{"id":4420,"date":"2002-03-21T00:00:00","date_gmt":"2002-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-renuka-ors-vs-state-of-a-p-anr-on-21-march-2002"},"modified":"2018-04-17T13:02:44","modified_gmt":"2018-04-17T07:32:44","slug":"s-renuka-ors-vs-state-of-a-p-anr-on-21-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-renuka-ors-vs-state-of-a-p-anr-on-21-march-2002","title":{"rendered":"S. Renuka & Ors vs State Of A. P. & Anr on 21 March, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. Renuka & Ors vs State Of A. P. & Anr on 21 March, 2002<\/div>\n
Author: S N Variava<\/div>\n
Bench: G.B. Pattanaik, S.N. Phukan, S.N. Variava<\/div>\n
           CASE NO.:\nWrit Petition (civil) 490  of  2000\n\n\n\nPETITIONER:\nS. RENUKA & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF A. P. & ANR.\n\nDATE OF JUDGMENT:\t21\/03\/2002\n\nBENCH:\nG.B. Pattanaik, S.N. Phukan & S.N. Variava\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S. N. VARIAVA, J.\n<\/p>\n
1.\tThe facts relevant for the purposes of this Writ Petition are as
\n\tfollows:\n<\/p>\n
The State of Andhra Pradesh established Family Courts and Mahila
\nCourts.\t   The High Court of Andhra Pradesh desired that these Courts
\nbe manned by women.  However in the cadre of District and Sessions
\nJudges, Grade II there were not enough women Judges who could be
\nposted in these Courts.\t Therefore the High Court requested the State
\nto create additional posts.   On 3rd September, 1996 the State
\nGovernment issued Office Memorandum No. 172 sanctioning 10
\nadditional posts of District and Sessions Judges, Grade II. The relevant
\nportion of the said Memorandum reads as follows:\n<\/p>\n
“The Registrar, High Court of Andhra Pradesh, Hyderabad,
\nhas informed in his letter 6th read above that six Family
\nCourts in the cadre of District and Sessions Judge were
\nsanctioned at Visakhapatnam, Hyderabad, Vijayawada,
\nKurnool, Tirupathi and Warangal in the G. O. 3rd read
\nabove and another Family Court at Secunderabad was
\nsanctioned in the G. O. 5th read above.\t The Registrar,
\nHigh Court of Andhra Pradesh has further stated that the
\nHigh Court considers it necessary to post lady District
\nJudges to preside over the Family Courts in the State with
\na view to protect and preserve that institution of marriage
\nand to promote the welfare of the children as stipulated in
\nRule 4 (4) (a) and (b) of the Family Court Act, 1984, but
\ndue to non availability of women judicial Officers in the
\ncadre of District Judges, the High Court is unable to post
\nLady District Judges to the Family Courts.  The Registrar
\nhas also stated that Mahila Courts with Lady presiding
\nOfficers at Hyderabad, Vijayawada and Visakhapatnam
\nwere sanctioned exclusively to deal with offences against
\nwomen, in the G.Os. first and fourth read above. The
\nRegistrar, High Court of Andhra Pradesh has finally
\nrequested that 10 posts of District and Sessions Judge,
\nGrade-II, be sanctioned in addition to the existing cadre
\nstrength, exclusively to recruit the women candidates by
\ndirect recruitment, for being posted to the Family Courts
\nand Mahila Courts in the State.\n<\/p>\n
2.\tGovernment after careful consideration of the matter
\nhereby sanction in relaxation of Rule 2 of the Special Rules
\nfor the A. P. State Higher Judicial Service, 10 posts of
\nDistrict and Sessions Judges, Grade-II, in addition to the
\nexisting cadre strength, exclusively for women candidates
\nto be recruited by direct recruitment.”\n<\/p>\n
2.\tPursuant to this Memorandum the High Court issued an
\nAdvertisement inviting applications from women candidates for
\nappointment to the post of District and Sessions Judge, Grade-II.  The
\nadvertisement specified that five posts would be available for open
\ncompetition, two posts for the Scheduled Castes, one post for the
\nScheduled Tribe, one post for Backward Class Group A and one post
\nfor Backward Class Group B.\n<\/p>\n
3.\tPursuant to this advertisement 261 candidates applied for the
\nposts.\tThe High Court called 210 candidates for a written
\nexamination. 180 candidates participated in the written examination.
