THE GAUHATI HIGH COURT THROUGH THE REGISTRAR GENERAL versus GOTO ETE & OTHERS on 23 April 2018

[2018] 10 S.C.R. 261

THE GAUHATI HIGH COURT THROUGHTHE REGISTRAR GENERAL

v.

GOTO ETE & OTHERS

(Civil Appeal No. 4298 of 2018)

APRIL 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Judicial Service – Arunachal Pradesh Judicial Service Rules,2006 – Proviso to r.7 – Consideration for regularisation –Respondent Nos.1 to 3 were appointed as Additional DeputyCommissioners with the powers of Additional Sessions Judge, oncontract basis – They were to man Fast Track Courts (FTC) –Respondents claimed for regularisation to the said posts and towork as Additional Sessions Judges, invoking the provisions of r.7of the Rules – However, the Committee consisting of High CourtJudges rejected the claim of the respondents – Thereafter, HighCourt issued advertisement on 31.07.2008 for the post of Districtand Sessions Judge, in which respondent Nos.2 and 3 appearedbut could not qualify and respondent no.1 did not appear – HighCourt took decision on 31.07.2012 to undertake selection processof the FTC Judges in terms of the Brij Mohan Lal (2) case – Noneof the respondents were able to qualify the exam, consequently theirservices were dispensed with – Writ Petition filed by the respondents– High Court set aside the order dispensing the ad hoc services ofthe respondents and directed the State to start the consultationprocess for absorption of respondents – On appeal, held: TheCommittee of High Court Judges was of the opinion that therespondents were not entitled for appointment to the regular cadreof the Higher Judicial Service – The said order was not challengedby the writ petitioners/respondents – Even otherwise, such decisionof the Committee stood vindicated as two respondents who hadappeared in examination vide advertisement dated 31.07.2008 failedto qualify in the selection process and other respondent did notappear, and further all the respondents failed to qualify anothertest which was conducted pursuant to Brij Mohan Lal (2) case –This fact pointed out incompetence of the respondents – Proviso to

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Ar.7 of 2006 Rules provided only to ‘consider’ the cases of therespondents for absorption – Cases of the respondents wereconsidered, but they were not found fit for absorption in the regularcadre – The proviso never gave any mandate that the respondentshad to be necessarily absorbed.

BAllowing the appeal, the Court

HELD: 1.1 It is stated that service records of the writpetitioners were examined by the Committee consisting of threeHigh Court Judges and on the said examination the Committeewas of the opinion that the writ petitioners were not entitled forCappointment to the regular cadre of Higher Judicial Service. Nochallenge was laid by the writ petitioners to the manner in whichtheir cases were considered and rejected by the High Court orthat such a consideration suffered from any kind of blemish. Evenotherwise, such a decision of the Committee stands vindicatedinasmuch as:

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(i) the two writ petitioners who appeared in the examinationpursuant to an advertisement for the post of Grade-I District andSessions Judge failed to qualify in the selection process and thethird writ petitioner did not appear at all; and E(ii) the petitioners even failed to qualify the test which wasconducted pursuant to Brij Mohan Lal (2) in which the writpetitioners had appeared. This fact is noted just to point out theincompetence of the writ petitioners. [Para 30] [287-G-H; 288-A-C]

1.2 The ratio of Brij Mohan Lal (2) is discussed by thisFCourt in detail in the case of Mahesh Chandra Verma and therealso the Court was of the opinion that appointment on regularcadre should be made only on the basis of written examinationetc. as laid down in Brij Mohan Lal (2). [Para 31] [288-D-E]

2.1 Even in terms of proviso to Rule 7 of Arunachal PradeshGJudicial Service Rules, 2006, the cases of the writ petitionerswere considered, but they were not found fit for absorption in theregular cadre. [Para 31] [288-E-F]

2.2 Rule 7 of the 2006 Rules, which lays down the procedureand method of recruitment to the post of Additional SessionsH

Judges. The case of the writ petitioners is not covered by themain provision. When two posts of Grade-I District and SessionsJudges, after their creation vide Notification dated December17, 2007 were advertised, two of the writ petitioners appearedbut failed to qualify in the said selection process while the thirdwrit petitioner did not appear at all. Adverting to the proviso ofRule 7, no doubt, it was tailor-made for the writ petitioners.However, this proviso only suggests that cases of three ad hocAdditional Sessions Judges, who were none else but the threewrit petitioners, ‘may be considered’ for absorption in Grade-I ofthe service. It is not necessary to go into the question as towhether the word ‘may’ would mean that it was entirely withinthe discretion of the High Court to even consider or not toconsider the cases of the writ petitioners for absorption orwhether this word has to be read as ‘shall’ thereby holding that itwas mandatory on the part of the High Court to at least considerthe cases of the writ petitioners for absorption. This is becauseof the reason that as matter of fact the cases of the writ petitionerswere considered by the High Court and, in fact, that appears tobe the intention behind the proviso. However, the provisionprovided only to ‘consider’ the cases of the writ petitioner forabsorption. The proviso never gave any mandate that the writpetitioners had to be necessarily absorbed. Thus, only right ofconsideration was there. There was no automatic absorption. Hadthat been the intention, the proviso would have been wordeddifferently. [Para 26] [284-E-H; 285-A-B]

Brij Mohan Lal (1) v. Union of India and Others (2002)5 SCC 1 : [2002] 3 SCR 810; Madhumita Das andOthers v. State of Orissa and Others (2008) 6 SCC 731 :[2008] 9 SCR 1126; Brij Mohan Lal (2) v. Union ofIndia and Others (2012) 6 SCC 502 : [2012]5 SCR 305; Sarguja Transport Service v. StateTransport Appellate Tribunal, M.P., Gwalior and Others(1987) 1 SCC 5 : [1987] 1 SCR 200; Mahesh ChandraVerma and Others v. State of Jharkhand and Others(2012) 11 SCC 656 : [2012] 9 SCR 6; Rajendra SinghVerma (Dead) through Lrs. and Others v. LieutenantGovernor (NCT of Delhi) and Others (2011) 10 SCC 1: [2011] 12 SCR 496; Ajit Kumar v. State of Jharkhand ABC

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Aand Others (2011) 11 SCC 458 : [2011] 3 SCR 830;Chandramouleshwar Prasad v. Patna High Court andOthers (1969) 3 SCC 56 : [1970] 2 SCR 666; HighCourt of Punjab and Haryana and Others v. State ofHaryana and Others (1975) 1 SCC 843 : [1975] 3 SCR365 – referred to.B

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4298of 2018E

From the Judgment and Order dated 19.01.2016 of the High Courtof Gauhati in Writ Petition No. 776 of 2013.

