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IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.3315 OF 2013
An application under Articles 226 and 227 of the Constitution of
India.
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Anandrup Jaideep Dev Sharma ..... Petitioner
-Versus-
Commissioner-cum-Secretary, Home Department, Bhubaneswar & others ...... Opposite Parties For Petitioner : M/s. K.P. Bhoumik & S. Parida For Opposite Parties: Mr. B.P. Tripathy, Additional Government Advocate (For opposite party Nos.1 to 3) M/s. P.K. Parhi, D. Gochhayat & Miss M. Sahoo (For opposite party Nos.4 and 5) M/s. S. Patra, P.K. Mohapatra, A. Panda, S.J. Mohanty & D.D. Sahu (For opposite party No.9) M/s. A.K. Nayak & S. Sahoo (For opposite party No.12) Mr. Ashis Kumar Mishra (For opposite party No.13) 2 M/s. S. Ghosh & A.R. Panigrahi (For opposite party No.14) M/s. A.K. Mohanty (A), R.K. Behera, R.C. Pradhan, P.N. Mohanty & P.K. Mohanty (For opposite party No.15) M/s. R. Achary, T. Barik, S. Hidayatullah & A. Mahanta (For opposite party No.16) M/s. B.K. Das, U.R. Jena, S.K. Das & N.K. Mohanty (For opposite party No.17)
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PRESENT:
THE HONOURABLE MR. JUSTICE B.K. NAYAK AND THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Judgment: 28.11.2017
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DR. D.P. CHOUDHURY, J. Challenge has been made to the examination for regularization of the Fast Track Courts Additional District Judges with further prayer not to terminate the services of the petitioner.
FACTS
2. The adumbrated facts leading to the writ petition is that the opposite party No.3 made Advertisement No.1/2003 for recruitment of ad hoc Additional District Judges under the Orissa Judicial Service (Special Scheme) Rules, 2001 (hereinafter called 3 "the Rules, 2001") as per the direction of the Hon'ble Supreme Court in T.C. (Civil) No.22 of 2001 [Brij Mohan Lal v. Union of India and others; (2002) 5 SCC] (hereinafter called "Brij Mohan Lal-I"). After qualifying in written examination, as per the Advertisement, the petitioner along with some of the opposite parties were called to viva voce test. During viva voce the present petitioner along with four other candidates were not found selected. So, the petitioner along with other candidates filed writ application bearing W.P.(C) No.2780 of 2004 before this Court. This Court delivered judgment on 9.9.2005 directing the Registry to consider the petitioner and other similarly situated candidates for appointment as Ad hoc Additional District Judges. At the same time, the appointment of opposite party Nos.6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 were quashed. So, the Orissa High Court filed S.L.P. (C) 19938 of 2005, State filed S.L.P. (C) 20046 of 2005 and those opposite parties whose appointments were quashed also filed S.L.P. (C) 20421 of 2005 in the Supreme Court. The Hon'ble Apex Court upheld the judgment of this Court passed in W.P. (C) No.2780 of 2004. Accordingly the petitioner was issued with the appointment order on 27.12.2005 vide Annexure-3 as Ad hoc Additional District Judge of the Fast Track Court created under 11th Finance Commission.
3. Be it stated that after Brij Mohan Lal-(1) final 4 Judgment was passed by the Hon'ble Supreme Court in T.C. (Civil) No.22 of 2001, Brij Mohan Lal v. Union of India and others; (2012) 6 SCC 502 (hereinafter called "Brij Mohan Lal- (2) on 19.4.2012. By virtue of the said judgment direction was issued to regularize the services of Ad hoc Additional District Judges by holding an examination in the manner prescribed by the Hon'ble Apex Court. It is specifically mentioned in that judgment that while High Court would consider to give appointment to these applicants, must keep in mind that these applicants have put in number of years as Fast Track Court Judges and served the country by administering justice in accordance with law. In accordance with the direction of the Hon'ble Supreme Court, the Orissa High Court issued notification directing the serving Ad hoc Additional District Judges (ADJ) including petitioner as Ad hoc ADJs who have been terminated by virtue of the judgment of this Court passed in W.P.(C) No.2780 of 2004 and some of the Judicial Officers of the Fast Track Court who have served for short while and tendered resignation.
4. Be it further stated that the Judicial Officers who were not found suitable by virtue of the order of this Court in W.P.(C) No.2780 of 2004 were also found eligible to appear in the examination for appointment as direct District Judges under the order of the Supreme Court and is also challenged in this writ 5 petition. However, in the writ petition it is specifically submitted that the petitioner along with some Additional District Judges in the Fast Track Courts serving for more than seven years could not succeed in the written examination whereas opposite party Nos.13, 14 and 15 who were thrown out of service as per the order of this Court in W.P.(C) No.2780 of 2004 were found qualified in the written test.
5. In the Brij Mohan Lal-(2), the modalities for examination have been well prescribed at Para 207.9 (c) that there shall be 150 marks for the written examination and 100 marks for the interview and the qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. But the opposite party No.3 issued notification on 6.12.2012 inviting ad hoc Additional District Judges of the Fast Track Court prescribing the qualifying marks as 40% in aggregate for general candidates and 35% for SC/ST/OBC candidates in each paper in utter disregard to the direction issued in Brij Mohan Lal-(2) case. It is not out of place to mention that vide Advertisement No.1/2000, the minimum qualifying marks in two written papers with 50% each paper and those who qualified in the written test were called for viva voce. In that test only two candidates were selected and rest of the candidates securing below such cut off marks were recruited as ad hoc Additional 6 District Judges in Fast Track Courts.
6. During that appointment some unsuccessful candidates filed writ petition vide W.P.(C) No.10635 of 2003 whereunder this Court disapproved the Full Court proceeding about lowering down the standard of merit and objected to selection of seven candidates as Fast Track Court Additional District Judges. Against that judgment S.L.P. (C) No.16335 of 2008 was filed where a stay was granted temporarily to the operation of the judgment of this Court. So, those candidates whose appointment as Fast Track Additional District Judges were quashed were also called to the written examination in question and after their success, they were called to viva voce test purportedly held on 8.2.2013 to regularize their service as Additional District Judges which is illegal.
