DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS

The Judgment of the Court was delivered by B UDAY UMESH LALIT, J.

1Copy pinpoint1. These Writ Petitions broadly fall in following three categories:- A] Writ Petition (Civil) No. 936 of 2018 filed by four petitioners, prays for appropriate directions that after the promulgation of C Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short), all appointments ought to be in conformity with 2010 Rules and allocation of seniority must be in accordance with the Cyclic Order provided in Schedule VII to 2010 Rules. In terms of 2010 Rules, posts in the cadre of District Judges in the Higher Judicial Service in State of Rajasthan were required to be filled up in accordance with quota of 50% for Promotees, 25% for Direct Recruits and 25% by way of Limited Competitive Examination (“LCE”, for short) in keeping with law laid down by this Court in All India Judges Association vs. Union of India and Others1. This Writ Petition filed by candidates who were successful in LCE prays that they be allocated seniority in terms of the Cyclic Order in Schedule VII. In this group fall Writ Petition (Civil) No.498 of 2019*and Writ Petition Diary No.13252 of 2019 which pray that the inter se seniority between candidates who were successful in LCE must be determined on the basis of their merit in LCE and not by their erstwhile seniority. F B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37 Direct Recruits challenging the Provisional Seniority List dated 16.08.2017 with regard to the cadre of District Judges in the Higher Judicial Service in the State, on the ground that the appointments made after 2010 Rules had come into effect, ought to be in G accordance with the Cyclic Order; and the inter se seniority and placement of Direct Recruits and Promotees, promoted after 2010

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A Rules had come into effect must be in accordance with 2010 Rules. C] Writ Petition (Civil) No.1471 of 2018 has been filed by Rajasthan Judicial Service Officers Association (“the Association”, for short) seeking benefit of ad-hoc/officiating service put in by B Promotees who were promoted on ad-hoc basis as Fast Track Court Judges and also prays for re-determination of vacancies of Direct Recruits submitting that the vacancies earmarked for Direct Recruits were in excess of their quota. Writ Petition (C) Nos.464 of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018 are filed by Judicial Officers seeking similar benefit in respect of C ad-hoc/officiating service as Fast Track Court Judges in the State and pray that such candidates be placed above the Direct Recruits in the cadre of District Judges in the State.

2Copy pinpoint2. Since the issues involved in all these matters pertain to appointments to and allocation of seniority in respect of, the cadre of D District Judges in the State of Rajasthan and regarding effect of 2010 Rules, the petitions were heard together. Before we deal with the factual aspects, it would be necessary to consider certain decisions of this Court touching upon the establishment of Fast Track Courts as well as the concept of promotion through LCE and the respective quotas for candidates coming from three different streams in the Higher Judicial Service in various States. 2.1. In All India Judges’ Associationv. Union of India and others2, the issues with regard to the working conditions of the members of the subordinate judiciary throughout the country came up for consideration. Number of directions were issued by this Court. However, review petitions were filed by Union of India seeking certain modifications/clarifications. These review petitions were disposed of by this Court while issuing further directions in All India Judges’ Association and others v. Union of India and others3. In pursuance of said directions, First National Judicial Pay Commission under the G Chairmanship of Mr. Justice K.J. Shetty (former Judge of this Court) was constituted on 21.03.1996. The terms of reference were thereafter modified on 16.12.1997 and the Commission was also empowered to consider and grant interim relief. By Report dated 31.01.1998 some 2 (1992) 1 SCC 119 H 3 (1993) 4 SCC 288

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interim relief was granted by Justice Shetty Commission. After due deliberations Justice Shetty Commission submitted a Report on 11.11.1999 and all the States/ Union Territories were directed by this Court4 to send their responses to Union of India so that all the issues could be deliberated upon and dealt with.4 2.2 After considering all the submissions, this Court in its decision dated 21.03.2002 in All India Judges’ Association and others v. Union of India and others1 passed some directions. We are presently concerned with the observations made in paragraphs 24 to 29 in which reference was made to the 85th Report of the Standing Committee of Parliament recommending that there should be increase in the number of Judges. Said Committee had noted the Judges to Population ratio and in tune with 120th Report of the Law Commission, recommendations were made to increase the Judges’ strength to 50 Judges per 10 lakh people in the first instance. Recommendations made by Justice Shetty Commission were also considered and recruitment to the Higher Judicial Service in the cadre of District Judges was also subject-matter of directions. D Paragraphs 27 to 29 are quoted for ready reference: “27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher E Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, 4 (2002) 4 SCC 274 H

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A objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard. F (emphasis supplied)

28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: G (1) (a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum- seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges H

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(Senior Division) having not less than five years’ qualifying A service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. B (2) Appropriate rules shall be framed as above by the High Courts as early as possible.

29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle “merit-cum-seniority”, 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a E roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab5. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40- point roster works. We direct the High Courts to suitably amend

5 (1995) 2 SCC 745 H

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A and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and B rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003.” C 2.3. Soon thereafter, in its decision rendered on 06.05.2002 in Brij Mohan Lal v. Union of India and others6 this Court had an occasion to consider the issue relating to Fast Track Courts. The 11th Finance Commission had allocated Rs.502.90 crores for the purpose of setting up 1734 courts in various States to deal with long pending cases, particularly sessions cases. On the basis of said recommendations a note was prepared by the Department of Justice, Government of India to set up Fast Track Courts. Challenges were raised in some High Courts to the constitution of such Fast Track Courts and the matters were dealt by this Court in Transfer Petitions. After considering rival submissions, directions were issued in para 10 and for the present purposes direction Nos.1 to 8, 14 and 18 are relevant:- “10. Keeping in view the laudable objectives with which the Fast Track Courts Scheme has been conceived and introduced, we feel the following directions, for the present, would be sufficient to take care of initial teething problems highlighted by the parties: F Directions by the Court

1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion, G 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 H 6 (2002) 5 SCC 1

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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 Articles 233(2) and 309 of the Constitution. The High Court concerned 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.

3Copy pinpoint3. 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.

4Copy pinpoint4. 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 D cease to function. The question of their continuance in service shall be reviewed periodically 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.