Vijay Hansaria, Sr. Adv., Ms. Sneha Kalita, Avnish Pandey, Advs.for the Appellant.F

Vikas Singh, Sr. Adv., Ms. Nanda Devi Deka, Ms. Priyanka Das,Ms. Deepika Kalia, Devesh Kumar Tripathi, Anil Shrivastav, RiturajBiswas, Ms. Purnima Jauhari, Ms. Seema P., Prakash Kumar Singh,Advs. for the Respondents.

The Judgment of the Court was delivered byG

A. K. SIKRI, J. 1. Leave granted.

2. Pursuant to the advertisement dated July 13, 2001 issued bythe Government of Arunachal Pradesh, respondent Nos. 1 to 3(hereinafter referred to as the ‘writ petitioners’) were appointed asHAdditional Deputy Commissioners with the powers of Additional Sessions

Judge, on contract basis, with the stipulation that their period of contractis up to March 31, 2005. They were to man the Fast Track Courts (forshort, ‘FTCs’). This contract period was extended for a further periodof five years, i.e. up to March 31, 2010. These respondents put theirclaims for regularisation to the said posts and to be allowed to work asAdditional Sessions Judges, invoking the provisions of Rule 7 of theArunachal Pradesh Judicial Service Rules, 2006. There has been aprotracted litigation in this behalf, as would be noticed hereinafter at therelevant stage. At this juncture, while narrating the background in whichthe matter has landed in this Court, we may only mention that requestfor appointment on regular basis was rejected by the High Court (theappellant herein) and services of respondent Nos. 1 to 3 were dispensedwith on January 07, 2013. This termination was challenged by the writpetitioners by filing Writ Petition (Civil) No. 776 of 2013. The proceedingsof this writ petition have culminated in the judgment dated January 19,2016 passed by the Division Bench of the High Court. Vide this judgmentthe writ petition has been allowed, thereby quashing the order ofdispensing the ad hoc services of the writ petitioners with furtherdirection that the State/respondent No.4 (hereinafter referred to as the‘State Government’) should start consultation process for absorption ofthe writ petitioners in Grade-I of the Arunachal Pradesh Judicial Servicewith effect from January 07, 2013 and directed the appellant, i.e. theGauhati High Court (hereinafter referred to as the ‘High Court’) toconsider the cases of the writ petitioners for absorption in the light of theobservations made in the said judgment. The High Court feels aggrievedby these directions and that is the reason for challenging the judgmentdated January 19, 2016. Notice in this Special Leave Petition was issuedon August 08, 2016 and simultaneously this Court had granted the stayof the impugned judgment. The result is that the writ petitioners havenot been taken back into service.

With this background, we now state the factual matrix in somedetail.

3. An advertisement was issued on July 13, 2001 by theGovernment of Arunachal Pradesh inviting applications for filling up ofthree posts of Additional Deputy Commissioners with the powers ofAdditional Sessions Judge, on contract basis, for the period up to March31, 2005. Pursuant thereto, on June 04, 2002, the writ petitioners wereselected for the aforesaid posts by the High Court. The State Government A

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Aissued appointment orders in their favour for the aforesaid post, on contractbasis, up to March 31, 2005. This term was subsequently extended foranother five years, i.e. up to March 31, 2010. The purpose was to postthe incumbents in Fast Track Courts.

4. It is relevant to point out that at that time there was no segregationBof executive branch from the judicial wing in the State of ArunachalPradesh. This was, however, accomplished by promulgating theArunachal Pradesh Judicial Service Rules, 2006 (hereinafter referred toas the ‘2006 Rules’), which were notified on December 06, 2006. Rule7 of the 2006 Rules relate to the method of recruitment and the relevantportion thereof is couched in the following manner:C

“7. Method of recruitment, qualification, reservation andage limit.

In respect of each category of posts specified in Column (2) ofthe Table below, the method of recruitment and minimumDqualification, age limit etc. are specified in the corresponding entriesin column (3) and (4) thereof.

Provided that the 3 (three) adhoc Additional Sessions Judges whowere selected and appointed by the Government, in consultationwith the Gauhati High Court, in the year 2002 as Presiding OfficersEof the 3(three) Fast Track Courts on contract basis under thespecific scheme of the Central Government and have since beenrendering services under the control and supervision of the GauhatiHigh Court, may be considered for absorption in the Grade-I ofthe Service.

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5. On December 13, 2007, a representation was made byrespondent Nos. 1 and 2, inter alia, for being absorbed in the regularservice in terms of Rule 7 of the 2006 Rules. While this representationwas pending, the State Government issued the Notification datedDecember 17, 2007 establishing two Courts of the District and SessionsGJudges. Thereafter, on February 25, 2008, the State Government madea proposal to the High Court, under proviso to Rule 7, for considerationof absorption of the writ petitioners as FTC judges against the two newlycreated posts of District & Sessions Judge, Grade-I. On March 28,2008, the Registrar General of the High Court put up a note to the H

Committee comprising three High Court Judges for consideration of theproposal of the State Government. The Committee, after considerationof the entire material, rejected the proposal for absorption on May 09,2008. Respondent No.1 made another representation dated June 12,2008 for reconsideration of his absorption in the regular service, as aspecial case, in terms of Rule 7 of the 2006 Rules. This representationalso came to be rejected by the Committee on June 25, 2008 by reiteratingits earlier resolution dated May 09, 2008.

6. Thereafter, on July 31, 2008, the High Court issued anotheradvertisement for filling up of two posts of District and Sessions Judge,Grade-I, that were created vide Notification dated December 17, 2007.Respondent Nos. 2 and 3 appeared in the examination but could notqualify in the selection process. Respondent No.1, though applied, didnot appear in the examination. Instead, vide Notification dated March30, 2010, two other candidates were selected and appointed to the notifiedposts.

7. Respondent No.1 approached this Court by filing Writ Petition(Civil) No. 401 of 2008 under Article 32 of the Constitution of India,seeking absorption in terms of the proviso to Rule 7 of the 2006 Rules.On September 15, 2008, this Court issued notice in the said writ petition.After completion of pleadings, the matter was directed to be listed forfinal hearing. At that stage, on March 24, 2011, the Registrar General ofthe High Court filed an additional affidavit, inter alia, stating that thecases for absorption of respondent Nos. 1 and 2 were considered twice(on May 09, 2008 and June 25, 2008 respectively) under the aforesaidproviso to Rule 7, and a decision was taken not to absorb them. Despitethis, the State Government has, on April 07, 2011, recommended thenames of the writ petitioners for appointment to the High Court. Be thatas it may, on May 09, 2011, this Court dismissed the Writ Petition (Civil)No. 401 of 2008, as withdrawn. No liberty was sought for and/or grantedto agitate the same issue by filing a fresh writ petition in the High Court.

