the posts in the competitive written and interview test held earlier, which resulted in termination of their ad hoc services and that even if additional posts are also created to accommodate them, this will enable them to steal a march over them at the time of fixing their inter-se seniority. the learned counsel appearing for all the respondents are united in their opposition to the absorption of the petitioners to the posts of grade-i i he state judicial service. 13. there is no dispute that dispensing with the services of the petitioners is the immediate fall out of the failure on their part to secure the minimum qualifying marks in the examination for their absorption into the service. undoubtedly, judicial service of the state of arunachal pradesh is now under the control and supervision of the gauhati high court; the high court has the undoubted authority to decide as to whether the services of the petitioners should be continued or not irrespective of the terms of extension of the ad-hoc services of the petitioners by the state government. however, in this case, what is of significance is the question of absorption of the services of the petitioners in the posts of grade-i in the arunachal pradesh judicial service rules in terms of the proviso to rule 7 of the rules. the question is whether the decision of the apex court in brij mohan lal case (supra) read as a whole can be construed to mean that any form of absorption irrespective of the nature of the appointment of ad hoc judges of fast track court is prohibited. the law is well-settled. a judgment of court cannot be read like euclid s theorem and shall have to be read in the context in which it was decided. in the case at hand, it cannot be disputed that the petitioners were given the appointments on contract basis after the posts were advertised, and they underwent selection process conducted by the high court. in brij mohan lal case (supra), the apex court apparently distinguished appointment by back door and appointment made after written competitive examination. this can be seen from para 179 and 180 of the same judgment, which read thus: 179. it was admitted before us by the learned counsel appearing for the petitioners that these officers who were promoted as ad hoc ftc judges had not taken any written competitive examination before their promotion to this post under the higher judicial services. in other words, they were promoted on ad hoc basis depending on the availability of vacancy in ftcs. once the rules required a particular procedure to be adopted for promotion to the regular posts of the higher judicial services, then the competent authority can effect the promotion only by that process and none other. in view of the admitted fact that these officers have not taken any written examination, we see no reason as to how the challenge made by these judicial officers to the directive issued by the state government for undertaking of written examination may be sustained. thus, the relief prayed for cannot be granted in its entirety. 180. in the case of the states of punjab and haryana, the appointees were directly appointed as ftc judges by way of direct recruitment from the bar and they prayed for regularisation of their services and absorption in the regular cadre as well as for continuation of the ftc scheme till their absorption. for the reasons already recorded by us in relation to other states mentioned above, we do not think that the relief of regularisation/absorption can be granted to these petitioners also in the manner in which they have prayed. they too have no right to the post. admittedly, these candidates also did not pass any written competitive examination and were appointed solely on the basis of an interview and must now undergo the requisite examination. (underlined for emphasis) 14. leaving aside para 179 of the judgment extracted above as the same deals with judicial officers promoted as ad hoc ftc judges, it can be seen from para 180 of the judgment that in the state of punjab and haryana, the appointees were, however, directly appointed as ftc judges by way of direct recruitment from the bar as in this case, but these judicial officers from punjab and haryana did not pass any written examination and were solely appointed on the basis of an interview. it was based on this finding that the apex court apparently directed that the ad hoc judges therein must undergo recruitment written examination and viva voce test. however, in the instant case, the petitioners had admittedly appeared and got selected in the recruitment examination and the interview conducted by the high court on the basis of the advertisement made by the state government. their appointments were also made after the approval of the high court. we are constrained to observe that the petitioners herein were needlessly required to undergo written and oral test some 10 years or more after serving as ad hoc judges, against whom there were nothing on record to show that they were incompetent or corrupt in the discharge of their judicial works. normally, after practicing as an advocate or after working as a judicial officer for over ten years or so, it is not really easy for anyone to write a written examination and, that too, in competition with young candidates. legal practice and preparing for written examination is not one and the same thing. the only reason they were refused absorption by the high court is that they could not obtain the qualifying marks for absorption in accordance with the directions of the apex court. as already indicated, where judicial officers are recruited from the bar by means of competitive examination even for contractual appointment, it cannot be said that absorption of their services could pose any problem, more so, when there is an enabling provision in the proviso to rule 7 of the rules engrafted by the legislature to absorb their services and where there are like to be vacancies to accommodate them. thus, in our considered view, the high court in the administrative side has failed to appreciate the decision of the apex court in perspective. it is interesting to note that all the erstwhile judicial officers of mizoram and nagaland, who were dealing with judicial works, but some of them were not even law graduates, while majority of them were recruited through backdoor, have been inducted as judicial officers of the state wholesale without even undergoing any screening test worth the name, much less, undergoing competitive selection process when judiciary was separated from the executive. 15. we are at a loss to understand how similar absorption is not permitted in the case of the ad-hoc additional judges of the arunachal pradesh such as the petitioners herein who stood in a much better position than their counterparts in mizoram and nagaland as they were directly recruited after undergoing due process of selection made by the high court on the basis of advertisement. as for the apprehension of the private respondents, this court pointedly asked the counsel for the petitioners in the course of hearing as to whether they are prepared to forfeit their seniority in favour of the private respondents on their absorption, the learned counsel, on instruction, assures us that they are prepared to do so. in view of this concession, we do not see any legal impediment left in absorbing the petitioners in grade-i of the arunahcal pradesh judicial service if or when vacancies for these posts are made available by the state government without interfering with the appointments of the private respondents in grade-i of the arunachal pradesh judicial service. 16. for what has been stated in the foregoing, this writ petition is allowed in the following terms: a) the state-respondents are directed to start forthwith the consultation process for absorption of the petitioners in grade-i of the arunachal pradesh judicial service with effect from 7-1-2013. b) on receipt of the proposal for the absorption from the state government, the high court shall consider for the approval of the absorption of the petitioners in the light of the observations made by us in the foregoing. c) if and when the absorption of the petitioners in grade-i of the arunachal pradesh judicial service is done, they will not disturb the seniority of the private respondents. d) the past services rendered by the petitioners during the period of their ad-hoc services shall be counted for all purposes except for seniority and monetary benefits. e) the entire exercise shall be completed by both the state respondents and the high court within a period of three months from the date of receipt of this judgment. f) the parties are directed to bear their respective costs.