5Copy pinpoint5. 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.

6Copy pinpoint6. 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 High Court concerned in this regard. The final decision in the matter shall be taken by the Full Court of the High Court.

7Copy pinpoint7. 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 H

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A 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. The State Government concerned shall take necessary decisions within a month from the receipt of the recommendations made by the High Court.

8Copy pinpoint8. 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.

9Copy pinpoint9. …... 10…... 11….. D 12 ….. 13 …..

14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her E 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 promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade. F 15….. 16…. 17….

G 18. The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time.”

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2.4. Thereafter in Malik Mazhar Sultan and another v. U.P. A Public Service Commission and others7 the issues regarding timely declaration of vacancies in judicial service and timely appointments were considered by this Court as under: “23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All the State Governments, the Union Territories and/or the High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All the State Governments, the E Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational.” 2.5. After the disposal of the appeals in Malik Mazhar Sultan and others v. U.P. Public Service Commission7 suggestions were made F by some of the State Governments and written submissions were also filed by the learned Amicus Curiae. In its order dated 04.01.2017 8, this Court issued further directions and prescribed timelines. From paragraph 7 onwards directions were issued for filling up vacancies in various cadres including the cadre of District Judges. G 2.6. By order dated 20.04.2010 passed in All India Judges’ Association v. Union of India and others9 directions issued earlier 7 (2006) 9 SCC 507 8 (2008) 17 SCC 703. 9 (2010) 15 SCC 170 H

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A with regard to 25% quota for Limited Departmental Competitive Examination were modified by this court as under: “6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We B are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification.

7. Thus, we direct that henceforth only 10% of the cadre strength C of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In D some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order.

8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable.

9. All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in the order dated 4-1-2007 (in Malik Mazhar Sultan case8) shall be strictly adhered to for the purpose of selection. All the vacancies H

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are to be filled up in that particular year and there shall not be any A carry forward of the unfilled posts.”

3. In the State of Rajasthan, the matters relating to Constitution of Courts and Jurisdiction of Courts were dealt with by the Rajasthan Civil Courts Ordinance, 1950 which consolidated and amended the law relating to Civil Courts in the State. Clause 6 of said Ordinance dealt with Classes B of Courts; Clause 8 dealt with Power to fix number of District Judges while Clause 10 dealt with the appointment of Additional Judges. In exercise of powers conferred by Article 233 and the Proviso to Article 309 of the Constitution of India, the Governor of Rajasthan made the Rajasthan Higher Judicial Service Rules, 1969 (“1969 Rules”, for short) in consultation with the High Court10 in respect of the Rajasthan Higher C Judicial Service for making appointments, postings and promotions to the cadre of District Judges, and to provide for other ancillary matters. The expressions ‘Direct Recruitment’, ‘District Judge’, ‘Member of the Service’ and ‘Service’ were defined in Rule 3 as under:- D “(c) “Direct recruitment” means recruitment in the matter prescribed by clause (ii) of rule 8; (d) “District Judge” includes Additional District Judge, Sessions Judge and Additional Sessions Judge; ……… E (f) “Member of the Service” means a person appointed in a substantive capacity to a post in the service; ……… (h) “Service” means the Rajasthan Higher Judicial Service” F 3.1. Part-II and Part-III of 1969 Rules dealt with topics ‘Cadre’ and ‘Principles and Procedure of Recruitment and Promotion’. Rules 6 to 9 under said Parts-II and III were as under:- “6. Strength of the Service.- G (1) The strength of the Service shall, until orders varying the same have been passed under sub-rule (2), be as specified in Schedule I.

10 The High Court of Judicature for Rajasthan H

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A (2) The strength of the service may be varied by the Governor, from time to time, in consultation with the Court. (3) Notwithstanding anything contained in sub-rule (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he B deems fit, without thereby entitling any person to compensation.

7. Principles and procedure to be followed.- For the purpose of recruitment to the service, the following principles and procedure of recruitment and promotion laid down by the Court shall be followed.

C 8. Sources of Recruitment.- Recruitment to the service shall be made – (i) by promotion from amongst the members of the Rajasthan Judicial Service; or

D (ii) by direct recruitment from the advocates who have practiced in the Court or Courts subordinate thereto for a period of not less than seven years.

9. Appointment to the service.- (1) Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the Court made from time to time; provided that the number of persons appointed to the service by direct recruitment shall at no time exceed one third of the total strength of the service. (2) Subject to the provisions of sub-rule (1), after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. If a suitable person is not available for appointment by direct recruitment, the post may be filled by promotion from amongst the members of the Rajasthan Judicial Service.” 3.2. Rules 22 and 23 in Part-III dealt with ‘Temporary or officiating appointment’ and ‘Appointments to posts in the selection grade’ as under:- “22. Temporary or officiating appointment.- On the occurrence of temporary or permanent vacancies the Court shall recommend the Governor the names of the candidates from H

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amongst the persons who are eligible for appointment to the service by promotion under clause (i) of rule 8, for temporary or officiating appointment.

23. Appointments to posts in the selection Grade.- Appointments to the posts in the selection grade of the service shall be made by the Governor in consultation with the Court on the basis of merit.” 3.3. Part IV of 1969 Rules dealt with ‘Seniority’, ‘Probation’ and ‘Confirmation’. Rule 24 dealt with issue of Seniority was as under:- “24. Seniority.- Subject to the other provisions of these rules, seniority in the service shall be determined by the date of the order of substantive appointment in a permanent vacancy including appointment on probation under rule 25: Provided that a promoted officer who may have been allowed to officiate continuously against a permanent vacancy in the cadre from a date, prior to the date of appointment of a direct recruit, shall, if he is subsequently selected and substantively appointed in the service, take his seniority in the cadre over such direct recruit: Provided further that the seniority of candidates appointed to the service shall in the case of the appointment of more persons than one to the service by an order of the same date, follow the order in which their names have been recommended by the Court.” Schedule-I to 1969 Rules dealt with ‘Strength of Service’, which was stated to be 89 in the post of District & Sessions Judge and Additional District Sessions Judge, which over a period of time got raised to 150. F