8. When the things rested at that, the State Government approvedextension of term of the FTC judges in the State for a period of fiveyears with effect from April 01, 2011 to March 31, 2015, vide ordersdated May 19, 2011. Few months thereafter, i.e. on November 03, 2011,the Governor of the State of Arunachal Pradesh, in consultation with theHigh Court, converted the three FTCs into Regular Courts of AdditionalDistrict and Sessions Judges, Grade-I.

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A9. The Union of India had framed a policy, which was termed asthe FTC Scheme. The purpose of this FTC Scheme primarily was toreduce the pendency of criminal cases pending in the respective courts.The anticipated benefits of the FTC Scheme, as projected, were – speedytrial, elimination of pendency in the District Courts, enormous saving ofexpenses incurred on under trials, etc. Though the FTC Scheme wasBcontemplated to be for a definite period of five years, it came to beextended and remained in force under the judgment of this Court in BrijMohan Lal (1) v. Union of India and Others[1] and directions passed inMadhumita Das and Others v. State of Orissa and Others[2]. Manyjudicial officers were appointed to do the work of FTCs for speedyCdisposal of certain kinds of matters, including CBI matters, and this wasdone on the directions given by this Court in Brij Mohan Lal (1). Onthe recommendations made by the Chief Justices and the Chief MinistersConference, the Cabinet Committee on Economic Affairs, vide its decisiondated April 07, 2005, extended the FTC Scheme for a period of anotherfive years with 100% Central funding. Again, the FTC Scheme wasDextended by the decision of the Central Government till March 31, 2011but thereafter the Union of India had taken a conscious decision not toextend the financing of the FTC Scheme beyond March 31, 2011. Despitediscontinuation of the FTC Scheme by the Union of India, some of Statesdecided to continue with the said Scheme. Be that as it may, onEabandoning the FTC Scheme by the Union and other States, the judicialofficers who were appointed under the FTC Scheme felt aggrieved andit resulted in filing of various petitions in this Court seeking regularisationof their services and absorption against the vacancies appearing in theregular cadre. The controversy was ultimately set to rest by this Courtvide judgment dated April 18, 2012 rendered in Brij Mohan Lal (2) v.FUnion of India and Others[3].

10. This Court in Brij Mohan Lal (2), inter alia, directed that alldirect recruits to FTCs, who opt for regularisation, shall take writtenexamination to be conducted by the High Courts, followed by interview,and those who are successful in the said selection process would beGentitled for appointment to the regular cadre of higher judicial service. As the decision rendered in this case has some bearing on the issue that 1 (2002) 5 SCC 12 (2008) 6 SCC 7313 (2012) 6 SCC 502H

confronts this Court in the instant appeal, we reproduce some relevantportions of the said judgment hereunder:

“160. These petitioners have also raised a challenge to Rules 4and 6 of the Gujarat Rules under which they were appointed, onthe ground that the same are arbitrary and discriminatory. Firstly,the Rules under which the petitioners were appointed after 2001themselves were to be in force only till 31-12-2005. Till 2005,none of the appointees challenged these Rules. For these fouryears, they in fact took full advantage of their appointment underthese Rules and received different service benefits thereunder.We are unable to appreciate the contention that these Rules werearbitrary or discriminatory.

161. The Rules themselves were temporary and were enactedto meet an emergency situation. The appointments were madepurely on ad hoc and urgent temporary basis for a period of twoyears, terminable without any prior notice. A temporaryappointment, which itself was made for a period of two years,can hardly be equated to a tenure appointment and must beconstrued on such terms. These appointments were to come toan end by lapse of time. Such an appointment obviously cannotvest or confer any right upon the appointees to be absorbed in thepermanent cadre, as they were not appointed in accordance withthe provisions of the Gujarat Judicial Service Recruitment Rules,1961.

162. The expression “liable to be terminated at any time withoutany notice” could be susceptible to objections if it was used in thecase of a quasi-permanent or permanent employee of agovernment servant (sic). However, we have already noticed thatthere were no permanent posts contemplated under the FTCScheme. The entire FTC Scheme was ad hoc and formulated tooperate only until the year 2005. It was continued beyond thatperiod in accordance with the directions of this Court but now adecision has been taken not to continue the FTC Scheme beyond31-3-2011.

163. Even if for the sake of argument, we accept the contentionthat the expression “liable to be terminated at any time withoutany notice” is arbitrary and opposed to the basic rule of law, it still AB

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has to satisfy the twin tests laid down in Parshotam Lal Dhingrai.e. firstly, whether the government servant being terminated orreduced in rank thereby had a right to the post or to the rank, asthe case may be and, secondly, whether he had been visited withevil consequences. Both of these tests have to be answered inthe negative, in the facts and circumstances of the present case.

164. We have already held above that these officers had no rightto their posts and consequently, discontinuation of their servicesin the facts of the present case cannot be construed as punitive orone visiting the petitioners with civil consequences. This holdstrue even though in some cases, it has been recorded that theperformance of these appointees was found to be unsatisfactorybut that is not the lone reason given by the High Court for dispensingwith their services. It is the discontinuation of the FTC Schemeitself that is the principal reason for terminating the services of allthese officers.

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176. We have already noticed that the FTC Judges were appointedunder a separate set of Rules than the Rules governing the regularappointment to the State Higher Judicial Services. It has beenclearly stipulated that such appointments would be ad hoc andtemporary and that the appointees shall not derive any benefitfrom such appointments.

177. In the case of State of Rajasthan, it is the judicial officersfrom the cadre of Civil Judge, Senior Division, who were promotedas FTC Judges. They have continued to hold those posts for aconsiderable period. According to these petitioners, they werepromoted to the Higher Judicial Services as per the Rules and,therefore, keeping in view the order of this Court in MadhumitaDas as well as the very essence of the FTC Scheme, they shouldbe absorbed as members of the regular cadre of Higher JudicialServices of the State of Rajasthan. The State Government hadissued a directive that they should undertake the limited competitiveexamination for their regular promotion/absorption in the highercadre. These officers questioned the correctness of this directiveon the ground that they were promoted as Additional SessionsJudges (FTC) under the Rules and, therefore, there was no question of any further requirement for them to take any writtenexamination after the long years of service that they have alreadyput in in the Higher Judicial Services.

