JUDGMENT I.M. QUDDUSI, A.C.J. — This writ petition has been filed chal¬lenging the appointment of opposite party Nos.4 to 12 as Ad hoc Additional District Judge in Fast Track Courts. 2. The brief facts of the case are the Eleventh Finance Commission allocated Rs.502.90 crores under Article 275 of the Constitution of India for the purpose of setting up of 1734 Courts in various States in India to deal with long pending cases particularly, Sessions Cases. As allocation of funds was made by the Finance Commission stipulating time-bound utilization, i.e. within a period of five years, various State Governments were required to take necessary steps to establish the aforesaid Courts in their respective States. It appears that the Finance Commission suggested that the States may consider re-employment of the retired Judges for a limited period for disposal of pend¬ing cases. Challenge was made to the Scheme known as the “Fast Track Court in different High Courts” primarily on the ground that there was no constitutional sanction for reemployment of retired Judges and effective guidelines were not in operation. Infrastructural facilities to make the scheme functional were not available. A plea was also raised therein that instead of retired judicial officers, eligible members of the bar should be consid¬ered for appointment. 3. The matter was considered by the Hon’ble Supreme Court and was decided vide judgment/order dated 6th May, 2002, after getting the cases pending in various High Courts transferred in T.C.(C) No.22 of 2001 reported in AIR 2002 SC 2096 (Brij Mohan Lal vrs. The Union of India and others) in which several directions were given. The direction relevant for the purpose of this case is as under: “4. The third preference shall be given to the members of Bar for direct appointment in these Courts. They should be pref¬erably in 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 subse¬quent 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 Service.” 4. They may be absorbed in regular vacancies, if subse¬quent 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 Service.” 4. Thereafter the Governor of Orissa after consultation with the High Court of Orissa made the Orissa Judicial Service (Special Scheme) Rules, 2001 which came into force on the date of its publication in the Orissa Gazette, i.e. 7.4.2001. Later on some amendments were made to the said Rules by “the Orissa Judi¬cial Service (Special Scheme) (Amendment) Rules, 2003 which was deemed to have come into force with effect from 22nd February, 2003. The relevant part of the Rules, 2001 as amended for the purpose of this case is reproduced hereunder: “Eligibility: 5(1) ... ... ... (2) ... ... ... (3) ... ... ... (4) The method of selection of members from the Bar as direct recruits shall be adopted by the High Court as are normally followed for selection of members of the Bar as direct recruits to Orissa Superior Judicial Service.” 5. The High Court decided to fill up some posts of Ad hoc Additional District Judge of Fast Track Court from amongst the candidates who appeared at the recruitment test for regular District Judges under the Orissa Superior Judicial Service Rules in the year 2000 vide Advertisement No.1 of 2000.Before proceed¬ing further, it is necessary to reproduce the relevant conditions mentioned in the advertisement for the recruitment of regular District and Sessions Judge vide advertisement of 2000 which are as under : “5. No. of vacancies : Two (one vacancy immediately avail¬able and the second likely to be available). 9. Examination :- (1) There shall be a written examination consisting of two papers and carrying 100 marks each having duration of two hours. Paper-I: Criminal Procedure Code-30, Indian Penal Code-30, Indian Evidence Act-30 and Special Acts-10, such as N.D.P.S. Act, Prevention of Food Adulteration Act, Prevention of Corruption Act and Essential Commodities Act. Paper-II: Civil Procedure Code-30, Personal laws-30, and other acts-40, such as Transfer of Property Act, Specific Relief Act, Limitation Act, Law of Contract, O.E.A. Act, Consolidation of Holdings Act and Orissa Land Reforms Act. Paper-II: Civil Procedure Code-30, Personal laws-30, and other acts-40, such as Transfer of Property Act, Specific Relief Act, Limitation Act, Law of Contract, O.E.A. Act, Consolidation of Holdings Act and Orissa Land Reforms Act. (2) Viva-voce : The minimum qualifying marks for viva-voce test is 50% in each paper in the written test. Viva-voce test shall carry thirty marks.” In view of the norms fixed that minimum qualifying marks for viva-voce test is 50% in each paper in the written test, only five candidates could qualify the same who were called for viva-voce test,namely, Sarbashree Krushna Chandra Behera, Prakash Kumar Rath, Jaya Kumar Dash, Debabrata Dash and Satrughna Puja¬hari. After the interview, Shri Krushna Chandra Behera was not found suitable for appointment and accordingly vide resolution of the Full Court dated 31.8.2002, the name of the following four candidates in order of merit was recommended to the State Govern¬ment for appointing two of them in the cadre of O.S.J.S. (Sr. Branch). 