MAHESH CHANDRA VERMAversusTHE STATE OF JHARKHAND THROUGH: ITS CHIEF SECRETARY & ORS.

                           [2018] 5 S.C.R. 719                               719


                   MAHESH CHANDRA VERMA                                      A
                                    v.
                  THE STATE OF JHARKHAND
             Through: ITS CHIEF SECRETARY & ORS.
                   (Civil Appeal No.4782 of 2018)                            B
                              MAY 11, 2018
  [J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]
       Judiciary: Pension – Whether services rendered by the
appellants as Fast Track Courts Judges to be counted for their
                                                                             C
pensionary and other benefits, the appellants having joined the
regular judicial service thereafter – Held: The appellants were part
of the initial select list/merit list for recruitment to the regular cadre
strength but were not high enough to be recruited in the existing
strength – Even at the stage of absorption in the regular cadre
strength, they went through a defined process and continued to work          D
thereafter – Thus, they were not appointed to the Fast Track courts
just at the whim and fancy of any person, but were the next in line
on the merit list of a judicial recruitment process – They were either
part of the select list, who could not find a place given the cadre
strength, or those next in line in the select list – Had there been
                                                                             E
adequate cadre strength, the recruitment process would have resulted
in their appointment – These Judges have rendered services over a
period of nine years and have performed their role as Judges to the
satisfaction, otherwise there would have been no occasion for their
appointment to the regular cadre strength – Not only that, they also
went through a second process for such recruitment – The                     F
methodology of non-creation of adequate regular cadre posts and
the consequent establishment of Fast Track courts manned by the
appellants cannot be used as a ruse to deny the dues of the
appellants – All the appellants and Judicial Officers identically
situated are entitled to the benefit of the period of service rendered
                                                                             G
as Fast Track Court Judges to be counted for their length of service
in determination of their pension and retiral benefits.
      Allowing the appeals, the Court
     HELD: 1. The need to set up Fast Track Courts arose on
account of delays in the judicial process, targeting certain priority        H
                                   719
720            SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A     areas for quicker adjudication. In fact, had there been adequate
      cadre strength, there would have been no need to set up these
      Fast Track Courts. [Para 14] [727-H; 728-A]
            2. The appellants were not appointed to the Fast Track
      Courts just at the whim and fancy of any person, but were the
B     next in line on the merit list of a judicial recruitment process.
      They were either part of the select list, who could not find a place
      given the cadre strength, or those next in line in the select list.
      Had there been adequate cadre strength, the recruitment process
      would have resulted in their appointment. These Judges have
      rendered services over a period of nine years and have performed
C     their role as Judges to the satisfaction, otherwise there would
      have been no occasion for their appointment to the regular cadre
      strength. Not only that, they also went through a second process
      for such recruitment. It is a matter of great regret that these
      appellants who have performed the functions of a Judge to the
D     satisfaction of the competent authorities should be deprived of
      their pension and retiral benefits for this period of service.
      Keeping in mind the spirit of the directions made under Article
      142 of the Constitution of India in Brij Mohan Lal-[II] and in
      Mahesh Chandra Verma, the necessary corollary must also follow,
      of giving benefit of the period of service in Fast Track courts for
E     their pension and retiral benefits. The methodology of
      non-creation of adequate regular cadre posts and the consequent
      establishment of Fast Track courts manned by the appellants
      cannot be used as a ruse to deny the dues of the appellants.
      [Para 15] [728-B-F]
F           3. There was need for a regular cadre strength keeping in
      mind the inflow and pendency of cases. The Fast Track Court
      Scheme was brought in to deal with the exigency and the
      appellants were appointed to the Fast Track courts and continued
      to work for almost a decade. They were part of the initial select
G     list/merit list for recruitment to the regular cadre strength but
      were not high enough to be recruited in the existing strength.
      Even at the stage of absorption in the regular cadre strength,
      they had to go through a defined process in pursuance of the
      judgment of this court and have continued to work thereafter.
      [Para 17] [729-F-G]
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MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND                         721


