MAHESH CHANDRA VERMA versus THE STATE OF JHARKHAND THROUGH: ITS CHIEF SECRETARY & ORS. on 11 May 2018

[2018] 5 S.C.R. 719

MAHESH CHANDRA VERMA

v.

THE STATE OF JHARKHAND

Through: ITS CHIEF SECRETARY & ORS.

(Civil Appeal No.4782 of 2018)

MAY 11, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

Judiciary: Pension – Whether services rendered by theappellants as Fast Track Courts Judges to be counted for theirpensionary and other benefits, the appellants having joined theregular judicial service thereafter – Held: The appellants were partof the initial select list/merit list for recruitment to the regular cadrestrength but were not high enough to be recruited in the existingstrength – Even at the stage of absorption in the regular cadrestrength, they went through a defined process and continued to workthereafter – Thus, they were not appointed to the Fast Track courtsjust at the whim and fancy of any person, but were the next in lineon the merit list of a judicial recruitment process – They were eitherpart of the select list, who could not find a place given the cadrestrength, or those next in line in the select list – Had there beenadequate cadre strength, the recruitment process would have resultedin their appointment – These Judges have rendered services over aperiod of nine years and have performed their role as Judges to thesatisfaction, otherwise there would have been no occasion for theirappointment to the regular cadre strength – Not only that, they alsowent through a second process for such recruitment – Themethodology of non-creation of adequate regular cadre posts andthe consequent establishment of Fast Track courts manned by theappellants cannot be used as a ruse to deny the dues of theappellants – All the appellants and Judicial Officers identicallysituated are entitled to the benefit of the period of service renderedas Fast Track Court Judges to be counted for their length of servicein determination of their pension and retiral benefits.

Allowing the appeals, the Court

HELD: 1. The need to set up Fast Track Courts arose onaccount of delays in the judicial process, targeting certain priority

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Aareas for quicker adjudication. In fact, had there been adequatecadre strength, there would have been no need to set up theseFast Track Courts. [Para 14] [727-H; 728-A]

2. The appellants were not appointed to the Fast TrackCourts just at the whim and fancy of any person, but were theBnext in line on the merit list of a judicial recruitment process.They were either part of the select list, who could not find a placegiven the cadre strength, or those next in line in the select list.Had there been adequate cadre strength, the recruitment processwould have resulted in their appointment. These Judges haverendered services over a period of nine years and have performedCtheir role as Judges to the satisfaction, otherwise there wouldhave been no occasion for their appointment to the regular cadrestrength. Not only that, they also went through a second processfor such recruitment. It is a matter of great regret that theseappellants who have performed the functions of a Judge to theDsatisfaction of the competent authorities should be deprived oftheir pension and retiral benefits for this period of service.Keeping in mind the spirit of the directions made under Article142 of the Constitution of India in Brij Mohan Lal-[II] and inMahesh Chandra Verma, the necessary corollary must also follow,of giving benefit of the period of service in Fast Track courts forEtheir pension and retiral benefits. The methodology ofnon-creation of adequate regular cadre posts and the consequentestablishment of Fast Track courts manned by the appellantscannot be used as a ruse to deny the dues of the appellants.[Para 15] [728-B-F]

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3. There was need for a regular cadre strength keeping inmind the inflow and pendency of cases. The Fast Track CourtScheme was brought in to deal with the exigency and theappellants were appointed to the Fast Track courts and continuedto work for almost a decade. They were part of the initial selectGlist/merit list for recruitment to the regular cadre strength butwere not high enough to be recruited in the existing strength.Even at the stage of absorption in the regular cadre strength,they had to go through a defined process in pursuance of thejudgment of this court and have continued to work thereafter.[Para 17] [729-F-G]H

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4. All the appellants and Judicial Officers identicallysituated are entitled to the benefit of the period of servicerendered as Fast Track Court Judges to be counted for theirlength of service in determination of their pension and retiral benefits. [Para 18] [729-H; 730-A]

Mahesh Chandra Verma v. State of Jharkhand(2012) 11 SCC 656 : [2012] 9 SCR 6 ; Brij Mohan Lalv. Union of India - [II] (2012) 6 SCC 502 : [2012] 5SCR 305 ; Nihal Singh & Ors. v. State of Punjab &Ors. (2013) 14 SCC 65 : [2013] 11 SCR 1 – relied on.Brij Mohan Lal v. Union of India & Ors. - [1] (2002) 5SCC 1 : [2002] 3 SCR 810 ; Srikant Roy v. State ofJharkhand (2017) 1 SCC 457 : [2016] 11 SCR 58 –referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4782of 2018.

