BRIJ MOHAN LAL v. UNION OF INDIA & ORS

Citation: [2012] 5 S.C.R. 305

Court: Supreme Court of India

Bench: A.K. PATNAIK, SWATANTER KUMAR

Case summary

BRIJ MOHAN LAL v. UNION OF INDIA & ORS.pdf

Judgment text

[2012] 5 S. C. R. 305 BRIJ MOHAN LAL v. UNION OF INDIA & ORS. (Transfer Case No. 23 of 2001) APRIL 19, 2012 [A. K. PATNAIK AND SWATANTER KUMAR, JJ.

] Judiciary: Fast Track Court Scheme - Appointment to the posts of FTC judges under the Scheme as ad hoc judges - Vacancies in the regular judicial cadre of States - Absorption and regularisation against such post - Entitlement to - Held: On analysis of the Rules relating to the different States, the appointment letters issued and methodology adopted for 0 appointment of the FTC judges, appointees cannot have any legal, much less an indefeasible right to the posts - Financing of the FTC Scheme has already been stopped by Central Government with effect from 31st March, 2011 - Relevant Rules of the States, and the Notifications state that appointees have been appointed not only on ad hoc and temporary basis but the entire FTC Scheme itself was ad hoc and for a duration of five years only - No permanent post was created - Thus, appointees do not have any absolute right to the post - Service Law - Constitution of India, 1950 - Articles 233 and 235.

FTC Scheme by the Central Government - Financed for limited period - Some States continuing with the Scheme while others forced to discontinue it because of nonavailability of funds - Scope of judicial review - Held: It is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial - Financial limitations or constraints cannot be justified as a valid excuse - Policy of State has to be in larger public interest and free of arbitrariness - Adhocism and uncertainty adversely affect any State policy and its results - Though the Central Government took a decision to stop financing and consequently to wind up the FTC Scheme however, at the same time it allocated substantial funds for starting morning, evening and shift courts - Thus, not appropriate to decide upon a comparative analysis of the policy decisions but whichever policy is taken up has to be fair in public interest - Constitution of India, 1950 c - Article 21 and 39 - Administrative law - Policy decision.

Administration of justice in States - Decision/ recommendations of the conference of the Chief Ministers of the States and Chief Justices of the High Courts - Implementation of - Held: Decision/recommendations of the Conference should form the basis of the policy decisions by the State or the Central Government relating to the administration of justice - Due weightage should be attached to these recommendations - On facts, decision taken by the Government, Union of India who participated in the Conference to extend FTC Scheme for the period of 5 years beyond 31st March 2010 i. e.

till 31st March 2015 as a/so other measures taken to tackle the problem of arrear of cases - However, decision of the Conference not implemented and the decision contrary to the minutes taken and placed before the Supreme Court that the FTC Scheme would not be financed by the Central Government beyond 31st March, 2011 - Thus, the Central Government not justified in brushing aside the minutes and recommendations of such a high level meeting in a most casual manner.

Fast Track Courts (FTC) Scheme by Central Government - Implementation of, by various States - Ad hoc appointment of District and Session Judges in FTCs made by different States in different manner - Subsequently Central Government agreeing to finance the FTC Scheme uptil 30th March, 2011 - Challenge to the decision of, various State Governments and praying for continuation of scheme and absorption in regular cadre - Held: As regards State of Gujarat, appointment ofpersons as Judicial Officers to preside over the FTCs by way of direct recruitment from the Bar were made purely on ad hoc basis and urgent temporary basis for 8 a pen'od of 2 years terminable without notice, thus, cannot vest or confer any right upon the appointees to be absorbed in the permanent cadre - These appointments were to come to an end by lapse of time - In case of State of Orissa prayer for quashing of the caution letter issued to some officers to dispose of eight Session Trials every month, misconceived - Appointees in the State of Orissa as a/so State of Punjab and Haryana cannot claim any indefeasible right either to regularization or absorption against regular vacancies as the posts were temporary and were bound to come to an end by efflux of time - As regards the State of Andhra Pradesh, FTC Judges were appointed under a separate set of Rules than the Rules governing the regular appointment to the State Higher Judicial Services, thus, such appointments would be ad hoc and temporary and the appointees shall not derive any benefit from such appointments - As regards State of Rajasthan, the Judicial Officers promoted as FTC Judges who had not taken any written competitive examination before their promotion to the post under the Higher Judicial Service, have to undertake written examination for absorption in the regular cadre of Higher Judicial Service - Gujarat State Judicial Service Rules, 2005 - Orissa Judicial Service (Special Scheme) Rules, 2001 - Punjab Superior Judicial Services Rules, 2007 - Rajasthan Higher Judicial Service Rules, 1969 - Andhra Pradesh State Higher Judicial Service Special Rules for Adhoc Appointments, 2011 - Administrative Law.

Policy decision as regard Fast Track Courts (FTC) by Central Government for an initial period of five years - FTCs Scheme implemented by various States - Subsequently with the intervention of this Court, Scheme extended by another five years and it stood extended upto March, 2011 - Decision of Central Government to discontinue the Scheme beyond 31st March 2011 - Some States continuing with the Scheme and some discontinuing with it due to non-availability of funds - Directions sought for extension of the Scheme - Interference with - Held: Normally courts do not interfere with the policy decisions taken by the Government but, to protect the guarantees of Article 21, to improve the Justice Delivery System, to fortify the independence ofjudiciary, while ensuring attainment of constitutional goals as well as to do complete justice, certain orders and directions issued - Directions issued for creation of additional courts and 10 per cent of the total regular cadre of the State as additional posts - Persons appointed by way of direct recruitment from the Bar as FTCs Judges entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective State in the manner 0 stated - Candidates promoted as FTC Judges having requisite experience in service, to be absorbed and promoted to the Higher Judicial Services of that State subject to the given conditions - Policy decision not to finance the FTC Scheme beyond 31st March, 2011 not struck down since it has already taken effect - However, the States having taken a policy decision to continue the FTC Scheme beyond 31st March 2011 to adhere to the same - States free to take a policy decision whether or not to continue the FTC Scheme as a permanent feature - Hereafter, all the States, shall not take a decision to continue the FTC Scheme on ad hoc and temporary basis - Union of India and the State Governments to re-allocate and utilize the funds apportioned by the 13th Finance Commission to regularize FTC judges - Recommendations made at the Chief Justices and Chief Ministers Conference to be placed before the Cabinet of the Centre or the State for consideration and not be rejected at bureaucratic level - Constitution of India, 1950 - Articles 21 and 142.

Constitution of India, 1950: Articles 32 and 226 - Issuance of mandamus in policy decision - Decision by the Central Government not to finance the FTC Scheme beyond 31st March 2011 - Power of court to issue mandamus - Held: Any policy or decision of the 8 Government which would undermine or destroy the . independence of the judiciary would not only be opposed to public policy but would also impinge upon the basic structure of the Constitution - Thus, the Government should not frame any policies or do any acts which shall derogate from the very ethos of the stated basic principle of judicial independence - If the policy decision is likely to prove counter-productive and increase the pendency of cases it would tantamount to infringement of their basic rights and constitutional protection - Thus, the Court is competent to issue a writ of mandamus - Administrative Law - Policy decision.

Articles 19(1)(g), 19(6), 233 to 235 - Right to practice law - Reasonable restriction - Appointment of retired District and Session Judges as ad hoc judges in Fast Track Courts (FTCs) - Discontinuance of FTCs - Appointees on ceasing to be judges debarred from practicing in District and Subordinate Courts- Challenge to - Held: Right to practice law is not an absolute right - It is subject to possession of requisite qualifications as contemplated under the Advocates Act, 1961 and to the limitations prescribed in the Bar Council of India Rules - Appointee's right to practice is abridged with respect to the courts in which they acted as judges and courts of the equivalent or lower grade - They can still practice in higher courts - It does not amount to complete and absolute restriction on their right to practice but is only a partial restriction - It cannot be a consideration for compelling the Government to continue their appointments, if they are otherwise not entitled under law to continue - Judiciary - Administrative law - Advocates Act, 1961 - Bar Council of India Rules.