\nThe High Court then called 35 candidates for oral interviews.  The oral
\ninterviews were conducted on 20th and 21st of March, 1997.  A panel of
\n10 candidates was prepared.  The 10 candidates were asked to furnish
\nfurther information relating to their legal practice.\tAfter receipt of the
\ninformation the High Court rejected one name.\tA panel of nine
\ncandidates was then approved at Full Court meetings held on 17th
\nSeptember, 1997 and again on 17th October, 1997. This panel
\nconsisted of seven candidates from the open category, one from
\nScheduled Caste and one from Backward Class Group D. The High
\nCourt then sent the names of the nine candidates to the State
\nGovernment for appointment.\n<\/p>\n
4.\tThe State Government brought to the notice of the High Court
\ncertain aspects and requested the High Court to consider the same and
\nexpress its views.  The aspects brought to the notice of the High Court
\nwere as follows:\n<\/p>\n
“1.\tAs Rule 22 of the A. P. State and Subordinate
\nService Rules old or new prescribes a specific
\nprocedure either for filling of S.C. and S.T. vacancies
\nwith O.C. candidates or for de-reserving such
\nvacancies, it is for the consideration whether the 7th
\nand 8th vacancies in the recruitment reserved for SCs
\nand STs respectively can straightaway be de-
\nreserved which is not in consonance with the said
\nRule 22.\n<\/p>\n
2.\tAs the notification inviting the applications for the
\npost in question was issued much later to 18-3-
\n1996, the principles of carry forward of vacancies in
\nrespect of BCs also applies to the recruitment.\t The
\nrecommendation of the High Court at roster points
\n4th and 10th reserved for BC.A and BC.B groups
\nrespectively, required consideration in the light of
\nrules issued in G.O.Ms.No. 65, General
\nAdministration (Ser.D) Dept., Dated:15-2-1997.\n<\/p>\n
3.\tThe High Court informed that the appointments of
\nthe nine provisionally selected candidates shall be
\nprovisionally as Family Court Judges under the
\nFamily Courts Act to man Family Courts and Mahila
\nCourts only.   As the proposal for sanction and
\nnotification are for the posts of District and Sessions
\nJudges Grade.II, it is for consideration whether the
\ncandidates provisionally appointed in such
\nrecruitment can now be provisionally appointed
\ndesignating them as Family Courts Judges.\n<\/p>\n
4.\tThe High Court has stated that the nine
\nrecommended candidates to be provisionally
\nappointed as Family Court Judges would be recruited
\ninto Higher Judicial Service as District Judges
\nGrade.II as and when vacancies in the cadre to the
\nextent of reservation for women become available in
\norder of their merit subject to the rule of reservation,
\nit has to be considered in view of Rule 2 of the
\nSpecial Rules and whether they can be so adjusted
\nas suggested in view of Rule 6 of the Special Rules.\n<\/p>\n
5.\tWhether the provisionally selected candidates
\nrecruited as District Judges in the Andhra Pradesh
\nState Higher Judicial Service can be kept out of the
\nservice by provisional appointment to some other
\npost and recruiting them into the posts of District
\nJudges on the availability of vacancies reserved for
\nWomen.\n<\/p>\n
6.\tThe appointments to the posts of District Judges
\nshall be made by the Governor of the State, where
\nas under the Family Courts Act, 1984, the State
\nGovernment appoints persons to be judges of the
\nFamily Courts.\tHence the appropriate procedure to
\nbe adopted for making the suggested appointments
\nmay also be considered.”\n<\/p>\n
5.\tThe High Court considered the aspects brought to its notice in a
\nmeeting of the Full Court held on 21st November, 2000.\tThe High
\nCourt then replied to the State Government as follows:\n<\/p>\n
“For Query No. 1:\n<\/p>\n
As per the rules in force, the vacancies relating
\nto SC and ST Candidates cannot be straight away
\nde-reserved.  If there are no qualified candidates of
\nSC and ST available, the said vacancies have to be
\ncarried forward for Limited Recruitment.   Therefore,
\nthe High Court is of the view that the vacancies
\nreserved for SC and ST candidates cannot be de-
\nreserved.\n<\/p>\n
For Query No. 2:\n<\/p>\n
As per the rules in force, the vacancies relating
\nto each category of candidates belonging Backward
\nClass Group A,B,C and D cannot be converted into
\nother categories and they have to be carried forward
\nfor Limited Recruitment, if the candidates belonging
\nto each sub-group are not available.   Therefore, the
\nHigh Court is of the view that the vacancies reserved
\nfor each sub group cannot be filled up with the
\ncandidates of other sub groups.\n<\/p>\n
For Query No. 3:\n<\/p>\n
The advertisement for the recruitment of
\nwomen candidates was made inviting applications for
\nthe posts of District and Sessions Judges, Grade.II.
