Courts, Tribunals and Judiciary
Courts, Tribunals and Special Courts
Discontinuance of Fast Track Courts (FTC) Scheme w.e.f. 31-3-2011 - Central Government's policy decision regarding -
Scope of judicial review - Matter impacting rights of citizens, undertrials to speedy and fair trial and independence of
judiciary - Policy decision vis--vis rights of citizens - Role of judiciary - Judicial duty to issue appropriate directions to
ensure that rule of law prevails - FTC Scheme initially contemplated for limited period of five years - Extended and
remaining in force under directions in Brij Mohan Lal, (2002) 5 SCC 1 and Madhumita Das, (2008) 6 SCC 731 - Central
Government ultimately taking decision not to finance FTC Scheme beyond 30-3-2011 - Some States continuing with FTC
Scheme, but others discontinuing it due to non-availability of funds - Directions for extension of FTC Scheme sought -
Held, Supreme Court is not oblivious of principle that policy decisions should be interfered with rarely - However, in
present case to protect guarantees of Art. 21 of the Constitution, improve justice delivery system and fortify
independence of judiciary, while ensuring attainment of constitutional goals and to do complete justice, certain directions
issued - Directions issued for creation of additional courts, 10% additional posts in regular judicial cadre of States, and in
respect of entitlement of directly recruited FTC Judges to regularisation in State cadre in manner prescribed - Judicial
officers promoted as FTC Judges with requisite experience to be absorbed and promoted to Higher Judicial Services
subject to conditions prescribed - Central Government to provide funds for implementation of directions in present order -
Other detailed directions issued - Supreme Court declining to strike down policy decision to discontinue FTC Scheme
beyond 31-3-2011 as it had already been given effect to - However, States which had taken a policy decision to continue
FTC Scheme beyond such date, directed to adhere thereto - States free to take a policy decision on whether or not to
continue FTC Scheme as a permanent feature - States directed, henceforth, not to take a decision to continue FTC
Scheme on ad hoc and temporary basis, (2012) 6 SCC 502-A
Constitution of India
Arts. 136, 226 and 142 - Exercise of power - Interim/Interlocutory orders/Injunction/Stay - Interim orders - Scope -
Protection granted to ad hoc/temporary Judges of Fast Track Courts (FTCs) for absorption against vacancies in regular
cadre - Interim orders, contrary to Act, Rules and letters of appointment - Held, such directions cannot be issued, (2012)
6 SCC 502-B
Service Law
Regularisation
Petitioners temporary/ad hoc Judges under temporary Fast Track Courts Scheme - Vacancies in regular judicial cadre
of States - Petitioners' claims for absorption and regularisation against such posts - Reliance upon directions in Brij
Mohan Lal, (2002) 5 SCC 1 and Madhumita Das, (2008) 6 SCC 731, for consideration for absorption in regular cadre -
Reiterated, applying Umadevi (3), (2006) 4 SCC 1, that absorption in service is not a right - Regularisation also is not a
statutory or a legal right enforceable by persons appointed under different rules to different posts - Regularisation shall
depend upon facts and circumstances of a given case and relevant rules applicable to such class of persons - FTC
Judges were appointed under a separate set of Rules than Rules governing regular appointment to State Higher Judicial
Services - Rules and letters of appointment clearly stipulated such appointments would be ad hoc and temporary and
appointees shall not derive any benefit from such appointments - Petitioners cannot claim any right either to
regularisation or absorption - Plea for quashing advertisement for making selections to Higher Judicial Services on basis
of petitioners' claims for regularisation against such posts, also rejected, (2012) 6 SCC 502-C
Service Law
Regularisation
Applicability - Reiterated, mere legitimate expectation of absorption/regularisation not a cause of action for claiming
relief of regularisation, (2012) 6 SCC 502-D
Constitution of India
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Arts. 32, 21, 50, 136, 226, 141 and 144 - Exercise of Power - Policy matters - Directions that may be issued by Court -
Supreme Court, held, is required to take unto itself task of issuing appropriate directions to ensure that rule of law
prevails and constitutional goals are not defeated by inaction either when the law requires action or when policy in
question is so arbitrary it defeats the larger public interest - Principle est boni judicis ampliare justician non-jurisdictionem,
applied - Central Government's policy decision to discontinue Fast Track Courts Scheme beyond 31-3-2011 - Detailed
directions issued - Reasons necessitating issuance of directions, discussed, (2012) 6 SCC 502-E
Constitution of India