. A The Central Government took a decision to implement the Fast Track Courts Scheme (FTCs) for a limited period particularly to deal with the arrears of criminal cases in the country. The entire scheme was to be financed by the Central Government. The policy decision was accepted by various State Governments. It was implemented by appointing ad hoc Judges to preside over FTCs, from amongst the retired Judges, by promotion from Civil Judges (Senior Division), and by direct recruitment from the Bar. Thereafter, the Central Government took a decision not to finance the FTC Scheme beyond 31st March, 2011. However, some of the State Governments took a decision at their own level to continue with the FTC Scheme, for the time being.

Writ petition was filed in the High Court of Punjab and Haryana challenging inter alia the scheme and policy of appointment of the retired District and Sessions Judges as ad hoc Judges of the FTCs in the State Judicial Services; and in the High Court of Andhra Pradesh seeking the direction that the constitution of the FTCs and 32 presiding officers in the State of Andhra Pradesh and the G. O. Ms. be declared as unconstitutional and should be set aside. These writ petitions were transferred to this Court and were taken up as Transferred Cases. Other parties who had filed similar petitions in different High Courts also intervened. Transferred Cases were disposed of with certain directions. The directions were also issued for filing quarterly status reports regularly from time to time about the functioning of the FTCs in the entire country and the same were filed.

Meanwhile, instant writ petitions and special leave petitions were filed against various judgments of different High Courts seeking inter alia issuance of appropriate writ or direction to the respondents to extend the FTC Scheme for another five years or even till 31. 03.

2015 and to release the necessary funds for that purpose; that the decision of the Union of India to discontinue the FTC Scheme beyond 31st March, 2011 be declared as arbitrary, discriminatory and violative of the fundamental rights under Article 21 of the Constitution; that the direct recruits from the Bar, appointed as ad hoc Additional District Judge under the FTC Scheme whose services were terminated be continued in employment; that they should be absorbed against vacant posts in the regular cadre; that the notification issued calling for applications from eligible candidates for direct recruitment from the Bar to the cadre of the District Judge be quashed; and that they are not liable to take the limited competitive examination for promotion to the cadre of District Judges and be treated as regular members of the State Judicial Service.

Partly allowing the appeals and the writ petitions, the Court HELD: Whether any of the appointees to the post of ad hoc judges under the FTC Scheme have a right to the post in context of the facts of the instant case: 1. 1 Upon an analysis of the Rules relating to the different States, the appointment letters issued to the appointees and the methodology that was adopted for appointment of the Fast Track Court Judges, it becomes clear that the appointees cannot be said to have any legal, much less an indefeasible, right to the posts in question. Firstly, the posts themselves were temporary, as they were created under and within the ambit and scope of the FTC Scheme sponsored by the Union of India, which was initially made only for a limited period of five years. Now, financing of the FTC Scheme has already been stopped by the Central Government with effect from 31st March, 2011. No permanent posts were ever created.

In other words, their appointments were temporary appointments against temporary posts. The relevant Rules of the States clearly postulate that the appointments made under the Rules were purely on ad hoc basis and urgent temporary basis and were terminable without notice. The Rules as well as the respective notifications of appointment issued to these appointees, unambiguously stated that no right would be conferred upon the appointees for regular promotion on the basis of working on ad hoc basis under the FTC Scheme. It clearly demonstrates that these were temporary and, in some cases, even time-bound appointments, terminable without prior notice. [Para 60] [376-E-H; 377-A-C] 1. 2 Normally, there are three kinds of posts that may exist in a cadre-(1) permanent posts; (2) temporary posts; and (3) quasi-permanent posts. Accordingly, there can be a temporary employee, a permanent employee or an o employee in quasi-permanent capacity.

Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. Thus, it follows that for a person to have a right to the post, the post itself has to be a permanent post duly sanctioned in the cadre. The person should be permanently appointed to that post. Normally, it is only under these circumstances that such an employee gets a right to the post, but even when a temporary employee is appointed against a permanent post, he could get a right to the post provided he had at least acquired the status of a quasi-permanent employee under the relevant Rules. Where neither the post is sanctioned nor is permanent and, in fact, the entire arrangement is ad hoc or is for an uncertain duration, it cannot. create any rights and obligations in favour of the appointees, akin to those of permanent employees. [Para 61] (377-D-H; 378-A-B] Indian Drugs and Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408: 2006 (9) Suppl. SCR 73; Parshotam Lal Dhingra v.

Union of India AIR 1958 SC 36: 1958 SCR 828; Champaklal Chimanlal Shah v. Union of India AIR 1984 SC 1854; Jaswant Singh v. State of Haryana (1979) 4 SCC 440: 1980 (1) SCR 420 - referred to. 1. 3 There should be a right vested in an employ~e, which is duly recognized and declared in accordance with the Rules governing the conditions of service of such employee before such relief is granted. Unless the Government employee holds any status, it may not be possible to grant relief to the Government employee, particularly, when such relief is not provided under the relevant Rules. These Rules had been framed under Article 309 of the Constitution and had the force of law. [Paras 64 and 65] [379-E-G] 1. 4 The doctrine of pleasure, under Constitution, deals with three different categories of posts.

First, offices which are held during the pleasure of the President or Governor, as the case may be; second, offices held during pleasure of the President or Governor but subject to some restrictions against removal; and third, offices held for a specified term but with immunity against removal, except by impeachment. The third category of posts is not subject to the doctrine of pleasure. Having regard to the Constitutional scheme, it is not possible to extend the type of protection against removal granted to one category of officers, to another category. It is believed that, where Rule of Law prevails, there can be nothing like unfettered discretion or unaccountable action. The degree of reasoning required in support of the decision may vary. The degree of scrutiny during judicial review may vary. But the need for reasoning exists.

As a result, when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, this power should, however, necessarily be read as being subject to the fundamentals of constitutionalism. [Paras 67, 68] [380-H; 381-A-E] B. P. Singha/ v. Union of India (2010) 6 SCC 33; Union of India & Anr. v. Tulsiram Patel (1985) 3 SCC 398 - referred to. 1. 5 Right to a post is not a fundamental right but is a civil or a statutory right. That the creation of a post, absorption and payment of salaries on regular pay 8 scales are purely Executive functions. It is primarily the nature of the post, the method and manner of appointment to the said post and the Rules governing the conditions of service of that post which would be the precepts to deal with such situations. [Para 66] [380-B, D] P. U. Joshi v. Accountant General (2003) 2 SCC 632:2002 (5) Suppl. SCR 573; Union of India v. S. N.

Panicker (2001) 10 SCC 520 - referred to. 1. 6 The appointees in the instant case had been appointed not only on ad hoc and temporary basis but the entire FTC Scheme itself was ad hoc and for a duration of five years only as declared by the Central Government. Despite that, some of the States declared the FTC Scheme for two years only. In these circumstances, it is not possible to hold that the appointees had any right to the post. The submission that there was indication, in the Rules or otherwise, that the said appointments were permanent and that the appointees were entitled to be absorbed regularly in those posts cannot be accepted. [Para 60, 61] [377-C-D; 378-B-C] Whether writ of mandamus can at all be issued in the instant case: 2. 1 The Central Government took a decision not to finance the FTC Scheme beyond 31st March, 2011. However, some of the State Governments have still taken a decision at their own level to continue with the FTC Scheme, for the time being.

None of the States have stated that, as a matter of policy or otherwise, they have decided to continue the FTC Scheme at their own expense as a permanent feature of Justice Administration System. Matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The Courts have taken the view that they would not refuse to adjudicate upon policy 0 matters if the policy decisions are arbitrary, capricious or mala fide.

[Para 70) [382-E-H; 383-A-B] Bennett Coleman & Co. and Others. v. Union of India and Others (1972) 2 SCC 788: 1973 (2) SCR 757; Asif Hameed v. State of Jammu & Kashmir and Anr. 1989 Suppl. (2) SCC 364: 1989 (3) SCR 19 - referred to. 2. 2 The Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions. The correct approach in relation to the scope of judicial review of policy decisions of the State can hardly be stated in absolute terms.

