JUSTICE RAJA ELANGO W.P No. 23902 of 2008 · Andhra Pradesh High Court

(Per Hon’ble Sri Justice A.Gopal Reddy) Inter se seniority among the promotees to the Cadre of District and Sessions Judge, Grade-II (petitioners herein) and direct recruitees to the said cadre (respondents 3 to 7 herein) is the question which is the subject-matter of dispute in the present writ petition. Petitioners were appointed as District Munsif in Andhra Pradesh Judicial Service in the years 1985 and 1987 through A.P. Public Service Commission and were promoted as Sub-Judges. Later on their names were recommended for promotion to the post of District and Sessions Judge, Grade-II vide letter in D.O.No.3433/2002 B.Spl. dated 23.4.2002 by the Registrar (General), High Court of A.P. and the said recommendations were approved by the Government G.O.Ms.No.64 (LA & J) (SC.F) Department dated 4.5.2002. Their temporary appointments were notified the said Cadre G.O.Rt.No.542 dated 4.5.2002. Consequent to their appointment by transfer, they were given posting orders vide notification No.654-B.Spl. dated 14.6.2002 and consequently, they were relieved from the post of Sub-Jude and were promoted to the post of District and Sessions Judge, Grade-II during June and July 2002. While so, the respondents 3 to 7 herein were appointed as District and Sessions Judges in Grade-II by direct recruitment vide G.O.Ms.No.108 Law (LA & J) (SC-F) Department dated 4.8.2002 and on such appointment, necessary posting orders were issued by first respondent on 3.1.2003 and they were directed to undergo training in the Judicial Academy. On completion of the training, necessary posting orders were issued in ROC.No.73/2003 B.Spl dated 3.1.2003 and accordingly they took charge as District and Sessions Judge, Grade-II at their respective places of postings the month of January 2003. On representation made by the respondents 3 to 7 dated 13.11.2003 to the first respondent to fix their seniority over and above the District and Sessions Judges promoted by way of transfer from the cadre of Senior Civil Judge, first respondent vide ROC.No.207/04-B.Spl. dated

24.2.2004 communicated the seniority list fixing the seniority of the respondents 3 to 7 after Sri Mohan Gandhi, whose name was at Serial No.5 and above L.Ravi Babu, whose name was at serial No.1. On petitioners submitting objections and additional objections requesting

the first respondent for providing an opportunity of personal hearing, the impugned final seniority list was issued in G.O.Rt.No.1748 (LA & J SC.F) Department dated 18.9.2008 which was also displayed in the web-site of first respondent placing the respondents 3 to 7 in the seniority list below L.Ravi Babu and above M.A.Shareef (first petitioner herein) based on the letter addressed by the Registrar (Vigilance) dated 7.2.2008. Questioning the same, the present writ petition is filed contending that the recommendations of the Registrar (Vigilance) in letter, dated 7.2.2008 to the Government-second respondent is contrary to the Andhra Pradesh State Higher Judicial Service Rules, 1958 (for brevity ‘Rules, 1958’) and contrary to the earlier judgment of this Court in T.H.B. Chalapathi and others v. Hon’ble High Court of A.P. and others [1] and G. Govindarajulu v. High Court of A.P. and others in W.P.No.24989 of 2001 and also the decisions of the Supreme Court.

By the date of appointment of petitioners and other 35 Senior Civil Judges as District and Sessions Judges, Grade-II (District and Sessions Judges at entry level) by transfer vide G.O.Ms.No.64 dated 4.5.2002 the respondents 3 to 7 did not join in judicial service and they were appointed as District and Sessions Judges in Grade-II vide G.O.Ms.No.108 dated 14.8.2002 and reported to Judicial Academy on 21.8.2002 for training. They were given posting orders on 3.1.2003 and they joined in service after 3.1.2003, by which time, all the petitioners are already working as District and Sessions Judge, Grade-II and therefore, the respondents 3 to 7 cannot claim any seniority over and above the petitioners. Rule 6 of the Rules, 1958 provides for determination of seniority with reference to the date from which an officer continuously be on duty in that category, which is a guiding factor for determining inter se seniority among the promotees and direct recruitees.

The seniority of the respondents 3 to 7 in the cadre of District and Sessions Judge, Grade-II has to be reckoned from 6.1.2003 and other respective dates, on which they assumed charge. It is their case that in view of the law laid down by this Court as confirmed by the Supreme Court, the letter addressed by the Registrar (Vigilance), dated 7.2.2008 on which basis the impugned seniority list is prepared is liable to be set aside being contrary to the Rules, 1958. The appointment of the petitioners and others as District and Sessions Judge, Grade-II as per Rule 2 (a) (i) of Rules, 1958 in G.O.Ms.No.64, dated 4.5.2002 was not on ad hoc basis and were appointed to preside over the regular courts functioning in the State of A.P. Sri C.V.Vachaspathi appointed as District and Sessions Judge, Grade-II vide G.O.Ms.No.64 dated 4.5.2002 was posted as I Additional District and Sessions Judge, Grade-II at Adilabad.