4. However, appointments in excess of the strength indicated in Schedule I to 1969 Rules, were made on various occasions. By Notification dated 31.03.2001 issued under the provisions of the Ordinance and under Rule 6(2) of 1969 Rules, 40 Additional District and Sessions Courts were set up in the State for Fast Track disposal of cases pending before the District Judges. By Notification dated 12.07.2002, 13 more Additional G District and Sessions Courts were set up under the aforesaid provisions of the Ordinance and 1969 Rules for Fast Track disposal of cases pending before the District Courts. Further, 30 Additional District and Sessions Courts were again set up on 17.04.2003 in pursuance of aforesaid powers for Fast Track disposal of cases pending before the District Judges. H

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A Thus 83 Courts were created between 31.03.2001 and 17.04.2003 which are commonly known as Fast Track Courts and officers from the cadre of Senior Civil Judges were promoted under Rule 22 of 1969 Rules to man these Fast Track Courts. It may be mentioned that though the decision of this Court in Brij B Mohan Lal6 had indicated three sources from which the candidates could be appointed to man the Fast Track Courts, in the State of Rajasthan candidates were drawn only from one source namely through ad-hoc/ officiating promotions to the persons from the feeder cadre viz. Senior Civil Judges Cadre. There was no appointment of any retired Judge or by way of recruitment from the Bar. C

5. By Order dated 07.05.2003 issued in compliance of directions of this Court in All India Judges Association and others versus Union of India and Others1 and in accordance with the recommendation of First National Judicial Pay Commission, 71 posts were acknowledged to be in “Selection Scale” while 29 posts were found to be in “Super Time D Scale” in the Higher Judicial Service for the year 2002-2003.

6. On 20.10.2003, a Notification was issued by the High Court notifying 19 vacansies for Direct Recruitment to the Higher Judicial Service. Out of these 19 vacancies, 11 were shown as current vacancies while 8 were shown as backlog vacancies. A challenge was raised in E this Court by way of Writ Petition (Civil) No.576 of 2003 by the Association submitting inter alia that there were no vacancies for Direct Recruits and as such the Notification dated 20.10.2003 was invalid. It was also submitted that as on the date, 220 officers were functioning in the cadre of District Judges and Additional District Judges.

F 7. On 13.12.2004, 22 Judicial Officers from the cadre of Senior Civil Judge were promoted as Additional District and Sessions Judges (Fast Track).

8. The matters concerning regular promotion to be granted to the level of District Judge including whether those who were promoted as G Additional District and Sessions Judge (Fast Track) under Rule 22 of 1969 Rules were being considered by the High Court. A report of a Committee constituted to consider said issues was submitted on 23.08.2008. The matter was then placed before the Full Court on 29.11.2008 and thereafter the matter stood deferred to 13.02.2009, 31.10.2009 and to 20.03.2010** successively. H

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9. By order dated 11.01.2008, some Judicial Officers, including the petitioners in Writ Petition (Civil) No.464 of 2019, were promoted as Additional District and Sessions Judges on Ad-hoc basis to man the Fast Track Courts. The order stated as under:- “On the recommendation of Rajasthan High Court, H.E. the Governor of State of Rajasthan is pleased to appoint/promote the following 37 officers in the cadre of R.H.J.S. as Additional District and Sessioins Judges on purely ad-hoc basis to man the temporary Fast Track Courts”. 9.1 A consequential order was thereafter passed on 11.03.2008 directing transfer/posting of said Judicial Officers in the rank of Additional C District and Sessions Judges (Fast Track). 9.2 In terms of the decision of Full Court in its Meeting dated 29.11.2008, the period of probation of 34 out of said 37 Judicial Officers appointed by Order dated 11.01.2008 was extended till further orders.

10Copy pinpoint10. On 07.07.2009, the challenge raised by the Association in Writ D Petition (Civil) No.576 of 2003 was decided by this Court vide its decision in Rajasthan Judicial Service Officers’ Association v. State of Rajasthan and Another 11. It was observed by this Court that the sanctioned strength in terms of 1969 Rules was only 150 and as against 25% posts which could be filled up by Direct Recruitment, 41 Direct Recruits were already working in the Higher Judicial Service. It was, E therefore, concluded that there was no substantive vacancy available for Direct Recruits. The petition was allowed and the Notification dated 20.10.2003 was set aside. The relevant observations of this Court were as under:- “8. According to the petitioner, the total cadre strength of RHJS F is 150 and there are already 41 direct recruits working in RHJS. Since the total cadre strength is 150 and since 25% of the posts were directed by the High Court to be filled in by direct recruitment, there were no vacant posts available for direct recruits since 25% of 150 is 37, while 41 direct recruits were already working in G RHJS. The petitioner also submitted that if 19 vacancies should be treated as 25% of the direct recruitment then there must be at least 57 fresh appointments in RHJS by promotion, but that has not been done. … … … 11 (2009) 14 SCC 656 H

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11Copy pinpoint11. In our opinion, as held by us in Veena Verma case, the cadre strength is only 150 and not 240 because the strength of the service is as per Rule 6(2) of the Rajasthan Higher Judicial Service Rules as mentioned in Schedule I to the Rules. Until and unless the Schedule is amended in accordance with Rule 6(2) the strength of the service cannot be varied, as held by us in Veena Verma B case12. As yet, we are told, no order has been passed under Rule 6(2).

12Copy pinpoint12. We have also perused the counter-affidavit filed by the State of Rajasthan and also the rejoinder-affidavit filed in the case. It is stated in Para 3 of the rejoinder-affidavit that the impugned C notification is in violation of the stay order dated 28-9-2000 in Special Leave Petition No. 9346 of 1999, staying the operation of the order dated 30-4-1999 in DB (C) Spl. Application No. 410 of

1998. It is stated in Para 6 of the rejoinder-affidavit that there are as on date 220 officers functioning in the cadre of District Judges D and Additional District Judges and as such there are no existing vacancies.