7. Be it stated that while the petitioner and other similarly situated candidates were allowed by the order of the Hon'ble Supreme Court at different occasion to continue as Fast Track Court Additional District Judges with further direction to consider their absorption as direct District Judges, the direction to ask the petitioner and other similarly situated persons to qualify in the written examination again under the order of the Brij Mohan Lal-(2) is not acceptable. So, the writ petition is filed to declare the impugned examination for regularization of the 7 Additional District Judges of the Fast Track Court as illegal and void. It is further prayed not to allow opposite party No.3 to hold viva voce examination during pendency of the writ petition and to allow the petitioner to continue as Additional District Judge until further order.
SUBMISSIONS:
8. Learned counsel for the petitioner precisely argued that the petitioner has been duly qualified to be the Additional District Judge of the Fast Track Court after undergoing the regular examination held for appointment of the District Judges directly from Bar in 2003 and petitioner has rendered nine years of service by the time the impugned examination for regularization of the District Judges are held in 2012. He further submitted that when the petitioner has been appointed as Ad hoc Additional District Judge and posted at several places in view of order in case of Brij Mohan Lal-(1) and the case filed by Madhumita Das, the service of the petitioner was not affected and there is clear direction in those cases by the Hon'ble Apex Court for regularization of service of petitioner and similarly situated persons. Thus, the advertisement made by the Hon'ble High Court in 2012 is grossly erroneous.
9. Learned counsel for the petitioner further submitted that the advertisement made by opposite party No.3 in pursuance 8 of the direction of the Hon'ble Supreme Court in Brij Mohan Lal-(2) invited not only the petitioner and other serving Fast Track Court Additional District Judges but also the Additional District Judges who were removed by virtue of the order of the Hon'ble Supreme Court in earlier occasion and the Fast Track Additional District Judges who left the job, thus create confusion to fulfill the real spirit of the judgment in Brij Mohan Lal-(2). It is the sole object of the judgment of Brij Mohan Lal-(2) that the Judges of Fast Track Court who were continuing should be only called to formal test as they have put in good number of years as Additional District Judges of Fast Track Court and rendered justice to the people.
10. Learned counsel for the petitioner further submitted that the Hon'ble Supreme Court has clearly held in Brij Mohan Lal-(2) that while regularizing the service of ad hoc Additional District Judges of the Fast Track Court, the High Court must keep in mind that they have rendered justice to the public for some years and for that aggregate mark for the written and viva should be 40% for general candidates and 35% for SC/ST/OBC but never directed for 40% or 35% marks for respective category of persons as the case may be in each paper separately and 40% marks for the viva voce which were advertised by the opposite party No.3 for selection of the petitioner and other similarly 9 situated persons vide impugned notification dated 6.12.2012 under Annexure-H series.
11. Learned counsel for the petitioner submitted that while the petitioner was discharging his duties as Ad hoc Additional District Judge of the Court, same has been well appreciated by the superior Courts including the Hon'ble Apex Court, the discontinuance of the job of the petitioner who have rendered service successfully as Ad hoc Additional District Judge would not only smack the spirit of the judicial service but also against the justice delivery system. So, he prayed to declare the examination held in pursuance of the notification dated 6.12.2012 by the opposite party Nos.1 to 3 as illegal and void and the petitioner should be allowed to continue in service.
12. Learned Additional Government Advocate supporting the counter submitted that the impugned examination has been conducted in pursuance of the direction of the Hon'ble Supreme Court passed in Brij Mohan Lal-(2) on 19.4.2012. He further submitted that the service rendered by the petitioner as Ad hoc Additional District Judge of the Fast Track Court is nothing but a temporary service and at no point of time his service has been regularized and it has been only extended from time to time by notification of the State Government on the recommendation of the Hon'ble High Court.
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13. Learned Additional Government Advocate further submitted that in the judgment dated 19.4.2012 in Brij Mohan Lal-(2) it has been clearly directed to allow all sitting or former Fast Track Court Judges who were directly appointed from the Bar to sit at the recruitment examination and accordingly the opposite party Nos.1 to 3 have obeyed the order. Since the direction of the Hon'ble Supreme Court passed in Brij Mohan Lal-(2) is the culmination of all the interim orders either passed in Brij Mohan Lal-(I) or in case of Madhumita Das, such final judgment on Fast Track Court Scheme is binding on the parties. Since it is direct competition within all the Judges recruited under Fast Track Court Scheme and Fast Track Court Scheme was scrapped by the Central Government, there is no illegality committed by the opposite party Nos.1 to 3 to allow the petitioner along with other opposite patties to take part in the Examination.
14. Learned Additional Government Advocate further submitted that the advertisement made for regularization of the service of the ad hoc Additional District Judges of Fast Track Court is thoroughly in accordance with the modalities directed by the Hon'ble Supreme Court in Brij Mohan Lal-(2) because the Hon'ble Supreme Court has directed to keep 150 marks for written examination and 100 marks for viva voce and same has been also advertised vide Annexure-H series. Moreover, for the 11 written examination aggregate mark of 40% for general candidates and 35% for SC/ST/OBC candidates in each paper out of 150 marks and 40% for the viva voce as per the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 have been kept in accordance with the directive of the Hon'ble Supreme Court. So, he submitted that there is no illegality in the advertisement for recruitment/absorption of the Ad hoc Additional District Judges to the post of regular Additional District Judges. Hence, he prayed to dismiss the writ petition.
15. MAIN POINT FOR CONSIDERATION:
(I) Whether the petitioner is entitled to continue as regular Additional District Judge since he has already been selected and continued as Ad hoc Additional District Judge in the Fast Track Courts ?