Likewise Sri P.M.M.Siddarthi appointed as District and Sessions Judge, Grade-II was posted as Judge, Family Court-cum-V Additional District and Sessions Judge, at Visakpahatnam. Sri V.Balaram appointed as such was posted as I Additional District and Sessions Judge, Ongole and whereas, Sri K.Siva Prasad was posted as IV Additional Metropolitan Sessions Judge, Hyderabad. Sri Mohan Gandhi, who was also appointed under the same G.O. was posted as Judge, Family Court, Waranal. Had really the officers appointed as District and Sessions Judges, Grade-II on transfer were promoted purely on ad hoc basis to act as District and Sessions Judges, Grade-II to preside over the Fast Track Courts as contended by the respondents 3 to 7, there is no scope for the first respondent to post the said officers in those regular courts. In the absence of any rule that the officers appointed under G.O.Ms.No.64 dated 4.5.202 as District and Sessions Judges, Grade-II shall be posted as Fast Track Court Judges, depending upon the availability of vacancies, the first respondent posted some of those officers to preside over the Fast Track Courts and merely because posting of some of the officers to preside over Fast Track Courts will not amount to treat their promotion as ad hoc promotion.

Sri D.Prabhakar, who was promoted as District and Sessions Judge, Grade-II under the same G.O., who is junior to the petitioners, was posted as Registrar of A.P., Electricity Tribunal and later as Additional Director of Prosecution, Govt. of A.P., which posts were sanctioned long prior to sanction of Fast Track Courts and they were treated as regular posts. Therefore, the seniority of the petitioners has to be reckoned in the category from the date of their joining in the said posts and the seniority of the direct recruitees like respondents 3 to 7, who were put on probation for a period of one year from the date of their joining in duty has to be reckoned from the date of their joining in the post of District and Sessions Judge and therefore, the respondents 3 to 7 cannot claim any seniority against the petitioners. First respondent filed a counter affidavit inter alia stating that the State Government issued orders vide G.O.Ms.No.38, Law Department dated 27.3.2001 for establishment of 86 additional District and Sessions Judge Courts and Senior Civil Judge-cum-Assistant Sessions Judge Courts (Fast Track Courts) in the state for trial of under-trial prisoners on priority, and as per the Government orders, appointments to these posts are to be made from retired judicial officers in the cadre of District and Sessions Judge and Senior Civil Judge respectively. Later the A.P. State Higher Judicial Service Special Rules for Ad hoc appointment, 2001 (for brevity ‘Ad hoc Rules’) were issued in G.O.Ms.No.286, Law Department dated

5.3.2002. Under the Ad hoc Rules, ad hoc appointments to the posts of District and Sessions Judge, Grade-II for Fast Track Courts are to be made from three sources: (1) Direct recruitment from the Bar; (ii) Appointment by transfer from the category of Senior Civil Judges in the State Judicial Service; and (iii) by reemployment of retired District and Sessions Judges. Rule 2(4) of Ad hoc Rules specifically provides that all appointments made from time to time under Rule 2 shall cease on

31.3.2005. Under the said Rules, 33 1/3% of the total number of ad hoc posts must be filled up by direct recruitment. The Ad hoc Rules came into force with effect from 5.3.2002. As on that date, 24 posts of Fast Track Court Judges were vacant. The High Court recommended to the Government for temporary appointment of 30 Senior Civil Judges as District and Sessions Judges, Grade-II as 6 posts of regular District and Sessions Judges, Grade-II were vacant. In addition, there were 24 posts of Fast Track Courts. Pursuant to the recommendation of the High Court, the Government issued G.O.R.T.No.542 dated

4.5.2002 for initial appointments of 30 Senior Civil Judges, Grade-II by transfer. Sambani Vachaspati to G.Mohan Gandhi (serial No.1 to 6) were appointed to the cadre vacancies in the A.P. State Higher Judicial Service and were issued initial temporary appointments as District and Sessions Judge, Grade-II by transfer and the remaining 24 officers were posted to Fast Track Court vacancies in the notification of High Court No.654 B.Spl. dated 14.6.2000. By the said date, four cadre vacancies in the A.P. State Higher Judicial Service and two Fast Track Court vacancies were factually vacant and therefore, four officers working in the Fast Track Courts i.e. E.Radhakrishna, L.Ravi Babu, M.A.Shareef and V.Venkata Prasad were posted to function in the cadre vacancies and the six officers specified in G.O.Rt.No.1192 were posted to the available Fast Track Court vacancies, by the notification of the High Court No.885 B.Spl. dated 8.8.2002. Respondents 3 to 7 were appointed as District and Sessions Judges, Grade-II by direct recruitment and to the said effect, Government issued G.O.Ms.No.108. On such appointment, respondents 3 to 7 reported for training on 21.8.2002 and after completion of training on