Judgment:

T. Vaiphei, CJ.

1. In this writ petition, the petitioners are challenging the letter dated 07.01.2013 issued by the Registrar General, Gauhati High Court, informing them that their services from the post of Ad-hoc Additional District and Sessions Judge, Fast Track Courts of Arunachal Pradesh had been dispensed with, with immediate effect, as they could notqualify themselves in the selection for absorption to the post of Grade-I of the Arunachal Pradesh Judicial Service. They also challenge the legality of the advertisement dated 10.01.2013 issued by the Gauhati High Court, Itanagar Permanent Bench for filling up the 03(three) vacant posts of Grade-I of the Arunachal Pradesh Judicial Services and seek the intervention of this Court for directing the respondent authorities to allow them to continue in their respective services as per the extension order dated 19.05.2011 of the Government of Arunachal Pradesh w.e.f. 01.04.2010 to 31.03.2011.

2. The facts of the case, as pleaded by the petitioners, may be briefly noticed at the outset. When the judiciary in the State of Arunachal Pradesh was not yet separated, 03(three) posts of Additional Deputy Commissioner with the powers of Ad-hoc Additional Sessions Judge had been created by the Government of Arunachal Pradesh in the year 2002. On 04.06.2002, the petitioners, on the basis of the recruitment process undertaken in consultation with the Gauhati High Court, were appointed as Additional Deputy Commissioners with the powers of Ad-hoc Additional District and Sessions Judges against the three Fast Track Courts of the State of Arunachal Pradesh initially for a period up to 31.03.2005 in terms of the award of the Eleventh Finance Commission. On the recommendation of the Gauhati High Court, the Ad-hoc services were extended first till 31.03.2010 and was further extended up to 31.03.2015 by the State Government vide the order dated 19.05.2011. The last extension of their Ad-hoc services was between the State of Arunachal Pradesh and the petitioners. The orders of the Government extending the terms of the Fast Track Courts of the State till 31.03.2015 was not yet recalled/rescinded by the Government of Arunachal Pradesh till the filling of the writ petition. However, the impugned letter cut short their tenure even before the expiry of the extended period up to 31.03.2015 on the ground stated earlier. The petitioners had been discharging their duties continuously for 10 years and 07 months without any break in service at a fixed salary of 19,000/- (Rupees nineteen thousand) for 09(nine) years and at an enhanced fixed salary of 60,000/- (Rupees sixty thousand) for a little more than two years. It is contended by the petitioners that absorption of their services and the discontinuation, or the dispensing with, of their services are two different aspects. The Gauhati High Court in hot haste issued the advertisement dated 10.01.2013 and had immediately put up a notice in its website inviting online application from the eligible advocates for appointment of 03(three) vacant posts (actual) in the cadre of Grade-I of Arunachal Pradesh Judicial Services.