(II) Whether the examination held for absorption or regualrisation of the Ad hoc Additional District Judges under Fast Track Court Scheme as regular Additional District Judges is legal and proper ?
DISCUSSION:
POINT NO.(I)
16. It is not in dispute that in Brij Mohan Lal v. Union of India-(I) case the Hon'ble Apex Court directed for appointment of three categories of Ad hoc Additional District 12 Judges for ensuring quick dispension of justice through Fast Track Court under 11th Finance Commission. It is admitted fact that one of the category of appointment of Ad hoc Additional District Judges was direct from Bar besides Judicial Officers having been given ad hoc promotion from eligible Judicial Officers subject to their suitability and retired Judicial Officers having good service record maintained. It is also clear from the pleadings of both the parties that the members appointed from Bar directly should be preferably in the age group of 35 to 45 years so that they can continue against the regular post if the Fast Track Courts ceased to function. In order to carry out the order of the Hon'ble Supreme Court, the State of Orissa on 22.2.2003 made Orissa Judicial Service (Special Scheme) Rules, 2001. It is also admitted fact that there was Advertisement No.1/2003 for recruitment of ad hoc Additional District Judges for Fast Track Courts under said Rules 2001 on 14.11.2003. On 7.1.2004 petitioner along with seven candidates cleared the written examination.
17. It is revealed from the pleadings of both the parties that on 8.1.2004 the Full Court proceedings of this Court lowered down the minimum cut off mark in written examination and called 31 more candidates for interview. In that Examination there was cutoff marks for viva voce as 40%. As such on 26.7.2004 the Home Department issued appointment letter in favour of 15 13 candidates as ad hoc Additional District Judges vide Annexure-2. So, one Madhumita Das along with Kashinath Rout who qualified in the written test but failed in the viva voce, challenged the said appointment of 15 candidates on various grounds including the decision of the Full Court for lowering down the minimum percentage of qualifying marks in written examination from 50% to 35% in each paper and 40% in aggregate and fixing minimum qualifying marks in the viva voce test.
18. As stated above, it is admitted fact that the Court allowed the said writ petition filed by Madhumita and Kasinath directing to quash the appointment and to consider afresh the candidates who have secured more than 50% of marks in each paper in the written examination. It is further revealed from both the pleadings that against the judgment of this Court, the High Court filed S.L.P.(C) 19938 of 2005, State filed S.L.P.(C) 20046 of 2005 and those candidates who lost the job as Ad hoc Additional District Judges filed S.L.P. (C) No.20421 of 2005 in the Hon'ble Supreme Court. All the three petitions were considered and the judgment of this Court passed in W.P.(C) No.2780 of 2004 was upheld. Hence, a fresh appointment for five candidates including the petitioner were issued vide Annexure-3. The appointment of the present petitioner is reproduced below:
"No.58121/HS., In pursuance of the judgment dated 9.9.2005 in W.P.(C) No.2780 of 2004 of the 14 Hon'ble Orissa High Court and the Order dated 7.10.2005 passed in S.L.P. (C) No.19938 of 2005 of the Hon'ble Supreme Court, Shri Anandrup Jaideep Devsharma, Advocate, Cuttack is hereby appointed temporarily as Adhoc Additional District Judge in the scale of pay of Rs.16750- 400-19150-450-20,500/- by way of direct recruitment from the Bar in the Additional District Judge Court (Fast Track Court) established out of 11th Finance Commission/ward for a period ending 31.3.06 with effect from the date he joins as such.
2. His service conditions will be governed by Orissa Judicial Service (Special Scheme) Rules, 2001 and as amended from time to time."
The aforesaid notification clearly shows that he has been appointed under the Special Scheme and his service was absolutely temporary for a period ending 31.3.2006. This notification was issued on 27.2.2005. However, it is stated in the writ petition that the petitioner continued for seven years as such and same fact is not denied in the counter. However, there is no material to show that the petitioner was ever absorbed against the regular vacancy of Additional District Judges.
19. It will not be out of place to mention that the petitioner was appointed under a Special Scheme for the purpose of Fast Track Courts but not under the then Orissa Judicial Service 15 Rules 1997 or OSJS Rule 1963 because OSJS and OJS Rule 2007 came into force in 2007.
20. It is observed at para 30 of Brij Mohan Lal-(2) that the Rules of 2001 enacted are related to temporary appointments. Rule 3 of the Orissa Rules 2001 provides that notwithstanding anything contained in the Orissa Superior Judicial Service Rules, 1963 and Orissa Judicial Service Rules, 1994, the appointment of Additional District Judges was on ad hoc and purely temporary basis for implementation of the FTC Scheme. Rule 4 of said Rules contemplates that the appointment made under these Rules shall be purely on ad hoc basis and is liable to be terminated at any time without any prior notice. In 2003 such Scheme was amended permitting the selection of members from the Bar by way of direct recruitment while the Hon'ble Supreme Court directed in Brij Mohan Lal-(1). In clear way in Brij Mohan Lal-(2) (supra) it has been observed by Their Lordships in the following manner:-
"31. xxx These Rules clearly indicate that the appointment to the post of FTC Judges under the FTC Scheme was purely ad hoc and temporary, without giving any right to the persons so appointed."
21. With due regard to the aforesaid para of the judgment, it is clear that the appointment to the post of FTC 16 Judges under FTC Scheme does not give any right to the FTC Judges for being appointed on regular basis as they have to face the recruitment again under the Rules meant for appointment to the post of Additional District Judges under erstwhile Orissa Superior Judicial Service Rules, 1963. However, it is pleaded by the learned counsel for the petitioner that there is order of the Hon'ble Apex Court for absorbing the Ad hoc Additional District Judges against regular vacancy without facing any examination as directed in case of Brij Mohan Lal-(1) and the case filed by Madhumita Das and others v. State of Orissa. It may be more appropriate to quote paragraphs-21, 22, 23 and 24 of the judgment in Brij Mohan Lal-(2) to meet the argument of the learned counsel for the petitioner:
"21. Now, we may notice another group of cases where the prayer made is diametrically opposite to that made in the case of Brij Mohan Lal (supra). The petitioners in Writ Petition (C) No.261 of 2008 titled Sovan Kumar Dash v. State of Orissa have approached this Court directly under Article 32 of the Constitution with a prayer that they should be absorbed against vacant posts in the regular cadre as per the directions contained in Brij Mohan Lal case; (2002) 5 SCC 1.