4.1.2003, they were given posting orders. At that point of time, three cadre vacancies and two Fact Track Court vacancies were available and therefore, M.A.Shareef and V.Venkata Prasad, petitioners 1 and 2 herein working in the cadre vacancies were posted to Fast Track Court vacancies and the five direct recruitees were given posting orders in the cadre vacancies. In the seniority list, the direct recruited District and Sessions Judges i.e. respondents 3 to 7 were placed after the District and Sessions Judges who were promoted earlier from the Senior Civil Judge cadre and were posted to the Fast Track Courts. On the representation made by respondents 3 to 7 dated 30.11.2003 to fix their seniority among the District and Sessions judges, the Administrative Committee of the High Court took up the matter on

28.1.2004 wherein it was resolved to call for the objections from the affected officers. Accordingly, on receipt of the objections, the Administrative Committee resolved to place the matter before the Sub- Committee of three Judges constituted by the Hon’ble Chief Justice. On placing the matter before it, the Sub-Committee resolved that as per the Rule 6 of the Rules, seniority of a person appointed to the category shall be determined with reference to the date from which he was continuously on duty in that category. Thus the respondents 3 to 7 must rank in the seniority below L.Ravi Babu and that the officials from M.A. Shareef to Dr.D.Prabhakar Rao will have to rank below the 5 direct recruit officers. The report of the Sub-Committee was approved by the Administrative Committee in its meeting held on 24.12.2007 and the first respondent addressed a letter to the Government for fixation of the seniority of respondents 3 to 7 i.e. direct recruit District and Sessions Judges to rank in the seniority list below L.Ravi Babu and above M.A.Shareef and accordingly, the seniority has been fixed and impugned list has been published. A counter affidavit has been filed on behalf of respondents 3 to 7 stating that as per the amended Rule issued in G.O.Ms.No.25 dated

7.2.2002 appointment of Senior Civil Judges as District and Sessions Judges on promotion is purely on ad hoc basis made to preside over the temporary Fast Track Courts. As the appointment of District and Sessions Judges on ad hoc basis is not permissible under Rules, 1958, special rules are framed to appoint District and Sessions Judges to preside over Fast rack Courts as per G.O.Rt.No.286 dated 5.3.2002 and the said Special Rules are called as A.P. State Higher Judicial Service Special Rules for Ad hoc appointment, 2001 which came into effect from 1.3.2001. The petitioners herein were not appointed as District and Sessions Judges on promotion from Senior Civil Judges under Rules, 1958 and they were purely appointed as per Ad hoc Rules. By the time, the petitioners were promoted on ad hoc basis to preside over the Fast rack Courts, there were no vacancies whether permanent or temporary in the cadre strength under Rules, 1958 and therefore, the petitioners cannot claim any rights under Rules, 1958 as their appointment is not made under the said Rules.

Respondents 3 to 7 were appointed in the existing substantive vacancies under the Rules, 1958 as direct recruitees and that they are appointed in the permanent cadre strength. They joined in the service on 21.8.2002 and they underwent training from 21.8.2002 to 4.1.2003 in the A.P. Judicial Academy and thereafter postings were given to them. By the time they joined in service, all the petitioners herein were only working as ad hoc judges to preside over the Fast Track Courts and they are not in the cadre strength under the Rules, 1958. On giving posting orders to respondents 3 to 7 on completion of training, petitioners 1 and 2, who were absorbed in the temporary cadre strength, as vacancies were available, were subsequently reverted as Senior Civil Judges, to enable the first respondent to post the respondents 3 to 7, who are direct recruitees. Necessary reply affidavits were filed by the petitioners to the above counters reiterating their earlier stand taken in the writ petition.

According to them, the establishment of 86 Courts in the cadre of District and Sessions Judges and in the cadre of Assistant Sessions Judges (Fast Track Courts) through G.O.Ms.No.38, Law Department, dated 27.3.2001 has no relevancy to the claim of the petitioners for seniority over respondents 3 to 7. Similarly, the Ad hoc Rules of 2001 have no relevancy as the petitioners were not appointed as District and Sessions Judges, Grade-II under the said Ad hoc Rules. Petitioners and other officers were appointed as District and Sessions Judges, Grade-II by transfer as per Rule 2(a)(i) of Rules, 1958 but not on ad hoc basis. In part-II of half yearly list of members of A.P. State Higher Judicial Services issued by the Government of A.P. on the recommendations of High Court from time to time, the petitioners and other officers are shown as members of A.P. State Higher Judicial Services, but not as members of A.P. State Higher Judicial Services on Ad hoc basis.

Appointment of officers in the cadre of District and Sessions Judges has nothing to do to their postings to a particular Court. There is no mention either in G.O.Ms.No.64 dated 4.5.2002 or in G.O.Rt.No.542 dated 4.5.2002 that the officers appointed as District and Sessions Judges, Grade-II shall be posted as Fast Track Court Judges only. The appointment of petitioners is on temporary basis but not on ad hoc basis as contended by the respondents 3 to 7. They cannot import a language, which is not borne out in G.O.Ms.No.64 dated 4.5.2002. First petitioner was appointed to act as District and Sessions Judge, Grade-II and posted as III Additional District and Sessions Judge (Fast Track Court), Kadapa, a new court sanctioned under G.O.Ms.No.38 dated 23.7.2001. Among temporary appointments made of the Senior Civil Judges as District and Sessions Judges, C.V.Vachaspathy was posted as I Additional District and Sessions Judge, Adilabad.