It will always depend upon the facts and circumstances of a given case. Furthermore, the Court would have to examine any elements of arbitrariness, unreasonableness and other Constitutional facets in the policy decision of the State before it can step in to interfere and pass effective orders in such cases. A challenge to the formation of a State policy or its subsequent alterations may be raised on very limited grounds. Again, the scope of judicial review in such matters is a very limited one. One of the most important aspects in adjudicating such a matter is that the State policy should not be opposed to basic Rule of Law or the statutory law in force. This is termed as the philosophy of law, which must be adhered to by valid policy decisions. [Para 72, 75] [384-C-E; 386-B-D] Mohd. Abdul Kadir and Anr. v. Director General of Police, Assam and Ors. (2009) 6 SCC 611 - referred to. 2. 3 The independence of the Indian Judiciary is one of the most significant features of the Constitution.

Any policy or decision of the Government which would undermine or destroy the independence of the judiciary would not only be opposed to public policy but would also impinge upon the basic structure of the Constitution. The State policies should neither defeat nor cause impediment to discharge of judicial functions. To preserve the doctrine of separation of powers, it is necessary that the provisions falling in the domain of judicial field are discharged by the Judiciary and that too, effectively. It is, thus, clear that it is the constitutional duty of this Court to ensure maintenance of the independence of Judiciary as well as the effectiveness of the Justice Delivery System in the country. The data and statistics placed on record, of which this Court can even otherwise take judicial notice, show that certain effective measures are required to be taken by the State Governments to bring down the pendency of cases in the lower courts.

It necessarily implies that the Government should not frame any policies or do any acts which shall derogate from the very ethos of the stated basic principle of judicial independence. If the policy decision of the State is likely to prove counter-productive and increase the pendency of cases, thereby limiting the right to fair and expeditious trial to the litigants in this country, it will tantamount to infringement of their basic rights and constitutional protections. Thus, this Court is possessed of the jurisdiction and is competent to issue a writ of mandamus and/or appropriate directions. [Paras 76, 80 and 81] [386- E-G; 391-G-H; 392-A-D] S. P. Gupta v. Union of India (1981) Supp. SCC 87; All India Judges' Association v. Union of India & Ors. (1992) 4 SCC 288; All India Judges' Association v. Union of India (2002) 4 SCC 247: 2002 (2) SCR 712 - referred to. Commonwealth ex rel. Carroll v. Tate et al. 442 Pa. 45; 274 A. 2d 193 - referred to. Right to practice 3.

1 Article 19(1 )(g) of the Constitution provides a fundamental right to practice any profession or to carry on any occupation, trade or business. This right is subject to the limitations contained under Article 19(6) of the Constitution. The State is empowered to make any law imposing, in the interest of general public, reasonable restrictions on the exercise of the rights conferred by the said sub-clause. This power specifically refers to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation. The right to practice law is not an absolute right and is subject to the possession of requisite qualifications as contemplated under the Advocates Act, 1961. This right to practice is further subject to the limitations prescribed in and the regulatory regime of the Bar Council of India Rules.

Therefore, the submission that once a lawyer possesses the requisite qualifications, he has an unrestricted and unregulated right to practice, is not tenable. [Para 82] [392-E-H] 3. 2 The appointees submitted that in terms of the Bar Council of India Rules, after they cease to be judges of the FTCs for any reason whatsoever, they shall be debarred from practicing in the district and subordinate courts. Their right to practice is abridged with respect to the courts in which they acted as judges and courts of the equivalent or lower grade. They can still practice in the higher courts, i. e. , permissible Tribunals, High Courts and the Supreme Court of India. Thus, there is no complete and absolute restriction on their right to practice. It is only a partial restriction which is based upon securing the larger public interest and the interest of ensuring transparency in the administration of justice.

This by itself, therefore, cannot be a consideration for compelling the Government to continue their appointments, if they are otherwise not entitled under law to continuation. There is no merit in the submission that the appointees/petitioners would suffer an irreparable loss by termination of their services as FTC judges and that the restriction contained in Rule 7 of the Bar Council of India Rules amounts to an absolute unreasonable restriction upon their right to practice in the event of such termination. [Paras 83, 84] [393-A-D; 394-B-C] N. K. Bajpai v. Union of India & Anr. CA No. 2850 of 2012 decided on 15th March 2012 - relied on. Power of judicial review: 4. 1 The FTC Scheme was started in the year 2001 for an initial period of five years. However, it was subsequently extended and the Central Government agreed to finance the FTC Scheme uptil 30th March, 2011.

Thereafter, the various State Governments have either decided to wind up the FTC Scheme or have extended the FTC Scheme at their own expense. A few States are even considering the continuation of the FTC Scheme as a permanent feature in their respective States. This, to a large extent, created an anomaly in the administration of justice in the States and the entire country. Thus, there is no unanimity between the Union Government and the 8 States either on continuation or the closure of the FTC Scheme. Some of the States would continue with the FTC Scheme while others have been forced to discontinue or close it because of non-availability of funds. [Paras 92, 93] [396-G-H; 397-A-C] 4.

2 Judicial functions and judicial powers are one of the essential attributes of a sovereign State and on considerations of policy, the State transfers its judicial functions and powers, mainly to the courts established by the Constitution, but that does not affect competence of the State to, by appropriate measures, transfer a part of its judicial functions or powers to Tribunals or other such bodies. However, as far as functioning of the courts, i. e. , dispensation of justice by Courts is concerned, the Government has no control whatsoever over the courts. In relation to matters of appointments to the Judicial Services of the States and even to the Higher Judiciary in the country, the Government has some say, however, the finances of Judiciary are entirely under the control of the State. These controls should be minimized to maintain the independence of the Judiciary.

The courts should be able to function free of undesirable administrative and financial restrictions in order to achieve the constitutional goal of providing social, economic and political justice and equality before law to its citizens. [Para 99] [398-F- H; 399-A-B] Associated Cements Co. Ltd. v. P. N. Sharma AIR 1965 SC 1595:1965 SCR 366 - referred to. 4. 3 Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial which is an essential ingredient of such reasonable, fair and just procedure. Even Article 39A of the Constitution recognizes the right of citizens to equal justice and free legal aid. Thus, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial.

The State cannot be permitted to deny the constitutional right to speedy trial to the accused on the ground that the State does not have adequate financial resources to incur the necessary expenditure needed, for improving the administrative and judicial apparatus to ensure speedy trial. [Para 100, 131] [399-C-D; 419-E-F] Hussainara Khatoon and Ors. (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98: 1979 (3) SCR 532; Sheela Barse (II) and Ors. v. U. 0. 1. and Ors. (1986) 3 SCC 632; Salem Advocate Bar Association v. Union of India (2003) 1 SCC 49: 2002 (3) Suppl. SCR 353; Prakash Singh Badal v. State of Punjab and Ors. (2006) 8 SCC 1: 2006 (6) Suppl. SCR 473; High Court of Judicature at Bombay, Through its Registrar v. Shirishkumar Rangrao Patil and Anr. (1997) 6 SCC 339: 1997 (3) SCR 1131 - referred to. Jackson v. Bishop 404 F Supp. 2d 571 - referred to. 4.

4 Judicial review is recognized as a basic feature of the Constitution and independence of judiciary is integral to the constitutional structure, as an essential attribute of the Rule of law. Judiciary must, therefore, be free from pressure and influences from any quarter. It can be stated with certainty that any impediments to the continued and independent functioning of the judiciary would result in damaging the institution of justice as well as adversely affecting the faith of the public in the functioning of the Courts/Tribunals. Only if continued judicial independence is assured, the Courts/Tribunals would be able to discharge their functions in an impartial manner. [Para 102] [403-0-G) Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1: 2010 (6) SCR 857; Union of India & Ors. v. Pratibha Bonnerjea & Anr. (1995) 6 SCC 765:1995 (5) Suppl. SCR 511; Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1: 2008 (4) SCR 1 referred to. 4.