      4. All the appellants and Judicial Officers identically          A
situated are entitled to the benefit of the period of service
rendered as Fast Track Court Judges to be counted for their
length of service in determination of their pension and retiral
benefits. [Para 18] [729-H; 730-A]
      Mahesh Chandra Verma v. State of Jharkhand                       B
      (2012) 11 SCC 656 : [2012] 9 SCR 6 ; Brij Mohan Lal
      v. Union of India - [II] (2012) 6 SCC 502 : [2012] 5
      SCR 305 ; Nihal Singh & Ors. v. State of Punjab &
      Ors. (2013) 14 SCC 65 : [2013] 11 SCR 1 – relied on.
      Brij Mohan Lal v. Union of India & Ors. - [1] (2002) 5
                                                                       C
      SCC 1 : [2002] 3 SCR 810 ; Srikant Roy v. State of
      Jharkhand (2017) 1 SCC 457 : [2016] 11 SCR 58 –
      referred to.
                      Case Law Reference
       [2002] 3 SCR 810          referred to          Para 3
                                                                       D
       [2016] 11 SCR 58          referred to          Para 6
       [2012] 9 SCR 6            relied on            Para 6
       [2012] 5 SCR 305          relied on            Para 7
       [2013] 11 SCR 1           relied on            Para 16
                                                                       E
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4782
of 2018.
      From the Judgment and Order dated 14.10.2015 of the High Court
of Jharkhand at Ranchi in WP (S) No. 3704 of 2014
                                 WITH                                  F
      Civil Appeal Nos. 4784, 4783, 4786-4790, 4785, 4791, 4792,
4794-4795, 4793 of 2018.
      Sajjan Poovayya, Amrendra Sharan, Sr. Advs., Vaishnavi
Subrahmanyam, Balaji Srinivasan, Pratibhanu Singh Kharola, Abhishek
Bharti, Ms. Pratiksha Mishra, Ms. Garima Jain, Priyadarshi Banerjee,   G
Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, Rahul Pandey,
Ajay Kumar, Ashish Verma, Dr. Kailash Chand, Nikhil Jain, Pawan
Kishore Singh, Ms. Madhusmita Bora, Shiv Ram Sharma, Tapesh Kumar
Singh, Mohd. Waquas, Aditya Pratap Singh, Krishnanand Pandeya,
Ms. Susmita Lal, Advs. for the appearing parties.
                                                                       H
722                SUPREME COURT REPORTS                        [2018] 5 S.C.R.


A              The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J. 1. The sole question, which arises
      for consideration in these appeals is whether the services rendered by
      the appellants/Judicial Officers as Fast Track court Judges is liable to be
      counted for their pensionary and other benefits, the appellants having
B     joined the regular judicial service thereafter.
             2. The question of law arising as aforesaid, it is not necessary to
      delve into the facts of each case. Thus, only the facts which are relevant
      for the determination of this question are being set out. The Jharkhand
      State was carved out from the State of Bihar under the Bihar
C     Reorganisation Act, 2000 on 25.11.2000. Soon thereafter the Jharkhand
      High Court, respondent No.2, issued an advertisement on 23.5.2001 to
      fill up the vacancies for the post of Additional District Judges in the
      Jharkhand Superior Judicial Service. The appellants also took part in
      the recruitment process and post conduct of examination and interview,
      a select list was prepared of 27 candidates, who were eligible for
D     appointment to the Superior Judicial Service. None of the appellants,
      however, figured in the final select list. A parallel development was the
      allocation by the 11th Finance Commission of Rs.502.90 crores under
      Article 275 of the Constitution of India, for the establishment of courts
      described as the Fast Track courts.1,734 courts in various States were
E     envisaged to deal with long-pending cases, specifically, Sessions cases.
      The funds allocated by the Finance Commission were to be utilized in a
      time bound schedule of five years, and the State Governments were
      required to take necessary steps to establish such courts.
             3. A challenge was laid to this Scheme, known as the Fast Track
F     Courts Scheme, in various High Courts primarily on the ground that
      there was no constitutional sanction for employment of retired Judges,
      nor were there effective guidelines in operation. These matters were
      transferred to the Supreme Court and all these matters were dealt with
      in the judgment in Brij Mohan Lal v. Union of India & Ors.1 - [1].
      The Scheme was analysed by the Supreme Court and keeping in mind
G     the laudable objects with which the Fast Track Courts Scheme was set
      up, the constitution of these courts was upheld but with certain directions.
      In terms of these directions, the first preference for appointment to these
      courts was to be given by ad hoc promotions from amongst eligible Judicial

      1
          (2002) 5 SCC 1
H
MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND                                   723
           [SANJAY KISHAN KAUL, J.]