\nThe Government accorded sanction of 10 additional
\nposts in G.O.Ms.No.172, Law (LA&J SCF) Department
\ndated:3.9.1996.\t There is no provision in the Special
\nrules for A.P. State Higher Judicial service for
\neventual absorption of the candidates appointed as
\nFamily Court Judges into the Cadre of District
\nJudges, Grade.II against the future vacancies falling
\nwith the direct recruitment quota.  In this regard,
\ntwo aspects viz., (1) suitability test from the point of
\nview of merit of the candidates and (2) Legality of
\nrecruitment by inviting applications exclusively from
\nwomen candidates only, have been considered by
\nthe High Court.\n<\/p>\n
Regarding the suitability, it is noticed by the
\nHigh Court that the candidates who were
\nprovisionally selected have got less marks even if
\n40% is taken as minimum marks for Ocs and 30%
\nfor Scs and Sts for the purpose of selection as
\nDistrict Judges Grade.II.  The recommendation
\nthrough the letter 4th cited, was for appointment of
\nthe women candidates as Family Court Judges and
\nnot as District and Sessions Judges, Grade.II.\tThe
\nHigh Court, therefore, is of the view that it is not
\nconducive to the efficiency in service and the image
\nof Judiciary if the candidates who have got such
\nlower marks are inducted into Higher Judicial
\nService.\n<\/p>\n
Regarding the legality of recruitment, the High
\nCourt is of the view that there are formidable legal
\nimpediments in the way of recommending the
\ncandidates for appointment as District and Sessions
\nJudges, Grade.II.   The High Court is of the further
\nview that the Spl. Rules for A.P. State Higher Judicial
\nService issued in exercise of powers conferred under
\nArticle 233 and the proviso to Article 309 of the
\nConstitution of India and those rules enjoin that
\n33.1\/3% of the total number of permanent posts
\nshall be filled or reserved to be filled by direct
\nrecruitment.  The Government accorded sanction of
\n10 posts of District and Sessions Judges, Grade.II in
\naddition to the existing cadre strength exclusively for
\nwomen candidates to be recruited by direct
\nrecruitment.  This was purportedly done by
\nrelaxation of rule 2 of the special Rules for A.P. State
\nHigher Judicial service. Rule 2 provides for method of
\nappointment and the proportion between the recruits
\nby transfer (Promotees) and direct recruits from the
\nBar.  By resorting to relaxation of the said rule, it is
\nnot legally permissible to earmark 10 sanctioned
\nposts exclusively for direct recruitment of women
\ncandidates since there is no rule in the A.P. State
\nHigher Judicial Service giving the power to relax any
\nof the rules.  The power to relax the rules would only
\nbe under the A.P. State and Subordinate Service
\nrules.\tEven if there is such power, it is doubtful
\nwhether the basic rules of recruitment can be
\nrelaxed in view of the rulings of the Supreme Court
\nin KESHAV CHANDRA JOSHI VS. UNION OF INDIA
\n(AIR 1991 SC 284) AND IN J&k PUBLIC SERVICE
\nCOMMISSION VS. NARINDER MOHAN (AIR 1994 SC
\n1808).\t The High Court is of the further view that
\near-marking 10 additional posts sanctioned only to
\nthe women candidates amount to cent percent
\nreservation in favour of women which is not
\nlegal\/constitutionally permissible.  Even if the
\nreservation provided under Rule 22-A of the A.P.
