Telangana Judges Association & Anr. vs Union of India & Ors.

Disposing of the matters, the Court

HELD: 1.1 For preparing guidelines for allocation of the Judicial officers, the views of the High Court are not to be ignored and the Union of India, Department of Personnel & Training, has rightly given due weight to the views of the High Court for allocation. However, the scheme of the Andhra Pradesh Re– organisation Act, 2014 indicates that final allocation Order is to be issued as per the statutory provisions, by the Central Government. The coverage of Section 77 is “Every person who immediately before the appointed day is serving on substantive basis in connection with the affairs of the existing State of Andhra Pradesh...” The coverage of Section 77 is in very wide term which includes every person who is serving in connection with the affairs of the existing State. There can be no denial that Judicial Officers working in the Sub-ordinate Judiciary are serving in connection with the affairs of the existing State. Thus, there cannot be any denial that Section 77 also clearly covers the sub-ordinate judiciary of the State and final allocation Order has to be issued by the Central Government after due consultation with the High Court. [Para 39][203-D-F]

1.2 The High Court in preparing draft guidelines and thereafter issuing modified guidelines for allocation of cadre of Judicial Officers was well within its jurisdiction and its views required due weight in giving effect to the provisions of Section

77 of the Act. Section 80 expressly indicates that in carrying exercise by the Central Government as contemplated under Section 77, there has to be fair and equal treatment to all persons affected by the provisions of Part VIII of the Act. The guidelines for allocation of cadre should ensure fair and equal treatment to all persons affected and they should also conform the equality clause as enshrined in Article 14 of the Constitution. [Para 40, 42][203-G; 204-A, B]

1.3 Special provisions were introduced by way of Article 371D of the Constitution. Now, by virtue of Act, 2014 in place of the State of Andhra Pradesh “the State of Andhra Pradesh or the State of Telangana” has been substituted. The basis for Article 371D is to provide equal opportunity to the people of Andhra Pradesh by introducing domicile as the basis for appointment to services and admissions in educational institutions, however, Article 371D has no application in respect of the appointment to the posts of District Judges and Judges Subordinate thereto, in view of the constitutional scheme of separation of powers and express provisions having been made by the Constitution. [Para 44, 46][204-H; 205-A; 206-H; 207-A-B]

Chief Justice of Andhra Pradesh & Ors. v. L.V.A. Dixitulu & Others (1979) 2 SCC 34 : [1979] 1 SCR 26 –

referred to.

1.4 Petitioners have referred to guideline No. 18(f) of the Kamalanathan Committee determining principles guiding allocations read with guideline No. 18(n), which also read with the Andhra Pradesh Public Employment Order, 1975 gives preference in allocation to those who have opted and who are local candidates to be allocated to that State in which they are local candidates. The said order dated 29.10.1975 issued under Article 371D has been relied. The guidelines formulated by Kamalanathan Committee in context of other Civil Services are not relevant nor any support can be taken on the basis of said guidelines. [Paras 48, 49][209-F-H]

1.5 The nativity for public employment runs counter to the fundamental right guaranteed under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution. In Act, 2014, there is no provision, which expressly provides for allotment of the State on the basis of place of birth or residence. Sections 77, 78 and 79 of the Act do not refer to allotment on the basis of place of birth. When for entering into Judicial Service, no condition can be put regarding residence of particular area for allocation of a State, consequent to Act, 2014, nativity cannot be sole basis, as is contended by the petitioner. It is true that the State of Telangana stand formed to realise the democratic aspirations of the people of Telangana. The Statement of Objects and Reasons of Act, 2014, which clearly establish that the creation of a separate State of Telangana is for the betterment of the social, economic, political and other aspirations of the people of that region, which contemplated allocation of separate State of Telangana. The entire Statement of Objects and Reasons does not indicate that with respect to public employment, nativity is to play a dominant role. It is true that Judicial Officers belonging to Telangana territorial area may have desired or expectation to choose or to opt for their cadre in Telangana area, which is a legitimate aspiration, but giving pre–dominance to nativity only is not spelled from any statutory provision or scheme. [Para 51][210-G-H; 211-A-D]