Officers, while the second preference was to be given to retired Judges          A
who had good service records. The third preference envisaged was to
the members of the Bar for direct appointment to these courts. The
fourth direction in this behalf is as under:
       “4. The third preference shall be given to members of the Bar for
       direct appointment in these Courts. They should be preferably in          B
       the age group of 35-45 years, so that they could aspire to continue
       against the regular posts if the Fast Track Courts cease to function.
       The question of their continuance in service shall be reviewed
       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             C
       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.”
        4. It is in furtherance of the aforesaid Fast Track Courts Scheme        D
that the State of Jharkhand/respondent No.1 is stated to have constituted
more than 80 such Fast Track courts at the level of Additional District
Judges vide Notification dated 29.11.2001. In order to fill these posts
expeditiously, the process of examination having been conducted
immediately before this Notification, a decision was taken to accommodate        E
the persons from the select list, who could not be accommodated in the
regular cadre of Superior Judicial Service, to the Fast Track courts. The
first 17 candidates out of the 27 candidates in the select list were appointed
to the regular cadre on 15.12.2001, while the remaining 10 candidates
were appointed to the Fast Track courts on 2.2.2002. Since the Fast
Track court’s vacancies could not be filed in by this process, 15 more           F
candidates, under the category of direct recruitment from the Bar, were
appointed from amongst the candidates who participated in the selection
process pursuant to the advertisement dated 23.5.2001, but were not on
the select list. This process was followed strictly in accordance with the
merit of the candidates beyond the select list. These 15 candidates              G
were appointed on 23.9.2002.
      5. We may also notice that the existing system of pension and
General Provident Fund ceased to exist for Government servants who
joined in service on or after 1.12.2004 and in lieu of the same a new
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724             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A     Contributory Pension Scheme was introduced for Government officials,
      who joined service on or after 1.12.2004. These Government officials
      joining on or after 1.12.2004 were mandatorily required to procure a
      new Permanent Retirement Account Number (‘PRAN’).
             6. In the year 2008, the High Court issued a new selection process
B     for 34 posts of Additional District Judges through a limited competitive
      examination to be held on 31.8.2008. Thereafter began a legal battle
      between the persons who were working in the Fast Track courts and
      those who would be beneficiaries under the limited competitive
      examination. The challenge laid before the Jharkhand High Court
      impugning the aforesaid selection process succeeded on 29.8.2008 but
C     in the Special Leave Petition (‘SLP’) filed, the judgment of the Jharkhand
      High Court was set aside in Srikant Roy v. State of Jharkhand2. The
      Judicial Officers assailed the appointment of persons to the post of Fast
      Track courts and suffice to say that the contest was carried right till this
      Court, decided in Mahesh Chandra Verma v. State of Jharkhand3.
D            7. Prior to the judgment in Mahesh Chandra Verma4 the issue
      of what is to be done with the Judges appointed to the Fast Track court
      after the funding was stopped by the Central Government, and when the
      State Government also had a problem of funding, formed subject matter
      of directions in Brij Mohan Lal v. Union of India5 - [II]. The relevant
E     paragraphs are as under:
            “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
F           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.
G           (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.
      2
        (2017) 1 SCC 457
      3
        (2012) 11 SCC 656
      4
        (supra)
H     5
        (2012) 6 SCC 502
MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND                             725
           [SANJAY KISHAN KAUL, J.]

    (c) There shall be 150 marks for the written examination and 100       A
    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.
                                                                           B
    (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 keeping in mind that        C
    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.
                                                                           D
    (f) The candidates who qualify the written examination and obtain
    consolidated percentage as afore indicated 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     E
    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      F
    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
                                                                           G
    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.”

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726                SUPREME COURT REPORTS                      [2018] 5 S.C.R.


