CASE NO.: Writ Petition (civil) 490 of 2000 PETITIONER: S. RENUKA & ORS. Vs. RESPONDENT: STATE OF A. P. & ANR. DATE OF JUDGMENT: 21/03/2002 BENCH: G.B. Pattanaik, S.N. Phukan & S.N. Variava JUDGMENT:
S. N. VARIAVA, J.
1. The facts relevant for the purposes of this Writ Petition are as
follows:
The State of Andhra Pradesh established Family Courts and Mahila
Courts. The High Court of Andhra Pradesh desired that these Courts
be manned by women. However in the cadre of District and Sessions
Judges, Grade II there were not enough women Judges who could be
posted in these Courts. Therefore the High Court requested the State
to create additional posts. On 3rd September, 1996 the State
Government issued Office Memorandum No. 172 sanctioning 10
additional posts of District and Sessions Judges, Grade II. The relevant
portion of the said Memorandum reads as follows:
“The Registrar, High Court of Andhra Pradesh, Hyderabad,
has informed in his letter 6th read above that six Family
Courts in the cadre of District and Sessions Judge were
sanctioned at Visakhapatnam, Hyderabad, Vijayawada,
Kurnool, Tirupathi and Warangal in the G. O. 3rd read
above and another Family Court at Secunderabad was
sanctioned in the G. O. 5th read above. The Registrar,
High Court of Andhra Pradesh has further stated that the
High Court considers it necessary to post lady District
Judges to preside over the Family Courts in the State with
a view to protect and preserve that institution of marriage
and to promote the welfare of the children as stipulated in
Rule 4 (4) (a) and (b) of the Family Court Act, 1984, but
due to non availability of women judicial Officers in the
cadre of District Judges, the High Court is unable to post
Lady District Judges to the Family Courts. The Registrar
has also stated that Mahila Courts with Lady presiding
Officers at Hyderabad, Vijayawada and Visakhapatnam
were sanctioned exclusively to deal with offences against
women, in the G.Os. first and fourth read above. The
Registrar, High Court of Andhra Pradesh has finally
requested that 10 posts of District and Sessions Judge,
Grade-II, be sanctioned in addition to the existing cadre
strength, exclusively to recruit the women candidates by
direct recruitment, for being posted to the Family Courts
and Mahila Courts in the State.
2. Government after careful consideration of the matter
hereby sanction in relaxation of Rule 2 of the Special Rules
for the A. P. State Higher Judicial Service, 10 posts of
District and Sessions Judges, Grade-II, in addition to the
existing cadre strength, exclusively for women candidates
to be recruited by direct recruitment.”
2. Pursuant to this Memorandum the High Court issued an
Advertisement inviting applications from women candidates for
appointment to the post of District and Sessions Judge, Grade-II. The
advertisement specified that five posts would be available for open
competition, two posts for the Scheduled Castes, one post for the
Scheduled Tribe, one post for Backward Class Group A and one post
for Backward Class Group B.
3. Pursuant to this advertisement 261 candidates applied for the
posts. The High Court called 210 candidates for a written
examination. 180 candidates participated in the written examination.
The High Court then called 35 candidates for oral interviews. The oral
interviews were conducted on 20th and 21st of March, 1997. A panel of
10 candidates was prepared. The 10 candidates were asked to furnish
further information relating to their legal practice. After receipt of the
information the High Court rejected one name. A panel of nine
candidates was then approved at Full Court meetings held on 17th
September, 1997 and again on 17th October, 1997. This panel
consisted of seven candidates from the open category, one from
Scheduled Caste and one from Backward Class Group D. The High
Court then sent the names of the nine candidates to the State
Government for appointment.
4. The State Government brought to the notice of the High Court
certain aspects and requested the High Court to consider the same and
express its views. The aspects brought to the notice of the High Court
were as follows:
“1. As Rule 22 of the A. P. State and Subordinate
Service Rules old or new prescribes a specific
procedure either for filling of S.C. and S.T. vacancies
with O.C. candidates or for de-reserving such
vacancies, it is for the consideration whether the 7th
and 8th vacancies in the recruitment reserved for SCs
and STs respectively can straightaway be de-
reserved which is not in consonance with the said
Rule 22.