They further made a prayer that the Notification dated 11-4-2008 issued by the State of Orissa calling for applications from eligible candidates for direct recruitment from the Bar to the cadre of the District Judge be quashed. These petitioners have taken the 17 plea that they have already crossed the eligibility condition of age.
22. Similarly, another set of petitioners have also filed Writ Petition (C) No.250 of 2008 titled Madhumita Das v. State of Orissa. The petitioners therein were working as FTC Judges. While invoking the writ jurisdiction of this Court under Article 32 of the Constitution, they prayed that they be absorbed against the regular vacancies of the State cadre of District Judges. They further prayed that the abovementioned advertisement dated 11-4-2008, inviting applications for all the posts of District Judges including the posts against which the petitioners were working, be quashed. It is the contention of the petitioners in this petition that they have already attained an age more than the higher age limit prescribed while working as ad hoc Judges of the FTCs. Also, while judging the performance of the FTC Judges, the condition of completion of eight sessions trials per month cannot be imposed as it has not so been imposed against the judges who are forming the regular cadre of the State services.
23. In this petition, no final order has been passed by this Court. However, at the interim stage, when the Writ Petition came up for hearing on 11-6-2008, this Court passed the following order: (Madhumita Das case (2008) 6 SCC 731, SCC pp.731-32, paras 1-4) "1. Issue notice.
2. Challenge in these writ petitions is to Advertisement 1 of 2008 issued by the Orissa High Court. The petitioners have been selected to function as ad hoc Additional District Judges in 18 terms of the judgment of this Court in Brij Mohan Lal vs. Union of India and Ors. [(2002) 5 SCC 1]. It is their grievance that 16 posts advertised also include the 9 posts presently held by the petitioners in the two writ petitions. It is pointed out that the eligibility criterion fixed in the advertisement rules out the present petitioners. Firstly, some of them are above the maximum age of 45 years and secondly, being Judicial Officers, they cannot apply for posts advertised for members of the Bar. It is also pointed out that in terms of what has been stated by this Court in Brij Mohan's case (supra), at para 10, Direction 4, they are to be continued (in the ad hoc posts) belonging to the Fast Track Courts, and, thereafter, in respect of regular posts available, after the Fast Track Courts cease to function. Their cases are to be considered subject to their performance being found satisfactory. Their stand is that they have been continued from time to time. Obviously, their performance was found to be satisfactory. Presently, we are not concerned with that question which may have relevance only at the time of considering their absorption in respect of the regular vacancies.
3. It is submitted by Mr. Uday U. Lalit, learned senior counsel that while assessing the performance, there cannot be different yardsticks, i.e. same parameters have to be adopted while judging the performance of the petitioners viz-a-viz those which are recruited from another source, i.e. from amongst the Judicial Officers. We find substance in this plea also. Therefore, we direct that the process of selection pursuant to Advertisement 1 of 2008 may continue but that shall only be in 19 respect of 7 posts, and not in respect of 9 posts presently held by the petitioners.
4. It is pointed out that the High Court, after the advertisement [has] been issued has issued certain letters regarding the non-disposal of adequate number of cases. The petitioners have given reasons as to why there could not be adequate disposal of the cases. Needless to say, the High Court shall consider the stand taken in the responses while judging their suitability for appointment on regular basis. The petitioners shall continue to hold the posts until further orders, for which necessary orders shall be passed by the High Court. It is made clear that as and when regular vacancies arise, cases of the petitioners shall be duly considered. There shall not be any need for them to appear in any examination meant for recruitment to the cadre of District Judge."
24. As is evident from the above order in Madhumita Das case, (2008) 6 SCC 731, the cases of the petitioners were directed to be considered as and when the regular vacancies arose and they did not need to appear in any examination meant for recruitment to that post. This order of the Court has been relied upon by all the petitioners in different matters before this Court who are or were working as FTC Judges and are praying for their regularization in the service. This was an interim order subject to the final order that the Court would pass while disposing of the writ petition finally."
22. From the aforesaid observations of the Hon'ble Supreme Court in Brij Mohan Lal-(2), it is clear that the 20 observations of the Hon'ble Supreme Court as contended by the learned counsel for the petitioner were interim order and same are subject to final order passed in Brij Mohan Lal-(2).
23. In Brij Mohan Lal-(2), it is clearly maintained at paragraphs-91, 92, 93, 94, 95, 96 and 97 in the following manner:
"91. It is believed that, where Rule of Law prevails, there can be nothing like unfettered discretion or unaccountable action. The degree of reasoning required in support of the decision may vary. The degree of scrutiny during judicial review may vary. But the need for reasoning exists. As a result, when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, this power should, however, necessarily be read as being subject to the fundamentals of constitutionalism. (Refer B.P. Singhal v. Union of India (2010) 6 SCC 331).
92. We must also notice another settled position of law, stated by this Court in the case of Union of India & Anr. v. Tulsiram Patel [(1985) 3 SCC 398], that the origin of Government services is contractual. There is an offer and acceptance in every case. But once appointed to his post or office, the Government servant acquires a status and his rights and obligations are no longer determined by the consent of both the parties, but by the statute or statutory rules as framed and unilaterally altered by the Government. In other words, the legal 21 position of a Government servant is more one of status than that of contract.
93. Therefore, the appointees do not have an absolute right to the post, but we would have to consider the effect of the judgments of this Court in Madhumita Das (supra) and Brij Mohan Lal (supra) to examine if the petitioners in these cases are entitled to any relief or not.