178. The Rajasthan Judicial Service Rules, 2010 are in force forappointment to the Higher Judicial Services of the State. Thejudgment of this Court in All India Judges’ Assn. (3) case aswell as the relevant Rules contemplate that a person who is to bedirectly appointed to the Higher Judicial Services has to undergoa written examination and appear in an interview before he canbe appointed to the said cadre. As far as appointment by promotionis concerned, the promotion can be made by two different modesi.e. on the basis of seniority-cum-merit or through out-of-turnpromotion wherein any Civil Judge, Senior Division who has putin five years of service is required to take a competitiveexamination and then to the extent of 25% of the vacanciesavailable, such Judges would be promoted to the Higher JudicialServices.

179. It was admitted before us by the learned counsel appearingfor the petitioners that these officers who were promoted as adhoc FTC Judges had not taken any written competitive examinationbefore their promotion to this post under the Higher JudicialServices. In other words, they were promoted on ad hoc basisdepending on the availability of vacancy in FTCs. Once the Rulesrequired a particular procedure to be adopted for promotion to theregular posts of the Higher Judicial Services, then the competentauthority can effect the promotion only by that process and noneother. In view of the admitted fact that these officers have nottaken any written examination, we see no reason as to how thechallenge made by these judicial officers to the directive issuedby the State Government for undertaking of written examinationmay be sustained. Thus, the relief prayed for cannot be granted inits entirety.

180. In the case of the States of Punjab and Haryana, theappointees were directly appointed as FTC Judges by way ofdirect recruitment from the Bar and they prayed for regularisationof their services and absorption in the regular cadre as well as forcontinuation of the FTC Scheme till their absorption. For the A

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reasons already recorded by us in relation to other States mentionedabove, we do not think that the relief of regularisation/absorptioncan be granted to these petitioners also in the manner in whichthey have prayed. They too have no right to the post. Admittedly,these candidates also did not pass any written competitiveexamination and were appointed solely on the basis of an interviewand must now undergo the requisite examination.

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207. Without any intent to interfere with the policy decision takenby the Governments, but unmistakably, to protect the guaranteesof Article 21 of the Constitution, to improve the justice deliverysystem and fortify the independence of judiciary, while ensuringattainment of constitutional goals as well as to do complete justiceto the lis before us, in terms of Article 142 of the Constitution, wepass the following orders and directions:

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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 Statesonly in the following manner:

(a) The direct recruits to FTCs who opt for regularisation shalltake a written examination to be conducted by the High Courtsof the respective States for determining their suitability forabsorption in the regular cadre of Additional District Judges.

(b) Thereafter, they shall be subjected to an interview by aSelection Committee consisting of the Chief Justice and fourseniormost Judges of that High Court.

(c) There shall be 150 marks for the written examination and100 marks for the interview. The qualifying marks shall be40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall be heldin accordance with the relevant Rules enacted by the Statesfor direct appointment to Higher Judicial Services.

(d) Each of the appointees shall be entitled to one mark peryear of service in the FTCs, which shall form part of theinterview marks.

(e) Needless to point out that this examination and interviewshould be conducted by the respective High Courts keeping inmind that all these applicants have put in a number of years asFTC Judges and have served the country by administeringjustice in accordance with law. The written examination andinterview module, should, thus, be framed keeping in mind thepeculiar facts and circumstances of these cases.

(f) The candidates who qualify the written examination andobtain consolidated percentage as aforeindicated shall beappointed to the post of Additional District Judge in the regularcadre of the State.

(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 theexamination and interview for regular appointment shall be givenage relaxation. No application shall be rejected on the groundof age of the applicant being in excess of the prescribed age.

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11. Reverting to the developments in the present case, it may bestated that though the representations of writ petitioners for absorptionon regular basis were earlier rejected twice, the High Court still took adecision on July 31, 2012 to undertake selection process of FTC Judgesin terms of the aforesaid judgment of this Court in Brij Mohan Lal (2).Accordingly, written examination was held in which the writ petitionersappeared. These writ petitioners could secure only 22.33%, 33.66% and25% marks respectively as against the qualifying marks of 35% requiredin the said examination. In this way, none of these writ petitioners couldqualify this examination. On their failure to quality, the High Court, videorders dated January 07, 2013, dispensed with their services. Withinthree days thereafter, i.e. on January 10, 2013, the High Court issued anadvertisement inviting applications from eligible candidates for A

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Aappointment to three vacant posts in the Grade-I cadre of the ArunachalPradesh Judicial Service created on November 03, 2011.

12. The writ petitioners filed Writ Petition (Civil) No. 776 of 2013in the High Court on February 05, 2013, challenging the order datedJanuary 07, 2013 dispensing their services. Challenge was also laid toBthe legality of the advertisement issued on January 10, 2013 and claimedabsorption on the basis of proviso to Rule 7 of the 2006 Rules. In themeantime, written examination was held on March 23, 2013 pursuant tothe aforesaid advertisement, in which seven candidates were found eligiblehaving secured more than the cut-off marks of 60% for the GeneralCategory candidates and 50% for the ST Candidates. None of the writCpetitioners appeared in the said examination. Oral interview of thequalified candidates was held on April 09, 2013 by the four sitting HighCourt Judges (including the Chief Justice) and the names of respondentNos. 6 to 8 were recommended consequent upon their qualification.

13. The writ petition along with the stay application was listedDbefore the Court on April 11, 2013 when the Division Bench of the HighCourt was pleased to admit the same. However, since no interim reliefwas sought, no such order came to be passed. On that date, the HighCourt recommended for appointment the names of respondent Nos. 6 to8 having been selected both in written and viva voce examination. ExactlyEone month thereafter, i.e. on May 11, 2013, the State Government createdfurther three posts in Grade-I of the Arunachal Pradesh Judicial Service.Pursuant to the recommendation dated April 11, 2013 of the High Court,respondent Nos. 6 to 8 were appointed as Grade-I officers by the StateGovernment under the 2006 Rules. The writ petitioners soughtamendment of the writ petition by challenging appointment of respondentFNos. 6 to 8. On August 13, 2013, the High Court allowed the writpetitioners to amend the writ petition by inserting challenge to theappointment order dated April 11, 2013 in favour of respondent Nos.6 to 8.

14. After hearing the said writ petition, vide the impugned judgmentGdated January 19, 2016, the High Court has allowed the relief claimedtherein and set aside the order dated January 07, 2013 dispensing thead hoc services of the writ petitioners as Additional District and SessionsJudge of FTCs in the State of Arunachal Pradesh. It has further directedthe State Government to start consultation process for absorption of theHwrit petitioners in Grade-I of the Arunachal Pradesh Judicial Service with effect form January 07, 2013 and directed the High Court to considertheir absorption in the light of the observations made in the impugnedjudgment.

15. A perusal of the impugned judgment of the High Court wouldreveal that it posed the following question for determination which arosein the said writ petition:

“Whether the ad hoc services of the petitioners can be regularisedin accordance with the proviso to Rule 7 of Arunachal PradeshJudicial Service Rules, 2006 (“the Rules” for short)?”