13Copy pinpoint13. In our opinion, this writ petition has to be allowed. In view of our decision in Veena Verma case12 it has to be held that under the existing Rule the strength of the service of RHJS is 150 and since there are 41 direct recruits already working, there is no E substantive vacancy. Hence the impugned notification is illegal and deserves to be quashed. The writ petition is allowed and the impugned notification is quashed. However, we make it clear that it is open to the State Government in consultation with the High Court to amend Schedule I to the Rules in accordance with Rule F 6(2) and thereby vary the strength of the service.

14Copy pinpoint14. The petitioner has filed this writ petition seeking a direction to the respondents to complete the selection process initiated under Notification No. Estt.(RJS)/118/2003 dated 20-10-2003. As we have quashed the said notification in WP (C) No. 576 of 2003, G this writ petition [WP (C) No. 275 of 2007] is dismissed as having become infructuous.”

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21.12.1996 inviting applications for 11 posts in the Higher Judicial Service A in the State of Rajasthan by Direct Recruitment was valid. It was observed that 11 posts were not available for Direct Recruitment. While dealing with the challenge, it was observed, “33. It may be mentioned that posts can be created dehors the cadre of a service, and these are known as ex cadre posts. The B posts created without a specific order under Rule 6(2) are ex cadre posts. Hence in our opinion the temporary or permanent vacancies or posts created beyond the number of posts in Schedule I without a specific order under Rule 6(2) varying Schedule I to the Rules are only ex cadre posts, and can only be filled in by promotees, and not by direct recruitment. C

34.It may be noted that Rule 9(2) uses the words “as far as possible”. In our opinion, this means that there is no hard-and-fast rule that after every three persons appointed by promotion, the fourth person has to be appointed by direct recruitment. In our opinion, the Division Bench of the High Court has given a wrong D interpretation of Rule 9(2) of the Rules by observing: “it does not give a licence to the respondents to refuse to appoint every fourth person by direct recruitment on the ground that it was not possible for any other reason than the maintenance of the limit of one-third of the total strength imposed by sub-rule E (1) of Rule 9 on direct recruitment”. In our opinion this is a wrong view taken by the Division Bench of the High Court as is evident from the words “as far as possible” in Rule 9(2). These words give a discretion to the authorities, and the Court cannot interfere with this discretion, unless it is palpably arbitrary. [Emphasis supplied]

35. In our opinion, the Division Bench of the High Court erred in law in holding that for the purpose of direct recruitment the temporary or permanent posts created outside the cadre without amending Schedule I were also to be included while calculating the strength of the Service. The Division Bench also erred in holding that whenever posts are created, the strength of the Service is deemed to have been automatically increased although there is no order under Rule 6(2) in this connection amending Schedule I. H

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A In our opinion, there has to be a specific order under Rule 6(2) amending Schedule I otherwise it cannot be said that the strength of the cadre has been increased. Hence, in our opinion, the temporary or permanent posts created outside the cadre cannot be taken into consideration for determining the strength of the cadre.” B

12. On 18.01.2010, in exercise of the powers conferred by Articles 233 and 234 read with proviso to Article 309 of the Constitution of India, the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court made Rules for regulating recruitment to the posts in, and the conditions and other matters related C to the service of persons appointed to the Rajasthan Judicial Service. The Rules are called Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short). 12.1 The terms, “Cadre”, “Cadre Post”, “Member of the Service” and “Substantive appointment” are defined in clauses (b), (c), (g) and (l) D of Rule 3 as under: “Rule 3: Definitions (b) “Cadre” means the cadre of District Judge, Senior Civil Judge and Civil Judge as provided under Rule 5 of Part-II of these Rules; (c) “Cadre Post” means any post specified in Schedule-I; E (g) “Member of the Service” means a person appointed substantively to a post in the service under the provisions of these Rules; and (l) “Substantive appointment” means an appointment made under the provisions of these rules to a substantive vacancy after due F selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation followed by confirmation on completion of the probation period.” 12.2 Part-II of 2010 Rules deals with “Cadre” and Rule 5 stipulates that on and from the date of commencement of the Rules, the Rajasthan G Judicial Service shall stand re-constituted and re-designated into following three cadres: (A) District Judges (B) Senior Civil Judge, and (C) Civil Judge. H

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Rule 6 deals with “Strength of the Service” and is to the following A effect. “(1) The Strength of the Service in each cadre and number of other posts shall be determined by the Government from time to time, in consultation with the Court and the existing posts in each cadre in the service shall be as specified in Schedule-I. B (2) The strength of other posts manned by the members of the service shall be as specified in Schedule-II unless any order varying the same is issued under sub-rule(1): Provided that the State Government may, in consultation with the Court, create any permanent or temporary post from C time to time as may be considered necessary and may abolish any such post or posts in the like manner without thereby conferring any right on any person for any type of claim.” 12.3. Part-III of 2010 Rules deals with subject “General Conditions” and Rules 7, 8 and 15 are as under :- D “7. Determination of vacancies: (1) subject to the provisions of these rules, the Court shall determine and notify the actual number of existing and expected vacancies in each cadre as per the time schedule specified in Schedule-III. (2) Where the vacancies in the cadre are to be filled in by a single method, the vacancies so determined shall be filled by that method. E (3) Where the vacancies in the cadre are to be filled in by more than one method, the apportionment of vacancies determined under sub-rule (1), to each such method shall be done maintaining the prescribed percentage for the particular method taking into account consideration the overall number of posts already filled in: F Provided that the apportionment for filling up vacancies in the cadre of District Judge, shall be made in a cyclic order of respective quota of each category, i.e. Promotee on the basis of merit-cum- seniority, Promotee on the basis of Limited Competitive Examination and the Direct Recruitee. G 8.Examination:- For filling up of vacancies in the cadre of District Judge and Civil Judge, examination shall be conducted by the Recruiting Authority as per the time Schedule specified in Schedule III. ……… H