From the Judgment and Order dated 14.10.2015 of the High Courtof Jharkhand at Ranchi in WP (S) No. 3704 of 2014

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Civil Appeal Nos. 4784, 4783, 4786-4790, 4785, 4791, 4792,4794-4795, 4793 of 2018.

Sajjan Poovayya, Amrendra Sharan, Sr. Advs., VaishnaviSubrahmanyam, Balaji Srinivasan, Pratibhanu Singh Kharola, AbhishekBharti, Ms. Pratiksha Mishra, Ms. Garima Jain, Priyadarshi Banerjee,Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, Rahul Pandey,Ajay Kumar, Ashish Verma, Dr. Kailash Chand, Nikhil Jain, PawanKishore Singh, Ms. Madhusmita Bora, Shiv Ram Sharma, Tapesh KumarSingh, Mohd. Waquas, Aditya Pratap Singh, Krishnanand Pandeya,Ms. Susmita Lal, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. The sole question, which arisesfor consideration in these appeals is whether the services rendered bythe appellants/Judicial Officers as Fast Track court Judges is liable to becounted for their pensionary and other benefits, the appellants havingBjoined the regular judicial service thereafter.

2. The question of law arising as aforesaid, it is not necessary todelve into the facts of each case. Thus, only the facts which are relevantfor the determination of this question are being set out. The JharkhandState was carved out from the State of Bihar under the BiharCReorganisation Act, 2000 on 25.11.2000. Soon thereafter the JharkhandHigh Court, respondent No.2, issued an advertisement on 23.5.2001 tofill up the vacancies for the post of Additional District Judges in theJharkhand Superior Judicial Service. The appellants also took part inthe recruitment process and post conduct of examination and interview,a select list was prepared of 27 candidates, who were eligible forDappointment to the Superior Judicial Service. None of the appellants,however, figured in the final select list. A parallel development was theallocation by the 11[th] Finance Commission of Rs.502.90 crores underArticle 275 of the Constitution of India, for the establishment of courtsdescribed as the Fast Track courts.1,734 courts in various States wereEenvisaged to deal with long-pending cases, specifically, Sessions cases.The funds allocated by the Finance Commission were to be utilized in atime bound schedule of five years, and the State Governments wererequired to take necessary steps to establish such courts.

3. A challenge was laid to this Scheme, known as the Fast TrackFCourts Scheme, in various High Courts primarily on the ground thatthere was no constitutional sanction for employment of retired Judges,nor were there effective guidelines in operation. These matters weretransferred to the Supreme Court and all these matters were dealt within the judgment in Brij Mohan Lal v. Union of India & Ors.[1] - [1].The Scheme was analysed by the Supreme Court and keeping in mindGthe laudable objects with which the Fast Track Courts Scheme was setup, the constitution of these courts was upheld but with certain directions.In terms of these directions, the first preference for appointment to thesecourts was to be given by ad hoc promotions from amongst eligible Judicial 1(2002) 5 SCC 1H

MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND[SANJAY KISHAN KAUL, J.]

Officers, while the second preference was to be given to retired Judgeswho had good service records. The third preference envisaged was tothe members of the Bar for direct appointment to these courts. Thefourth direction in this behalf is as under:

“4. The third preference shall be given to members of the Bar fordirect appointment in these Courts. They should be preferably inthe age group of 35-45 years, so that they could aspire to continueagainst the regular posts if the Fast Track Courts cease to function.The question of their continuance in service shall be reviewedperiodically by the High Court based on their performance. Theymay be absorbed in regular vacancies, if subsequent recruitmenttakes place and their performance in the Fast Track Courts isfound satisfactory. For the initial selection, the High Court shalladopt such methods of selection as are normally followed forselection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.”