3. According to the petitioners, their services have been brought under the ambit of the provisions of Arunachal Pradesh Judicial Services Rules, 2006 (Rules), while the three Fast Track Courts manned by the petitioners have been converted into regular Court of Additional District and Sessions Judges. As per Section 4(1) and (2) of the Rules, the strength of the service and cadre and the necessity to fill up the posts shall be determined by the Governor in consultation with the High Court. To hold a particular post as vacant, a notification in that behalf shall have to be issued only by the Government of Arunachal Pradesh after due consultation with the Gauhati High Court. In other words, according to the petitioners, the Gauhati High Court, on its own volition, cannot declare a particular post to be vacant as that will contravene the provisions of the aforesaid rules. Further, Section 6(1) of the Rules provides that the appointment to the posts of Grade-I, Grade-II and Grade-III shall be made by the Governor. The proviso to Rule-7 of the Rules enables the State /Government, in consultation with the High Court, to consider the absorption of their ad hoc services in Grade-I of the Arunachal Pradesh Judicial Service. The second proviso of Rule-7 further provides that the High Court shall have the power to relax the qualifying period of judicial officers for the purpose of promotion in case the same is considered necessary in the interest of service.

4. It is also the case of the petitioners that the State of Arunachal Pradesh was not consulted by the High Court before dispensing with their services as Judges of the Fast Tract Courts and that the State of Arunachal Pradesh did not send any requisition to the Gauhati High Court for filling up of the said vacant posts. It is submitted by the petitioners that dispensing with the services of the petitioners without prior consultation with the Government of Arunachal Pradesh and without giving an opportunity of hearing to them during the validity of the extended period of their services is without authority of law, being arbitrary and violative of natural justice. The cases of the petitioners had already been recommended by the State Government to the High Court for absorption of their services under Rule-7 of the Rules against the two vacant posts of District and Sessions Judges created in the State at Yupia and Tezu districts in the year 2007. However, the High Court did not consider the cases for absorption without any reason and filled up the two posts through direct recruitment. On the other hand, the High Court rather accepted the proposal to convert the 03(three) Fast Tract Courts into regular Courts, but kept the decision on the proposal for absorption of the petitioners pending.

5. The High Court, in the meantime, sought for the ACRs of the petitioners along with the ACRs of the two District and Sessions Judges of the State by treating the petitioners as Judicial Officers along with the two District and Sessions Judges in the State. The High Court, thereafter, by the letter dated 29.09.2011 returned the ACRs of all the Judicial Officers of the State including that of the petitioners by stating that a lot of discrepancies were found in respect of the 05(five) Judicial Officers of the Arunachal Pradesh Judicial Service. The ACR s of the petitioners were again re-submitted to the High Court as per its direction. The contention of the petitioners is that, the High Court having already described the petitioners as Judicial Officers of the Arunachal Pradesh Judicial Service in the previous correspondences, surprisingly, sought for the option of the petitioners as to whether they were ready for appearing in a written examination and interview in terms of the Judgment of the Supreme Court in Brij Mohan Lal case and that this decision was taken without prior communication to the Government of Arunachal Pradesh and without considering the reques of the Government of Arunachal Pradesh for absorption of the services of the petitioners under Rule-7 of the Rules.

6. The aforesaid examination was for the purpose of determining whether the petitioners could be absorbed in the Arunachal Pradesh Judicial Services but had nothing to do with whether the ad-hoc services being rendered by the petitioners are to be continued or not. The petitioners, having no alternative, opted for appearing in the written examination as well as the interview. On the basis of the option exercised by the petitioners, the High Court by the letter dated 07.08.2012 communicated to the petitioners about the date and venue of the written examination. The High Court, after 02(two) months and 13(thirteen) days of the written examination, communicated to the petitioners vide the letter dated 15.11.2012 calling them for interview on 22.11.2012 at 4.30 P.M at Guwahati. When they duly appeared for the interview, the interview was not held, but they were informed by the Chairman that their answer scripts had not been checked and directed the petitioners to go back. Much to their consternation, the High Court informed the Secretary (Law and Judicial) Government of Arunachal Pradesh subsequently vide the letter dated 07.01.2013 that the High Court had dispensed with the services of the 03(three) petitioners from the posts of Ad-hoc Additional District and Sessions Judge with immediate effect, on the ground that they could not qualify themselves in the selection for absorption and required them to hand over the charges to the respective District and Sessions Judges. Immediately thereafter, the 03(three) posts were advertised as already noted. Aggrieved by this, they are approaching this Court for appropriate relief.