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15Copy pinpoint15. Temporary or officiating appointments:- On occurrence of temporary or permanent vacancy, in the cadre of District Judge or the Senior Civil Judge, as the case may be, not taken into consideration at the time of determining the vacancies under Rule 7 and if in the opinion of the Court such vacancy is to be filled in immediately, the Court shall recommend to the Appointing Authority B the names of the persons eligible for appointment maximum for a period of one year and such appointment shall not confer any rights upon the person so appointed.” 12.4. Part IV deals with “Methods of Recruitment” under which “Recruitment to the cadre of Civil Judge” and “Recruitment to the cadre C of Senior Civil Judge” are dealt with in Rules 16 to 30 of sub-Parts A and B, while “Recruitment to the cadre of District Judge” is dealt with under sub-Part C. Rule 31 deals with source of recruitment, as under:- “31. Source of recruitment: (1) Fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst D Senior Civil Judges on the basis of merit-cum-seniority subject to passing of suitability test as provided under Schedule-IV. (2) Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted E by the Court. (3) Twenty Five percent posts in the cadre of District Judge shall be filled in by direct recruitment from amongst the eligible Advocates on the basis of written examination and interview conducted by the Court. F (4) For the purpose of proper maintenance and determination of seniority of persons appointed through the aforesaid sources, a roster for filling of vacancies based on quota of vacancies reserved here-in-above, as given in Schedule-VII shall be maintained. This roster shall operate prospectively.” G 12.5. Thereafter the relevant subjects are dealt with under three sub-heads named as (I) Promotion, (II) Direct Recruitment and (III) Appointment. Rule 32 dealing with the “Recruitment by Promotion” is as under: “32. Recruitment by promotion:- (1) Fifty percent posts in the H Cadre of District Judge shall be filled in by promotion from amongst

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Senior Civil Judges recommended by the Court, on the basis of A merit-cum-seniority, subject to passing of suitability test as provided in Schedule-VI. Explanation: “Qualifying the eligibility test shall not affect the inter-se-seniority of the officers in the Cadre of Senior Civil Judge. (2) The recruitment in the cadre of District Judges under sub-rule B (2) of rule 31 shall be made by a Limited Competitive Examination conducted by the Court in accordance with the scheme of the examination prescribed under Schedule-VIII. (3) A Senior Civil Judge who has completed actual five years service as on the first day of January preceding the last date fixed C for the receipt of the applications shall be eligible for appearing in the Limited Competitive Examination for promotion to the Cadre of District Judge. (4) For the purpose of Limited Competitive Examination, applications shall be invited by the Court from all eligible Senior D Civil Judges in such manner and in such form as may be specified by the Court. (5) Candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview by a Committee consisting of Chief Justice, Administrative Judge E and two other Judges nominated by the Chief Justice. The Committee taking into consideration the performance at examination, the service record and the performance at the interview shall assess the suitability and recommend the names of the offices for promotion.” F 12.6 Part-D deals with “Probation”, “Confirmation” and “Seniority”. Sub-heading dealing with “Appointment” deals with issue of combined Select List as under: “42. Combined Select List: The Court shall prepare a combined select list putting the names of candidates in cyclic as provided in Schedule-VII from the lit prepared under sub-rule (1) and (5) of G Rules 32 and 41 and send it to the Appointing Authority.”

12.7 The issue of seniority is dealt with by Rule 47 as under: “47. Seniority: Subject to the other provisions of these Rules: H

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A (1) Seniority in the service in the cadre of Civil Judge shall be determined from the date of the order of substantive appointment to the service: Provided that the seniority of candidates appointed to the service shall, in the case of appointment of more persons than one follow the order in which they have been placed in the list prepared by the Recruiting Authority under Rule 24 of these Rules. (2) Inter-se seniority of persons promoted to the Senior Civil Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion. (3) Seniority of persons appointed to the Service in the District Judge cadre by direct recruitment shall be determined from the date of the order of substantive appointment in the cadre. Provided that the seniority of direct recruitee to the cadre, in the case of appointment of more persons than one by an order of the same selection, shall follow the order in which they have been placed in the list prepared by the Court under rule 41. (4) Inter-se seniority of persons promoted to the District Judge E cadre in the same year shall be the same as it was in the post held by them at the time of promotion. (5) The seniority of direct recruitee vis-a-vis the promote appointed to the cadre of District Judge shall be determined in the order of their names placed in the combined select list F prepared under Rule 42: Provided that the persons promoted under Rule 15 shall not be given seniority over the direct recruitee.” 12.8 Rule 57 repealed 1969 Rules and made provisions for saving certain actions as under: G “57. Repeal and savings: The Rajasthan Highter Judicial Service Rules, 1969 and the Rajasthan Judicial Service Rules, 1955, as amended from time to time, are hereby repealed: Provided that such repeal shall not affect any order made, H action taken, effects and consequences of anything done or

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suffered there under or any right, privilege, obligation or liability already acquired, accrued or incurred there under, or enquiry, verification, or proceedings in respect thereof made.” 12.9 Schedule I which is referable to Rule 3(c) and Rule 6(1) of the Rules deals with topic “Cadre Strength of the Service” and Part A deals with “District Judge Cadre” which enumerates various designations in said cadre aggregating to 223 and earmarks 10% reserve for leave, training, deputation etc.; thus taking the grand total to 245. Parts B and of this Schedule deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre” and set out the strength at 222 and 329 respectively. 12.10 Schedule II which is referable to Rule 6(2) of 2010 Rules C deals with topic “Strength of the Service”. Part-A thereof enumerates various designations and the appropriate strength for the concerned posts in “District Judge Cadre”, in which 102 posts are mentioned including 83 “Additional District Judges (Fast Tracks)”. In the same Schedule, Parts B and C deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre” respectively and the strength noted against said two parts is 7 and 4 D respectively. 12.11 Schedule VII which is referable to Rule 31(4) sets out the Roster for “filling up vacancies in the District Judge Cadre by direct recruitment and by promotion.” First four points in the Roster are as under: E

1. By promotion-merit-cum-seniority

2. By promotion-merit-cum-seniority

3. By promotion-Limited Competitive Examination F

4. By direct recruitment. Said pattern is then followed in succession13.

13. On 31.03.2010 a Notification was issued by the High Court notifying 58 vacancies to be filled in the cadre of District Judge. Out of 58 vacancies so notified, 36 vacancies were to be filled by the Direct G Recruitment from the Bar while remaining 22 vacancies were to be filled by promotion through LCE as provided in Rules 7, 8, 32(1) and 40(1) along with Schedule-II to 2010 Rules. In this recruitment, no 13The pattern was thereafter modified vide Notification dated 31.08.2012 although the ratio between three sources was kept intact. H

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A provision was made for 50% promotion quota meant for Promotees. Thereafter, a Notification was issued on 15.04.2010 inviting applications from Senior Civil Judges who had completed five years of actual service for being considered for 22 posts in the cadre of the District Judge to be filled by LCE and for filling up 36 vacancies through Direct Recruitment.

