& Ors Vs. State of A.
P. & Anr  Insc
162 (21 March 2002)
Pattanaik, S.N. Phukan & S.N. Variava S. N. Variava, J.
facts relevant for the purposes of this Writ Petition are as follows:
State of Andhra Pradesh established Family Courts and Mahila
Courts. The High Court of Andhra Pradesh desired that these Courts be manned by
women. However in the cadre of District and Sessions Judges, Grade II there
were not enough women Judges who could be posted in these Courts. Therefore the
High Court requested the State to create additional posts. On 3rd September, 1996 the State Government issued Office
Memorandum No. 172 sanctioning 10 additional posts of District and Sessions
Judges, Grade II. The relevant portion of the said Memorandum reads as follows:
Registrar, High Court of Andhra Pradesh, Hyderabad, has informed in his letter 6th read above that six Family Courts in
the cadre of District and Sessions Judge were sanctioned at Visakhapatnam, Hyderabad, Vijayawada, Kurnool, Tirupathi and Warangal in the G. O. 3rd read above and another Family Court at Secunderabad
was sanctioned in the G. O. 5th read above. The Registrar, High Court of Andhra
Pradesh has further stated that the High Court considers it necessary to post
lady District Judges to preside over the Family Courts in the State with a view
to protect and preserve that institution of marriage and to promote the welfare
of the children as stipulated in Rule 4 (4) (a) and (b) of the Family Court
Act, 1984, but due to non availability of women judicial Officers in the cadre
of District Judges, the High Court is unable to post Lady District Judges to
the Family Courts. The Registrar has also stated that Mahila Courts with Lady
presiding Officers at Hyderabad, Vijayawada and Visakhapatnam were sanctioned exclusively to deal
with offences against women, in the G.Os. first and fourth read above. The
Registrar, High Court of Andhra Pradesh has finally requested that 10 posts of
District and Sessions Judge, Grade-II, be sanctioned in addition to the
existing cadre strength, exclusively to recruit the women candidates by direct
recruitment, for being posted to the Family Courts and Mahila Courts in the
Government after careful consideration of the matter hereby sanction in relaxation
of Rule 2 of the Special Rules for the A. P. State Higher Judicial Service, 10
posts of District and Sessions Judges, Grade-II, in addition to the existing
cadre strength, exclusively for women candidates to be recruited by direct
to this Memorandum the High Court issued an Advertisement inviting applications
from women candidates for appointment to the post of District and Sessions
Judge, Grade-II. The advertisement specified that five posts would be available
for open competition, two posts for the Scheduled Castes, one post for the
Scheduled Tribe, one post for Backward Class Group A and one post for Backward
Class Group B.
Pursuant to this advertisement 261 candidates applied for the posts. The High
Court called 210 candidates for a written examination. 180 candidates
participated in the written examination.
High Court then called 35 candidates for oral interviews. The oral interviews
were conducted on 20th and 21st of March, 1997. A panel of 10 candidates was
prepared. The 10 candidates were asked to furnish further information relating
to their legal practice. After receipt of the information the High Court
rejected one name. A panel of nine candidates was then approved at Full Court meetings held on 17th September, 1997 and again on 17th October, 1997. This panel consisted of seven
candidates from the open category, one from Scheduled Caste and one from
Backward Class Group D. The High Court then sent the names of the nine
candidates to the State Government for appointment.
State Government brought to the notice of the High Court certain aspects and
requested the High Court to consider the same and express its views. The
aspects brought to the notice of the High Court were as follows:
As Rule 22 of the A. P. State and Subordinate Service Rules old or new
prescribes a specific procedure either for filling of S.C. and S.T. vacancies
with O.C. candidates or for de-reserving such vacancies, it is for the
consideration whether the 7th and 8th vacancies in the recruitment reserved for
SCs and STs respectively can straightaway be de- reserved which is not in
consonance with the said Rule 22.
the notification inviting the applications for the post in question was issued
much later to 18-3- 1996, the principles of carry forward of vacancies in
respect of BCs also applies to the recruitment. The recommendation of the High
Court at roster points 4th and 10th reserved for BC.A and BC.B groups
respectively, required consideration in the light of rules issued in G.O.Ms.No.