94. Before we enter into discussion upon that aspect of the case, it will be necessary for us to deliberate on the question whether a writ of mandamus can at all be issued in this case and, if so, its scope. Needless to say, the origin of the FTC Scheme was in a policy decision by the Central Government. The Central Government had taken a decision to implement the FTC Scheme, particularly to deal with the arrears of criminal cases in the country and it had taken unto itself the burden of financing the entire scheme. It was to incur all infrastructural and recurring expenditures for implementation of the FTC Scheme. Examined from any point of view, it was a policy decision of the Union of India, which was accepted by the various State Governments, which in turn implemented this policy by appointing ad hoc Judges to preside over FTCs. These appointments were made by three different methods: from amongst the retired Judges, by promotion from Civil Judges (Senior Division), and by direct recruitment from the Bar.
95. The Central Government then has taken a decision not to finance the FTC Scheme beyond 31- 3-2011. However, some of the State Governments 22 have still taken a decision at their own level to continue with the FTC Scheme, for the time being. None of the States appearing before us have stated that, as a matter of policy or otherwise, they have decided to continue the FTC Scheme at their own expense as a permanent feature of Justice Administration System.
96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.
97. In bringing out the distinction between policy matters amenable to judicial review and those where the Courts would decline to exercise their jurisdiction, this Court, in Bennett Coleman & Co. v. Union of India [(1972) 2 SCC 788], held as under: (SCC p.834, para 125) "125. ... The argument of the petitioners that Government should have accorded 23 greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of governmental policy."
24. With due regard to the said observation of the Hon'ble Supreme Court, it is clear that the Fast Track Court Scheme was only floated by the Central Government for temporary purpose and the Judges were appointed till the Scheme was continued. When the Scheme came to an end by the Central Government on 31.3.2011, such Judges appointed under FTC Scheme have no right to continue in service except as propounded by the Hon'ble Supreme Court in their final judgment in Brij Mohan Lal-(2). In Brij Mohan Lal-(2), at paragraphs-205, 206 and 207 Their Lordships observed as follows:
"205. Thus, these two orders must be seen in the light of the fact that the Union of India, as well as the State Governments of their own, extended the FTC Scheme for another five years i.e. till 2010 and thereafter, by another year. The Central Government ultimately took the decision not to finance the FTC Scheme with effect from 30-3-2011. Even thereafter, a number of States have taken the decision to continue the FTC Scheme while retaining the appointees thereto till 2012, 2013 and even till 2016. The State of Haryana has even thought of making it as a permanent feature of dispensation of justice in the State. The cumulative effect of all 24 these factors is that the petitioners had a legitimate expectation that either their services would be continued as the FTC Scheme would be made a permanent feature of the justice administration in the State concerned or they would be absorbed in the regular cadre. But mere expectation or even legitimate expectation of absorption cannot be a cause of action for claiming the relief of regularization, particularly when the same is contrary to the Rules and letters of appointment.
206. In Madhumita Das, (2008) 6 SCC 731, the protection was granted in an interim order and we also feel that such directions cannot be issued, if they are contrary to the enacted statute. When all these facts, circumstances and the judgments of this Court are harmoniously construed with an intention to do complete justice as well as to protect the fundamental rights and protections available to the public at large, it would appear necessary that this Court passes certain directions.
207. Without any intent to interfere with the policy decision taken by the Governments but, unmistakably, to protect the guarantees of Article 21 of the Constitution, to improve the Justice Delivery System and fortify the independence of judiciary, while ensuring attainment of constitutional goals as well as to do complete justice to the lis before us, in terms of Article 142 of the Constitution, we pass the following orders and directions:
207.1. Being a policy decision which has already taken effect, we decline to strike down the policy 25 decision of the Union of India vide letter dated 14- 9-2010 not to finance the FTC Scheme beyond 31- 3-2011.
207.2. All the States which have taken a policy decision to continue the FTC Scheme beyond 31-3- 2011 shall adhere to the respective dates as announced, for example in the cases of States of Orissa (March 2013), Haryana (March 2016), Andhra Pradesh (March 2012) and Rajasthan (February 2013).
207.3. The States which are in the process of taking a policy decision on whether or not to continue the FTC Scheme as a permanent feature of administration of justice in the respective States are free to take such a decision.
207.4. It is directed that all the States, henceforth, shall not take a decision to continue the FTC Scheme on ad hoc and temporary basis. The States are at liberty to decide but only with regard either to bring the FTC Scheme to an end or to continue the same as a permanent feature in the State.
207.5. The Union of India and the State Governments shall re-allocate and utilize the funds apportioned by the Thirteenth Finance Commission and/or make provisions for such additional funds to ensure regularization of the FTC judges in the manner indicated and/or for creation of additional courts as directed in this judgment.
207.6. All the decisions taken and recommendations made at the Chief Justices and Chief Ministers' Conference shall be placed before the Cabinet of the Centre or the State, as the case may be, which alone shall have the authority to 26 finally accept, modify or decline, implementation of such decisions and, that too, upon objective consideration and for valid reasons. Let the Minutes of the Conference of 2009, at least now, be placed before the Cabinet within three months from the date of pronouncement of this judgment for its information and appropriate action.
207.7. No decision, recommendation or proposal made by the Chief Justices and Chief Ministers Conference shall be rejected or declined or varied at any bureaucratic level, in the hierarchy of the Governments, whether in the State or the Centre. 207.8. We hereby direct that it shall be for the Central Government to provide funds for carrying out the directions contained in this judgment and, if necessary, by re-allocation of funds already allocated under the 13th Finance Commission for Judiciary. We further direct that for creation of additional 10% posts of the existing cadre, the burden shall be equally shared by the Centre and the State Governments and funds be provided without any undue delay so that the courts can be established as per the schedule directed in this judgment.
207.9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over the FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective States only in the following manner :
(a) The direct recruits to the FTCs who opt for regularization shall take a written examination to be conducted by the High Courts of the 27 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 seniormost 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 afore-indicated shall be appointed to the post of Additional District Judge in the regular cadre of the State.