16. The High Court noted that initial appointment of the writpetitioners as Additional Deputy Commissioners on contract basis withthe powers of ad hoc Additional Sessions Judge in the year 2001 at afixed pay of Rs.19,000/- was pursuant to an advertisement by theGovernment. The writ petitioners had applied for the said post, hadappeared in the written test and were interviewed by the High Court.The Full Court had approved the appointment of the writ petitioners andpursuant to the said recommendation the Government issued orders ofappointment appointing them as the Presiding officers of the FTCs. Theirservices were extended for a period of five years with effect from April01, 2005. Before the expiry of the terms of the FTC, the High Court,vide its letter dated February 19, 2010, recommended to the StateGovernment for extension of the terms of the FTC with effect fromApril 01, 2010 for a further period of ten years and the same was approvedby the State Government vide its communication dated May 19, 2011 fora period of five years, i.e. up to March 31, 2015. In the meantime, the2006 Rules came into force, which, among others, contained the provisoto Rule 7 for consideration of the writ petitioners for absorption to Grade-I service. The State Government, vide letter dated February 25, 2008,proposed to absorb the writ petitioners against the newly created postsof Grade-I in the State Judicial Service by invoking the aforesaid provisoto Rule 7 of the 2006 Rules by pointing out that they were appointedafter due selection in consultation with the High Court and had beenworking under the control and supervision of the High Court. Thisproposal was not accepted by the High Court. The Chief Secretary ofthe State Government thereafter sent another letter dated August 25,2008 requesting the High Court to absorb the writ petitioners in terms ofproviso to Rule 7 of the 2006 Rules based on their performance, integrity,etc. However, this proposal was once again rejected by the High Court.

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AThereafter, the writ petitioners approached the State Government forconversion of the post of ad hoc FTCs into regular courts of AdditionalDistrict and Sessions Judge. This request was acceded to by the StateGovernment and it was decided to convert the FTCs into regular courtsof Additional District and Sessions Judge along with their incumbents,i.e. the writ petitioners, and the same was forwarded to the High Court.BEven Notification dated November 03, 2011 was issued in this behalf.

17. After taking note of the aforesaid chronology of events, theDivision Bench of the High Court has observed that in view of thesedevelopments, the writ petitioners should have been regularised.However, instead of considering the cases of the writ petitioners forCabsorption, the High Court decided to hold the written and viva vocetests in terms of the decision in Brij Mohan Lal (2). The writ petitionersappeared, but failed. According to the Division Bench of the High Court,there was no reason for conducting such a test as the matter had to beexamined in terms of proviso to Rule 7 of the 2006 Rules, which provisionDwas perfectly tailor-made for the writ petitioners. The Division Benchhas further opined that the case of the writ petitioners could not be dealtwith on the basis of the directions given by this Court in Brij Mohan Lal(2) having regard to the specific rule in the form of Rule 7, as can beseen from the following discussion:

E“13. There is no dispute that dispensing with the services of thepetitioners is the immediate fall out of the failure on their part tosecure the minimum qualifying marks in the examination for theirabsorption into the service. Undoubtedly, judicial service of theState of Arunachal Pradesh is now under the control and supervisionof the Gauhati High Court; the High Court has the undoubtedFauthority to decide as to whether the services of the petitionersshould be continued or not irrespective of the terms of extensionof the ad-hoc services of the petitioners by the State Government.However, in this case, what is of significance is the question ofabsorption of the services of the petitioners in the posts of Grade-GI in the Arunachal Pradesh Judicial Service Rules in terms of theproviso to Rule 7 of the Rules. The question is whether the decisionof the Apex Court in Brij Mohan Lal case (supra) read as a wholecan be construed to mean that any form of absorption irrespectiveof the nature of the appointment of ad hoc Judges of Fast TrackCourt is prohibited. The law is well-settled. A judgment of court H

cannot be read like Euclid’s theorem and shall have to be read inthe context in which it was decided. In the case at hand, it cannotbe disputed that the petitioners were given the appointments oncontract basis after the posts were advertised, and they underwentselection process conducted by the High Court. In Brij MohanLal case (supra), the Apex Court apparently distinguishedappointment by back door and appointment made after writtencompetitive examination.”

18. Thereafter, the High Court discussed the nature of appointmentsto FTCs made by various States, including the States of Punjab andHaryana, and found that in those cases persons were not appointed asjudicial officers through any written examination but were appointedsolely on the basis of an interview. In contrast, insofar as these personsare concerned, the Division Bench of the High Court has held that in theinstant case, the writ petitioners had admittedly appeared and got selectedin the recruitment examination and the interview conducted by the HighCourt on the basis of the advertisement made by the State Government.Their appointments were also made after the approval of the High Court.Therefore, the writ petitioners were needlessly required to undergowritten and oral test some 10 years or more after service as ad hocJudges, against whom there were nothing on record to show that theywere incompetent or corrupt in the discharge of their judicial works.

19. Giving the aforesaid reasons, the Division Bench of the HighCourt has allowed the writ petition in the following terms:

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

(a) The State-respondents are directed to start forthwith theconsultation process for absorption of the petitioners in Grade-Iof the Arunachal Pradesh Judicial Service with effect from7-1-2013.

(b) On receipt of the proposal for the absorption from the StateGovernment, the High Court shall consider for the approval of theabsorption of the petitioners in the light of the observations madeby us in the foregoing.

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

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A(d) The past services rendered by the petitioners during the periodof their ad-hoc services shall be counted for all purposes exceptfor seniority and monetary benefits.

(e) The entire exercise shall be completed by both the Staterespondents and the High court within a period of three monthsBform the date of receipt of this judgment.

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

20. Mr. Vijay Hansaria, learned senior counsel appearing for theHigh Court, questioned the correctness of the aforesaid reasoning andsubmitted that some glaring aspects have been glossed over and dueCweightage is not given to these aspects which are sufficient to turn thescales in favour of the High Court and against the writ petitioners. Hehighlighted the following aspects of the case:

(a) All these writ petitioners were appointed on ad hoc andcontractual basis for a specific term, that too in FTCs, whichscheme itself was temporary in nature. Such a kind of appointment,in normal course, would not confer any legal right upon the writpetitioners to seek regular appointment.

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(b) At the time of contractual engagement of the writ petitionersthere was no division between the executive and the judicial branchEof the State. This separation came into effect in the year 2006with the promulgation of the Arunachal Pradesh Service Rules,2006. Rule 7 of these Rules provided method of recruitment,etc. Proviso thereto was only an enabling provision which gavediscretion to the High Court to consider writ petitioners forabsorption in Grade-I of the service. It was argued that the wordsF‘may be considered’ clearly suggest that if at all these three writpetitioners only had a right to be considered but there was no rightto get absorption automatically.