5 Wherever the right which is being affected is a basic or a fundamental right, the State cannot be permitted to advance an argument of financial constraints in such matters. The policy of the State has to be in the larger public interest and free of arbitrariness. Adhocism and uncertainty are the twin factors which are bound to 0 adversely affect any State policy and its results. Reasons for taking a policy decision would squarely fall in the domain of the State, but it should be free from element of arbitrariness and mala fide. The State cannot in, an ad hoc manner, create new systems while simultaneously giving up or demolishing the existing systems when the latter have even statistically shown achievement of results. [Para 107] [404-G-H; 405-A] 4. 6 In reference to the cases at hand, the Central Government took a decision to stop financing and consequently to wind up the FTC Scheme. However, at the same time, it allocated Rs.

2500 crores for operation of the Morning, Evening and Shift Courts in the country besides providing funds under other heads, as per the 13th Finance Commission Report for the period 2010- 2011 to 2014-2015. Again, this is a policy decision and though the Government has the jurisdiction to decide on such policy matters, there has to be some rationale and reasonableness in the same. It may not be appropriate for this Court to decide upon a comparative analysis of the policy decisions as to which policy has greater merit and which policy the Government should adopt, but certainly whichever policy is eventually taken up by the State, it has to be fair, in public interest and also satisfy the constitutional limitation of ensuring independence of Judiciary. [Paras 94, 108 and 109) [397-D-E; 405-8-D] 8 4.

7 With the passage of time, owing to the tremendous growth in the population of the country and greater awareness among citizens of their rights, civil and criminal litigation before the Courts have increased manifold, without there being an equivalent increase in the strength of Judges and enhancement in the infrastructure of the Courts. Thus, it is essential that some kind of consistent and systematized approach is adopted by all the concerned Governments, including the Union of India, so as to take effective measures to remedy this situation as well as to prevent further undesirable increase in the pendency of cases before the Courts. Expeditious disposal of cases is obviously the first answer to this multifarious problem. [Para 112) [406-8- D) The conference of the Chief Ministers of the States and the Chief Justices of the High Courts. 5.

1 In order to resolve various administrative and allied issues relating to the administration of justice in the States, it has been the practice to hold the Chief Justices and Chief Ministers Conference, which is presided over by the Chief Justice of India. In these meetings, various steps are discussed, for which an agenda is circulated and suggestions from the High Courts as well as the State Governments are invited. This Conference is normally attended by the Chief Ministers and/or the Law Ministers of the State, Chief Justices of the High Courts and various other authorities from the bureaucracy and the High Courts. Upon due deliberations, decisions are taken, whereafter Minutes of the same are prepared and circulated. The decisions are recorded and circulated to the States and the Union of India specifically for their information and further action. Unfortunately, the practice has shown that these decisions have hardly been implemented by the concerned authorities.

One such 8 Conference was held and the matter in regard to setting up of Evening, Morning and Shift Courts was also discussed and it was required that the State Government shall set up at least one Family Court in each district. [Paras 113 and 115) [406-E-H; 408-A-B] 5. 2 There is nothing placed on record to show that the FTCs at the level of the Magistrate Courts have no further efficacy. All the concerned governments, including the Union of India, which duly participated in the Conference, had decided to extend the FTCs for a period of five years beyond 31st March, 2010 i. e. till 31st March, 2015. It was further contemplated that other measures should also be taken by the respective State Governments and Union of India to tackle the problem of arrear of cases.

Hardly any decision in that regard was implemented, but on the other hand, a decision contrary to the minutes was taken with certainty and was placed before this Court that the FTC Scheme would not be financed by the Central Government beyond 31st March, 2011. [Para 116) [409-B-E] 5. 3 As regards the question whether it is justified for the Central Government, or any other Government, to brush aside the Minutes and recommendations of such a high level meeting in a most casual manner or whether such Minutes require favourable consideration by all concerned and proper and complete policy decisions taken in furtherance thereto and such minutes form the foundation for major policy decisions relating to judiciary, the latter perspective demands an affirmative answer as these decisions and recommendations should be favourably considered by all concerned. Rather, they should form the basis of the policy decisions relating to the administration of justice.

The Chief Justices and the Chief Ministers are the constitutional heads of the Judiciary and the Executive, respectively. The matters are discussed by all States, Union of India and Judiciary. The decisions are taken on the basis of the collective wisdom. One can hardly comprehend a constitutional body of a higher normative significance than the Chief Justices and the Chief Ministers of the respective High Courts/States to take such policy decisions at the National level. The meeting is held under the umbrella of the Union of India and is presided over by the Chief Justice of India, Union Minister for Law and Justice and other high dignitaries to deliberate upon issues which relate to the justice 0 delivery system, ultimately affecting the basic and fundamental rights of the citizens of this country at large. [Para 116, 117) [409-D-H; 410-A-B] 5.

4 It would not only be unfair but unacceptable that these Minutes be placed in the shelves of the Government archives without attaching any significance to them. It would neither be fair nor proper for any level in the bureaucratic hierarchy of the Government to reject such suggestions at the threshold, that too, without any proper reasoning in support thereof. At least, the Cabinet of the Government of India or the State Government, as the case may be should take into consideration the decisions and recommendations of this meeting. Due weightage should be attached to these recommendations and preferably, they should form the basis of the policy decision by the State or the Central Government in relation to the matters concerning Judicial administration. [Para 118) [410-C-E] Merits of respective cases: 6. 1 In the case of the State of Gujarat, a number of persons were appointed as Judicial Officers to preside over the FTCs by way of direct recruitment from the Bar.

Their services have been terminated on the ground of unsatisfactory performance. The High Court declined to set aside the termination of services of most officers. In the impugned judgment, the High Court noted unsatisfactory performance as the cause for termination of their services. Entries of their service records has been reproduced. All these officers had been appointed as ad hoc and temporary FTC Judges. At no point of time was anything done, directly or indirectly, by the State to give rise to a legitimate expectation of the appointees that their services would be regularized and they would be absorbed in the regular cadre. On the basis of the Confidential Records referred to by the High Court, in its judgment, it is difficult to take any different view, particularly when these judicial officers were only temporary and ad hoc appointees with no vested right to the post. Certainly, this is not a case of mala fide termination.

In the subsequent writ petitions before the High Court only one reason was given for the termination, i. e. , the Central Government refused to extend the FTC Scheme and so, the State Government also decided not to extend the FTC Scheme beyond 31st March, 2011. This probably was not a valid reason to dismiss the writ petitions because the court ought to have examined the prayer of those officers for regularization of their services and absorption against the regular cadre posts. This aspect of the writ petition was not even discussed by the High Court and the writ petitions were dismissed. [Para 119) [410-F-H; 411-A-E] Brij Mohan Lal v Union of India and Ors. CWP No. 5740 of 2001 - referred to. 6.

2 The petitioners also raised a challenge to Rules 4 and 6 of the Gujarat Rules under which they were appointed, on the ground that the same are arbitrary and discriminatory, Firstly, the Rules under which the petitioners were appointed after 2001 themselves were to be in force only till 31st December, 2005. Till 2005, none of the appointees challenged these Rules. For these four years, they, in fact, took full advantage of their appointment under these Rules and received different service benefits thereunder. It cannot be said that these Rules themselves were temporary and were enacted to meet an emergency situation. The appointments were made purely on ad hoc and urgen't temporary basis for a period of two years, terminable without any prior notice. A temporary appointment, which itself was made for a period of two years, can hardly be equated to a tenure 0 appointment and must be construed on such terms. These appointments were to come to an end by lapse of time.

Such an appointment obviously cannot vest or confer any right upon the appointees to be absorbed in the permanent cadre, as they were not appointed in accordance with the provisions of the Gujarat Judicial Service Recruitment Rules, 1961. The expression 'liable to be terminated at any time without any notice' could be susceptible to objections if it was used in the case of a quasi permanent or permanent employee of a Government servant. However, there were no permanent posts contemplated under the FTC Scheme. The entire FTC Scheme was ad hoc and formulated to operate only until the year 2005. It was continued beyond that period in accordance with the directions of this Court but now decision has been taken not to continue the FTC Scheme beyond 31st March, 2011.