\nState and Subordinate Service Rules is made
\napplicable to A.P. State Higher Judicial Service, the
\nreservation could be to the extent of 1\/3rd only.\n<\/p>\n
For Query No. 4:\n<\/p>\n
Since there is no rule under the Spl. Rules for
\nA.P. State Higher Judicial Service to absorb the
\nFamily Courts Judges into the Higher Judicial Service
\nas District & Sessions Judges, Grade.II as and when
\nvacancies in the cadre to the extent of reservation
\nfor women become available, the High Court is of the
\nview that they cannot be absorbed in view of Rule 2
\nread with Rule 6 of the Special Rules for A.P. State
\nHigher Judicial Service.\n<\/p>\n
For Query No. 5:\n<\/p>\n
According to Rule 6 of the Spl. Rules for A.P.
\nState Higher Judicial Service, seniority of a person
\nappointed to the category of District and Sessions
\nJudges, shall be determined with reference to the
\ndate from which he was continuously on duty in the
\ncategory.   The Spl. Rules do not provide to keep
\nprovisionally selected District Judges out of service
\nas Family Court and Mahila Court Judges and
\nrecruiting them into the posts of District Judges as
\nand when vacancies for women for direct recruitment
\nbecome available in order to their merit and subject
\nto the rule of reservation.  Therefore, the High Court
\nis of the view that the provisionally selected
\ncandidates as District Judges cannot be kept out of
\nthat service by provisional appointment to some
\nother post and recruiting them into the posts of
\nDistrict Judges on the availability of vacancies
\nreserved for women.\n<\/p>\n
For Query No. 6:\n<\/p>\n
In view of the above views expressed by the
\nHigh Court, this query needs no clarification.\n<\/p>\n
In the light of the above views for the
\nqueries raised by the Government, the High
\nCourt of Andhra Pradesh is not in favour of
\nrecommending any women candidates on
\nprovisional selection for appointment as
\nDistrict and Sessions Judges, Grade.II under
\nthe A.P. State Higher Judicial service in
\npursuance of the Notification issued on the
\nbasis of the High Court’s letter No. 4610\/96-
\nB.Spl Dated: 7.10.1996.”\n<\/p>\n
Thus the Full Court, in its meeting held on 21st November, 2000 was
\nnot in favour of appointing any person from the Panel prepared earlier.\n<\/p>\n
6.\tIt must be noted that the vacancies were for Judges of Family
\nCourts and Mahila Courts.  These Courts could be manned by District
\nand Sessions Judges, Grade II.\tThe State Government had thus
\ncreated 10 posts of District and Sessions Judge, Grade II.   The
\nadvertisement was also for appointment to the posts of District and
\nSessions Judge, Grade II.  The appointments were to be not to any ex-
\ncadre posts but to posts in the cadre of District and Sessions Judge,
\nGrade II.  The rules prescribed that in the cadre of District and
\nSessions Judges there had to be reservations for Scheduled Tribes,
\nScheduled Caste, Backward Classes (groups A, B, C or D) and women.
\nThe rules did not allow 100% reservation for women.  By reserving all
\nthe 10 posts for women the High Court had inadvertently created a
\n100% reservation for women.  Further the posts advertised were 5
\nopen competition, 2 Scheduled Caste, 1 Scheduled Tribe, 1 Backward
\nClass Group A and 1 Backward Class group B.  Yet the panel sent to
\nthe Government consisted of 7 open competition candidates, 1
\nScheduled Caste candidate and 1 Backward Class group D candidate.
\nSuch a selection was entirely against the rules and against the
\nreservation policy.  The rules also required that if no SC or ST
\ncandidate was available then the vacancy had to be carried forward.
\nSimilarly the vacancy of Backward Class group A, B, C and\/or D could
\nnot be converted into other category.\tBecause of these difficulties the
\npersons empanelled could not be appointed in the cadre of District &
\nSessions Judge Grade II.   The High Court initially considered that the
\nPetitioners could be appointed in ex-cadre posts as Family Court
\nand\/or Mahila Court Judges and\tthen absorb them in the cadre of
\nDistrict and Sessions Judge, Grade II as and when vacancy for women
\narose.\tThe High Court correctly realised that this could not be done.