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(c) Their cases were duly considered by the Committee of threeHigh Court Judges, which Committee, after consideration of theGentire material, rejected the proposal twice for absorption of thewrit petitioners in the regular cadre.

(d) Even when advertisement for two posts of District and SessionsJudge (Grade-I) were created vide Notification dated December17, 2009 and two of the writ petitioners (respondent Nos. 2 and 3

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herein) appeared in the examination, they did not qualify in theselection process. Respondent No.1 did not even appear in theexamination. This, according to the learned senior counsel, showsthat they did not have sufficient competence and, therefore, failedto qualify the examination.

(e) Brij Mohan Lal (2) lays down the law and specifies theprocedure which has to be followed for regularisation of thoseappointed to FTCs. As per this, regularisation can take placeonly after the written examination is conducted by the High Courtfollowed by the interview and the incumbents/candidates aresuccessful in the said selection process. After this judgment, thisprocess was undertaken in which all the three writ petitionersappeared, but again failed to get the qualifying marks of 35%.

21. By highlighting the aforesaid facts, it was submitted that thecases of the writ petitioners were considered under Rule 7 of the 2006Rules as well as in terms of the judgment in Brij Mohan Lal (2) and onboth the occasions the writ petitioners were found unsuccessful forregularisation. The learned senior counsel also submitted that the DivisionBench of the High Court in the impugned judgment has proceeded onthe basis as if the proviso to Rule 7 mandatorily required the High Courtto absorb these writ petitioners in the regular cadre whether they are fitfor the same or not. That was not the intention of the proviso to Rule 7of the 2006 Rules.

22. Mr. Hansaria even questioned the maintainability of the writpetition insofar as respondent No. 1 is concerned with the submissionthat he had earlier filed the petition in this Court which was withdrawnby him after full scale hearing and no liberty was given to the said writpetitioner to file another writ petition. The writ petition filed by this writpetitioners in the High Court was, therefore, barred by principles of resjudicata, as held in Sarguja Transport Service v. State TransportAppellate Tribunal, M.P., Gwalior and Others[4]. He also placedreliance upon the judgment of this Court in Mahesh Chandra Vermaand Others v. State of Jharkhand and Others[5], which case againpertained to regularisation of those appointed as Additional District Judgesin FTCs directly from the Bar. The Court in that case had draw distinctionbetween irregular and illegal appointments and further, going by the nature 4 (1987) 1 SCC 5

5 (2012) 11 SCC 656

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Aof these appointments, laid down the manner of regularisation of suchpersons, if permissible. He also pointed out that Brij Mohal Lal (2)was specifically taken note of and it was clarified that the directionsgiven in the said judgment were in exercise of powers of the SupremeCourt under Article 142 of the Constitution of India, as can be see fromthe following discussion:B

“53. In Brij Mohan Lal (2), this Court has, after considering theentire matter in its proper perspective, held that the Judges ofFTCs were holding ex-cadre post. We cannot reopen the settledposition now. Certain judgments cited in this regard need not,therefore, be discussed. Besides, they have no application to thiscase. It was argued that certain Assistant Public Prosecutors wereappointed as FTC Judges. It was also urged that the age criteriawas not abided by. We do not propose to go into those submissionsbecause in the peculiar circumstances of that case, in Brij MohanLal (2), this Court has given certain directions in terms of Article142 of the Constitution to improve justice delivery system, to attainthe constitutional goals and to do complete justice. One of thedirections pertains to the regularisation of the appellants in themanner laid down therein. It is impossible to hold that the appellants’case is not governed by the said judgment.

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E54. Indeed, the appellants have referred to their long-standingservices as FTC Judges. They have left their practice at the Bar.Some of them have become age-barred. Certain judgments havebeen cited before us in support of the submission that these factsneed to be considered and they must be absorbed in the regularservices. Brij Mohan Lal (2) considers this grievance. Hence,Fit is not necessary to refer to the cases cited on this point.

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55. We have repeatedly referred to Brij Mohan Lal (1) and BrijMohan Lal (2). It is now necessary to see what they lay down.The Eleventh Finance Commission allocated funds for the purposeof setting up of 1734 courts in various States to deal with the long-pending cases. The Finance Commission suggested that Statesmay consider re-employment of retired Judges for a limited periodsince these courts were to be ad hoc courts in the sense that theywould not be a permanent addition to the existing courts. TheFast Track Courts Scheme was challenged on various grounds.The said challenge was dealt with by this Court in Brij Mohan G

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Lal (1). This Court issued a number of directions in relation toestablishment and functioning of FTCs. It was made clear thatwhile making appointments, third preference should be given todirect recruits from the Bar. The following direction is material inthis behalf: (Brij Mohan Lal (1) case, SCC p. 8, para 10)

“10. … (4) The third preference shall be given to members ofthe Bar for direct appointment in these courts. They should bepreferably in the age group of 35-45 years, so that they couldaspire to continue against the regular posts if the Fast TrackCourts cease to function. The question of their continuance inservice shall be reviewed periodically by the High Court basedon their performance. They may be absorbed in regularvacancies, if subsequent recruitment takes place and theirperformance in the Fast Track Courts is found satisfactory.For the initial selection, the High Court shall adopt such methodsof selection as are normally followed for selection of membersof the Bar as direct recruits to the Superior/Higher JudicialServices.”

56. The Fast Track Courts Scheme was in operation till 31-3-2011.But thereafter the Union of India took a decision not to continuethe financing of the Fast Track Courts Scheme beyond 31-3-2011.Some States decided to continue the Fast Track Courts Schemeand some States decided not to continue it. Several writ petitionswere filed thereafter inter alia praying that necessary directionsbe given to the respondents to extend the Fast Track CourtsScheme and release necessary funds for that purpose. Some ofthe petitioners who were direct recruits claimed absorption in theregular cadre.

57. While dealing with the points raised in the petitions, this Courtin Brij Mohan Lal (2) traced the history of the Fast Track CourtsScheme. This Court considered the notifications issued by variousStates appointing direct recruits, relevant rules of different Statesand methodology adopted for appointment to the FTCs and cameto the conclusion that the said posts were temporary and theappointees cannot be said to have any legal right to the posts. Itwas observed that the appointments were governed under theseparate set of rules than the rules governing the regularappointments to the State Higher Judicial Services. This Court A

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observed that the cumulative effect of the notifications appointingthe petitioners therein to the said posts under the Fast Track CourtScheme and the relevant rules governing them clearly demonstratethat those were temporary and, in some cases, even time-boundappointments terminable without prior notice and, therefore, it isdifficult to accept the contention that the appointees were entitledto be absorbed regularly in those posts. It was observed that whereneither the post is sanctioned nor it is permanent and, in fact, theentire arrangement is ad hoc or is for an uncertain duration, itcannot create any rights and obligations in favour of the appointees,akin to those of permanent employees.”