A          8. The aforesaid judgment was taken note of in Mahesh Chandra
      Verma6 and it was, thus, observed in para 63 as under:
             “63. The State of Jharkhand will now have to take steps to comply
             with directions issued in Brij Mohan Lal7-[II], if it has not
             complied with them so far. The State of Jharkhand and the High
B            Court will have to work in sync to ensure that the directions to
             appoint the appellants in the regular cadre in Higher Judicial
             Service are complied with strictly in the manner laid down in Brij
             Mohan Lal8-[II].”
             9. The effect of the aforesaid judgment was that an examination
C     for regularization and absorption was conducted and the appellants before
      this Court were successful and were thus, appointed to the Jharkhand
      Superior Judicial Service. However, they were treated as fresh recruits.
             10. The appellants were aggrieved on account of them being treated
      as fresh recruits and requested for benefits of pay protection and other
D     benefits of continuance of service. This request was, however, rejected
      by the State Government. This resulted in the writ petitions being filed
      in the High Court where some interim protection was granted but
      ultimately, the writ petitions have been dismissed by the common impugned
      order dated 14.10.2015.

E            11. A perusal of the impugned order shows that other than the
      reference to the judgments referred to aforesaid, the only aspect examined
      is that the initial appointment was temporary on the ex-cadre post, the
      appointment being so made for the temporary scheme for speedy disposal
      of cases. However, in view of the judgment in Brij Mohan Lal9-[II]
      and Mahesh Chandra Verma10 they were appointed through a process
F     to the regular post. The High Court reasoned that since these two
      judgments have not dealt with the post appointment situation of the
      appellants, the High Court would not be able to give anything which has
      not been granted by the Supreme Court under Article 142 of the
      Constitution of India. The Supreme Court had taken recourse to Article
G     142 of the Constitution of India to deal with the issue of the methodology
      for recruitment of the Fast Track court Judges to the regular posts.
      6
         (supra)
      7
         (supra)
       8
         (supra)
       9
         (supra)
      10
H        (supra)
MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND                                  727
           [SANJAY KISHAN KAUL, J.]

       12. In the course of arguments, learned counsel appearing for the        A
State Government sought to emphasise that by its very nature, the Fast
Track courts were constituted for a limited period of time and, thus, the
persons so appointed were conscious of the fact that they would have a
limited tenure. Since the funding from the Central Government stopped,
the State Governments did continue these courts for some years, but
                                                                                B
that again would not give any right to the appellants to claim the benefit
of the service rendered as Fast Track court Judges for the purposes of
computation of pensionary and retiral benefits. He also sought to
emphasise that this Court has taken recourse to Article 142 of the
Constitution of India to issue directions and the High Court had rightly
observed that what was not done by the Supreme Court under Article              C
142 of the Constitution of India could not be done by the High Court.
       13. We put a specific query to the learned counsel as to whether
this Court had, in the two judgments in question, prohibited any such
grant? Learned counsel after some initial hesitation could not dispute
the position that there was no such prohibition. We also put to the learned     D
counsel whether the existing cadre strength was sufficient to sub-serve
the justice delivery process, i.e., could it be said that there were enough
courts in existence to try the relevant cases? The only answer, which
came forth was that the State had been carved out recently and had
taken immediate steps to fill the vacancies. However, to our mind, the
important aspect is that the State was no exception to the general position     E
prevalent of inadequate judicial posts to deal with the existing inflow of
cases. It is only through subsequent directions that a periodic increase
in judicial strength has been envisaged. In Brij Mohan Lal11-[II], it
was observed as under:
       “207.11. Keeping in view the need of the hour and the constitutional     F
       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
                                                                                G
       Higher Judicial Service and Judicial Services Rules of that State,
       immediately thereafter.”
       14. The need to set up Fast Track courts arose on account of
delays in the judicial process, targeting certain priority areas for quicker
11
     (supra)
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728             SUPREME COURT REPORTS                          [2018] 5 S.C.R.