Similarly, P.M.M.Siddanthi, V.Balram, Patil Vittal Rao, K.Siva Prasad and G.Mohan Gandhi were posted as District and Sessions Judges vide posting orders dated 14.6.2002. Subsequently, the first petitioner was posted as I Additional District and Sessions Judge, Nizamabad and later he was transferred and posted as II Additional District and Sessions Judge (Fast Track Court), Nizamabad. Similarly, V.Venkata Prasad was appointed as VI Additional District and Sessions Judge (Fast Track Court), Rajahmundry, a new court sanctioned vide G.O.Ms.No.35 dated

27.3.2001 proceedings respondent in ROC No.5136/2002.B.Special dated 14.6.2002. Later on in proceedings No.7088/02 B.Special dated 8.8.2002 he was posted as Presiding Officer, Labour Court-I, Hyderabad and again vide proceedings in ROC No.75/03.B.Special dated 3.1.2003 he was posted as III Additional District and Sessions Judge (Fast Track Court), Nellore. The above said proceedings clearly discloses that the services of the petitioners are being utilized wherever the vacancies arose in the cadre of District and Sessions Judges. The objections submitted by the petitioners were not at all considered either by the Committee constituted or by the High Court and therefore, the proceedings dated

7.2.2008 and consequential impugned proceedings of the Government dated 18.9.2008 are to be declared as illegal and contrary to the Rules, 1958. Sri G.Vidyasagar, learned counsel appearing for the petitioners contends that the revised seniority list placing the respondents 3 to 7 above the writ petitioners as per the recommendations of the High Court is in violation of principles of natural justice and the same is contrary to the Rules, 1958. There is no whisper to the objections submitted by the petitioners dated 5.3.2004 in the Committee report. Petitioners’ appointment falls under Rules, 1958 and in the absence of any proceedings to show that the petitioners were appointed under Ad hoc Rules, they are deemed to be appointed by way of transfer under the Rules, 1958. The Government on approving the appointment of the petitioners as District and Sessions Judges Grade-II by transfer ordered that the appointments will take effect from the date on which the respective officers assume charge, vide G.O.Rt.No.542 dated

4.5.2002. On such appointment, the High Court issued posting orders to the officers through notification dated 14.6.2002. On issuing the posting orders, the petitioners were relieved and were appointed to the promoted posts on various dates during June and July, 2002. Whereas the respondents 3 to 7 were appointed by way of direct recruitment as District and Sessions Judges, Grade-II under A.P. State Higher Judicial Services, 1958 vide G.O.Ms.No.108 Law (LA & J) (SC- F) Department dated 4.8.2002 and were directed to undergo raining at Judicial Academy and on completion of such training posting orders were issued to them and that they took charge at their respective place of posting in the month of January, 2003, by which time, the petitioners have joined and were working as such. On the representation made by the respondents 3 to 7 on 13.11.2003 for fixing their seniority, High Court in its proceedings dated 24.2.2004 communicated seniority list calling for objections. Thereafter the petitioners made objections to the proposed seniority list and also requested for personal hearing, which has not been given and four yeas after such objections, the impugned G.O.Rt. has been issued fixing the seniority list. As per Rule 6 of the Rules, 1958, seniority of a person appointed to category-I or category-II shall be determined with reference to the date from which he may continuously be on duty in that category. Therefore, the present seniority list issued is contrary to the said Rule. In support of his submissions, he placed reliance on T.H.B. Chalapathi (1 supra), V.Bhasker Rao v. State of Andhra Pradesh [2] , S.Govindarajulu D.J. v. High Court of A.P. . Further he contends [3] that length of service rendered in the Fast Track Court is deemed to be a service in high Court as held by the Apex Court in Brij Mohan Lal v. Union of India [4] . Rule 15 of the A.P.State Judicial Service Rules, 2007 issued in G.O.Ms.No.119 deals with Ad hoc appointment of Fast Track Court Judges which came into force with effect from 1.1.2007. As per the said Rule the persons appointed on Ad hoc basis shall be regarded as members of the category. The Committee which sat on

28.8.2007 has not taken into consideration of the said Rule. The petitioners were not appointed in accordance with the Special Rules framed in 2002 and their appointments are governed by Rule 6 of the Rules, 1958. In the absence of any proceedings to show that the petitioners were appointed under Rules, 2002, their appointments were deemed to be made under Rule 6 of the Special Rules, 1958. Therefore, the principles laid down by the Supreme Court in C.K.Antony v. B.Muraleedharan [5] cannot be applied in view of the Judgment in V. Bhaskara Rao (2 supra). The Ad hoc Rules came into force on 5.3.2002, and the petitioners were not appointed under the Said Rules, but were appointed under the old Rules i.e. Rules,

1958. To substantiate the submission, reliance is placed on B.S.Mathur v. Union of India [6] , Brij Mohan Lal (4 supra) and Rudra Kumar Sain v. Union of India [7] . He further contended that the show-cause notice dated 24.2.2004 is vague and does not contain any reasons. On the other hand, Sri D.Prakash Reddy, learned senior counsel representing the contesting respondents contended that when the Ad hoc Rules came into force on 5.3.2002 and as on the date of appointment, when there were no regular vacancies, the petitioners were appointed to the Fast Track Courts and therefore, their appointments are deemed to be only under 2002 Rules. Only after regular promotion, the services rendered in Fast Track Court will be reckoned as per the judgment of the Apex Court in Brij Mohan Lal (4 supra). All the petitioners were absorbed in regular posts of District and Sessions Judges before 31.3.2005 except Seetarama Avadhani.