2. As the notification inviting the applications for the
post in question was issued much later to 18-3-
1996, the principles of carry forward of vacancies in
respect of BCs also applies to the recruitment. The
recommendation of the High Court at roster points
4th and 10th reserved for BC.A and BC.B groups
respectively, required consideration in the light of
rules issued in G.O.Ms.No. 65, General
Administration (Ser.D) Dept., Dated:15-2-1997.
3. The High Court informed that the appointments of
the nine provisionally selected candidates shall be
provisionally as Family Court Judges under the
Family Courts Act to man Family Courts and Mahila
Courts only. As the proposal for sanction and
notification are for the posts of District and Sessions
Judges Grade.II, it is for consideration whether the
candidates provisionally appointed in such
recruitment can now be provisionally appointed
designating them as Family Courts Judges.
4. The High Court has stated that the nine
recommended candidates to be provisionally
appointed as Family Court Judges would be recruited
into Higher Judicial Service as District Judges
Grade.II as and when vacancies in the cadre to the
extent of reservation for women become available in
order of their merit subject to the rule of reservation,
it has to be considered in view of Rule 2 of the
Special Rules and whether they can be so adjusted
as suggested in view of Rule 6 of the Special Rules.
5. Whether the provisionally selected candidates
recruited as District Judges in the Andhra Pradesh
State Higher Judicial Service can be kept out of the
service by provisional appointment to some other
post and recruiting them into the posts of District
Judges on the availability of vacancies reserved for
Women.
6. The appointments to the posts of District Judges
shall be made by the Governor of the State, where
as under the Family Courts Act, 1984, the State
Government appoints persons to be judges of the
Family Courts. Hence the appropriate procedure to
be adopted for making the suggested appointments
may also be considered.”
5. The High Court considered the aspects brought to its notice in a
meeting of the Full Court held on 21st November, 2000. The High
Court then replied to the State Government as follows:
“For Query No. 1:
As per the rules in force, the vacancies relating
to SC and ST Candidates cannot be straight away
de-reserved. If there are no qualified candidates of
SC and ST available, the said vacancies have to be
carried forward for Limited Recruitment. Therefore,
the High Court is of the view that the vacancies
reserved for SC and ST candidates cannot be de-
reserved.
For Query No. 2:
As per the rules in force, the vacancies relating
to each category of candidates belonging Backward
Class Group A,B,C and D cannot be converted into
other categories and they have to be carried forward
for Limited Recruitment, if the candidates belonging
to each sub-group are not available. Therefore, the
High Court is of the view that the vacancies reserved
for each sub group cannot be filled up with the
candidates of other sub groups.
For Query No. 3:
The advertisement for the recruitment of
women candidates was made inviting applications for
the posts of District and Sessions Judges, Grade.II.
The Government accorded sanction of 10 additional
posts in G.O.Ms.No.172, Law (LA&J SCF) Department
dated:3.9.1996. There is no provision in the Special
rules for A.P. State Higher Judicial service for
eventual absorption of the candidates appointed as
Family Court Judges into the Cadre of District
Judges, Grade.II against the future vacancies falling
with the direct recruitment quota. In this regard,
two aspects viz., (1) suitability test from the point of
view of merit of the candidates and (2) Legality of
recruitment by inviting applications exclusively from
women candidates only, have been considered by
the High Court.
Regarding the suitability, it is noticed by the
High Court that the candidates who were
provisionally selected have got less marks even if
40% is taken as minimum marks for Ocs and 30%
for Scs and Sts for the purpose of selection as
District Judges Grade.II. The recommendation
through the letter 4th cited, was for appointment of
the women candidates as Family Court Judges and
not as District and Sessions Judges, Grade.II. The
High Court, therefore, is of the view that it is not
conducive to the efficiency in service and the image
of Judiciary if the candidates who have got such
lower marks are inducted into Higher Judicial
Service.