7. Opposing the writ petition, the High Court filed their affidavits-in-opposition through the Registrar General of the High Court. It is asserted therein that the Judicial Service of the State of Arunachal Pradesh is under the control and supervision of the Gauhati High Court and the High Court has, therefore, the authority to decide as to the continuity of the services of the petitioners irrespective of the extension of their ad hoc services already given by the Government of Arunachal Pradesh. Length of continuation of appointment on Ad-hoc capacity does not confer the petitioners with any right to regular appointment. The High Court in the impugned order dispensed with the services of the petitioners with immediate effect as they could not qualify in the written examination conducted by the High Court for their absorption in terms of the direction of the Apex Court in Brij Mohan Lal v. UOI and others, (1999) 3 SCC 396. The answering respondents state that the dispensing with the service of the petitioners is the immediate fall out of their failure to secure the minimum qualifying marks in the examination for their absorption into the services. It is denied that the absorption of the services of the petitioners is not automatic as contended by them and is rather subjected to their facing the recruitment examination conducted by the High Court for the composite papers of 150 marks and 100 marks for the interview. The minimum qualifying marks is 40% for the general candidates and 35% for the ST/SC/OBC candidates. Another direction of the Apex Court in Brij Mohan Lal case (supra) was that the written examination and interview should be held in accordance with the relevant rules enacted by the States for direct appointment to Higher Judicial Services. Keeping in mind the aforesaid direction, the High Court conducted the examination consistent with the existing Arunachal Pradesh Judicial Services Rules, but the petitioners failed to secure even the minimum 35% qualifying marks in the examination meant for SC/St/OBC candidates. Accordingly, there was no option but to dispense with their services. It is asserted by the High Court that though the strength of service and cadre and the necessity to fill up the post are to be determined by the Government in consultation with the High Court, but the decision of the High Court in the matter of appointment and promotion of Judicial Officers prevails over the authority of the Government.

8. It is true that the judiciary of Arunachal Pradesh needs competent and experienced judges, but it does not mean that the petitioners should be absorbed automatically in the service merely on the ground that they have past experiences unless they undergo a selection process. The High Court contends that as the petitioners could not qualify for the written examination conducted on 20.09.2012, in terms of the direction of the Apex Court, their services had to be dispensed with. According to the answering respondents, the letter issued by the Secretary, Law Legislative and Justice Department of Government of Arunachal Pradesh is not the final recommendation; it is a request made to the High Court for absorption of the petitioners in terms of the direction of the Apex Court. It is not that the High Court did not consider the case for absorption of the petitioners without assigning any reason; they were given adequate opportunity for their absorption into the services, but they could not even secure the minimum prescribed qualifying marks in the written examination. The answering respondents contend that describing the petitioners as Judicial Officers in the correspondences and calling their ACRs do not necessarily mean that they should be absorbed automatically into the services. The High Court has followed the established practice and procedure in the matter of appointment of officers, and there is no violation of principles of natural justice or of Article 14 and 16 of the Constitution of India. According to the respondents, the allegations made in the writ petition are baseless and are misleading, and the petitioners are to put to strict proof thereof. The High Court has no intention to keep Grade-I post of the Judicial Service in the State of Arunachal Pradesh for 8/10 years vacant just to deprive the candidates of Arunachal Pradesh from being appointed to the post of High Court Judge. Though Rule 7 provides that the case of the FTC Judges may be considered for absorption in Grade-I of the service, this is neither absolute nor without condition. These are the sum and substances of the case of the respondent authorities. The private respondents have also filed their affidavits in opposition, which need not be reproduced inasmuch as they are substantially similar to the stance taken by the High Court in the affidavit-in-opposition filed by the High Court, which are already noted.