The length of service rendered in the Fast Track Court deemed to be the service in the High Court. Out of 30 candidates, only 6 were given regular postings and the remaining 24 were appointed in 24 Fast Track Courts. Further fresh appointment should have been made when the petitioners were regularly appointed to the regular posts. The petitioners were not appointed as District and Sessions Judges on promotion from the cadre of Senior Civil Judges under 1958 Rules, but were purely appointed under the Ad hoc Rules. The Ad hoc appointments are totally different and not governed by the service Rules of 1958, which consists of both permanent and temporary appointments. Even after appointment of the respondents in service on 21.8.2002 and after their completion of training, petitioners, who were absorbed in the temporary cadre strength, were reverted to enable the High court to post respondents 3 to 7 which clearly establishes that petitioners’ appointment as District and Sessions judges is not made as per Rules, 1958.

Therefore, the petitioners cannot claim any seniority over the respondents 3 to 7, who are directly recruited. Smt. Bhaskara Laxmi, learned standing counsel for High Court contends that Ad hoc Rules came into force with effect from 5.3.2002. As 24 posts of Fast Track Court Judges were vacant, High Court recommended to the Government for temporary appointment of 30 Senior Civil Judges as District and Sessions Judges, Grade-II as 6 posts of regular District and Sessions Judges, Grade-II were vacant in addition to the above 24 posts. That resulted in appointing the 30 Senior Civil Judges as District and Sessions Judges, Grade-II by transfer. Serial No.1 to 6 were appointed to the Cadre in the vacancies available in Higher Judicial Service and the remaining 24 officers were given postings to preside over the Fast Track Courts. On receiving objections from the affected officers to the proposed seniority list, the matter was placed before the Administrative Committee, in turn, the said Committee constituted a Sub-Committee.

The Sub-Committee after considering the representation and relevant provisions resolved that under Rule 6 of the Rules, 1958, the seniority of the persons, who were appointed in the Cadre shall be determined with reference to the date from which they were continuously on duty in that category. As per the same, respondents 3 to 7 must rank in the seniority below the officer-Ravi Babu and that M.A.Shareef and Dr.D.Prabhakar will have to rank below the 5 direct recruitees. The respondents 3 to 7 must rank below L.Ravi Babu and above the petitioners, who will rank below the 5 direct recruitees. Since the posts of District and Judges in the Fast Track Court are outside the cadre of Higher Judicial Service, they are not part of Higher Judicial Service and the scheme of Fast Track Court being funded on Ad hoc basis, such member cannot claim regular appointments. M.A.Shareef and V.Venkata Prasad were continuously on duty as District and Sessions Judge, Grade-II, but were worked only for a very short periods in the cadre vacancies and in view of the circumstance that the direct recruitees were undergoing training, they cannot be treated as appointed to the Cadre vacancies.

Pursuant to the appointment made in G.O.Rt.No.542, they cannot claim any seniority. From the rival submissions as referred to above, the point that arise for consideration in this writ petition is: ‘Whether the appointments of the petitioners in G.O.Rt.No.542 will be treated as appointment in the Cadre of District and Sessions Judges, Grade-II regularly or not and Whether the service of the petitioners is to be reckoned from the date of their posting order as per Rule 6 of the Rules, 1958 or not?’ POINT: under Rule 2 of the Rules, 1958, an appointment to the District and Sessions Judges, Grade-II shall be made by transfer from among the Sub-Judges in the A.P. Judicial Service or in the Hyderabad State Judicial Service, by direct recruitment from the Bar. As per proviso to Rule 2 of Rules, 1958, 33 1/3% of the total number of permanent posts shall be filled or reserved to be filled up by direct recruitment.

Rule 6 of Rules, 1958 deals with the seniority which reads as under: “Rule 6. Seniority:- The seniority of a person appointed to Category I or Category II shall be determined with reference to the date from which he may continuously be on duty in that category.” The State Government in G.O.Ms.No.38, Law Department dated

27.3.2001 issued orders for establishment of 86 additional District and Sessions Judge Court and Senior Civil Judge-Cum-Assistant Sessions Judge Court (FTCs) in the State, for trial of under-trial prisoners on priority basis. The appointment to the said posts are to be filled from retired Judicial officers in the cadre of District and Sessions Judge and Senior Civil Judge respectively. Later, the A.P. State Higher Judicial Service Special Rules for Ad hoc appointment 2001 were issued in G.O.Ms.No.286, Law Department dated 5.3.2002. Under the said Rules, Ad hoc appointments to the posts of District and Sessions Judge, Grade-II for Fast Track Courts are to be made from, (1) Direct Recruitment from the Bar; (2) Appointment by transfer from the category of Senior Civil Judges in the State Judicial Service; (3) By reemployment of retired District and Sessions Judges. Rule 2(4) of Ad hoc Rules specifically provides that all appointments made from time to time under Rule 2 shall cease on 31.3.2005 as the Fast Track Courts were created for a limited period.