65, General Administration (Ser.D) Dept., Dated:15-2-1997.
High Court informed that the appointments of the nine provisionally selected
candidates shall be provisionally as Family Court Judges under the Family
Courts Act to man Family Courts and Mahila Courts only. As the proposal for
sanction and notification are for the posts of District and Sessions Judges Grade.II,
it is for consideration whether the candidates provisionally appointed in such
recruitment can now be provisionally appointed designating them as Family
High Court has stated that the nine recommended candidates to be provisionally
appointed as Family Court Judges would be recruited into Higher Judicial
Service as District Judges Grade.II as and when vacancies in the cadre to the
extent of reservation for women become available in order of their merit
subject to the rule of reservation, it has to be considered in view of Rule 2
of the Special Rules and whether they can be so adjusted as suggested in view of
Rule 6 of the Special Rules.
Whether the provisionally selected candidates recruited as District Judges in
the Andhra Pradesh State Higher Judicial Service can be kept out of the service
by provisional appointment to some other post and recruiting them into the
posts of District Judges on the availability of vacancies reserved for Women.
appointments to the posts of District Judges shall be made by the Governor of
the State, where as under the Family Courts Act, 1984, the State Government
appoints persons to be judges of the Family Courts. Hence the appropriate
procedure to be adopted for making the suggested appointments may also be
High Court considered the aspects brought to its notice in a meeting of the Full Court held on 21st November, 2000. The High Court then replied to the State Government
Query No. 1:
the rules in force, the vacancies relating to SC and ST Candidates cannot be
straight away de-reserved. If there are no qualified candidates of SC and ST
available, the said vacancies have to be carried forward for Limited
Recruitment. Therefore, the High Court is of the view that the vacancies
reserved for SC and ST candidates cannot be de- reserved.
Query No. 2:
the rules in force, the vacancies relating to each category of candidates
belonging Backward Class Group A,B,C and D cannot be converted into other
categories and they have to be carried forward for Limited Recruitment, if the
candidates belonging to each sub-group are not available. Therefore, the High
Court is of the view that the vacancies reserved for each sub group cannot be
filled up with the candidates of other sub groups.
Query No. 3:
advertisement for the recruitment of women candidates was made inviting
applications for the posts of District and Sessions Judges, Grade.II.
Government accorded sanction of 10 additional posts in G.O.Ms.No.172, Law
(LA&J SCF) Department dated:3.9.1996. There is no provision in the Special
rules for A.P. State Higher Judicial service for eventual absorption of the
candidates appointed as Family Court Judges into the Cadre of District Judges, Grade.II
against the future vacancies falling with the direct recruitment quota. In this
regard, two aspects viz.,
test from the point of view of merit of the candidates and
Legality of recruitment by inviting applications exclusively from women
candidates only, have been considered by the High Court.
the suitability, it is noticed by the High Court that the candidates who were
provisionally selected have got less marks even if 40% is taken as minimum
marks for Ocs and 30% for Scs and Sts for the purpose of selection as District
Judges Grade.II. The recommendation through the letter 4th cited, was for
appointment of the women candidates as Family Court Judges and not as District
and Sessions Judges, Grade.II. The High Court, therefore, is of the view that
it is not conducive to the efficiency in service and the image of Judiciary if
the candidates who have got such lower marks are inducted into Higher Judicial
the legality of recruitment, the High Court is of the view that there are
formidable legal impediments in the way of recommending the candidates for
appointment as District and Sessions Judges, Grade.II. The High Court is of the
further view that the Spl. Rules for A.P. State Higher Judicial Service issued
in exercise of powers conferred under Article 233 and the proviso to Article
309 of the Constitution of India and those rules enjoin that 33.1/3% of the
total number of permanent posts shall be filled or reserved to be filled by
direct recruitment. The Government accorded sanction of 10 posts of District
and Sessions Judges, Grade.II in addition to the existing cadre strength
exclusively for women candidates to be recruited by direct recruitment. This
was purportedly done by relaxation of rule 2 of the special Rules for A.P.