9. Having heard Me. K.N. Choudhury, the learned senior counsel for the petitioners, Mr. S.S. Dey the learned senior standing counsel for the High Court, Mr. Kardak Ete, the learned Additional Advocate General of Arunachal Pradesh and Mr. I. Choudhury, the learned counsel for the private respondents and having perused the pleadings of the parties and the materials available on record, it is obvious that the vital point to be decided in this writ petition is whether the ad hoc services of the petitioners can be regularised in accordance with the proviso to Rule 7 of Arunachal Pradesh Judicial Service Rules, 2006 ( the Rules for short)? The petitioners were initially appointed as Additional Deputy Commissioner on contract basis with the powers of ad-hoc Additional District and Sessions Judge in the year 2001 at a fixed pay of 19,000/-. There can be no dispute that the posts held by them were advertised by the Government of Arunachal Pradesh on 13-7-2007. The petitioners applied for the posts, appeared in the written test and interview conducted by the High Court. In the minutes of meeting held on 21-9-2001, the Full Court approved the appointments of the petitioners as Additional Deputy Commissioner with the powers of Ad-hoc Sessions Judge of the Arunachal Pradesh. The High Court vide the letter dated 6-10-2001 approved the recommendations made by the Selection Committee for their appointments for the Fast Track Courts to be established in the State of Arunachal Pradesh. The Government of Arunachal Pradesh thereafter issued the order dated 4-6-2002 appointing them as the Presiding Officer of the Fast Track Courts. Their services were extended for a period of five years w.e.f. 1-4-2005. Before the expiry of the terms of the FTC, the High Court vide the letter dated 19-2-2010 recommended to the State Government for extension of the terms of the FTC w.e.f. 1-4-2010 for 10 years, and the same was approved by the State Government vide its communication dated 19-5-2011 for a period of five years up to 31-3-2015. In the meantime, the Arunachal Pradesh Judicial Service rules, 2006 ( the Rules for short) came into force, which, among others, as already noted, contained the proviso to Rule 7 for consideration of the petitioners for absorption to Grade-I of the service. The State Government vide the letter dated 25-2-2008 proposed to absorb the petitioners to the newly created posts of Grade-I in the State Judicial Service by invoking the proviso to Rule 7 of the Rules by pointing out that they were appointed after due selection in consultation with the High Court and had been working under thecontrol and supervision of the High Court. The proposal was not accepted by the High Court. To cut the long story short, the Chief Secretary of Arunachal Pradesh by his letter dated 25-8-2008 requested the High Court for absorption of the petitioners in terms of the proviso to Rule 7 of the Rules based on their performance, integrity, etc. After reminder, the Committee of Judges of the High Court rejected the request of the Chief Secretary.

10. Having failed to elicit favourable response from the High Court with regard to request for their absorptions, the petitioners approached the State Government for conversion of the post of adhoc FTCs into regular courts of Additional District and Sessions Judge. The State Government in the Cabinet acceded to their request and proposed to convert the FTCs into regular courts of Additional District and Sessions Judge along with the incumbents i.e. the petitioners, and the same was forwarded to the High Court. Thereafter, the State Government, in consultation with the High Court, issued the notification dated 3-11-2011 converting the three FTCs into regular courts and encadred the posts of Additional District and Sessions in Grade I of the service, but no posts were created. Instead of considering the petitioners for absorption, the High Court asked them to seek option for written test and viva voce in terms of the decision in Brij Mohan Lal v. Union of India and others, (2012) 6 SCC 502 (supra). As already noticed, the petitioners were found to be not fit for the regular appointment. The following are the guidelines issued by the Apex Court in Brij Mohan Lal case (supra) for absorption of Fast Track Court Judges into the service:-

a) The direct recruits to FTCs who opt for regularization shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges.

b) Thereafter, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four senior most Judges of that High Court.

c) There shall be 150 marks for the written examination and 100 marks for the interview. The qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services.

d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks.

e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases.

f) The candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in regular cadre of the State.

g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected.

h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age.

11. For better appreciation of the controversy, we may refer to the proviso to Rule 7 of the Rules, which is in the following terms:

Provided that the 3 (three) ad-hoc Additional Sessions Judges who were selected and appointed by the Government, in consultation with the Gauhati High Court, in the year 2002 as Presiding Officers of the 3 (three) Fast Track Courts on contract basis under the specific scheme of the Central Government and have since been rendering services under the control and supervision of the Gauhati High Court, may be considered for absorption in the Grade-I of the Service.