Arts. 21 and 39-A - Right to fair and speedy trial - Constitutional duty of State in respect of - Financial limitations or
constraints as an excuse - Non-availability of - Held, financial constraints upon the State cannot be a ground to deny
fundamental rights to citizens - State cannot be permitted to deny fundamental right to speedy trial to the accused on
ground that State does not have adequate financial resources to incur necessary expenditure needed for improving
administrative and judicial apparatus to ensure speedy trial, (2012) 6 SCC 502-F
Administrative Law
Administrative Action
Policy/Policy decision/Policy matter - Framing of policy - Decisions taken in conference of Chief Ministers of States and
Chief Justices of High Courts relating to administration of justice - Held, due weightage should be attached to these
recommendations which preferably should form basis of State/Central Government policy decision - Besides,
recommendations of bodies like Law Commission ought to be considered - Further, though not mandatory, but is always
desirable that policy decisions in relation to administration of justice should be made in consultation with Supreme Court
and/or respective State High Courts, (2012) 6 SCC 502-G
Service Law
Posts
Nature of - Held, it is not a fundamental right but a civil or statutory right - Nature of the post, method and manner of
appointment, rules governing conditions of service of that post would be the precepts to deal with such situations, (2012)
6 SCC 502-H
Service Law
Judiciary
Judges appointed for, on ad hoc and temporary basis - Claim to post or regularisation - Tenability - Held, on analysis of
Rules of different States, appointment letters issued and methodology adopted for appointment of FTC Judges,
appointees cannot be said to have any legal, much less an indefeasible right to such posts - Appointments under Rules
were purely on ad hoc, urgent or temporary basis and were terminable without notice - Entire FTC Scheme itself was ad
hoc and for a duration of five years only - No permanent posts were ever created - Hence, appointees had no right to the
post, (2012) 6 SCC 502-I
Service Law
Posts
Permanent, temporary and quasi-permanent posts - Held, for a person to have a right to a post, post itself has to be a
permanent post duly sanctioned in the cadre - Where a temporary employee is appointed against a permanent post, he
could get a right to the post provided he had at least acquired status of a quasi-permanent employee under Rules -
Where post is neither sanctioned nor is permanent, it cannot create any rights and obligations in favour of appointees,
akin to those of permanent employees - There should be a right vested in an employee, which is duly recognised and
declared in accordance with the Rules governing the conditions of service of such employee before relief is granted,
(2012) 6 SCC 502-J
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Constitution of India
Arts. 310, 311, 235 and 14 & 16 - Doctrine of pleasure - Limitations on - Tenure of office of persons serving the
Union/State - Held, where offices are held during the pleasure of President or Governor, without any express limitations
or restrictions, this power should, however, necessarily be read as being subject to fundamentals of constitutionalism,
(2012) 6 SCC 502-K
Service Law
Government Servant
Legal position of, reiterated, is more one of status than that of contract, (2012) 6 SCC 502-L
Administrative Law
Judicial Review
Policy/Policy decision/Policy matter - Policy decision of Government - Permissibility, scope and tests for judicial review -
General policy decisions of the State and fiscal policies of the State - When liable to be interfered in - Held,
unreasonableness, arbitrariness, unfair actions or policies contrary to letter, intent and philosophy of law and policies
expanding beyond permissible limits of delegated power will be instances where courts will step in to interfere with
government policy - State policy should not be opposed to basic rule of law or statutory law in force, (2012) 6 SCC 502-
M
Constitution of India
Arts. 32, 226, 50, 368, 73, 162 and 21 - Particular writs - Mandamus - Policy matters/decisions - Mandamus against
State when can be issued - Policy decision undermining/destroying independence of judiciary - Held, any policy or
decision of Government which undermines or destroys independence of judiciary would not only be opposed to public
policy but would also impinge upon basic structure of the Constitution - Government policy decision to end Fast Track
Courts Scheme, despite increasing pendency of cases, thereby limiting right to fair and expeditious trial to litigants,
tantamounts to infringement of their basic rights and constitutional protections, hence, writ of mandamus and/or
appropriate directions can be issued, (2012) 6 SCC 502-N
Constitution of India
Arts. 19(1)(g) & (6), 233, 235, 124(7) and 220 - Freedom of trade, business and occupation - Discontinuance of Fast