4. It is in furtherance of the aforesaid Fast Track Courts Schemethat the State of Jharkhand/respondent No.1 is stated to have constitutedmore than 80 such Fast Track courts at the level of Additional DistrictJudges vide Notification dated 29.11.2001. In order to fill these postsexpeditiously, the process of examination having been conductedimmediately before this Notification, a decision was taken to accommodatethe persons from the select list, who could not be accommodated in theregular cadre of Superior Judicial Service, to the Fast Track courts. Thefirst 17 candidates out of the 27 candidates in the select list were appointedto the regular cadre on 15.12.2001, while the remaining 10 candidateswere appointed to the Fast Track courts on 2.2.2002. Since the FastTrack court’s vacancies could not be filed in by this process, 15 morecandidates, under the category of direct recruitment from the Bar, wereappointed from amongst the candidates who participated in the selectionprocess pursuant to the advertisement dated 23.5.2001, but were not onthe select list. This process was followed strictly in accordance with themerit of the candidates beyond the select list. These 15 candidateswere appointed on 23.9.2002.

5. We may also notice that the existing system of pension andGeneral Provident Fund ceased to exist for Government servants whojoined in service on or after 1.12.2004 and in lieu of the same a new

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AContributory Pension Scheme was introduced for Government officials,who joined service on or after 1.12.2004. These Government officialsjoining on or after 1.12.2004 were mandatorily required to procure anew Permanent Retirement Account Number (‘PRAN’).

6. In the year 2008, the High Court issued a new selection processBfor 34 posts of Additional District Judges through a limited competitiveexamination to be held on 31.8.2008. Thereafter began a legal battlebetween the persons who were working in the Fast Track courts andthose who would be beneficiaries under the limited competitiveexamination. The challenge laid before the Jharkhand High Courtimpugning the aforesaid selection process succeeded on 29.8.2008 butCin the Special Leave Petition (‘SLP’) filed, the judgment of the JharkhandHigh Court was set aside in Srikant Roy v. State of Jharkhand[2]. TheJudicial Officers assailed the appointment of persons to the post of FastTrack courts and suffice to say that the contest was carried right till thisCourt, decided in Mahesh Chandra Verma v. State of Jharkhand[3].D7. Prior to the judgment in Mahesh Chandra Verma[4]the issueof what is to be done with the Judges appointed to the Fast Track courtafter the funding was stopped by the Central Government, and when theState Government also had a problem of funding, formed subject matterof directions in Brij Mohan Lal v. Union of India[5] - [II]. The relevantEparagraphs are as under:

“207.9. All the persons who have been appointed by way of directrecruitment from the Bar as Judges to preside over FTCs underthe FTC Scheme shall be entitled to be appointed to the regularcadre of the Higher Judicial Services of the respective StatesFonly in the following manner:(a) The direct recruits to FTCs who opt for regularisation shalltake a written examination to be conducted by the High Courts ofthe respective States for determining their suitability for absorptionin the regular cadre of Additional District Judges.

G(b) Thereafter, they shall be subjected to an interview by a SelectionCommittee consisting of the Chief Justice and four senior mostJudges of that High Court.

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MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND[SANJAY KISHAN KAUL, J.]

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

(d) Each of the appointees shall be entitled to one mark per yearof service in the FTCs, which shall form part of the interviewmarks.

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

(f) The candidates who qualify the written examination and obtainconsolidated percentage as afore indicated shall be appointed tothe post of Additional District Judge in the regular cadre of theState.

(g) If, for any reason, vacancies are not available in the regularcadre, we hereby direct the State Governments to create suchadditional vacancies as may be necessary keeping in view thenumber of candidates selected.

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

207.10. The members of the Bar who have directly been appointedbut whose services were either dispensed with or terminated onthe ground of doubtful integrity, unsatisfactory work or againstwhom, on any other ground, disciplinary action had been taken,shall not be eligible to the benefits stated in para 207.9 of thejudgment.”