Needless to say, the aforesaid provision is perfectly tailor-made for the petitioners, but then the absorption contemplated therein is not automatic; they can only be considered for the absorption. It is contended by the learned senior counsel for the petitioners that the policy of the State in engrafting the proviso was to start the process of separation of the judiciary from the executive; the position of the State of Arunachal Pradesh is distinctly different from other parts of the country. According to him, when there were no experienced judicial officers to take over the posts of the State Judiciary after its separation from the Executive, it was thought that the petitioners, having gained sufficient experiences as Presiding Officers of the FTC, could without difficulty take over and discharge the functions of District Judiciary immediately. He reminds this Court time and again that the petitioners were appointed after undergoing due selection process after advertising the posts and with the approval of the High Court and that their appointments were not through back door entry. He contends that the injunction against absorption/regularization of the Ad-hoc Judges of the FTC in other States issued by the Apex Court should be confined to the peculiar facts of those cases since those appointees were never appointed after undergoing a regular selection process. Refuting the contentions of the learned counsel for the petitioners, Mr. S.S. Dey, the learned senior counsel for the High Court, maintains that the cases of the petitioners cannot be distinguished from the cases of other States, and must satisfy the conditions of appointment laid down by the Apex Court in Brij Lal Mohan case, failing which they had to be retrenched as is done here; they are free to go back to their practice.

12. According to the learned senior counsel, the High Court was simply adhering to the conditions imposed by the Apex Court for recruitment in accordance with law; petitioners, who have proved themselves to be utterly incompetent by not even getting the relaxed qualifying marks keeping in view their past services cannot be expected to competently administer justice according to law. Mr. K. Ete, the learned Additional Advocate General, however, drawing our attention to paras 179 and 180 of Brij Lal Mohan case (supra), submits that these paragraphs cannot be read in isolation and shall have to be read with para 207.9 of the same judgment, and so read, the cases of the petitioners are clearly distinguishable, and regard being had of the nature of their appointments, which were done after they went through due process of selection after the posts were duly advertised, albeit, for contractual appointment, there could not be any insurmountable difficulty in absorbing them as Grade-I in the State Judicial Service. He informs this Court that the State Government is ready and willing to create additional posts to accommodate them. Mr. I. Choudhury, the learned counsel for the private respondents, however, opposes the absorption of the petitioners as the Additional District and Sessions Judge as they could not even qualify for the posts in the competitive written and interview test held earlier, which resulted in termination of their ad hoc services and that even if additional posts are also created to accommodate them, this will enable them to steal a march over them at the time of fixing their inter-se seniority. The learned counsel appearing for all the respondents are united in their opposition to the absorption of the petitioners to the posts of Grade-I I he State Judicial Service.

13. There is no dispute that dispensing with the services of the petitioners is the immediate fall out of the failure on their part to secure the minimum qualifying marks in the examination for their absorption into the service. Undoubtedly, judicial service of the State of Arunachal Pradesh is now under the control and supervision of the Gauhati High Court; the High Court has the undoubted authority to decide as to whether the services of the petitioners should be continued or not irrespective of the terms of extension of the ad-hoc services of the petitioners by the State Government. However, in this case, what is of significance is the question of absorption of the services of the petitioners in the posts of Grade-I in the Arunachal Pradesh Judicial Service Rules in terms of the proviso to Rule 7 of the Rules. The question is whether the decision of the Apex Court in Brij Mohan Lal case (supra) read as a whole can be construed to mean that any form of absorption irrespective of the nature of the appointment of ad hoc Judges of Fast Track Court is prohibited. The law is well-settled. A judgment of court cannot be read like Euclid s theorem and shall have to be read in the context in which it was decided. In the case at hand, it cannot be disputed that the petitioners were given the appointments on contract basis after the posts were advertised, and they underwent selection process conducted by the High Court. In Brij Mohan Lal case (supra), the Apex Court apparently distinguished appointment by back door and appointment made after written competitive examination. This can be seen from para 179 and 180 of the same judgment, which read thus:

179. It was admitted before us by the learned counsel appearing for the petitioners that these officers who were promoted as ad hoc FTC Judges had not taken any written competitive examination before their promotion to this post under the Higher Judicial Services. In other words, they were promoted on ad hoc basis depending on the availability of vacancy in FTCs. Once the Rules required a particular procedure to be adopted for promotion to the regular posts of the Higher Judicial Services, then the competent authority can effect the promotion only by that process and none other. In view of the admitted fact that these officers have not taken any written examination, we see no reason as to how the challenge made by these judicial officers to the directive issued by the State Government for undertaking of written examination may be sustained. Thus, the relief prayed for cannot be granted in its entirety.