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23. Insofar as the case at hand is concerned, after noticing thatthe appointments were of irregular nature, the Court passed the followingdirections:

“62. Indisputably, the appellants were not appointed on anypermanent post. The notification of their appointment datedD12-8-2002 clearly states they were appointed against temporaryand ex-cadre posts on ad hoc basis. They were not appointedunder the Rules of 2001. Their appointment was made for atemporary purpose in a temporary scheme created for speedydisposal of cases. Their case is, therefore, clearly covered byEBrij Mohan Lal (2). The directions given therein, particularlythose contained in para 207.9 which we have quoted above, willclearly apply to them. In Brij Mohan Lal (2), this Court evenconsidered the contention that the direct recruits had taken all thetests and, therefore, they should not be made to undergo themagain. After considering this argument, this Court directed thatFthey will have to take written examination and they must also beinterviewed. It must be noted at this stage that on behalf of theHigh Court of Jharkhand a statement is made that subject to thecreation of necessary posts/FTCs by the State of Jharkhand, theHigh Court will consider the appellants’ case afresh in terms ofGthe decision of this Court in Brij Mohan Lal (2). The High Courthas also taken up the matter with the State Government. Relevantportion from the affidavit of Shri Ambuj Nath, Registrar(Administration), High Court of Jharkhand, needs to be quoted:

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“19. That as per the recommendation of the 13[th] FinanceCommission the Jharkhand High Court has requested the State H

Government to constitute 31 alternative courts in the cadre ofSuperior Judicial Service coterminous with the Holiday Courts/Shift Court Scheme of the 13th Finance Commission as theterrain and deteriorating the law and order situation was notcongruent for holding morning/evening/shift courts. However,after the direction of the Hon’ble Apex Court in Brij MohanLal (2) case, the Jharkhand High Court has taken up the matterwith the State Government for creation of 31 permanent FastTrack Courts instead of 31 alternative courts coterminous withthe morning and evening shift courts and an expansion of 10%of cadre strength as per the direction of the Hon’ble ApexCourt in Brij Mohan Lal (2) case in response to the directiondated 19-4-2012.”

63. The State of Jharkhand will now have to take steps to complywith directions issued in Brij Mohan Lal (2), if it has not compliedwith them so far. The State of Jharkhand and the High Court willhave to work in sync to ensure that the directions to appoint theappellants in the regular cadre in Higher Judicial Service arecomplied with strictly in the manner laid down in Brij Mohan Lal(2).”

On that basis, it was argued that passing of the examination interms of Brij Mohan Lal (2) was incumbent.

24. Mr. Vikas Singh, learned senior counsel appearing for thesewrit petitioners, on the other hand, submitted that the High Court is rightin observing that proviso to Rule 7 of the 2006 Rules was tailor-made forthese writ petitioners and also keeping in view the spirit of the decisionin Brij Mohan Lal (2). He laid great emphasis on the fact that theState Government had considered the case of the writ petitioners andrecommended the High Court two times to absorb the writ petitioners,but the High Court adopted adamant attitude in ignoring thoserecommendations. He also submitted that the case of the writ petitionerswas different from the cases which were dealt with by this Court in BrijMohan Lal (2), whereas in Brij Mohan Lal (2) this Court wasconfronted with the situation where the appointments to FTCs weremade without following proper procedure and those cases were in thenature of back-door entries, it was not so insofar as the writ petitionersare concerned. He, thus, argued that the High Court had rightlydistinguished Brij Mohan Lal (2) by specifically noticing the aforesaid A

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Adifference inasmuch as the writ petitioners are appointed after properwritten test as well as interview, whereas no written test was taken inrespect of those persons who were appointed by the State of Haryana,etc. and their appointments were made only on the basis of interview.

25. After taking note of the facts of this case, we may observe atBthe outset that if the matter of regularisation of the writ petitioners wasto be considered in terms of Brij Mohan Lal (2), the writ petitionershave remained unsuccessful. This is because of the reason that in termsof Brij Mohan Lal (2), written examination was undertaken by theHigh Court in which all the three writ petitioners appeared, but theyfailed to achieve the qualifying marks. Therefore, if that standard is toCbe applied, the writ petitioners have not been able to qualify theexamination and cannot claim absorption in the regular service. However,whether Brij Mohan Lal (2) would apply or not is a moot question. TheHigh Court has distinguished the judgment of Brij Mohal Lal (2) andhas held that that is not applicable. However, since the High Court BenchDhas examined the matter in terms of the proviso to Rule 7 of the 2006Rules, we may first consider as to whether its approach relating to thisfacet is correct in law.

26. Rule 7 has already been reproduced above, which lays downthe procedure and method of recruitment to the post of Additional SessionsEJudges. The case of the writ petitioners is not covered by the mainprovision. As noticed above, when two posts of Grade-I District andSessions Judges, after their creation vide Notification dated December17, 2007 were advertised, two of the writ petitioners appeared but failedto qualify in the said selection process while the third writ petitioner didnot appear at all. Adverting to the proviso of Rule 7, no doubt, it wasFtailor-made for the writ petitioners. However, this proviso only suggeststhat cases of three ad hoc Additional Sessions Judges, who were noneelse but the three writ petitioners, ‘may be considered’ for absorptionin Grade-I of the service. It is not necessary to go into the question as towhether the word ‘may’ would mean that it was entirely within theGdiscretion of the High Court to even consider or not to consider thecases of the writ petitioners for absorption or whether this word has tobe read as ‘shall’ thereby holding that it was mandatory on the part ofthe High Court to at least consider the cases of the writ petitioners forabsorption. This is because of the reason that as matter of fact thecases of the writ petitioners were considered by the High Court and, inH

fact, that appears to be the intention behind the proviso. However, theprovision provided only to ‘consider’ the cases of the writ petitioner forabsorption. The proviso never gave any mandate that the writ petitionershad to be necessarily absorbed. Thus, only right of consideration wasthere. There was no automatic absorption. Had that been the intention,the proviso would have been worded differently.