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A8. The aforesaid judgment was taken note of in Mahesh ChandraVerma[6] and it was, thus, observed in para 63 as under:

“63. The State of Jharkhand will now have to take steps to complywith directions issued in Brij Mohan Lal[7]-[II], if it has notcomplied with them so far. The State of Jharkhand and the HighBCourt will have to work in sync to ensure that the directions toappoint the appellants in the regular cadre in Higher JudicialService are complied with strictly in the manner laid down in BrijMohan Lal[8]-[II].”

9. The effect of the aforesaid judgment was that an examinationCfor regularization and absorption was conducted and the appellants beforethis Court were successful and were thus, appointed to the JharkhandSuperior Judicial Service. However, they were treated as fresh recruits.

10. The appellants were aggrieved on account of them being treatedas fresh recruits and requested for benefits of pay protection and otherDbenefits of continuance of service. This request was, however, rejectedby the State Government. This resulted in the writ petitions being filedin the High Court where some interim protection was granted butultimately, the writ petitions have been dismissed by the common impugnedorder dated 14.10.2015.

E11. A perusal of the impugned order shows that other than thereference to the judgments referred to aforesaid, the only aspect examinedis that the initial appointment was temporary on the ex-cadre post, theappointment being so made for the temporary scheme for speedy disposalof cases. However, in view of the judgment in Brij Mohan Lal[9]-[II]and Mahesh Chandra Verma[10] they were appointed through a processFto the regular post. The High Court reasoned that since these twojudgments have not dealt with the post appointment situation of theappellants, the High Court would not be able to give anything which hasnot been granted by the Supreme Court under Article 142 of theConstitution of India. The Supreme Court had taken recourse to ArticleG142 of the Constitution of India to deal with the issue of the methodologyfor recruitment of the Fast Track court Judges to the regular posts.

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12. In the course of arguments, learned counsel appearing for theState Government sought to emphasise that by its very nature, the FastTrack courts were constituted for a limited period of time and, thus, thepersons so appointed were conscious of the fact that they would have alimited tenure. Since the funding from the Central Government stopped,the State Governments did continue these courts for some years, butthat again would not give any right to the appellants to claim the benefitof the service rendered as Fast Track court Judges for the purposes ofcomputation of pensionary and retiral benefits. He also sought toemphasise that this Court has taken recourse to Article 142 of theConstitution of India to issue directions and the High Court had rightlyobserved that what was not done by the Supreme Court under Article142 of the Constitution of India could not be done by the High Court.

13. We put a specific query to the learned counsel as to whetherthis Court had, in the two judgments in question, prohibited any suchgrant? Learned counsel after some initial hesitation could not disputethe position that there was no such prohibition. We also put to the learnedcounsel whether the existing cadre strength was sufficient to sub-servethe justice delivery process, i.e., could it be said that there were enoughcourts in existence to try the relevant cases? The only answer, whichcame forth was that the State had been carved out recently and hadtaken immediate steps to fill the vacancies. However, to our mind, theimportant aspect is that the State was no exception to the general positionprevalent of inadequate judicial posts to deal with the existing inflow ofcases. It is only through subsequent directions that a periodic increasein judicial strength has been envisaged. In Brij Mohan Lal[11]-[II], itwas observed as under:

“207.11. Keeping in view the need of the hour and the constitutionalmandate to provide fair and expeditious trial to all litigants and thecitizens of the country, we direct the respective States and theCentral Government to create 10% of the total regular cadre ofthe State as additional posts within three months from today andtake up the process for filling such additional vacancies as per theHigher Judicial Service and Judicial Services Rules of that State,immediately thereafter.”