180. In the case of the States of Punjab and Haryana, the appointees were directly appointed as FTC Judges by way of direct recruitment from the Bar and they prayed for regularisation of their services and absorption in the regular cadre as well as for continuation of the FTC Scheme till their absorption. For the reasons already recorded by us in relation to other States mentioned above, we do not think that the relief of regularisation/absorption can be granted to these petitioners also in the manner in which they have prayed. They too have no right to the post. Admittedly, these candidates also did not pass any written competitive examination and were appointed solely on the basis of an interview and must now undergo the requisite examination.

(Underlined for emphasis)

14. Leaving aside para 179 of the judgment extracted above as the same deals with judicial officers promoted as ad hoc FTC Judges, it can be seen from para 180 of the judgment that in the State of Punjab and Haryana, the appointees were, however, directly appointed as FTC Judges by way of direct recruitment from the Bar as in this case, but these judicial officers from Punjab and Haryana did not pass any written examination and were solely appointed on the basis of an interview. It was based on this finding that the Apex Court apparently directed that the ad hoc Judges therein must undergo recruitment written examination and viva voce test. However, in the instant case, the petitioners had admittedly appeared and got selected in the recruitment examination and the interview conducted by the High Court on the basis of the advertisement made by the State Government. Their appointments were also made after the approval of the High Court. We are constrained to observe that the petitioners herein were needlessly required to undergo written and oral test some 10 years or more after serving as ad hoc Judges, against whom there were nothing on record to show that they were incompetent or corrupt in the discharge of their judicial works. Normally, after practicing as an Advocate or after working as a judicial officer for over ten years or so, it is not really easy for anyone to write a written examination and, that too, in competition with young candidates. Legal practice and preparing for written examination is not one and the same thing. The only reason they were refused absorption by the High court is that they could not obtain the qualifying marks for absorption in accordance with the directions of the Apex Court. As already indicated, where judicial officers are recruited from the bar by means of competitive examination even for contractual appointment, it cannot be said that absorption of their services could pose any problem, more so, when there is an enabling provision in the proviso to Rule 7 of the Rules engrafted by the legislature to absorb their services and where there are like to be vacancies to accommodate them. Thus, in our considered view, the High Court in the administrative side has failed to appreciate the decision of the Apex Court in perspective. It is interesting to note that all the erstwhile judicial officers of Mizoram and Nagaland, who were dealing with judicial works, but some of them were not even law graduates, while majority of them were recruited through backdoor, have been inducted as Judicial Officers of the State wholesale without even undergoing any screening test worth the name, much less, undergoing competitive selection process when Judiciary was separated from the Executive.

15. We are at a loss to understand how similar absorption is not permitted in the case of the ad-hoc Additional Judges of the Arunachal Pradesh such as the petitioners herein who stood in a much better position than their counterparts in Mizoram and Nagaland as they were directly recruited after undergoing due process of selection made by the High Court on the basis of advertisement. As for the apprehension of the private respondents, this Court pointedly asked the counsel for the petitioners in the course of hearing as to whether they are prepared to forfeit their seniority in favour of the private respondents on their absorption, the learned counsel, on instruction, assures us that they are prepared to do so. In view of this concession, we do not see any legal impediment left in absorbing the petitioners in Grade-I of the Arunahcal Pradesh Judicial Service if or when vacancies for these posts are made available by the State Government without interfering with the appointments of the private respondents in Grade-I of the Arunachal Pradesh Judicial Service.

16. For what has been stated in the foregoing, this writ petition is allowed in the following terms:

a) The State-respondents are directed to start forthwith the consultation process for absorption of the petitioners in Grade-I of the Arunachal Pradesh Judicial Service with effect from 7-1-2013.

b) On receipt of the proposal for the absorption from the State Government, the High Court shall consider for the approval of the absorption of the petitioners in the light of the observations made by us in the foregoing.

c) If and when the absorption of the petitioners in Grade-I of the Arunachal Pradesh Judicial Service is done, they will not disturb the seniority of the private respondents.

d) The past services rendered by the petitioners during the period of their ad-hoc services shall be counted for all purposes except for seniority and monetary benefits.

e) The entire exercise shall be completed by both the State respondents and the High Court within a period of three months from the date of receipt of this judgment.

f) The parties are directed to bear their respective costs.