(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct 28 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.
207.10. The members of the Bar who have directly been appointed but whose services were either dispensed with or terminated on the ground of doubtful integrity, unsatisfactory work or against whom, on any other ground, disciplinary action had been taken, shall not be eligible to the benefits stated in para 207.9 of the judgment.
207.11. Keeping in view the need of the hour and the Constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter.
207.12. These directions, of course, are in addition to and not in derogation of the recommendations that may be made by the Law Commission of India and any other order which may be passed by the Courts of competent jurisdiction, in other such matters.
29
207.13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State subject to :
(a) Such promotion, when effected against the 25% quota for out-of-turn promotion on merit, in accordance with the judgment of this Court in the case of All India Judges' Assn. (3), (2002) 4 SCC 247, by taking and being selected through the requisite examination, as contemplated for out-of- turn promotion.
(b) If the appointee has the requisite seniority and is entitled to promotion against 25% quota for promotion by seniority-cum-merit, he shall be promoted on his own turn to the Higher Judicial Services without any written examination.
(c) While considering candidates either under category (a) or (b) above, due weightage shall be given to the fact that they have already put in a number of years in service in the Higher Judicial Services and, of course, with reference to their performance.
(d) All other appointees in this category, in the event of discontinuation of the FTC Scheme, would revert to their respective posts in the appropriate cadre."
25. In view of above direction and particularly in view of the contention of the learned Additional Government Advocate that the High Court has already issued notification in 2012 to hold 30 regular examination for the Fast Track Court Judges for their absorption and regularization, the question of continuity of the job of petitioner as a regular Additional District Judge is non est. So, the plea of the petitioner that he continued as regular District Judge is indefensible. Point No.(I) is answered accordingly. POINT NO.(II)
26. In the writ petition, it has been also submitted that the opposite party No.3 has not held the written examination of the Ad hoc Additional District Judges posted in Fast Track Courts as per the direction given by the Hon'ble Supreme Court in Brij Mohan Lal (II) but at the same time it is admitted that petitioner has appeared in pursuance of the advertisement made by the Court in the said Examination but he was not qualified according to the pleadings of both the parties.
27. Learned counsel for the petitioner alleged inter alia that the Hon'ble Apex Court has directed in Brij Mohan Lal (II) vide para 207.9 that since the petitioner along with other candidates have already exercised the power by rendering justice to the people of the nation, instead of facing rigorous test, the concerned High Court would only hold the written test and viva voce consisting of 250 marks and in that test each candidate should secure 40% marks in case of general category and 35% marks in case of candidates belong to SC/ST/OBC category. But 31 the opposite party No.3 issued notification to hold the written examination with pass mark of 40%/35% as per the category of the candidates in each paper and also advertised for holding interview where cutoff mark was kept as 40% which are completely against the directive of the Hon'ble Supreme Court in Brij Mohan Lal-(2)'s case. So, he submitted that the examination being held contrary to the directive of the Hon'ble Supreme Court, must be declared as illegal and improper.
28. Learned Additional Government Advocate submitted that there is no irregularity or illegality in conducting the written Examination or viva voce in accordance with the advertisement as the advertisement has been made in accordance with the directive of the Hon'ble Supreme Court in Brij Mohan Lal-(2) case. He submitted that the Hon'ble Supreme Court have also directed that while the viva voce will be held, same should be held in accordance with the Recruitment Rules of the respective States. According to him, in our State there is Recruitment Rules, namely, the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (hereinafter called "OSJS & OJS Rules, 2007") and it is clearly mentioned therein that viva voce for the direct District Judges has got cutoff marks of 40% to pass in the interview.
29. Considering the aforesaid submissions of respective 32 parties, we may refer the case of Madhumita Das and Bijaya Kumar Jena v. State of Orissa & others (W.P.(C) No.2870 of 2013 & W.P.(C) No.3025 of 2013, disposed of on 19.4.2017) where at paragraphs-27, 28 and 29 I have taken the view in the following manner:
"27. The directive of the Hon'ble Supreme Court passed in paragraph 207.9 of the judgment in Brij Mohan Lal (supra) has to be followed both in letter and spirit. However, conjoint reading of all the clauses in paragraph 207.9 of the judgment of the Hon'ble Supreme Court in Brij Mohan Lal's case, it can be only deduced in the following manner:
(1) In the matter of written test and viva voce relevant Recruitment Rule has to be followed for direct recruitment to the District Judges cadre to the extent of relaxation given in the judgment of the Hon'ble Apex Court. Hon'ble Apex Court have made it clear in clause (f) that the candidates who qualify the written examination and obtain consolidated percentage as aforeindicated in Clause (c) of para 207.9 would be called to interview. It is, therefore, Hon'ble Apex Court taking the services of the Fast Track Judges into consideration have directed that the qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/OBC candidates out of 150 marks in written examination. So, as observed by the Hon'ble Apex Court the aggregate consolidated percentage of mark is not to include the interview mark.
(2) When the qualifying marks in the written test has been prescribed by the Hon'ble Apex Court, the High Court only would issue the notification for recruitment by following the directive but not keeping the minimum 33 qualifying mark on each paper in the written test. (3) In view of the specific directive of the Hon'ble Supreme Court in Clause (d) that each of the appointees shall be entitled to one mark per year of service in the FTCs, which would form part of the interview marks and Their Lordship having directed in Clause © of the same para that there should be 100 marks for the interview, the interview mark has to be awarded to the candidates who qualify in the written test by keeping the minimum aggregate marks in the written test out of 150 marks. Hon'ble Apex Court have not directed to take the aggregate mark of 40% and 35% as the case may be for respective category as a mark secured in the written test and in the interview.