Even if, it is accepted that the expression 'liable to be terminated at any time without any notice' is arbitrary and opposed to the basic Rule of Law, it still has to satisfy the twin tests laid down in the case of Parshotam Lal Dhingra, i. e. , firstly, whether the Government servant being terminated or reduced in rank thereby had a right to the post or to the rank, as the case may be and, secondly, whether he had been visited with evil consequences. Both of these tests have to be answered in the negative, in the facts and circumstances of the instant case. These offii:ers had no right to their posts and, consequently, discontinuation of their services in the facts of the present case cannot be construed as punitive or one visiting the petitioners with civil consequences.

This holds true even though in some cases, it has been recorded that the performance of these appointees was found to be unsatisfactory but that is not the lone reason given by the High Court for dispensing with their services. It is the discontinuation of the FTC Scheme itself that is the principal reason for terminating the services of all these officers. In the instant case, the 0 Rules themselves were temporary and were bound to cease to have force of law after 2005. The posts created were temporary and ad hoc. The appointments were made on ad hoc and urgent temporary basis for a limited period of two years and terminable without notice. In these circumstances, neither can it be stated that there existed posts which had permanent or quasi-permanent character and were the duly sanctioned posts of the regular cadre of the State Government nor that the appointees had any right to these posts. [Para 120) [411- G-H; 412-A-H; 413-A-D] Parshotam Lal Dhingra v.

Union of India AIR 1958 SC 36: 1958 SCR 828; Mohd. Abdul Kadir and Anr. v. Director General of Police, Assam and Ors. (2009) 6 sec 611 - relied on. 6. 3 Writ Petitions were filed by some of the appointees from the State of Orissa praying for quashing of the caution issued to some officers whereby they were required to dispose of eight sessions trials every month which, so far, they had not been able to achieve and that if they still failed to achieve the said target, their services would be liable to be terminated. The challenge on the ground that it is violative of Articles 14 and 16 of the Constitution inasmuch as no such restriction or limitation of disposing eight Session Trials every month is applied to the members of the State Higher Judicial Services and that the same yardstick should uniformly. be applied to the direct recruits appointed under the Rules as well as to the Judicial Officers promoted/transferred to the FTCs, is misconceived.

The Judicial Officers appointed under the regular cadre of the State Higher Judicial Services are subject to various restrictions and limitations of judicial conduct as imposed by the High Court and under the relevant Rules in force. Without exception, unit system for disposal of cases prevails and is applicable to the courts 0 presided over by such officers. On the contrary, the FTC . Judges are to deal only with session trials. This was the very purpose for which the Scheme was created and, as such, they cannot claim that the imposition of such a condition is ex facie unreasonable, arbitrary or discriminatory. In fact, in the writ petitions filed no data has been provided to substantiate that it is neither practicable nor possible for these courts to dispose of eight Session Trials, as contemprated under this caution letter. [Paras 121, 122) [413-F-G; 414-D-H; 415-A] 6. 5 Absorption in service is not a right.

Regularization also is not a statutory or a legal right enforceable by the persons appointed under different rules to different posts. Regularization shall depend upon the facts and circumstances of a given case as well as the relevant Rules applicable to such class of persons. The relief of regularization of the persons and workmen who had been appointed against a particular scheme or project has been rejected. In matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper. It would also not be proper to stay the regular recruitment process for the concerned posts. [Para 123) [415-F-H; 416-A-B] Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors. (2006) 4 SCC 1: 2006 (3 ) SCR 953 - referred to. 6.

6 The State of Orissa issued an advertisement for direct recruitment to the Higher Judicial Services of the State. The appointees to the FTCs prayed that this advertisement be quashed and they be absorbed against the regular vacancies. The said prayer was made even in other States. There is no merit in the contention. There 0 are two different sets of Rules, applicable in different situations, to these two different classes of officers and further they are governed by different conditions of service. They cannot be placed at par. The process of their appointments is distinct and different. The petitionerappointees have no right to the posts as the posts themselves were temporary and were bound to come to an end by efflux of time. With reference to the letters of their appointment and the Rules under which the same were issued, it is clear that these petitioners cannot claim any indefeasible right either to regularization or absorption.

Under the Orissa Superior Judicial Services and Judicial Service Rules, 2007, there is no provision for absorption or regularization of ad hoc Judges. Thus, it would neither be permissible nor proper for the Court to halt the regular process of selection on the plea that these petitioners have a right to be absorbed against the posts in the regular cadre. [Paras 121, 122, 123, 124) [413- G-H; 415-C-F; 416-C-D] 6. 7 The petitioners from the State of Andhra Pradesh 330 SUPRE'ME COURT REPORTS [2012] 5 S. C. R. prayed that the advertisement issued for filling up the vacancies in the regular cadre should be quashed and not processed any further and the petitioners instead should be absorbed against those vacancies. There is no merit in these submissions. The FTC Judges were appointed under a separate set of Rules than the Rules governing the regular appointment to the State Higher Judicial Services.

It has been clearly stipulated that such appointments would be ad hoc and temporary and that the appointees shall not derive any benefit from such appointments. [Paras 125 and 126) [416-E-G) 6. 8 The judgment of this Court in All India Judges' Association case (2002) as well as the relevant Rules contemplate that a person who is to be directly appointed to the Higher Judicial Services has to undergo a written examination and appear in an interview before he can be appointed to the said cadre. As far as appointment by promotion is concerned, the promotion can be made by two different modes, i. e. , on the basis of seniority-cummerit or through out of turn promotion wherein any Civil Judge, Senior Division who has put in five years of service is required to take a competitive examination and then to the extent of 25 per cent of the vacancies available, such Judges would be promoted to the Higher Judicial Services. [Para 128) [417-D-G] 6.

9 In the case of State of Rajasthan, the Judicial Officers from the cadre of Civil Judge, Senior Division, were promoted as FTC Judges. They continued to hold the posts for a consid! lrable period. The petitioner admitted that these officers who were promoted as ad hoc FTC Judges had not taken any written competitive examination before their promotion to this post under the Higher Judicial Services. They were promoted on ad hoc basis depending on the availability of vacancy in the FTCs. Once the Rules required a particular procedure to be adopted for promotion to the regular posts of the Higher Judicial Services, then the competent authority can effect the promotion only by that process and none other. In view of the admitted fact that these officers have not taken any written examination, there is no reason as to how the challenge made by these Judicial Officers to the directive issued by the State Government for undertaking of written examination may be sustained.

Thus, the relief prayed for cannot be granted in its entirety. [Para 127, 128) [416-H; 417-A; G-H; 418-A-B] All India Judges' Association v. Union of India & Ors. (2002) 4 sec 247: 2002 (2) SCR 712 - relied on. 6. 10 In the case of the State of Punjab and Haryana, the appointees directly appointed as FTC Judges by way of direct recruitment from the Bar, prayed for regularization of their services and absorption in the regular cadre as well as for continuation of the FTC Scheme till their absorption. The relief of regularization/ absorption cannot be granted to these petitioners. They too have no right to the post. Admittedly, these candidates also did not pass any written competitive examination and were appointed solely on the basis of an interview and must now undergo the requisite examination. [Para 129) [418-C-E] The effect of Madhumita Das and Brii Mohan Lal and the directions that this Court is required to issue in light thereof 7.

1 This Court would fail in its duty if it declines to exercise its jurisdiction in the latter class of cases (duty upon the Court to test the merits or otherwise of the policy decision), solely on the ground that it was a policy decision and, thus, is beyond the limits of judicial review, being a matter primarily within the domain of the Government. Keeping in view its constitutional duty, the constitutional rights of citizens of this country at large and with reference to the facts of a given case, this Court may be duty bound to amplify and extend the arm of justice in accordance with the principle Est boni Judicls ampliare Justiciary non-Jurisdictionem. The argument that matters of policy are, as a rule, beyond the power of judicial review has to be dispelled.