Regarding the legality of recruitment, the High
Court is of the view that there are formidable legal
impediments in the way of recommending the
candidates for appointment as District and Sessions
Judges, Grade.II. The High Court is of the further
view that the Spl. Rules for A.P. State Higher Judicial
Service issued in exercise of powers conferred under
Article 233 and the proviso to Article 309 of the
Constitution of India and those rules enjoin that
33.1/3% of the total number of permanent posts
shall be filled or reserved to be filled by direct
recruitment. The Government accorded sanction of
10 posts of District and Sessions Judges, Grade.II in
addition to the existing cadre strength exclusively for
women candidates to be recruited by direct
recruitment. This was purportedly done by
relaxation of rule 2 of the special Rules for A.P. State
Higher Judicial service. Rule 2 provides for method of
appointment and the proportion between the recruits
by transfer (Promotees) and direct recruits from the
Bar. By resorting to relaxation of the said rule, it is
not legally permissible to earmark 10 sanctioned
posts exclusively for direct recruitment of women
candidates since there is no rule in the A.P. State
Higher Judicial Service giving the power to relax any
of the rules. The power to relax the rules would only
be under the A.P. State and Subordinate Service
rules. Even if there is such power, it is doubtful
whether the basic rules of recruitment can be
relaxed in view of the rulings of the Supreme Court
in KESHAV CHANDRA JOSHI VS. UNION OF INDIA
(AIR 1991 SC 284) AND IN J&k PUBLIC SERVICE
COMMISSION VS. NARINDER MOHAN (AIR 1994 SC
1808). The High Court is of the further view that
ear-marking 10 additional posts sanctioned only to
the women candidates amount to cent percent
reservation in favour of women which is not
legal/constitutionally permissible. Even if the
reservation provided under Rule 22-A of the A.P.
State and Subordinate Service Rules is made
applicable to A.P. State Higher Judicial Service, the
reservation could be to the extent of 1/3rd only.
For Query No. 4:
Since there is no rule under the Spl. Rules for
A.P. State Higher Judicial Service to absorb the
Family Courts Judges into the Higher Judicial Service
as District & Sessions Judges, Grade.II as and when
vacancies in the cadre to the extent of reservation
for women become available, the High Court is of the
view that they cannot be absorbed in view of Rule 2
read with Rule 6 of the Special Rules for A.P. State
Higher Judicial Service.
For Query No. 5:
According to Rule 6 of the Spl. Rules for A.P.
State Higher Judicial Service, seniority of a person
appointed to the category of District and Sessions
Judges, shall be determined with reference to the
date from which he was continuously on duty in the
category. The Spl. Rules do not provide to keep
provisionally selected District Judges out of service
as Family Court and Mahila Court Judges and
recruiting them into the posts of District Judges as
and when vacancies for women for direct recruitment
become available in order to their merit and subject
to the rule of reservation. Therefore, the High Court
is of the view that the provisionally selected
candidates as District Judges cannot be kept out of
that service by provisional appointment to some
other post and recruiting them into the posts of
District Judges on the availability of vacancies
reserved for women.
For Query No. 6:
In view of the above views expressed by the
High Court, this query needs no clarification.
In the light of the above views for the
queries raised by the Government, the High
Court of Andhra Pradesh is not in favour of
recommending any women candidates on
provisional selection for appointment as
District and Sessions Judges, Grade.II under
the A.P. State Higher Judicial service in
pursuance of the Notification issued on the
basis of the High Court’s letter No. 4610/96-
B.Spl Dated: 7.10.1996.”
Thus the Full Court, in its meeting held on 21st November, 2000 was
not in favour of appointing any person from the Panel prepared earlier.
6. It must be noted that the vacancies were for Judges of Family
Courts and Mahila Courts. These Courts could be manned by District
and Sessions Judges, Grade II. The State Government had thus
created 10 posts of District and Sessions Judge, Grade II. The
advertisement was also for appointment to the posts of District and
Sessions Judge, Grade II. The appointments were to be not to any ex-
cadre posts but to posts in the cadre of District and Sessions Judge,
Grade II. The rules prescribed that in the cadre of District and
Sessions Judges there had to be reservations for Scheduled Tribes,
Scheduled Caste, Backward Classes (groups A, B, C or D) and women.