B 14. In Malik Mazhar Sultan and others v. U.P. Public Service Commission7, an affidavit was filed on behalf of the High Court in I.A. No. 73 of 2009. The stand taken by the High Court in said affidavit was as under:- “2. It is submitted that in compliance of the directions of Hon’ble C Court dated 21.03.2002 passed in All India Judges Association Vs. UOI & Ors. (AIR 2002 SC 1752 +2002 (4) SCC 247), new Rules for State Judicial Service, namely “Rajasthan State Judicial Service Rules 2003” (hereinafter referred to as draft Rules of 2003) were being framed, wherein provision of various modes of Recruitment/Promotion as approved and directed by this Hon’ble D Court had been incorporated.

3. In the draft Rules, 2003 a time bound schedule for recruitment of the Judicial Officers was also provided, which was more or less on the same lines as directed by the Hon’ble Court in this matter. However, there was variation between dates specified in E the calendar provided in Schedule-III of the draft Rules of 2003 and time schedule prescribed by the Hon’ble Court. As such, the time schedule prescribed by the Hon’ble Court could be implemented only after amending the Draft Rules, 2003 and due promulgation of the same. Amendment in the Draft Rules of 2003 F would have further required, approval of the Full Court of the High Court and consultation with the Rajasthan Public Service Commission resulting in further delay in due promulgation of the Draft Rules of 2003. Therefore, an application dated 11.07.2008 for direction and modification was preferred by the Rajasthan High Court before the Hon’ble Court and it was prayed that the G Hon’ble Court may be pleased:- (a) to allow the application and permit the applicant/Rajasthan High Court to follow the calendar as annexed in Schedule-III of the draft of Rules, 2003 after due promulgation thereof; and

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(b) to grant exemption to the applicant from implementing the time Schedule as prescribed by the Hon’ble Court vide it’s order dated 04.01.2007 till draft Rules 2003 are finalized and duly promulgated. This application for directions and modification was registered as I.A. No.39. Copy of the same is annexed herewith and marked as Annexure-R1.

4. It is submitted that while I.A. No.39 preferred by the Rajasthan High Court was pending consideration, in pursuance of order dated 24.07.2008 passed by this Hon’ble Court, a factual report on behalf of Rajasthan High Court with regard to filling of vacancies in subordinate judiciary in the format prescribed by the Hon’ble Court was filed by the answering respondent through an affidavit dated 27.08.2008. True copy of the same is annexed herewith and marked as ANNEXURE-R-2.

5. It is submitted that while considering the factual report with regard to filling of vacancies in subordinate judiciary filed by the Rajasthan High Court through the affidavit dated 27.08.2008 (Annexure-R-2), the Hon’ble Court vide its order dated 23.09.2008 (Annexure-A-1) dismissed the I.A. No.39 preferred by the Rajasthan High Court. E

6. It is submitted that meanwhile the Draft Rules 2003, incorporating the time schedule prescribed by the Hon’ble Court and other necessary amendments were renamed as “Rajasthan Judicial Service Rules, 2010” (hereinafter to be referred as Rules, 2010) and the same have been duly promulgated and come into force w.e.f. the date of its publication in Rajasthan Gazette F i.e.19.01.2010.

7. It is submitted that: on the date of submission of the IA i.e. 10.10.2009, there were 75 vacancies in the cadre of Rajasthan Higher Judicial Service and 33 vacancies in the cadre of Civil Judge (Sr. Division). G

8. It is submitted that a report dated 23.08.2008 of a Committee of Hon’ble Judges, constituted by the Hon’ble Chief Justice to consider the matter regarding promotions in the cadre of District Judge on the post of Additional District & Sessions Judge (regular), Additional District & Sessions Judge (Fast Track) and from the H

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A post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr. Division), recommending promotions in these cadres was placed before the Hon’ble Full Court in its meeting held on 29.11.2008, 13.02.2009 and 31.10.2009 but due to difference of opinion, the report of the Hon’ble Committee could not be approved by the Full Court. However, Hon’ble Full Court in its meeting held on B 31.10.2009 approved the report of the Hon’ble Committee dated 23.08.2008 to the extent of making promotion of 33 officers from the post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr. Division). Consequently, 33 officers have been promoted from the post of Civil Judge (Jr. Division) to that of Civil Judge (Sr. C Division) vide order dated 30.11.2009. Copy of order dated 30.11.2009 is annexed herewith and marked as ANNEXURE-R/ 3.

9. It is submitted that the report dated 23.08.2008 of the Hon’ble Committee regarding grant of promotions to the post of Additional D District & Sessions Judge (regular) and Additional District & Sessions Judge (Fast Track) was again placed for consideration before the Hon’ble Full Court in its meeting held on 20.03.2010. Whereupon it was Resolved that the report requires reconsideration by the Promotion Committee after considering the service record for subsequent period also and the report of E the Promotion Committee be placed before the Hon’ble Full Court by circulation. Pursuant to the Full Court Resolution, Hon’ble Committee convened its meeting on 05-06.04.2010 and submitted its report, suggesting amendment in Rule 15 of the Rajasthan Judicial Service Rules, 2010. This report of the Hon’ble F Committee was placed before the Hon’ble Full Court in its meeting held on 10.04.2010 whereupon it was Resolved to defer the matter regarding amendment in Rule 15 of Rajasthan Judicial Service Rules, 2010 and also Resolved to again request the Committee to reconsider the matter regarding promotion as per Full Court Resolution dated 20.03.2010. It is submitted that pursuant to the G aforesaid Resolution the meeting of Hon’ble Committee has been fixed on 12.04.2010 and 13.04.2010.