1. Shri Debabrata Dash 2. Shri Satrughna Pujahari 3. Shri Prakash Kumar Rath and 4. Shri Jaya Kumar Dash Accordingly, the State Government appointed Shri Debabrata Dash and Shri Satrughna Pujahari as Additional District Judges. However, vide resolution dated 31.1.2003, the Full Court resolved to recommend to the Government to appoint Shri Prakash Kumar Rath and Sri Jaya Kumar Dash, the remaining two candidates of the merit list of direct recruitment, as Ad hoc Additional Dis¬trict Judges in the Fast Track Courts and later on they were appointed as such vide Home Department Notification No.10235/HC. Dated 27.2.2003. 6. However, the Full Court in its meeting held on 18.9.2003 resolved to issue interview letters to those who had secured minimum 35% marks in each paper and minimum 40% marks in aggregate in the written examination held for direct recruit¬ment to Orissa Superior Judicial Service (Senior Branch) pursuant to Advertisement No.1 of 2000 for selection and appointment as Ad hoc Additional District Judge Fast Track Courts for a period of one year initially to be extended in case their performance were found to be satisfactory. They were called for interview on 18th and 19th of October, 2003. They were called for interview on 18th and 19th of October, 2003. After the viva-voce test held on 18th and 19th of October, 2003 by the Full Court, opposite party Nos.6 to 12 were found suitable in order of merit and accordingly their names were recommended to the State Government for appointing them as Ad hoc Additional District Judges in the Fast Track Courts consequent upon which the State Government vide Home Department Notification No.55151/HS. Dated 18.12.2003 as Ad hoc Additional District Judge in Fast Track Court. 7. Opposite parties 6 to 12 secured the following marks in first and second paper in the written test held pursuant to Advertisement No.1 of 2000: “Name Mark secured Mark secured in 1st paper in 2nd paper S.R. Bohidar (o.p.6) 65 37 S.K. Dash (o.p.7) 42 64 B.N. Mishra (o.p.8) 48 40 P.K. Karna (o.p.9) 43 51 B.K. Chand (o.p.10) 45 45 S.K. Roy (o.p.11) 45 37 S.P. Rao (o.p.12) 37 47½” 8. The reason for appointing the unsuccessful persons of the regular examination of District and Sessions Judge has been mentioned in the counter affidavit. According to which an order of the apex Court dated 15.9.2003 came for compliance wherein it was directed to file an affidavit within a period of six weeks from the order, inter alia, indicating on how many posts the High Court had made appointment and in view of the time limit fixed and in view of the urgency of the matter to comply the said order, the Full Court decided to call the candidates who appeared in the recruitment test held in the year 2000 for viva voce test reducing their minimum qualifying marks in the written test to that of 35% in each subject and 40% in aggregate. 9. Mr. 9. Mr. Sanjit Mohanty, learned Senior Advocate has been kind enough to produce the copy of the order dated 15.9.2003 passed by the Hon’ble Supreme Court in Research Foundation for Science V. Union of India, reported in 2002 (9) SCALE 301 in which the Hon’ble Supreme Court, vide order dated 15.9.2003, directed all the State Government and High Courts to file an affidavit within a period of six weeks from the date of order indicating therein the infrastructure available for the posts under the Fast Track Scheme; on how many posts the High Court have made appointment; list showing the volume of work done by each Fast Track Court; how much more time the State Government would take to provide infrastructure for creation of posts for the purpose of establishing the Courts; and the High Court would indicate the period of time within which the appointments for filling up the vacancies would be made. 10. In our opinion, there was nothing urgent in making appointments of the disqualified candidates of the recruitment test held for the posts of regular District and Sessions Judge held in the year 2000. Moreover, the advertisement for recruit¬ment of Ad hoc Additional District Judge, Fast Track Courts could have been made well within the time given by the Hon’ble Supreme Court as the Hon’ble Supreme Court had not directed that the appointment should be made within six weeks but inter alia only directed to indicate the period of time within which the appoint¬ments for filling up the vacancies would be made. It is also to be noticed that the appointments from amongst the Chief Judicial Magistrates and the Civil Judges (Senior Division) on some posts of Ad hoc Additional District Judge were already made. Some re¬tired persons were also available whose appointments were made and, therefore, there was no urgency to appoint the disqualified candidates by reducing the norms. Here it is also to be noticed that in the case of Brij Mohan Lal. v. Union of India, reported in (2002) 5 SCC 1 , the Hon’ble Supreme Court in paragraph-10.4 has specifically directed that “for the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of member of the Bar as direct recruits to the superior/higher judicial service.” 