This Court would be required to take unto itself the task of issuing appropriate directions to ensure that the Rule of Law prevails and the constitutional goals are not defeated by inaction either when the law requires action or when the policy in question is so arbitrary that it defeats the larger public interest. [Para 134] (421-D-G] 7. 2 The Union of India failed to place any material on rec-0rd to justify its decision, deciding to stop financing the FTC Scheme with effect from 31st March, 2011. The submission that it would not be a case where this Court should venture to issue a mandamus directing continuation of the Scheme and reverse the policy decision taken by the Union of India, is accepted.

Though policy decisions should be interfered with rarely by the court, but the instant case is certainly one where the Court should issue certain directions to ensure that the fundamental rights and protections available to the citizens are not violated and at the same time, the decision of the Government of India does not undermine the independence of judiciary. It may not be mandatory, but is always desirable that the policy decision in relation to administration of justice should be made by Union of India in consultation with the Supreme Court and/or the respective High Courts of the State. The recommendation of bodies like the Law Commission of India or other special commissions appointed in relation to administration of justice delivery system ought to be taken· into consideration. But, it cannot be said that the recommendations given by one of the important organs BRIJ MOHAN LAL v. UNION OF ! NOIA & ORS.

333 of the State, the judiciary, are not given effective consideration and due weightage in framing and implementation of the policies relating to matters of administration of justice. It would neither be appropriate nor logical for the Union of India and/or the State Governments to raise an argument that this Court may not issue any directions or mandamus to the concerned Government, as it may have far reaching consequences. Firstly, the Union of India and the State Governments are not expected to raise such issue and secondly, it can hardly be disputed that the Governments have not been able to successfully perpetrate any stable and resultoriented solution to reduce the huge pendency of criminal cases before the courts. The finances, infrastructure and existence of adequate posts are the prime considerations which would weigh with any 0 Authority or Court while taking any policy decisions or passing necessary directions in that behalf. [Para 136, 137] [423-A-H; 424-A-B] 7.

3 The fact that the 13th Finance Commission recommended a grant of Rs. 5,000 Crores to the States for improving the justice delivery system in the country with a specific objective of reducing the arrears significantly and out of this amount of Rs. 5,000 crore a sum of Rs. 2,500 crore has been allotted for morning/ evening/shift courts and no amount has been allotted for FTCs weighed with the Central Government for not continuing the FTC Scheme after 31. 03. 2011. [Para 138] [424-B-D] It would be clear from the extracts from the recommendations of the 13th Finance Commission that the recommendations were based on the proposals of the Department of Justice, Government of India for setting up morning/evening and shift courts because the morning courts in Andhra Pradesh and the evening courts in Gujarat had demonstrated the feasibility of morning and evening courts.

The morning and evening courts, however, may not be feasible in the other States in India due to various local conditions prevailing in the States. Moreover, the idea behind having morning/ evening/ shift courts is that sufficient infrastructure such as court rooms were not available for regular courts and with the same infrastructure more hours of judicial work could be done through morning/evening and shift courts. The fact, however, remains that with the help of funds allotted by the 11th Finance Commission, the States have already established additional court rooms for the FTCs. These relevant aspects was not considered by the Central Government while rejecting the recommendations in the Conference of Chief Ministers of the States and Chief Justices of the High Courts for continuing the FTC Scheme after 31. 03. 2010.

The State Governments and the 0 High Courts of different States should have been consulted and their views should have been taken before the Central Government took the final decision to reject the proposal at the Conference of the Chief Ministers of States and Chief Justices of the High Courts to continue the FTC Scheme. However, it is found that the policydecision of the Central Government to discontinue the FTC Scheme beyond 31. 03. 2011 has already been given effect to and for this reason there is no inclination to strike down the policy-decision of the Union of India to discontinue the FTC scheme beyond 31. 03. 2011. [Para 139] [426-8-H; 427-A] 7. 4 It would be clear from the recommendations of the 13th Finance Commission that there are over 3 crores pending cases in various courts in the country and there is enormous delay in disposing of the cases resulting in immense hardship, including those borne by large number of under-trials.

If the FTC ad hoc direct recruits who have over the years gained a lot of judicial experience are regularised and absorbed in the regular BRIJ MOHAN LAL v. UNION OF ! NOIA & ORS. 335 cadre of Additional District Judges in different States, the problem of arrear of cases can be handled to some extent. The State Governments, however, may not have the funds to bear the salary and allowances of additional posts of Additional District Judges and therefore, may not be in a position to regularise the ad hoc FTC Judges. To meet the cost disability of some of the State Governments, the 13th Finance Commission has provided funds for different projects, grant-in-aid and infrastructural expenditure relating to establishment and running of courts. To meet the expenses of the State Government for improving the Justice Delivery System, the 13th Finance Commission, therefore, recommended a total grant of Rs. 5,000 crores under the specific heads.

Thus, the Central Government should, in consultation with the State Governments and the High Courts of the 0 different States, reconsider allocating some amount out of the grant of Rs. 5000 crores and for such additional amount for meeting the initial expenses of increase in cadre strength of Additional District Judges for absorbing the direct recruits of the FTC Scheme by way of regularisation. [Paras 140, 141 and 142] [427-B-E; 428-D- E; 429-8-D] 7. 5 In terms of Articles 141 and 144 of the Constitution, the law declared by the Supreme Court of India is binding on all Courts and all authorities which are to act in aid of the law so declared. The framers of the Constitution, in no uncertain terms, declared that the judgments of this Court are binding on all. In fact, there is a duty upon the Authorities and all other Courts to act in aid of such decisions. In the case of *Brij Mohan Lal this Court issued number of directions in relation to establishment and functioning of the FTCs.

It repelled the challenge to the FTC Scheme. The modes of appointment of Judges to the FTCs were also provided. The judgment itself said that no right would be conferred on the Judicial Officers in service for claiming any regular promotion on the basis of serving as FTC Judges. While stating the order of preference for appointment to these Courts, this Court held that the first preference would be given to judges from amongst the eligible judicial officers by ad hoc promotion, the second preference would be given to the retired judges with good service records and the third preference would be given to the members of the Bar by direct recruitment. Thereafter, this Court passed a detailed order in the case of Madhumita Das, finding some substance in the plea that while assessing the performance, there cannot be different yardsticks, i. e. the same parameters have to be adopted while judging the performance of the petitioners viz-a-viz. those which are recruited from another source, i.

e. from amongst the Judicial Officers. However, in the interim order, this Court made a specific direction that the petitioners would 0 continue to hold the post until further orders, which it directed the High Court to pass. It was also stated therein that as and when regular vacancies would arise, the cases of the petitioners shall be duly considered and there shall not be any need for them to appear in any examination meant for recruitment to the cadre of District Judge. Thus, these two orders must be seen in light of the fact that the Union of India, as well as the State Governments of their own, extended the FTC Scheme for another five years i. e. till 2010 and thereafter, by another year. The Central Government ultimately took the decision not to finance the FTC Scheme with effect from 30th March, 2011. Even thereafter, a number of States have taken the decision to continue the FTC Scheme while retaining the appointees thereto till 2012, 2013 and even till 2016.

The State of Haryana has even thought of making it as a permanent feature of dispensation of justice in the State. The cumulative effect of all these factors is that the petitioners had a legitimate expectation that either their services would be continued as the FTC Scheme would be made a permanent feature of the justice administration in the concerned State or they would be absorbed in the regular cadre. But mere expectation or even legitimate expectation of absorption cannot be a cause of action for claiming the relief of regularization, particularly when the same is contrary to the Rules and letters of appointment. In **Madhumita Das s the protection was granted in an interim order and such directions cannot be issued, if they are contrary to the enacted statute.