Track Courts - Ad hoc Judges of FTCs ceasing to be Judges thereof - Restriction thereafter, under Bar Council Rules
from practising in district and subordinate courts - Reasonableness of restrictions - Held, right to practise law is not an
absolute right - It is subject to possession of requisite qualifications as contemplated under Advocates Act, 1961 and
limitations prescribed in Bar Council of India Rules - Appointees' right to practise is abridged with respect to the courts in
which they acted as Judges and courts of equivalent or lower grade - They can still practise in higher courts - Thus, there
is no complete and absolute restriction on their right to practise, but only a partial restriction - This by itself, therefore,
cannot be a consideration for compelling Government to continue their appointments, if they are otherwise not entitled
under law to continuation, (2012) 6 SCC 502-O
Constitution of India
Arts. 50, 124, 215, 233, 235, 14, 73, 162, 12 and 368 - Independence of judiciary - Separation of powers - State control
through financial, administrative, managerial and functional controls - Extent of and limitation in relation to judicial
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functions and judicial powers - Held, courts should be able to function free from undesirable administrative and financial
restrictions in order to achieve the constitutional goal of providing social, economic and political justice and equality
before law to its citizens, (2012) 6 SCC 502-P
Service Law
Judiciary
Ad hoc or temporary appointees - Ad hoc and temporary Judges under temporary Fast Track Courts Scheme (FTC
Scheme) - Termination/discontinuation of services principally upon discontinuation of FTC Scheme but also for
unsatisfactory conduct - Held on facts, valid - Officers had no right to their posts - Discontinuation of their services cannot
be construed as punitive or visiting petitioners with civil consequences - This holds true even though in some cases, it
has been recorded that performance of appointees was found to be unsatisfactory - Discontinuation of FTC Scheme
itself was principal reason for terminating services of all these officers - Rules themselves were temporary and were
bound to cease to have force of law after 2005 - Appointments were ad hoc and made on urgent temporary basis for a
limited period of two years and were terminable without notice - Hence, neither posts existed which had permanent or
quasi-permanent character nor which duly sanctioned posts of regular cadre of State Government nor appointees had
any right to these posts - Twin tests laid down in Parshotam Lal Dhingra, AIR 1958 SC 36, applied, (2012) 6 SCC 502-Q
Service Law
Judiciary
Rr. 4 and 6 - Vires of - Appointment of FTC Judges on ad hoc and temporary basis for a period of two years, terminable
without any prior notice under - Held, Rules themselves were temporary and were enacted to meet an emergency
situation - Challenge to Rules being arbitrary or discriminatory, rejected, (2012) 6 SCC 502-R
Service Law
Appointment
Provision providing that services were ``liable to be terminated at any time without any notice'' - Validity of - Test to be
applied, (2012) 6 SCC 502-S
Constitution of India
Arts. 235, 233, 21, 16 and 14 - Judges of Fast Track Courts and regular State Judicial cadre - Condition imposed on
FTC Judges of disposal of eight trial sessions per month - Validity - Held, not ex facie unreasonable, arbitrary or
discriminatory - Judicial officers appointed under regular cadre of State Higher Judicial Services are subject to various
restrictions and limitations on judicial conduct as imposed by High Court and under Rules in force - Without exception,
the unit system for disposal of cases prevails - FTC Judges are to deal only with sessions trials which is the very purpose
for which FTC Scheme was created - No data provided to substantiate that it is neither practicable nor possible for these
courts to dispose of eight sessions trials, (2012) 6 SCC 502-T
Service Law
Judiciary
Mode of recruitment - Judicial officers of regular State judicial cadre promoted as FTC Judges - State Government
notification and Rules requiring such FTC Judges to undertake limited competitive examination for promotion/absorption
to Higher Judicial Service cadre - Validity - Held, All India Judges' Assn. (3), (2002) 4 SCC 247 and relevant Rules
contemplate that a person who is to be directly appointed to Higher Judicial Services has to undergo a written
examination and appear in an interview before he can be appointed to the said cadre - Once Rules required a particular
procedure to be adopted for promotion to regular posts of Higher Judicial Services, then competent authority can effect
promotion only by that process and none other - These officers who were promoted as ad hoc FTC Judges had not taken
any written competitive examination before their promotion to this post under Higher Judicial Services - Hence, directive
of State Government, valid, (2012) 6 SCC 502-U