State Higher Judicial service. Rule 2 provides for method of appointment and
the proportion between the recruits by transfer (Promotees) and direct recruits
from the Bar. By resorting to relaxation of the said rule, it is not legally
permissible to earmark 10 sanctioned posts exclusively for direct recruitment
of women candidates since there is no rule in the A.P. State Higher Judicial
Service giving the power to relax any of the rules. The power to relax the
rules would only be under the A.P. State and Subordinate Service rules. Even if
there is such power, it is doubtful whether the basic rules of recruitment can
be relaxed in view of the rulings of the Supreme Court in KESHAV CHANDRA JOSHI
VS. UNION OF INDIA (AIR 1991 SC 284) AND IN J&k PUBLIC SERVICE COMMISSION
VS. NARINDER MOHAN (AIR 1994 SC 1808). The High Court is of the further view
that ear-marking 10 additional posts sanctioned only to the women candidates
amount to cent percent reservation in favour of women which is not
legal/constitutionally permissible. Even if the reservation provided under Rule
22-A of the A.P.
and Subordinate Service Rules is made applicable to A.P. State Higher Judicial
Service, the reservation could be to the extent of 1/3rd only.
Query No. 4:
there is no rule under the Spl. Rules for A.P. State Higher Judicial Service to
absorb the Family Courts Judges into the Higher Judicial Service as District
& Sessions Judges, Grade.II as and when vacancies in the cadre to the
extent of reservation for women become available, the High Court is of the view
that they cannot be absorbed in view of Rule 2 read with Rule 6 of the Special
Rules for A.P. State Higher Judicial Service.
Query No. 5:
to Rule 6 of the Spl. Rules for A.P. State Higher Judicial Service, seniority
of a person appointed to the category of District and Sessions Judges, shall be
determined with reference to the date from which he was continuously on duty in
the category. The Spl. Rules do not provide to keep provisionally selected
District Judges out of service as Family Court and Mahila Court Judges and
recruiting them into the posts of District Judges as and when vacancies for
women for direct recruitment become available in order to their merit and
subject to the rule of reservation. Therefore, the High Court is of the view
that the provisionally selected candidates as District Judges cannot be kept
out of that service by provisional appointment to some other post and
recruiting them into the posts of District Judges on the availability of
vacancies reserved for women.
Query No. 6:
view of the above views expressed by the High Court, this query needs no
light of the above views for the queries raised by the Government, the High
Court of Andhra Pradesh is not in favour of recommending any women candidates
on provisional selection for appointment as District and Sessions Judges, Grade.II
under the A.P. State Higher Judicial service in pursuance of the Notification
issued on the basis of the High Court's letter No. 4610/96- B.Spl Dated:
7.10.1996." Thus the Full Court, in
its meeting held on 21st
November, 2000 was not
in favour of appointing any person from the Panel prepared earlier.
must be noted that the vacancies were for Judges of Family Courts and Mahila
Courts. These Courts could be manned by District and Sessions Judges, Grade II.
The State Government had thus created 10 posts of District and Sessions Judge,
Grade II. The advertisement was also for appointment to the posts of District
and Sessions Judge, Grade II. The appointments were to be not to any ex- cadre
posts but to posts in the cadre of District and Sessions Judge, Grade II. The
rules prescribed that in the cadre of District and Sessions Judges there had to
be reservations for Scheduled Tribes, Scheduled Caste, Backward Classes (groups
A, B, C or D) and women.
rules did not allow 100% reservation for women. By reserving all the 10 posts
for women the High Court had inadvertently created a 100% reservation for
women. Further the posts advertised were 5 open competition, 2 Scheduled Caste,
1 Scheduled Tribe, 1 Backward Class Group A and 1 Backward Class group B. Yet
the panel sent to the Government consisted of 7 open competition candidates, 1
Scheduled Caste candidate and 1 Backward Class group D candidate.
selection was entirely against the rules and against the reservation policy.