10. It is submitted that after the judgment dated 07.07.2009 rendered by the Hon’ble Supreme Court in Civil Appeal No.5699/ 2000 High Court of Judicature for Rajasthan vs. Veena Verma & H Ors. and the judgment of the same date rendered by the Hon’ble

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Court in Writ Petition Civil No.576/2003 RJS Officers Asson. Vs. A State of Rajasthan & Ors. the matter of determination of vacancies for direct recruitment in Rajasthan Higher Judicial Service was placed before the Hon’ble Full Court vide Circulation Case No.10/ 2009 on 18.07.2009 and on account of different opinion of Hon’ble Judges, on 16.09.2009 the Hon’ble Chief Justice directed to put up the file later. In the meanwhile, Rajasthan Judicial Service Rules, 2010 came into force w.e.f. 19.01.2010. Therefore, the matter regarding consideration of vacancies in each cadre under the Rules of 2010 was considered by the Hon’ble Full Court in its meeting held on 24.01.2010 and the same was resolved to be deferred. The matter was again placed before the Hon’ble Full Court in its meeting held on 20.03.2010 and as per Rajasthan Judicial Service Rules, 2010, the category wise vacancy in the District Judge Cadre upto 31.03.2011 has been resolved to be determined as under – (a) By promoting - 49 (b) By limited competitive examination - 22 D

(c) By direct recruitment - 36 … … …”

15. The matter in respect of consideration of the Report of the Committee with respect to promotion of Additional District and Sessions E Judges, including those who were manning Fast Track Courts, was taken up by the Full Court on 20.03.2010**. In March-April 2010, the Report of the Committee and records of the services rendered by all the concerned candidates were considered by the High Court and substantive absorption of those who were promoted to Fast Track Court and promotion of some candidates to the cadre of District Judge on substantive basis was approved by the Full Court.

16Copy pinpoint16. On 21.04.2010 a formal Order was issued by the State Government in view of the recommendation made by the High Court in its Resolution dated 12/13.04.2010 promoting 47 Judicial Officers who were manning Fast Track Courts to the level of Additional District Judges in accordance with the recommendation made by the Committee in its Report dated 23.08.2008 (“the 47 Judicial Officers”, for short). It must be noted that the 47 Judicial Officers were not intimated by the High Court that they could appear at LCE to be conducted in pursuance of the Notification dated 15.04.2010. The Order recited as under:- H

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A “On the recommendation of Rajasthan High Court, H.E. the Government of State of Rajasthan is pleased to appoint/promote the following 47 officers as Additional District and Sessions Judges in the District Judge Cadre.” On the same day i.e. on 21.04.2010 another Order was issued promoting 49 Senior Civil Judges, including the petitioner in Writ Petition (Civil) No.1008 of 2019, as Additional District and Sessions Judges on ad-hoc basis to man the Fast Track Courts.

17Copy pinpoint17. The candidates who had applied in pursuance of the Notification dated 15.04.2010 appeared at the written examination held on 30.06.2010 and the successful candidates were then called for interview. However, by communication dated 04.09.2010 interviews were postponed sine die. Later, by Notification dated 22.09.2010 which was issued in pursuance of the Resolution of the Full Court, the entire examination process for recruitment by Direct Recruitment and through LCE was directed to be held afresh. D

18Copy pinpoint18. A Notification was issued on 31.03.2011 renotifying the number of vacancies available for Direct Recruitment and for promotion through LCE. Said Notification was as under:- “RAJASTHAN HIGH COURT JODHPUR E NOTIFICATION As per the determination of vacancies for the current year & the strength of District Judge cadre being 245, the vacancies in the District Judge cadre as hereby notified as under:- Vacancies for Direct Recruitment - 37 F Vacancies for promotion by Limited Competitive Examination - 22 Vacancies for promotion - 24

G In case the cadre strength is revised to 255, the vacancies would be as under:- Vacancies for Direct Recruitment - 39 Vacancies for promotion by Limited

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Competitive Examination - 22 A Vacancies for promotion - 33" 18.1. On the same day i.e. on 31.03.2011 two Orders were passed by the High Court; one abolishing 40 Fast Track Courts while the other directed continuation of the others “on ad-hoc basis as against the available vacant posts” till the matter was considered for regular promotion. The B Order stated:- “Consequent upon abolition of 40 ADJ (FT) Courts vide Government Notification No.F.10(4) Nyay/98/Part dt. 31.3.2011, the following officers shown at SI. No.01 to 39 working as ADJ (FT) are continued on ad hoc basis as against the available vacant C posts till the matter is considered for regular promotion in accordance with Rules and are transferred/ posted as mentioned below. The officers shown at S.No.40 to 53 are also transferred / posted as mentioned below:-….”

19Copy pinpoint19. A Bench of three Judges of this Court after noting its earlier D Judgment in All India Judges’ Association vs. Union of India and Others1 modified certain directions contained therein by its Order dated 20.04.20109. The relevant paragraphs have already been quoated in paragraph 2.6 hereinabove.

20Copy pinpoint20. On 10.06.2011, appropriate amendments were effected in 2010 E Rules to fix the quota for Promotees at 65% in accordance with the aforesaid Order dated 20.04.20109 issued by this Court and raising the cadre strength of District Judges from 245 to 255.