When all these facts, circumstances and the judgments of this Court are harmoniously construed with an intention to do complete justice as well as to protect the fundamental rights and protections available to the public at large, it would appear necessary that this Court passes certain directions. [Paras 143, 144 and 145] (429-E-H; 430-A-H; 431-A-C] Brij Mohan Lal v Union of India and Ors. CWP No. 5740 of 2001; Smt Madhumita Das & Ors v State of Orissa & Ors 2008 AIR sew 4274 - referred to. 8. Without any intent to interfere with the policy decision taken by the Governments but, unmistakably, to protect the guarantees of Article 21 of the Constitution, improve the Justice Delivery System and fortify the independence of judiciary, while ensuring attainment of constitutional goals as well as to do complete justice to the lis before this Court, in terms of Article 142 of the Constitution, the following orders and directions are passed: 1.

Being a policy decision which has already taken effect, the policy decision of the Union of India vide letter dated 14th September, 2010 not to finance the FTC Scheme beyond 31st March, 2011 is not struck down. 2. All the States which have taken a policy decision to continue the FTC Scheme beyond 31st March 2011 shall adhere to the respective dates as announced. 3. The States which are in the process of taking a policy decision on whether or not to continue the FTC Scheme as a permanent feature of administration of justice in the respective States are free to take such a decision. 4. All the States, henceforth, shall not take a decision to continue the FTC Scheme on ad hoc and temporary basis. The States are at liberty to decide but only with regard either to bring the FTC Scheme to an end or to continue the same as a permanent feature in the State. 5.

The Union of India and the State Governments shall re-allocate and utilize the funds apportioned by the Thirteenth Finance Commission and/or make provisions for such additional funds to ensure regularization of the o FTC judges in the manner indicated and/or for creation of additional courts as directed. 6. All the decisions taken and recommendations made at the Chief Justices and Chief Ministers Conference shall be placed before the Cabinet of the Centre or the State, as the case may be, which alone shall have the authority to finally accept, modify or decline, implementation of such decisions and, that too, upon objective consideration and for valid reasons. 7. No decision, recommendation or proposal made by the Chief Justices and Chief Ministers Conference shall be rejected or declined or varied at any bureaucratic level, in the hierarchy of the Governments, whether in the State or the Centre. 8.

It shall be for the Central Government to provide funds for carrying out the directions contained in this judgment and, if necessary, by re-allocation of funds already allocated under the 13th Finance Commission for Judiciary; and that for creation of additional 10 per cent posts of the existing cadre, the burden shall be equally shared by the Centre and the State Governments and funds be provided without any undue delay so that the courts can be established as per the schedule directed. 9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over the FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective State only in the manner stated. 10.

The members of the Bar who have directly been appointed but whose services were either dispensed with or terminated on the ground of doubtful integrity, unsatisfactory work or against whom, on any other ground, disciplinary action had been taken, would not be 0 eligible to the benefits stated therein. 11. The respective States and the Central Government are directed to create 10 per cent of the total regular cadre of the State as additional posts within three m. '. >nths from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State. 12. These directions, of course, are in addition to and not in derogation of the recommendations that may be made by the Law Commission of India and any other order which may be passed by the Courts of competent jurisdiction, in other such matters. 13.

The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, would be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State subject to the given conditions. [Para 146] [431-C-H; 432-A-H; 433-A-D; 435-A-G] All India Judges' Association v. Union of India & Ors. (1992) 1 sec 119: 1991 (2) Suppl. SCR 206; All India Judges' Association v. Union of India & Ors. (1993) 4 SCC 288: 1993 (1) Suppl. SCR 749; Record Association v. Union of India & Ors. (1993) 4 SCC 441: 1993 (2) Suppl. SCR 659; - referred to. Case Law Reference: 442 Pa. 45; 274 A. 2d 193 Referred to Para 43, 79 1991 (2) Suppl. SCR 206 Referred to Para 43 1993 (1) Suppl. SCR 749 Referred to Para 43, 46 1993 (2) Suppl. SCR 659 Referred to Para 43 2006 (9) Suppl. SCR 73 Referred to Para 61 1958 SCR 828 Referred to Para 62 AIR 1984 SC 1854 Referred to Para 63 1980 (1) SCR 420 Referred to Para 63 2002 (5) Suppl.

SCR 573 Referred to Para 66 c2001) 1o sec 520 Referred to Para 66 c2010) 6 sec 33 Referred to Para 68 (1985) 3 sec 398 Referred to Para 68 1973 (2) SCR 757 Referred to Para 70 1989 (3) SCR 19 Referred to Para 71 (2009) 6 sec 611 Referred to Para 74 (1981) Supp. ,SCC 87 Referred to Para 77 (1992) 4 sec. 288 Referred to Para 78 2002 (2) SCR 712 Referred to Para 78 442 Pa. 45; 274 A. 2d 193 Referred to Para 79 1965 SCR 366 Referred to Para 99 1997 (3) SCR 1131 Referred to Para 101 2010 (6) SCR 857 Referred to Para 102 1995 (5) Suppl. SCR 511 Referred to Para 105 2008 (4) SCR 1 Referred to Para 106 1958 SCR 828 Relied on Para 120 (2009) 6 sec 611 Relied on Para 120 2006 (3) SCR 953 Followed Para 123 (2002) 2 SCR 712 Relied on Para 128 404 F Supp. 2d 571 Referred to Para 131 1979 (3) SCR 532 Referred to Para 131 (1986) 3 sec 632 Referred to Para 132 2002 (3) Suppl. SCR 353 Referred to Para 133 2006 (6) Suppl.

SCR 473 Referred to Para 133 2008 AIR sew 4274 Referred to Para 144, 145 CIVIL ORIGINAL JURISDICTION : Transfer Case (Civil) No. 22 of 2001 etc. Under Article 139 of lhe Constitution of India. WITH T. C. (C) No. 23 of 2001. Writ Petitions (C) Nos. 140 of 2005 28, 152 of 2011, 250, 254, 261 of 2008. Civil Appeal Nos. 3635, 3636, 3637, 3638, 3639, 3640, 3641,3642, 3643,3644, 3645,3646, 3647, 3648,3649, 3650, 3651, 3652, 3653, 3654, 3655, 3656, 3657-3658 and 3659- 3662 of 2012. P. S. Narasimha, (A. C. ), A. Mariaputham, T. S. Doabia, Ashok Bhan, Nagendra Rao, V. Shekar, C. S. Rajan, Jaydeep Gupta, Ranjit Kumar, Arvind Varma, Raju Ramachandran, Dr. Manish Singhvi Manjit Singh and Anil Grover, MG, S. W. A. Qadri lmtiaz Ahmed, Sunita Sharma, S. K. Mishra, B. V. Balramdas Satya Siddiqui, Shailendra Kr. Mishra, S. S. Rawat, Moh. Khairati, OS Mehra, Rekha Pandey, Ashwani Garg, Zaid Ali, Aruna Mathur, Yusf Khan, Kaustabh Sinha, S. K. Dwivedi, R. P.

Mehrotra, Vandana Mishra, Chander Shekhar Ashri, Rachana Srivastava, Ranchi Daga, Kishor M. Paul, Abha R. Sharma, Ajai Bhalla, Nitin Bhardwaj, Hemal K. Sheth, A Venayagam Balan, Shiv Mangal Sharma, Ankit Shah, M. K. Shah, Abhinandini Sharma, Sitesh Narayan Singh, Manoj K. Mishra, V. K. Mishra, Shiv Pati B. Pandey, R. Santhan Krishnan, C. S. N. Mohan Rao, D. N. Ray, Lokesh K. Choudhary, Sumita Ray, Satish Chand Gupta, Sarbendra Kumar, Rameshwar Prasad Goyal, Haresh Raichura, Saroj Raichura, A. D. N. Rao, D. Mahesh Babu, P. Parmeswaran, Kamini Jaiswal, H. Wahi, Rojalin Pradhan, Jesal, Suveni Banerjee, V. N. Raghupathy, KH. Nobin Singh, Ashok Mathur, Anshul Narayan, Javed Mahmud Rao, Ashok Kumar Singh, T. G. N. Nair, K. N. Madhusoodanan, T. V. Ratnam, Prashant Bhushan, K. Ram Kumar, Gopal Singh, Manish Kumar, Chandan Kumar, Rituraj Biswas, Anil Shrivastav, Anis Suhrawardy, Sanjay R. Hegde, Ranjan Mukherjee, S. Bhowmick, S. C.