A proviso enjoined that 33 1/3% of the total number of Ad hoc posts must be filled up by direct recruitment. The appointments to the posts of District and Sessions Judges on Ad hoc basis under the Ad hoc Rules are to be notwithstanding the provisions of the Special Rule for the A.P. Higher Judicial Services, 1958 (see Rule 2 of Ad hoc Rules). The terms and conditions under Rule 7(1) (b) envisages as under:

1(a) A person appointed under Rule 2(i) shall not be regarded as a Member of permanent cadre covered under Rule 2 of the Special Rules for Andhra Pradesh State Higher Judicial Service, 1958, and shall not be entitled to any preferential right to any order appointment to this service or any other service and their service shall not be treated as regular or permanent under the State Government nor shall be a bar for appointment to the posts covered by the Special Rules for Andhra Pradesh Higher Judicial Service, 1958 or the Andhra Pradesh State Judicial Service Rules, 1962.

On the date the Ad hoc Rules came into force, 24 posts of District and Sessions Judges (Fast Track Courts) were vacant.

Therefore, the Registry of High Court has to send proposal to make Ad hoc appointments to the said vacant posts by transfer from among the members of A.P. State Judicial Service (Senior Civil Judges) under Rule 2(ii) of the Ad hoc Rules. Since there were six regular vacancies in the Cadre of District and Sessions Judges, Grade-II and one more vacancy is to arise on retirement of a District and Sessions Judge on

30.4.2002, the High Court in its D.O. letter dated 23.4.2002 intimated to the State Government that apart from 24 Fast Track Courts in the Cadre of District and Sessions Judges, which are vacant, six other vacancies are vacant and sought to approve the panel including the names of petitioners, who were working as Senior Civil Judges and their names were recommended to the Government by the Registrar of High Court vide letter dated 23.4.2002 for appointment as District and Sessions Judges, Grade-II by transfer. Government approved the names in G.O.Ms.No.64 dated 4.5.2002 and accordingly issued appointment orders in G.O.Rt.No.542 to 30 officers stating that the appointment orders will take effect from the date on which the respective officers assume charge. On such appointment, High Court by proceedings dated 14.6.2002 issued posting orders. Respondents 3 to 7 were appointed by direct recruitment on 4.8.2002 G.O.Ms.No.108 dated 4.8.2002 and were put on probation for a period of one year.

Pursuant to the said appointment, High Court through notification dated 3.1.2003 issued posting orders to them. and notify initial temporary appointments of the 30 Senior Civil Judges proposed as District and Sessions Judges, Grade-II by transfer, though there were 31 vacancies. The State Government by G.O.Ms.No.64, Law Department dated 4.5.2002 approved the 36 Senior Civil Judges for appointment as District and Sessions Judges, Grade-II by transfer without verifying the legal position whether the remaining vacancies can be filled up from the Cadre of Senior Civil Judges and the remaining vacancies available after leaving the vacancies earmarked for direct recruitment of 33% and erroneously issued the appointment orders, which resulted in issuing appointment orders in G.O.Ms.No.542 and consequential posting orders to the petitioners. Rule 6 of the Rules, 1958 fell for interpretation before the Apex Court in T.H.B. Chalapathi (1 supra).

This Court at para 25 held as under: “25. ….where there is no statutory rule or the rule that prescribes quota has been deviated, seniority shall be determined on the basis of continuous officiation in a non- fortuitous vacancy. On a reading of the rule, it is evident that the service consists of not only permanent posts but also temporary posts. Rule 1 itself provides that Category II consists of District and Sessions Judges, Grade II including Additional District and Sessions Judges. Rule 2(a)(1) which deals with the appointment of the Subordinate Judges, by transfer, to be the District and Sessions Judges, Grade II does not limit the appointment only to permanent posts unlike Rule 2(a)(2) under which, the appointment of the direct recruits is hedged by a limitation restricting it to only permanent posts. On the other hand, Rule 5 which provides that the appointment and reappointment of persons under reversion to the category of District and Sessions Judges of Grade II shall be made by the Governor, gives a clear indication that Subordinate Judges can be appointed by transfer to be District and Sessions Judges Grade II under the special rules, even in respect of temporary posts.

From the facts of this case, it cannot be said that the temporary posts in which the respondents were appointed were fortuitous or were created as a stop-gap arrangement. The temporary posts which were in existence at the time the respondents were appointed, were there since a number of years and they were even made permanent subsequently. All the respondents though appointed in temporary posts in the beginning continued to hold the posts without break in service till they were confirmed. Their appointments on a temporary basis were made following the very same procedure that was followed in making regular appointments. The High Court considered the fitness of each one of the respondents and having been satisfied that they were suitable to be appointed as District and Sessions Judges Grade II by transfer, recommended to the Governor for their appointment. The Governor accepted the recommendation of the High Court and appointed them.