A     adjudication. In fact, had there been adequate cadre strength, there
      would have been no need to set up these Fast Track courts.
              15. The appellants were not appointed to the Fast Track courts
      just at the whim and fancy of any person, but were the next in line on the
      merit list of a judicial recruitment process. They were either part of the
B     select list, who could not find a place given the cadre strength, or those
      next in line in the select list. Had there been adequate cadre strength,
      the recruitment process would have resulted in their appointment. We
      do believe that these Judges have rendered services over a period of
      nine years and have performed their role as Judges to the satisfaction,
      otherwise there would have been no occasion for their appointment to
C     the regular cadre strength. Not only that, they also went through a
      second process for such recruitment. We believe that it is a matter of
      great regret that these appellants who have performed the functions of
      a Judge to the satisfaction of the competent authorities should be deprived
      of their pension and retiral benefits for this period of service. The
D     appellants were not pressing before us any case of seniority over any
      person who may have been recruited subsequently, nor for any other
      benefit. In fact, we had made it clear to the appellants that we are only
      examining the issue of giving the benefits of their service in the capacity
      of Fast Track court Judges to be counted towards their length of service
      for pensionary and retiral benefits. To deny the same would be unjust
E     and unfair to the appellants. In any case, keeping in mind the spirit of
      the directions made under Article 142 of the Constitution of India in Brij
      Mohan Lal12-[II] and in Mahesh Chandra Verma13, the necessary
      corollary must also follow, of giving benefit of the period of service in
      Fast Track courts for their pension and retiral benefits. The methodology
F     of non-creation of adequate regular cadre posts and the consequent
      establishment of Fast Track courts manned by the appellants cannot be
      used as a ruse to deny the dues of the appellants.
            16. In a different factual context but on the principle laid down,
      we take note of the judgment in Nihal Singh & Ors. v. State of Punjab
G     & Ors.14 of a Bench of this court to which one of us was a member.
      The State of Punjab in the 1980s was faced with large scale disturbance
      and was not in a position to handle the prevailing law and order situation
      12
         (supra)
      13
         (supra)
      14
         (2013) 14 SCC 65
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MAHESH CHANDRA VERMA v. THE STATE OF JHARKHAND                                    729
           [SANJAY KISHAN KAUL, J.]

with the available police personnel and, hence, resorted to recruitment           A
under Section 17 of the Police Act, 1861 (hereinafter referred to as the
‘Act’) for appointing Special Police Officers (‘SPOs’). The SPOs were
assigned the duty of providing security to banks, for which the financial
burden was to be borne by the banks, with the clear understanding that,
as per the provisions of the Act, such police officers were to be under
                                                                                  B
the discipline and control of the Senior Superintendent of Police of the
District concerned. Such SPOs provided yeoman service in difficult
times but when their case was considered for regularization subsequently,
it met with an unfavourable response by an order passed in the year
2002. This Court while recognizing that the creation of a cadre or
sanctioning of posts was exclusively within the authority of the State,           C
opined that if the State did not choose to create a cadre but chose to
make appointments of persons creating contractual relationship only, such
action would be categorized as arbitrary nature of exercise of power. In
this context, it was observed by the Bench, thus: “Sanctioned posts do
not fall from heaven. The State has to create them by a conscious choice
                                                                                  D
on the basis of some rational assessment of the need.” Thus, the facts
found showed that there was the existence of a need for creation of
posts and the failure to create such posts or having a stop gap
arrangement, which lasted for years cannot be used to deny in an arbitrary
manner, the absorption benefit to people who had worked for long years.
A direction was issued to regularise the services of such SPOs and they           E
were held entitled to the benefits of service similar in nature to the existing
cadre of police service of the State.
       17. The position in respect of the appellants is really no different
on the principle enunciated, as there was need for a regular cadre strength
keeping in mind the inflow and pendency of cases. The Fast Track                  F
Court Scheme was brought in to deal with the exigency and the appellants
were appointed to the Fast Track courts and continued to work for almost
a decade. They were part of the initial select list/merit list for recruitment
to the regular cadre strength but were not high enough to be recruited in
the existing strength. Even at the stage of absorption in the regular cadre
strength, they had to go through a defined process in pursuance of the            G
judgment of this court and have continued to work thereafter.
        18. We are, thus, unhesitatingly and unequivocally of the view
that all the appellants and Judicial Officers identically situated are entitled
to the benefit of the period of service rendered as Fast Track court
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730              SUPREME COURT REPORTS                        [2018] 5 S.C.R.


A     Judges to be counted for their length of service in determination of their
      pension and retiral benefits.
             19. The appeals are accordingly allowed leaving the parties to
      bear their own costs.

B
      Devika Gujral                                              Appeals allowed.




C




D




E




F




G




H