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27. Insofar as consideration is concerned, the position prevalenton record of this case is somewhat curious. A Committee of three HighCourt Judges had considered twice the cases of the writ petitioners. Asper the High Court this consideration was done by looking into the entirematerial, but the proposal for absorption was rejected on both occasions.On the other hand, insofar as the Government is concerned, it hadrecommended the case of the writ petitioners for absorption. It is thisfactor which has weighed with the Division Bench of the High Court.However, we are of the opinion that this approach is unsustainable inlaw, having regard to the mandate of Articles 233 to 235 of the Constitutionof India. These provisions are aimed at securing the independence ofthe Judiciary from the Executive. These Articles provide a completecode for regulating recruitment and appointment to the District Judiciaryand the Subordinate Judiciary. It has been held in Rajendra SinghVerma (Dead) through Lrs. and Others v. Lieutenant Governor (NCTof Delhi) and Othes[6] that the scheme envisaged in the aforesaidprovisions of the Constitution does not permit the State to encroach uponthe area covered by these Articles. We may also reproduce, with benefit,following discussion from Ajit Kumar v. State of Jharkhand andOthers[7]:

“17. It cannot be disputed that the power under the aforesaidarticles is to be exercised by the Governor in consultation with theHigh Court. Under the scheme of the Indian Constitution the HighCourt is vested with the power to take decision for appointmentof the subordinate judiciary under Articles 234 to 236 of theConstitution. The High Court is also vested with the power to seethat the high traditions and standards of the judiciary are maintainedby the selection of proper persons to run the District Judiciary. Ifa person is found not worthy to be a member of the judicial serviceor it is found that he has committed a misconduct he could be 6 (2011) 10 SCC 1

7 (2011) 11 SCC 458

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Aremoved from the service by following the procedure laid down.Power could also be exercised for such dismissal or removal byfollowing the preconditions as laid down under Article 311(2)(b)of the Constitution of India. Even for imposing a punishment ofdismissal or removal or reduction in rank, the High Court can holddisciplinary proceedings and recommend such punishments. TheBGovernor alone is competent to impose such punishment uponpersons coming under Articles 233-235 read with Article 311(2)of the Constitution of India. Similarly, such a power could beexercised by the High Court to dispense with an enquiry for areason to be recorded in writing and such dispensation of anCenquiry for valid reasons when recommended to the Governor, itis within the competence of the Governor to issue such orders interms of the recommendation of the High Court in exercise ofpower under Article 311(2)(b) of the Constitution of India.”

28. It has also been authoritatively held in ChandramouleshwarDPrasad v. Patna High Court and Others, which is now a settled positionof law, that the Governor cannot appoint a nominee of his withoutobtaining the views of the High Court, even where he is not prepared toaccept the nominee of the High Court[8]. The reason is, whether in thecase of promotion from the Subordinate Judiciary or of direct recruitmentfrom the Bar, the performance of the candidate would be best known toEthe High Court. This is so succinctly brought out in High Court ofPunjab and Haryana and Others v. State of Haryana and Others[9]in the following words:

“49. The confirmation of persons appointed to be or promoted tobe District Judges is clearly within the control of the High CourtFfor these reasons. When persons are appointed to be District Judgesor persons are promoted to be District Judges the act ofappointment as well as the act of promotion is complete and nothingmore remains to be done. Confirmation of an officer on successfulcompletion of his period of probation is neither a fresh appointmentGnor completion of appointment. Such a meaning of confirmationwould make appointment a continuing process till confirmation.Confirmation of District Judges is vested in the control of theHigh Court for the reason that if after the appointment of District 8 (1969) 3 SCC 569 (1975) 1 SCC 843H

Judges the Governor will retain control over District Judges untilconfirmation there will be dual control of District Judges. TheHigh Court in that case would have control over confirmed DistrictJudges and the Governor would have control over unconfirmedDistrict Judges. That is not Article 235.

50. In the recent decision in Samsher Singh v. State of Punjabthis Court held that the High Court under Article 235 is vestedwith the control over subordinate Judiciary. This Court said thatbefore a probationer is confirmed the authority concerned is underan obligation to consider whether the work of the probationer issatisfactory or he is suitable for the post. In the absence of anyrules governing the probationer in this respect the authority maycome to the conclusion that on account of inadequacy for the jobor for any temperamental or other object not involving moralturpitude the probationer is unsuitable for the job and hence mustbe discharged. No punishment is involved in this. The suitabilityof a person to a post is of paramount importance in consideringthe question of confirmation.”

Thus, the control vests with the High Court.

29. We are also of the opinion that the Division Bench in theimpugned judgment has given undue credence to the initial recruitmentprocess wherein the writ petitioners were selected inasmuch as it hasheld that at the time of their recruitment written examination and interviewwere held pursuant to which the writ petitioners were selected. What isto be borne in mind is that the said process was for appointment for alimited purpose and that too on contract basis and if that was so, provisoto Rule 7 of the 2006 Rules would have specifically made provision tothis effect, which was not done. Such a kind of appointment, normally,would not confer any right of regularisation.

30. The impugned judgment also does not look the matter in properperspective by observing that since the writ petitioners had worked forten years approximately, as ad hoc Judges, and since there was nothingon record to show that they were incompetent or corrupt in discharge oftheir judicial work, they should have been absorbed in the regular cadre.It is stated at the cost of repetition that their service records wereexamined by the Committee consisting of three High Court Judges andon the said examination the Committee was of the opinion that the writ A

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Apetitioners were not entitled for appointment to the regular cadre ofHigher Judicial Service. No challenge was laid by the writ petitioners tothe manner in which their cases were considered and rejected by theHigh Court or that such a consideration suffered from any kind of blemish. Even otherwise, such a decision of the Committee stands vindicatedinasmuch as:B

(i) the two writ petitioners who appeared in the examinationpursuant to an advertisement for the post of Grade-I District and SessionsJudge failed to qualify in the selection process and the third writ petitionerdid not appear at all; and

(ii) the petitioners even failed to qualify the test which wasconducted pursuant to Brij Mohan Lal (2) in which the writ petitionershad appeared. This fact is noted just to point out the incompetence ofthe writ petitioners. Otherwise, our decision is based on the analysis ofproviso to Rule 7.

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D31. Having regard to the above, it is not even necessary to discussas to whether ratio of Brij Mohan Lal (2) applies or not. However,suffice is to state that ratio of Brij Mohan Lal (2) is discussed by thisCourt in detail in the case of Mahesh Chandra Verma and there alsothe Court was of the opinion that appointment on regular cadre shouldbe made only on the basis of written examination etc. as laid down inEBrij Mohan Lal (2). We again clarify that, in any case, we have cometo the conclusion that even in terms of proviso to Rule 7 of 2006 Rulesthe cases of the writ petitioners were considered, but they were notfound fit for absorption in the regular cadre.

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32. As a result, this appeal succeeds and is allowed thereby settingFaside the impugned judgment.

No costs.

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Ankit Gyan

Appeal allowed.

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