The functions performed and the responsibilities discharged by them when they held temporary posts are identical to those performed by them after their confirmation. It is obvious that no provision has been made in the Special rule, prescribing period of probation for the appointees by transfer, in view of their long judicial experience as Sub-Judges. So the rule making authority intended to give weightage to the continuous service rendered by such persons even on a temporary basis and incorporated that intention in Rule 6. Had it not been so specified in Rule 6, the direct recruits who entered the service long after the appointees by transfer were appointed would have scored a march over them, in which case there might not have been any difficulty in declaring such rule as violative of Articles 14 and 16 of the Constitution of India being arbitrary and unreasonable.” In V. Bhaskara Rao (2 supra), the Supreme Court rejected the contention of the direct recruitees for claiming seniority over the temporary appointees by way of transfer to the post of Grade II District and Sessions Judge holding that Rule 1 of the Special Rules consists of all the posts- permanent and temporary- which have been designated as District and Sessions Judges Second Grade.

Even otherwise in the absence of any prohibition under the Special Rules the State Government can always create temporary posts as additions to the cadre. Temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant service. The appointments of officers as District and Sessions Judges Grade II by promotion from the Subordinate Judges were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court and the Special Rules provide a complete scheme for the appointment and seniority of the members of the service and therefore, Rule 10(a)(i) of the State Rules has no application to the Service constituted under the Special Rules. In S.Govindarajulu D.J. (3 supra), this Court while considering inter se seniority of direct recruitees and promotees and referring to various judgments including T.H.B. Chalapathi (1 supra) and V. Bhaskara Rao (2 supra), directed that the inter se seniority between the petitioner and respondents 2 to 5 therein shall be determined with reference to the respective dates from which each of them were continuously on duty in the category of District and Sessions Judge, Grade II or equivalent category and directed to fix inter se seniority of the officers in order of their continuous duty on the substantive appointment in the post of District and Sessions Judges, Grade II in the chronological order mentioned therein.

In B.S.Mathur (6 supra), the Apex Court considering the determination of inter se seniority between the direct recruitees and promotees under the provisions of Delhi Higher Judicial Service Rules, 1970, held in para 28 that in the light of the directions issued to all the High Courts in All India Judges Association v. Union of India [8] to make necessary amendment in the Rules providing for determining the inter se seniority on the basis of 40 point Roster as considered and approved in the case of R.K.Sabharwal & Ors. V. State of Punjab [9] , necessary amendment relating to inter se seniority for future be made in the DHJS Rules in consonance with the directions issued in the above cases. Till such time the principle of “continuous length of service” i.e. date of appointment should be applied for determining the inter se seniority of the officers of Delhi Higher Judicial Service. The Apex Court in Brij Mohan Lal (4 supra), issued directions for establishment and functioning of Fast Track Courts in para 10, among which, directions 1,7 and 14 read thus: “(1) The first preference for appointment of judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers.

While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services. (7) After ad hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these vacancies much before the judicial officers are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary. The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis. The State Government concerned shall take necessary decisions within a month from the receipt of the recommendations made by the High Court.

(14) No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.” In Rudra Kumar Sain (7 supra), in determining the seniority between the promotees and direct recruitees among the officers of Delhi Higher Judicial Service, the guidelines and directions issued by the Supreme Court in case of O.P. Singla v. Union of India [10] been duly followed or not was fell for consideration before the Apex Court. In para 14, the Apex Court rejected the contention that until the principle of “quota” provided in Rule 8 is made applicable to appointments under Rules 16 and 17, such appointees, under Rules 16 and 17 cannot claim continuous length of service for their seniority and concluded that in service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be “stopgap or fortuitous or purely ad hoc” and held that their inter se seniority must be redetermined on the basis of continuous length of service in the cadre, as indicated in O.P. Singla case (10 supra).

In C.K.Antony (5 supra), fixation of seniority between the direct recruitees and promotees in the cadre of Assistant Conservators of Forests under the Kerala Forest Service Special Rules was considered by the Apex Court and at para 6 it was held that a direct recruit to the cadre of Assistant Conservators of Forests can count seniority only with effect from the date of his appointment as a Probationary Assistant Conservator. A person who has been appointed to a service or post temporarily or provisionally as a stopgap arrangement, can never be considered as one who has been appointed to that post or service. If there is no substantive vacancy in the permanent cadre available, no direct recruitment can be resorted to. The direct recruits should get substantive vacancies in the permanent cadre while recruits by transfer can be adjusted against a permanent vacancy or a temporary vacancy depending upon the vacancy position.