The rules also required that if no SC or ST candidate was available then the
vacancy had to be carried forward.
the vacancy of Backward Class group A, B, C and/or D could not be converted
into other category. Because of these difficulties the persons empanelled could
not be appointed in the cadre of District & Sessions Judge Grade II. The
High Court initially considered that the Petitioners could be appointed in
ex-cadre posts as Family Court and/or Mahila Court Judges and then absorb them
in the cadre of District and Sessions Judge, Grade II as and when vacancy for
women arose. The High Court correctly realised that this could not be done.
also noticed that the candidates provisionally selected i.e. the Petitioners
had got less marks than those normally prescribed for such selection.
must be mentioned that in the meantime the Petitioners had made representations
both to the Chief Justice as well as to the Chief Minister. They received no
reply. This Writ Petition was thus filed by the nine women lawyers who were
selected and whose names were forwarded to the State Government for
appointment. The Petitioners sought directions to appoint them in the cadre of
District and Sessions Judges, Grade II. Thereafter on 20th July, 2000 another
advertisement was issued calling for applications for appointment to six posts
of District Judges. In this advertisement only one post was reserved for women.
The Petition was thus amended and a further direction to quash the decision of
the Full Court not to appoint as per the selection earlier made and to quash
the subsequent advertisement have been sought.
is settled law that no right accrues to a person merely because a person is
selected and his or her name is put on a panel. The Petitioners have no right
to claim an appointment. Even otherwise, the selection was contrary to the
rules in force at that time. There could not be 100% reservation for women.
Also the reservation policy had not been adhered to. The posts which are
created are posts of District and Sessions Judges, Grade II. There is no seperate
posts for Judges of Family Courts and Mahila Courts. Thus the Petitioners could
not be appointed as Judges of Family Courts and Mahila Courts in ex- cadre
posts even provisionally. This would amount to creation of Ex- cadre posts not
sanctioned by the Government. No fault can be found with the High Court being
in favour of not appointing the Petitioners.
unfortunate part is that even though Family Court and Mahila Courts have been
established no appointments have been made. Thus, till date the Family Courts
and Mahila Courts are not being manned.
Mr. Nageshwar Rao has relied upon the case of R. S. Mittal vs. Union of India
reported in 1995 Supp. (2) SCC 230. In this case even though the Court was of
the opinion that the selection was not proper, it refused to interfere. Mr. Nageshwar
Rao also relied on the case of Munna Roy vs. Union of India reported in (2000)
9 SCC 283. In this case the Court directed appointment of the selected
candidate in spite of the fact that she had no right to the appointment. Both
these cases are based on the peculiar facts of those cases.
the posts were lying vacant for such a long period of time initially it was
suggested that if the Petitioners filed an undertaking before this Court, that
they are willing to be appointed in ex-cadre posts of Judges of the Family
Court and/or Mahila Court and that they will not claim any right to be
subsequently absorbed in the cadre of District and Sessions Judges Grade II
then the Court could consider directing the State Government to appoint these
of these Petitioners have filed undertakings before this Court.
on a proper consideration of the matter, we are of the view that this Court
cannot direct the State Government to appoint these Petitioners. If such a
direction were to be given this Court would be creating ex-cadre posts and
making appointments contrary to rules.
it is not possible for this Court to accede to the request of Mr. Nageshwar Rao
to appoint Petitioners, on the ex-cadre posts, as Judges of Family Courts and Mahila
Writ Petition is thus dismissed. There will be no order as to costs.
VARIAVA) March 21, 2002.