(4) With regard to Clause (c) of same para Their Lordships have also directed to follow the written examination and interview in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services. When the Hon'ble Supreme Court have not prescribed the minimum pass mark for interview and had directed for following the relevant Recruitment Rules, it must be the Recruitment Rules with regard to the interview have to be followed to comply the directive of the Hon'ble Supreme Court.
The relevant provisions in the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (hereinafter called "OSJS & OJS Rule") for recruitment to the cadre of District Judges directly from the Bar is placed below for better appreciation:
"Appendix-B (See Rule 10) (Direct recruitment to the post of District Judges) A. Written Examination The written examination shall be on the following two papers each carrying 100 marks with a duration of 2 hours for each papers as follows:-34
Paper-1 (1) Code of Civil Procedure, . . 30 Marks (2) Personal Law . . 30 marks (3) Transfer of Property Act, Specific Relief Act, Limitation Act, Law of Contract, Orissa Consolidation of Holdings and Prevention Fragmentation of Land Act, Orissa Estate Abolition Act, Orissa Land Reforms Act, Law of Motor Accident Claim. . . 40 marks Total .. 100 marks Paper-2 (1) Code of Criminal Procedure, . . 30 marks (2) Indian Penal Code, . . 30 marks (3) Indian Evidence Act . . 30 marks (4) Narcotic Drugs and Psychotropic Substance Act, Prevention of Food Adulteration Act, Prevention of Corruption Act, Essential Commodities Act, Environment Protection Act, Water (Prevention and Control of Pollution) Act & . .10 marks (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Total . .100 marks B. Interview Interview shall carry 30 marks.
Candidates shall be called for interview in the proportion of 1.10 provided that such candidates have obtained at least 50% of marks in each of the written papers.
C. The final merit list shall be prepared on the basis of the marks obtained in the written tests and interview.
Provided that a candidate shall not be included in the merit list unless he secures at least 50% of marks in each of the written papers and a minimum of 40% of marks in interview."
(Underlined for emphasis)
28. From the aforesaid OSJS & OJS Rule, it is clear that there are 200 marks in written examination and 30 marks in interview. The candidate who has secured 50% of marks in each of the written paper shall be called for the 35 interview and a minimum 40% of marks shall be secured in the interview to be included in the merit list. As per the directive of the Hon'ble Supreme Court 200 marks for the written examination have been reduced to 150 marks and the interview marks have been raised to 100 marks. Moreover, there is no any aggregate marks to be secured in the written examination under the Rules whereas the aggregate marks of 40% for General candidates and 35% for SC/ST/OBC candidates have been prescribed by the directive of the Hon'ble Supreme Court. Without prescribing any mark for the interview specifically their Lordships directed to follow the OSJS & OJS Rule so far as the interview and the written examination are concerned for direct recruitment to the post of District Judges. Where the minimum mark for interview is not specifically mentioned but directive is made to follow the OSJS & OJS Rule, obviously their Lordships have directed to follow the Recruitment Rules by keeping the minimum marks in the interview for the candidates who qualify in the written examination by keeping such consolidated aggregate marks in both the papers. The directive in this regard is clearly inferred from the directive of the Hon'ble Supreme Court in Clauses
(a) (b) (c) (d) and (e) of para 207.9.
29. Judging from the case of the present petitioners, there is no doubt that both the petitioners in the respective cases have secured 40% out of total 150 marks in the written test, for which both the petitioners have qualified in the written examination as per the directive of the Hon'ble Supreme Court at para 207.9 and are consequently entitled to appear in the interview. The advertisement at Clause (ii) dated 6.12.2012 being in conflict with the directive of the Hon'ble Supreme Court by requiring minimum marks in each paper as 40% for general candidates and 35% for SC/ST/OBC candidates is liable to be quashed to the said extent. I agree 36 with my learned brother B.K. Nayak, J. to this extent but respectfully I do not agree that the total aggregate marks both in the written test and interview have to be taken together to comply the directive of the Hon'ble Supreme Court."
30. In the aforesaid case the decisions reported in (2008) 3 SCC 512, K. Manjusree v. State of A.P.; (2008) 7 SCC 11, Hemani Malhotra v. High Court of Delhi; (2010) 3 SCC 104, Ramesh Kumar v. High Court of Delhi & another; (2014) 5 SCC 774, Bishnu Biswas & others v. Union of India & others have also been referred to.
31. I have taken the view at paragraphs-34 and 35 of the aforesaid judgment in the following manner:
"34. From the aforesaid decisions of the Hon'ble Apex Court, it is clear that where statutory rules prescribe a particular mode of selection, it has to be given strict adherence. Moreover, it is emanated from the aforesaid decision that if the statutory rules give a particular benchmark for interview it has to be followed because at the interview many essential aspects of the candidature of a candidate are necessary to be evaluated. Thus, recently the Hon'ble Supreme Court in the case of Salam Samarjeet Singh v. High Court of Manipur at Imphal, reported in (2016) 10 SCC 484 have also been pleased to consider a similar issue. Although the two members Bench have given independent views by referring the judgment to the Larger Bench to decide the issue in that case but their Lordships have consistently taken the view that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly.
(Underlined for emphasis) 37
35. Adverting to the present case, it appears that the directive of the Hon'ble Supreme Court in Brij Mohan case (supra) have directed to follow the concerned Recruitment Rules while conducting the written test and the interview and Their Lordships have categorically directed that while giving the interview mark, one mark per year of service in the Fast Track Court also should be taken into consideration. The OSJS & OJS Rules also prescribe that there should be 40 % marks in the interview. This process has also been adopted by this Court in its Full Court proceeding dated 26.11.2012. Thus, the OSJS & OJS Rule in conjoint reading with the Full Court proceeding of this Court in compliance to the directive of the Hon'ble Supreme Court have rightly issued notice vide Annexure-7 that there should be minimum interview mark as 40% while there will be 100 marks in the interview. So, with due respect to my learned Esteemed brother B.K. Nayak, J., the minimum mark for the interview stipulated by the OSJS & OJS Rule must be adhered to and consequently Clause (iii) in Annexure-7 is legal and proper requiring no interference."