14. The need to set up Fast Track courts arose on account ofdelays in the judicial process, targeting certain priority areas for quicker 11 (supra)

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Aadjudication. In fact, had there been adequate cadre strength, therewould have been no need to set up these Fast Track courts.15. The appellants were not appointed to the Fast Track courtsjust at the whim and fancy of any person, but were the next in line on themerit list of a judicial recruitment process. They were either part of theBselect list, who could not find a place given the cadre strength, or thosenext in line in the select list. Had there been adequate cadre strength,the recruitment process would have resulted in their appointment. Wedo believe that these Judges have rendered services over a period ofnine years and have performed their role as Judges to the satisfaction,otherwise there would have been no occasion for their appointment toCthe regular cadre strength. Not only that, they also went through asecond process for such recruitment. We believe that it is a matter ofgreat regret that these appellants who have performed the functions ofa Judge to the satisfaction of the competent authorities should be deprivedof their pension and retiral benefits for this period of service. TheDappellants were not pressing before us any case of seniority over anyperson who may have been recruited subsequently, nor for any otherbenefit. In fact, we had made it clear to the appellants that we are onlyexamining the issue of giving the benefits of their service in the capacityof Fast Track court Judges to be counted towards their length of servicefor pensionary and retiral benefits. To deny the same would be unjustEand unfair to the appellants. In any case, keeping in mind the spirit ofthe directions made under Article 142 of the Constitution of India in BrijMohan Lal[12]-[II] and in Mahesh Chandra Verma[13], the necessarycorollary must also follow, of giving benefit of the period of service inFast Track courts for their pension and retiral benefits. The methodologyFof non-creation of adequate regular cadre posts and the consequentestablishment of Fast Track courts manned by the appellants cannot beused as a ruse to deny the dues of the appellants.

16. In a different factual context but on the principle laid down,we take note of the judgment in Nihal Singh & Ors. v. State of Punjab& Ors.[14 ]of a Bench of this court to which one of us was a member.GThe State of Punjab in the 1980s was faced with large scale disturbanceand was not in a position to handle the prevailing law and order situation 12 (supra) 13 (supra) 14 (2013) 14 SCC 65

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with the available police personnel and, hence, resorted to recruitmentunder Section 17 of the Police Act, 1861 (hereinafter referred to as the‘Act’) for appointing Special Police Officers (‘SPOs’). The SPOs wereassigned the duty of providing security to banks, for which the financialburden was to be borne by the banks, with the clear understanding that,as per the provisions of the Act, such police officers were to be underthe discipline and control of the Senior Superintendent of Police of theDistrict concerned. Such SPOs provided yeoman service in difficulttimes but when their case was considered for regularization subsequently,it met with an unfavourable response by an order passed in the year2002. This Court while recognizing that the creation of a cadre orsanctioning of posts was exclusively within the authority of the State,opined that if the State did not choose to create a cadre but chose tomake appointments of persons creating contractual relationship only, suchaction would be categorized as arbitrary nature of exercise of power. Inthis context, it was observed by the Bench, thus: “Sanctioned posts donot fall from heaven. The State has to create them by a conscious choiceon the basis of some rational assessment of the need.” Thus, the factsfound showed that there was the existence of a need for creation ofposts and the failure to create such posts or having a stop gaparrangement, which lasted for years cannot be used to deny in an arbitrarymanner, the absorption benefit to people who had worked for long years.A direction was issued to regularise the services of such SPOs and theywere held entitled to the benefits of service similar in nature to the existingcadre of police service of the State.

17. The position in respect of the appellants is really no differenton the principle enunciated, as there was need for a regular cadre strengthkeeping in mind the inflow and pendency of cases. The Fast TrackCourt Scheme was brought in to deal with the exigency and the appellantswere appointed to the Fast Track courts and continued to work for almosta decade. They were part of the initial select list/merit list for recruitmentto the regular cadre strength but were not high enough to be recruited inthe existing strength. Even at the stage of absorption in the regular cadrestrength, they had to go through a defined process in pursuance of thejudgment of this court and have continued to work thereafter.

18. We are, thus, unhesitatingly and unequivocally of the viewthat all the appellants and Judicial Officers identically situated are entitledto the benefit of the period of service rendered as Fast Track court ABCDE

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19. The appeals are accordingly allowed leaving the parties tobear their own costs.

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Appeals allowed.

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