21Copy pinpoint21. In Brij Mohan Lal v. Union of India and Others14, this Court inter alia dealt with two Transferred Cases, one arising from F Writ Petition filed in the High Court of Punjab and Haryana seeking directions to stop the scheme and policy of appointment of retired District and Sessions Judges as Ad-hoc Judges of the Fast Track Courts and the other filed in the High Court of Andhra Pradesh seeking declaration that constitution of Fast Track Courts was unconstitutional and consequently G be set aside. This Court considered the entire scheme as well as the relevant provisions in various States and considered diverse submissions. One of the questions raised by this Court was:-

14 (2012) 6 SCC 502 H

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A “Whether any of the appointees to the post of ad hoc Judges under the FTC Scheme have a right to the post in the context of the facts of the present case?” 21.1 Thereafter, the letters of appointment issued to various appointees including those from the State of Rajasthan were considered and while dealing with the issue of regularization of service rendered by the Judicial Officers’ manning Fast Track Courts, it was observed:- “172. The prayer for regularisation of service and absorption of the petitioner appointees against the vacancies appearing in the regular cadre has been made not only in cases involving the case of the State of Orissa, but even in other States. Absorption in service is not a right. Regularisation also is not a statutory or a legal right enforceable by the persons appointed under different rules to different posts. Regularisation shall depend upon the facts and circumstances of a given case as well as the relevant rules applicable to such class of persons.” D 21.2 In so far as the State of Rajasthan is concerned, it was observed:- “177. In the case of State of Rajasthan, it is the judicial officers from the cadre of Civil Judge, Senior Division, who were E promoted as FTC Judges. They have continued to hold those posts for a considerable period. According to these petitioners, they were promoted to the Higher Judicial Services as per the Rules and, therefore, keeping in view the order of this Court in Madhumita Das15 as well as the very essence of the FTC Scheme, they should be absorbed as members of the regular cadre of Higher F Judicial Services of the State of Rajasthan. The State Government had issued a directive that they should undertake the limited competitive examination for their regular promotion/absorption in the higher cadre. These officers questioned the correctness of this directive on the ground that they were promoted as Additional G Sessions Judges (FTC) under the Rules and, therefore, there was no question of any further requirement for them to take any written examination after the long years of service that they have already put in in the Higher Judicial Services.

H 15 (2008) 6 SCC 731

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178. The Rajasthan Judicial Service Rules, 2010 are in force for appointment to the Higher Judicial Services of the State. The judgment of this Court in All India Judges’ Assn. (3) case1 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-cum-merit 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% of the vacancies available, such Judges would be promoted to the Higher Judicial Services.

179. It was admitted before us by the learned counsel appearing for the petitioners 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. In other words, they were promoted on ad hoc basis depending on the availability of vacancy in 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, we see 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.” 21.3 Finally, following directions were issued in paragraph 207:- “207. 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, to 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 us, in terms of Article 142 of the Constitution, we pass the following orders and directions: H

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A 207.1. Being a policy decision which has already taken effect, we decline to strike down the policy decision of the Union of India vide Letter dated 14-9-2010 not to finance the FTC Scheme beyond 31-3-2011. 207.2. All the States which have taken a policy decision to B continue the FTC Scheme beyond 31-3-2011 shall adhere to the respective dates as announced, for example in the cases of States of Orissa (March 2013), Haryana (March 2016), Andhra Pradesh (March 2012) and Rajasthan (February 2013). 207.3. The States which are in the process of taking a C 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. 207.4. It is directed that all the States, henceforth, shall not take a decision to continue the FTC Scheme on ad hoc and D 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. 207.5. The Union of India and the State Governments shall reallocate and utilise the funds apportioned by the 13th Finance E Commission and/or make provisions for such additional funds to ensure regularisation of the FTC Judges in the manner indicated and/or for creation of additional courts as directed in this judgment. 207.6. 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 the implementation of such decisions and, that too, upon objective consideration and for valid reasons. Let the minutes of the Conference of 2009, at least now, be placed before the Cabinet within three months from the date of pronouncement of this judgment for its information and appropriate action. 207.7. 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. H

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207.8. We hereby direct that it shall be for the Central A Government to provide funds for carrying out the directions contained in this judgment and, if necessary, by reallocation of funds already allocated under the 13th Finance Commission for judiciary. We further direct that for creation of additional 10% 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 in this judgment. 207.9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective States only in the following manner: (a) The direct recruits to FTCs who opt for regularisation shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges. (b) Thereafter, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four senior most Judges of that High Court. (c) There shall be 150 marks for the written examination and 100 marks for the interview. The qualifying marks shall be 40% aggregate for general candidates and 35% for SC/ST/ OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services. F (d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks. (e) Needless to point out that this examination and interview should be conducted by the respective High Courts G keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases. H

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A (f) The candidates who qualify the written examination and obtain consolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in the regular cadre of the State. (g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected. (h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age. 207.10. 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, shall not be eligible to the benefits stated in para 207.9 of the judgment. 207.11. Keeping in view the need of the hour and the constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services F Rules of that State, immediately thereafter. 207.12. 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 G matters. 207.13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State H subject to:

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JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]

(a) Such promotion, when effected against the 25% A quota for out-of-turn promotion on merit, in accordance with the judgment of this Court in All India Judges’ Assn. (3) 1, by taking and being selected through the requisite examination, as contemplated for out-of-turn promotion. (b) If the appointee has the requisite seniority and is entitled to promotion against 25% quota for promotion by seniority-cum-merit, he shall be promoted on his own turn to the Higher Judicial Services without any written examination. (c) While considering candidates either under Category (a) or (b) above, due weightage shall be given to the fact that they have already put in a number of years in service in the Higher Judicial Services and, of course, with reference to their performance. (d) All other appointees in this category, in the event of discontinuation of the FTC Scheme, would revert to their respective posts in the appropriate cadre.”

22Copy pinpoint22. In the selection process undertaken pursuant to the Notification dated 31.03.2011 for filling up vacancies through Direct Recruitment, LCE and Promotion, only 9 candidates could clear LCE against 22 vacancies meant for that category. This number got reduced to 8 as the candidature of one of the successful candidates was not accepted. Resultantly, the unfilled vacancies meant for LCE were added to the quota for Promotees and by Government Order dated 15.07.2013 appropriate Appointment Orders were issued. The text of the Order was as under:- F “In exercise of the powers conferred by Article 233(1) of the Constitution of India read with Rule 43 of the Rajasthan Judicial Service Rules, 2010, the Governor of the State of Rajasthan on the recommendation of the Rajasthan High Court is pleased to appoint the following persons recruited by promotion, limited competitive examination and direct recruitment to the Rajasthan G Judicial Service in the District Judge Cadre in the pay scale of Rs.51550-1230-58930-1380-63070 [District Judge (Entry Level)] with such allowances as are admissible as per rules and their pay shall be fixed as per rules. The persons appointed by direct recruitment shall be placed on probation for a period of two years H