11. v. Union of India, reported in (2002) 5 SCC 1 , the Hon’ble Supreme Court in paragraph-10.4 has specifically directed that “for the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of member of the Bar as direct recruits to the superior/higher judicial service.” 11. Appointing the disqualified candidates of regular re¬cruitment to the Superior Judicial Service was in clear violation of the direction issued by the Hon’ble Supreme Court. Mr. Mohan¬ty, learned Senior Advocate has submitted that the challenge to these appointments were made by the Orissa Judicial Officers Association in W.P.(C) No.479 of 2003 before the Hon’ble Supreme Court, but the Hon’ble Supreme Court refused to grant any interim order. However, learned counsel for the petitioners has submitted that the writ petitioners have no concern with the validity of the appointment in the instant case as the Judicial Officers in Hon’ble Supreme Court had only raised the question of not-appointing the Judicial Officers on the post of ADJ, Fast Track Courts and further that writ petitioners before the Hon’ble Supreme Court in the earlier writ petition had no concern with the appointments challenged in this writ petition as in that case the petitioners were not deprived of participating in the selec¬tion as they were regular Judicial Officers. But in the instant case, the petitioners have been deprived of making application for the post. The disqualified candidates of the recruitment of regular District and Session Judge have been given appointment reducing the norms. He has also referred to paragraph-20 of the case of Mrs. Madhumita Das v. State of Orissa; reported in 100 (2005) CLT 465 in which it was held that since the appointments questioned in the instant writ petitions were not under challenge in the said writ petition, this Court did not consider the same. 12. It may be stated here that the Hon’ble Supreme Court in Umesh Chandra Shukla v. Union of India and others and connected cases, (1985) 3 SCC 721 , inter alia, held “that in a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the viva voce test should be the basis for selection. On reading Rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the device of moderation, particularly when there was no complaint either about the question paper or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of dis¬trust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrari¬ness. The cases pointed out by the High Court are no doubt hard cases but hard cases cannot be allowed to make bad law.” In this case, while making the appointment of opposite parties 6 to 12, the provision of sub-rule (4) of Rule 5 of the Orissa Judicial Service (Special Scheme) Rules, 2001, as amended was not fol¬lowed. The Employer or the Selection Committee has no jurisdic¬tion to make appointment in violation of the statutory rules. 13. In this case no advertisement for filling up of the posts was issued and opposite parties 6 to 12, the disqualified candidates of the recruitment test held for direct recruitment, were selected on reduction of minimum marks. By this process, the prospective candidates who could have applied in the event fresh advertisement had been made were deprived of the opportunity to compete for the appointments. 14. Since the opposite parties 4 and 5 were found success¬ful in the examination held for regular recruitment to the cadre of Orissa Superior Judicial Service (Senior Branch) and were recommended to the State Government along with two others and they were given appointment as ADJ, Fast Track Courts, that too within a short span of time of about six months from the date of selection, we do not find any illegality therein. However, we have been informed that opposite party No.5, Jaya Kumar Dash died in the meantime. Therefore, the writ petition as against him abets. 15. However, we have been informed that opposite party No.5, Jaya Kumar Dash died in the meantime. Therefore, the writ petition as against him abets. 15. With regard to opposite parties 6 to 12, we find that no selection for the post of Ad hoc ADJ, Fast Track Courts was held in which they could be found suitable. They were the dis¬qualified candidates of the selection made for direct recruitment of District and Sessions Judge pursuant to Advertisement No.1 of 2000. They could not qualify in the written test and therefore could not be called to the interview. Hence, their selection after lowering down the norms was not made in accordance with the direction issued by the Hon’ble Supreme Court in Brij Mohan Lal’s case (supra) and Rule 5(4) of the Orissa Judicial Service (Spe¬cial Scheme) Rules, 2001 as amended by the Orissa Judicial Serv¬ice (Special Scheme) (Amendment) Rules, 2003. Therefore, we are of the opinion that their appointments are illegal and liable to be quashed. 16. In view of the above, the writ petition is allowed in part. The appointment of opposite party Nos.4 and 5 (op.5 is no more alive) is upheld. However, since the appointments of oppo¬site parties 6 to 12 are found illegal, the same are quashed. There would be no order as to costs. Copy of the order shall be handed over to the Registrar (General) of the Court for compliance. B. N. MAHAPATRA, J. I agree. Petition allowed in part.