Ghose, Deepika Ghatowar, Vartika Sahay, for (Corporate Law Group), J. P. Dhanda, Vikas Upadhyay, B. S. Banthia, V. D. Khanna, T. C. Sharma, V. G. Pragasam, S. J. ~~stotle, Prabu Ramasubramanian, M. T. George, Kavita K. T. , Raj Kumar Mehta, Revathy Raghavan, A. Subhashini, Radha Shyam Jena, Mukesh K. Giri, Dilip Kr. Sharma, Vishwajit Singh, Rajesh Srivastava, Anil K. Jha, Arun K. Sinha, G. S. Chatterjee, Raja Chatterjee, Sachin Das, Sunil Kumar Jain, Janaranjan Das, C. D. Singh, Abhinanya Singh, Sunny Choudhary, P. I. Jose, Sneha Kalita, Siba Sanker Mishra, Ajay Kumar Jha, Pradeep Misra, Manish Kumar Saran, G. Prakash, Sameer Parekh, (for Parekh and Co. ), Gopal Prasad, Naresh K. Sharma, P. V. Yogeswaran, S. Sukumaran, Anand Sukumar, Bhupesh Kumar Pathak, Meera Mathur, S. M. Jadhav, Ashok K. Srivastava, Kuldip Singh, Jayesh Gaurav, Soumitro G Choudhury, Abhijit Sengupta, B. P. Yadav, Anima Kujur, Sampa Sengupta, A.

Ramakrishna, lrshad Ahmad, Sunil Fernandes, Krishanu Adhikary, Astha Sharma, K. Enatoli Serna, Edward Belho, Amit Kumar Singh, G. N. Reddy, C. Kannan, Ravi Shankar, R. Sathish, Tarjit Singh, Kamal Mohan Gupta, Sanjay Kharde, Asha G. Nair, Venkateswara Rao Anumolu, Prabhakar Parnam, AVS Raju, T. N. Singh, Rajeev Dubey, Kamlendra Mishra, Sunil Kr. Jain, Parmatma Singh, 8. Sridhar, K. Ram Kumar, Atul Jha, Sandeep Jha, D. K. Sinha, Abhimanyu Singh, Noopur Singhal, T. Kanaka Durga, Gaichang Pou Gangmei, D. Siri Rao, Sridhar Potaraju, G. Ramarishna Prasad, B. Suyodhan, Bharat J. Joshi, Shibashish Misra, P. S. Sudheer, Rishi Maheswari, Shiv Ram Sharma, D, Bharthi Reddy, Jagjit Singh Chhabra for the appearing parties. The Judgment of the Court was delivered by SWATANTER KUMAR, J. 1. Leave granted in the all the above SLPs.. 2. The Writ Petition being CWP No. 5740 of 2001 titled Brij Mohan Lal v. Union of India and Ors.

was filed in the High Court of Punjab and Haryana at Chandigarh under Article 226/ 227 of the Constitution of India praying for issuance of a writ in the nature of quo warranto and prohibition, requiring the respondents to stop the scheme and policy of appointment of the retired District and Sessions Judges as ad hoc Judges of the Fast Track Courts (hereinafter referred to as the 'FTCs') in the State Judicial Services. It was also prayed in that petition that in order to maintain the standards of judicial system, the scheme of appointing the retired Judges, as opposed to the regular appointment of Judges to the posts of District and Sessions Judges from the members of the Bar or from the lower judiciary, should be given up.

The principal submission made in the writ petition was that the constitutional scheme contained under Articles 233 to 235 read with Articles 308 and 309 of the Constitution do not contemplate and permit appointment of retired judges as ad hoc District and Sessions Judges. Even otherwise, there is no constitutional provision which empowers the authorities concerned to make such appointments. The purpose of this petition obviously was to ensure that only the members of the Bar are appointed by direct recruitment to the post of ad hoc District and Sessions Judges. 3. A writ. petition being Writ Petition No. 8903 of 2001 titled Bar Council of Andhra Pradesh v. Union of India also came to be filed before the High Court of Andhra Pradesh at Hyderabad praying that the Court may issue appropriate order, writ or direction declaring that constitution of the FTCs and 32 presiding officers in the State of Andhrr Pradesh and the G. O. M. Nos. 38 Law (LA & J. Courts.

C) \Department, dated 27th March, 2001 and G. O. Rt. No. 412, Law (LA & J. SC. F) Department dated 27th March, 2001 was unconstitutional and consequently should be set aside. 4. The Union of India filed two transfer petitions before this Court being Transfer Petition Nos. 331-332 of 2001 for transfer of both the Brij Mohan Lal case and the Bar Council of Andhra Pradesh case (supra) from the High Courts of Punjab and Haryana and Andhra Pradesh respectively, to the Supreme Court. These petitions came to be allowed vide order dated 3rd August, 2001. By the same order, a Bench of this Court even permitted the intervention by other parties who might have filed similar petitions in different High Courts of the country. 5. Both these writ petitions upon transfer to this Court were numbered as Transferred Cases Nos. 22 and 23 of 2001, respectively. 6. On 6th May, 2002, a deta~ed order was passed by this Court in Transferred Case No.

22 of 2001 and the directions issued therein read as under : "1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions 8 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. 2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Article 233(2) and 309 of the Constitution.

The concerned High Court shall take a decision with regard to the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts. 3. No Judicial Officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial Officers who have sought voluntary retirement after initiation of Departmental proceedings/inquiry shall not be considered for appointment. 4. The third preference shall be given to members of the Bar for direct appointment in these Courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed peri9dically by the High Court based on their performance.

they may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services. 5. Overall preference for appointment in Fast Track Courts shall be given to eligible officers who are on the verge of retirement subject to they being physically fit. 6. The recommendation for selection shall be made by a Committee of at least three Judges of the High Court, constituted by the Chief Justice of the concerned High Court in this regard. The final decision in the matter shall be taken by the Full Court of the High Court. 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. Concerned State Government shall take necessary directions within a month from the receipt of the recommendations made by the High Court. 8. Priority shall be given by the Fast Track Courts for disposal of those Sessions cases which are pending for the longest period of time, and/or those involving undertrials. Similar shall be the approach for Civil cases i. e. old cases shall be given priority. BRIJ MOHAN LAL v. UNION OF ! NOIA & ORS. 347 9.

While the staff of a regular Court of Additional District and Sessions Judge includes a Sessions Clerk and an office Peon, work in Fast Track Courts is reported to be adversely affected due to shortage of staff as compared to regular Courts performing same or similar functions. When single Orderly or Clerk proceeds on leave, work in Fast Track Courts gets held up. The staff earmarked for each such Court are a Peshkar/ Superintendent, a Stenographer and an Orderly. If the staff is inadequate, the High Court and the State Government shall taKe appropriate decision to appoint additional staff who can be accommodated within the savings out of the existing allocations by the Central Government. 10. Provisions for the appointment of Public Prosecutor and Process Server have not been made under the Fast Track Courts Scheme. A Public Prosecutor is necessary for effective functioning of the Fast Track Courts.

Therefore, a Public Prosecutor may be earmarked for each such Court and the expenses for the same shall be borne out of the allocation under the head 'Fast Track Courts'. Process service shall be done through the existing mechanism. 11. A State Level Empowered Committee headed by the Chief Secretary of the State shall monitor the setting up of earmarked number of Fast Track Courts and smooth functioning of such Courts in each State, as per the guidelines already issued by the Government of India. 12. The State Governments shall utilize the funds allocated under the Fast Track Courts Scheme promptly and will not withhold any such funds or divert them to other uses. They shall send the utilization certificates from time to time to the Central Government, who shall ensure immediate release of funds to the State Governments on receipt of required utilization certificates. 13.

At least one Administrative Judge shall be nominated in each High Court to monitor the disposal of cases by Fast Track Courts and to resolve the difficulties and shortcomings, if any, with the administrative support and cooperation of the concerned State Government. State Government shall ensure requisite cooperation to the Administrative Judge. 8 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 p