The rules did not allow 100% reservation for women. By reserving all
the 10 posts for women the High Court had inadvertently created a
100% reservation for women. Further the posts advertised were 5
open competition, 2 Scheduled Caste, 1 Scheduled Tribe, 1 Backward
Class Group A and 1 Backward Class group B. Yet the panel sent to
the Government consisted of 7 open competition candidates, 1
Scheduled Caste candidate and 1 Backward Class group D candidate.
Such a selection was entirely against the rules and against the
reservation policy. The rules also required that if no SC or ST
candidate was available then the vacancy had to be carried forward.
Similarly the vacancy of Backward Class group A, B, C and/or D could
not be converted into other category. Because of these difficulties the
persons empanelled could not be appointed in the cadre of District &
Sessions Judge Grade II. The High Court initially considered that the
Petitioners could be appointed in ex-cadre posts as Family Court
and/or Mahila Court Judges and then absorb them in the cadre of
District and Sessions Judge, Grade II as and when vacancy for women
arose. The High Court correctly realised that this could not be done.
It was also noticed that the candidates provisionally selected i.e. the
Petitioners had got less marks than those normally prescribed for such
selection.
7. It must be mentioned that in the meantime the Petitioners had
made representations both to the Chief Justice as well as to the Chief
Minister. They received no reply. This Writ Petition was thus filed by
the nine women lawyers who were selected and whose names were
forwarded to the State Government for appointment. The Petitioners
sought directions to appoint them in the cadre of District and Sessions
Judges, Grade II. Thereafter on 20th July, 2000 another advertisement
was issued calling for applications for appointment to six posts of
District Judges. In this advertisement only one post was reserved for
women. The Petition was thus amended and a further direction to
quash the decision of the Full Court not to appoint as per the selection
earlier made and to quash the subsequent advertisement have been
sought.
8. It is settled law that no right accrues to a person merely because
a person is selected and his or her name is put on a panel. The
Petitioners have no right to claim an appointment. Even otherwise,
the selection was contrary to the rules in force at that time. There
could not be 100% reservation for women. Also the reservation policy
had not been adhered to. The posts which are created are posts of
District and Sessions Judges, Grade II. There is no seperate posts for
Judges of Family Courts and Mahila Courts. Thus the Petitioners could
not be appointed as Judges of Family Courts and Mahila Courts in ex-
cadre posts even provisionally. This would amount to creation of Ex-
cadre posts not sanctioned by the Government. No fault can be found
with the High Court being in favour of not appointing the Petitioners.
9. The unfortunate part is that even though Family Court and
Mahila Courts have been established no appointments have been
made. Thus, till date the Family Courts and Mahila Courts are not
being manned.
10. Mr. Nageshwar Rao has relied upon the case of R. S. Mittal vs.
Union of India reported in 1995 Supp. (2) SCC 230. In this case even
though the Court was of the opinion that the selection was not proper,
it refused to interfere. Mr. Nageshwar Rao also relied on the case of
Munna Roy vs. Union of India reported in (2000) 9 SCC 283. In this
case the Court directed appointment of the selected candidate in spite
of the fact that she had no right to the appointment. Both these
cases are based on the peculiar facts of those cases.
11. As the posts were lying vacant for such a long period of time
initially it was suggested that if the Petitioners filed an undertaking
before this Court, that they are willing to be appointed in ex-cadre
posts of Judges of the Family Court and/or Mahila Court and that they
will not claim any right to be subsequently absorbed in the cadre of
District and Sessions Judges Grade II then the Court could consider
directing the State Government to appoint these nine Petitioners.
Eight of these Petitioners have filed undertakings before this Court.
However on a proper consideration of the matter, we are of the view
that this Court cannot direct the State Government to appoint these
Petitioners. If such a direction were to be given this Court would be
creating ex-cadre posts and making appointments contrary to rules.
Thus it is not possible for this Court to accede to the request of Mr.
Nageshwar Rao to appoint Petitioners, on the ex-cadre posts, as
Judges of Family Courts and Mahila Courts.
12. Writ Petition is thus dismissed. There will be no order as to
costs.
…J.
(G. B. PATTANAIK)
…J.
(S. N. PHUKAN)
..J.
(S. N. VARIAVA)
March 21, 2002.