32. The aforesaid view has been dissented by my learned brother Hon'ble Sri Justice B.K. Nayak as observed in the respective paragraphs for which on this point the matter has been referred to the 3rd Hon'ble Judge and the opinion of the 3rd Hon'ble Judge has not been received.
However, in pursuance of the aforesaid view, in the present case the petitioner has secured aggregate of 55% marks which is less than 40% in the written examination for which he is not eligible otherwise to appear in the viva voce. It will not be out 38 of place to mention that the advertisement made by the opposite party No.3 at Clause (ii) is not in accordance with the Hon'ble Apex Court but keeping 40% cutoff marks in the viva voce out of 100 is legal and proper.
33. Apart from this, the question arises whether the petitioner can challenge the examination after he participated in the same examination and became unsuccessful to qualify in the examination. It is trite in law that a candidate having participated in selection process and after became unsuccessful cannot challenge same selection process. So, in the present case petitioner has no locus standi to challenge the examination in question. Point No.(II) is answered accordingly. CONCLUSION:
34. In terms of above discussion as mentioned hereinabove, the prayer of the petitioner that the examination be declared illegal and invalid and he be continued as regular Additional District Judge sans merit. Consequently prayer for not to hold viva voce and not to terminate the services of petitioner are also rejected.
The writ petition being devoid of merit stands dismissed.
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Dr. D.P. Choudhury, J Orissa High Court, Cuttack Dated the 28th November, 2017/Kar 39 B.K. Nayak,J. 35. I had the advantage of going through the judgment of my learned Brother and, I agree with the ultimate conclusion reached by my learned brother that the petitioner is not entitled to the reliefs sought for by him. However, I prefer to shortly add the following reasons for the conclusion. Facts pleaded by the parties need no repetition.
36. This writ petition was filed initially by two persons. Petitioner No.2, Kasinath Rout has withdrawn from the writ petition with liberty to file a fresh writ petition as per order dated 18.01.2017. Hence, this writ petition is confined to only petitioner No.1, who is hereinafter referred to as 'the petitioner'.
37. Petitioner's two fold prayer are that he being selected and appointed as Fast Track Additional District judge by following the procedure for direct recruitment of District Judge and in view of the order passed by the Hon'ble supreme Court in Brij Mohan Lal v. Union of India and others; (2002) 5 Supreme Court Cases 1 hereinafter referred to as 'Brij Mohan Lal-(1)'), the petitioner should not be terminated from service and be allowed to continue in the cadre of District Judge on regular basis. His second prayer is that the recruitment test as per the advertisement pursuant to final judgment of the Hon'ble Supreme Court in the same case of Brij Mohan Lal, reported in (2012) 6 40 SCC 502 (hereinafter referred to as "Brij Mohan Lal-(2)") should be quashed and the tests should not be allowed to be held.
38. On introduction of the scheme for establishment of Fast Track Courts by the Central Government, the State Government framed rules called "The Orissa Judicial Service (Special Scheme) Rules, 2001". The Scheme was being funded by the Central Government under the Five Year Plans and accordingly the recruitment and appointment under the aforesaid 2001 Rules was purely schematic and not of permanent character, which otherwise means that the persons appointed under the Scheme will continue in office as Fast Track Ad hoc Additional District Judges till the Central Government decides to continue with the Scheme. Of course as per order of the Hon'ble Apex Court in Brij Mohan Lal-(1) (supra) the persons who were recruited under the scheme to the Fast Track Courts by following the procedure as per rules governing direct recruitment of District Judges from the Bar may aspire for continuing in the regular cadre of District Judge. After the Central Government decided to abolish the Scheme of Fast Track Courts, writ petitions were filed in several High Courts and also even before the Hon'ble Supreme Court praying to direct the Central Government not to abolish the Scheme of Fast Track Courts. All those petitions were heard by the Hon'ble Supreme Court in that very case of Brij Mohan Lal 41 and the final judgment was passed as per judgment in Brij Mohan Lal-(2) (supra), wherein the Hon'ble Supreme Court directed for regularizing the services of the Fast Track Court Judges, whose services had not been terminated on ground of dishonesty or doubtful integrity, by subjecting them to limited recruitment examination consisting of both written and viva-voce tests. The guidelines and directions in this respect have been given in paragraph ten (10) of the judgment in Brij Mohan Lal(2).
Therefore, whatever direction or observation was given in Brij Mohan Lal-(1) with regard to regularization of directly recruited Fast Track Court Judges which was an interim order, was superseded by the final judgment in Brij Mohan Lal- (2). After passing of the final judgment, the directions/ observations made in Brij Mohan Lal-(1) lost their force, and it is only the directions given in Brij Mohan Lal-(2) which are necessary to be complied with. In the case of Brij Mohan Lal- (2) the Hon'ble Supreme Court having given their thumb of approval to the decision of the Union Government to discontinue the Fast Track Courts Scheme, and the State Government having not resolved to fund the Fast Track Courts established under the Scheme, the petitioner and all other Fast Track Court Ad hoc Additional District Judges were liable to be terminated. Keeping in 42 view the fact that the Fast Track Court Judges had rendered a number of years of service as Additional District Judges and crossed the age limit for entering into any other service, the Hon'ble Supreme Court in Brij Mohan Lal-(2) laid down guidelines to be followed for the absorption of such terminated Fast Track Court Judges in the regular cadre of District Judge, and that in pursuance thereto the High Court of Orissa issued advertisement for conducting tests for the Ad hoc Additional District Judges for their absorption in the regular cadre. Therefore, the petitioner cannot take objection to Brij Mohan Lal-(2) and the consequential tests for the recruitment.
39. In the aforesaid circumstances the petitioner is not entitled to the reliefs sought for by him and the writ petition accordingly stands dismissed.
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B.K.Nayak, J.
Orissa High Court, Cuttack, Dated the 28th November, 2017/pks 43