A person who gets a temporary appointment or promotion, as the case may be, shall not be regarded as a probationer in that category and on account of that temporary appointment or promotion, he cannot have any preferential claim to that post. Any commencement of probation for the purpose of counting seniority must precede by an appointment in accordance with the rules. In case a temporary appointee is allowed to start his probation from a date anterior to the date of his subsequent appointment in accordance with the rules, that should be without prejudice to the seniority of others in the service i.e. direct recruitees. In V. Bhaskara Rao (2 supra), the respondents, who were initially appointed on temporary basis in the year 1978-79 were made substantive in the year 1983. Whereas the petitioners who were appointed substantively in the year 1991 claimed seniority over the respondents. The Supreme Court while interpreting Rule 6, categorically held that in the absence of any prohibition under Special Rules, the State Government can always create temporary posts as additions to the cadre and can proceed to appoint the officers.

Once the appointment of officers as District and Sessions Judges, Grade-II by promotion from the Subordinate Judges is made under Rule 2 of Special Rules in consultation with the High Court and as the Special Rules provided a complete scheme for appointment and seniority of the members of the service, the Supreme Court rejected the contention of direct recruitees that their seniority has to be counted as per Rule 6 and will not depend upon the quota fixed for direct recruitees and promotees, which has been followed subsequently in T.H.B. Chalapathi (1 supra). Therefore, the seniority of the persons, who are given postings in the regular vacancies available will be counted from the said date. Further in para 13, the Supreme Court rejected the contention of the petitioners in view of Rule 6 of the Special Rules stating that the said Rule is no way dependent on proviso to Rule 2 of the Special Rules.

Both are to be operative independently. In view of the scheme of the Rules, the seniority Rule is not dependent on the quota Rule. Quota has been provided for the direct recruitees only against permanent posts. The seniority rule permits the counting of total period of service from the date a person is on duty against a post in the category. Even though the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of continuous length of service. Respondents 4 to 16 have been rightly given seniority above the petitioners. Admittedly, in the present case, there are six regular vacancies available along with 24 Fast Track Courts in the cadre of District and Sessions Judges and one vacancy due to retirement as on the date when the High Court recommended to the State Government and the same were accepted by the State Government and G.O.Ms.No.64 was issued approving 36 Senior Civil Judges and thereafter G.O.Rt.No.542 dated 4.5.2002 was issued for temporary appointments to 30 Senior Civil Judges as District and Sessions Judges, Grade-II (from C.V.Vachaspathi to T.Pattabhirama Rao) and another G.O.Rt.No.1192 was issued for appointment of remaining six Senior Civil Judges as District and Sessions Judges, Grade-II (from G.Chakradhar Rao to D.Prabhakara Rao).

Appointment orders to the respondents 3 to 7- direct recruitees as District and Sessions Judges, Grade-II were issued on 14.8.1992 and they reported for training on 21.8.2002 and on completion of training they were given necessary posting orders. Therefore, the officers, who were appointed by promotion/transfer from Senior Civil Judges to the cadre of District and Sessions Judges, Grade-II, who were regularly posted as District and Sessions Judges were continued in such vacancies and their seniority has to be counted from the initial date of appointment but not otherwise. As held by the Supreme Court, the direct recruitees, who were appointed subsequently cannot claim seniority even if the appointments were made temporarily to the regular vacancies against the candidates, who were appointed in regular vacancies temporarily. But on completion of the training by the direct recruited officers, for giving posting orders to them, only three cadre vacancies and two Fast Track vacancies were available.

Therefore, M.A.Sharif and V.Venkata Prasad working in the cadre vacancies were posted to Fast Track vacancies for enabling the High Court to give posting orders to the five direct recruitees in substantive vacancy to which they were recruited. Therefore, the officers who are transferred from the regular vacancies to the Fast Track Courts have not objected for such postings obviously, thinking that they were appointed in the regular cadre vacancies until the direct recruitees are replaced them. Thus they have waived their right to claim continuous service in the substantive vacancies and to claim seniority over the direct recruitees. Therefore, the seniority of the direct recruitee officers has to be reckoned with effect from 21.8.2002 on the date when they reported for training to the Judicial Academy on their appointments. In view of the break to the continuous service in the substantive vacancies, the persons, who were replaced by the direct recruitees have not questioned such postings and as the petitioners have not questioned such postings from the regular cadre vacancies to the Fast Track Courts and therefore, they cannot claim seniority from the date of initial appointment but they can claim seniority only from the date when they were regularly appointed in the cadre vacancies as they were appointed in the said vacancies as and when vacancies arose. In view of the same, the impugned order passed by the State Government in G.O.Rt.No.1748 (LA & J SC.F) Department dated

18.9.2008 and the consequential proceedings issued by the High Court in its letter No.1227/08-B.Special dated 7.2.2008 do not suffer from any illegality warranting interference by this Court. The writ petition is accordingly dismissed. No order as to costs. ________________ A. GOPAL REDDY, J. DECEMBER 16, 2011 RAJA ELANGO, J. Tsr. __________________ [1] [2] [3] [4] [5] [6] [7] [8] [9] 1986 LAB I.C. 1069 AIR 1993 SC 2260 (2007) 3 ALT 145 (D.B.) (2002) 5 SCC 1 (1998) 6 SCC 630