\nIt was also noticed that the candidates provisionally selected i.e. the
\nPetitioners had got less marks than those normally prescribed for such
\nselection.\n<\/p>\n
7.\tIt must be mentioned that in the meantime the Petitioners had
\nmade representations both to the Chief Justice as well as to the Chief
\nMinister.  They received no reply. This Writ Petition was thus filed by
\nthe nine women lawyers who were selected and whose names were
\nforwarded to the State Government for appointment.  The Petitioners
\nsought directions to appoint them in the cadre of District and Sessions
\nJudges, Grade II. Thereafter on 20th July, 2000 another advertisement
\nwas issued calling for applications for appointment to six posts of
\nDistrict Judges. In this advertisement only one post was reserved for
\nwomen.\t The Petition was thus amended and a further direction to
\nquash the decision of the Full Court not to appoint as per the selection
\nearlier made and to quash the subsequent advertisement have been
\nsought.\n<\/p>\n
8.\tIt is settled law that no right accrues to a person merely because
\na person is selected and his or her name is put on a panel.   The
\nPetitioners have no right to claim an appointment.  Even otherwise,
\nthe selection was contrary to the rules in force at that time.\tThere
\ncould not be 100% reservation for women.  Also the reservation policy
\nhad not been adhered to.   The posts which are created are posts of
\nDistrict and Sessions Judges, Grade II.\t There is no seperate posts for
\nJudges of Family Courts and Mahila Courts.  Thus the Petitioners could
\nnot be appointed as Judges of Family Courts and Mahila Courts in ex-
\ncadre posts even provisionally. This would amount to creation of Ex-
\ncadre posts not sanctioned by the Government.\tNo fault can be found
\nwith the High Court being in favour of not appointing the Petitioners.\n<\/p>\n
9.\tThe unfortunate part is that even though Family Court and
\nMahila Courts have been established no appointments have been
\nmade.\tThus, till date the Family Courts and Mahila Courts are not
\nbeing manned.\n<\/p>\n
10.\tMr. Nageshwar Rao has relied upon the case of R. S. Mittal vs.
\nUnion of India<\/a> reported in 1995 Supp. (2) SCC 230. In this case even
\nthough the Court was of the opinion that the selection was not proper,
\nit refused to interfere.  Mr. Nageshwar Rao also relied on the case of
\nMunna Roy vs. Union of India<\/a> reported in (2000) 9 SCC 283.  In this
\ncase the Court directed appointment of the selected candidate in spite
\nof the fact that she had no right to the appointment.  Both these
\ncases are based on the peculiar facts of those cases.\n<\/p>\n
11.\tAs the posts were lying vacant for such a long period of time
\ninitially it was suggested that if the Petitioners filed an undertaking
\nbefore this Court, that they are willing to be appointed in ex-cadre
\nposts of Judges of the Family Court and\/or Mahila Court and that they
\nwill not claim any right to be subsequently absorbed in the cadre of
\nDistrict and Sessions Judges Grade II then the Court could consider
\ndirecting the State Government to appoint these nine Petitioners.
\nEight of these Petitioners have filed undertakings before this Court.
\nHowever on a proper consideration of the matter, we are of the view
\nthat this Court cannot direct the State Government to appoint these
\nPetitioners.  If such a direction were to be given this Court would be
\ncreating ex-cadre posts and making appointments contrary to rules.
\nThus it is not possible for this Court to accede to the request of Mr.
\nNageshwar Rao to appoint Petitioners, on the ex-cadre posts, as
\nJudges of Family Courts and Mahila Courts.\n<\/p>\n
12.\tWrit Petition is thus dismissed. There will be no order as to
\ncosts.\n<\/p>\n
…J.\n<\/p>\n
(G. B. PATTANAIK)<\/p>\n
…J.\n<\/p>\n
(S. N. PHUKAN)<\/p>\n
..J.\n<\/p>\n
(S. N. VARIAVA)<\/p>\n
March  21, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. Renuka & Ors vs State Of A. P. & Anr on 21 March, 2002 Author: S N Variava Bench: G.B. Pattanaik, S.N. Phukan, S.N. Variava 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-4420","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. Renuka & Ors vs State Of A. P. & Anr on 21 March, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-renuka-ors-vs-state-of-a-p-anr-on-21-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S. Renuka & Ors vs State Of A. 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