J. Panduranga Rao v. Andhra Pradesh Public Service Commission [1963] 1 SCR 707 – referred to.

1.6 When a Judicial Officer has been given a right of option to choose either of the successor State, right of option has to be given same meaning and content. Right of option can be defeated only when there is some impediment in accepting the option. The seniority of a Judicial Officer is a first criteria for accepting the option. The seniority in a service is a valuable right of an employee or officer. In service jurisprudence, several benefits and perquisites are attached to the seniority. The petitioners are asking that option be accepted not on the basis of seniority but only on the basis of nativity, i.e. those who are senior even if they opt the State option, their option should not be selected and option of those should be first accepted, who are natives of Telangana. The petitioner’s apprehension is that in event option of senior officers are accepted and they are posted in State of Telangana, the future prospects of promotion of the petitioners shall be marred. Whether the officers, who in the seniority list, which was prevalent on the date of formation of new State, i.e. on 02.06.2014 where senior should loose their seniority or their seniority cannot be said to play any role on account of formation of two successor States is the question to be answered. The aspiration of petitioners that no senior officer, should come to State of Telangana, which may mar their prospect of promotion is neither in accord with the constitutional scheme nor as per ethos of culture of this country. The modified guidelines submitted by the High Court and accepted by the DoPT itself at second place give preference to nativity. Thus, the High Court while formulating the guidelines has tried to balance the right of option of each Judicial Officer. [Para 54][212-B-F]

The State of Mysore and another v. G.N. Purohit and others (1967) SLR 753; Mohammad Shujat Ali and Others v. Union of India [1975] SCR (1) 449 – referred to.

Black’s Law Dictionary Tenth Edn. P 1268; Advanced Law Lexicon by P. Ramanatha Aiyar – referred to.

1.7 The draft guidelines, which were initially circulated by the High Court on 26.02.2016 has in the first sentence stated “the allocation shall be done in the order of seniority as available on 02.06.2014.” The second sentence read “Preference shall be given first to those who have applied for the State in which the District declared by them at the time of entering service falls”. The above draft guidelines has only been amplified retaining the initial concept of accepting option on the basis of seniority. Both the concept are now reflected in modified guidelines as guideline No. 5(1) and 5(2). Thus, the submission that guidelines have been substantially changed by the High Court without there being any reason cannot be accepted. The substance of the guidelines are same, which were initially contained in the draft guidelines and modified guidelines. It was the DoPT, which has proposed guidelines, where content clause 5.2 was 5.1 of modified guidelines were proposed as 5.1 was 5.2, which was not accepted by the High Court and Full Court reiterated their earlier principle, which was initially encapsuled in draft guidelines. [Para 56][214-G-H; 215-A-B]

1.8 Chart indicating the details of options and showing details of Judicial Officers working in both the States of Andhra Pradesh and Telangana from 02.06.2014 and the acceptance position of their option has been submitted by the High Court, which indicate that all Judicial Officers belonging to territorial area of Telangana region have been allocated Telangana State and the option of all the Judicial Officers, who have opted for Telangana State have been accepted. [Para 57][215-C-D]

1.9 All the Judicial Officers belonging to Telangana State having opted and allocated the Telangana State, practically, there is no error in the operation of guidelines finalised by the High Court. Modified guidelines as submitted by the High Court vide letter dated 08.07.2017, which has been accepted by DoPT does not suffer from any illegality or error. The said guidelines is to be accepted and approved. The respondents are directed to finalise options of all the Judicial Officers as per the above guideline and complete the process of allocation within the stipulated period. [Para 58, 59][215-E-G]

1.10 In the Civil Appeals, appellants have not pressed the quashing of Recruitment 2014 and 2015. Further, Andhra Pradesh Judicial Service Rules, 2007 as adopted by State of Telangana, which was quashed by the High Court is now substituted by fresh Rules namely, Telangana State Judicial Service Rules, 2017. All the issues raised in the Civil Appeals have become academic and needs no consideration. [Para 60][216-A]

State of U.P. v. Batuk deo Pati Tripathi (1978) 2 SCC 102; State of Bihar and Another v. Bal Mukund sah and Others (2000) 4 SCC 640 : [ 2000] 2 SCR 299; Mangal Singh v. Union of India (1967) 2 SCR 109 – referred to.