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2017 DIGILAW 1098 (ORI)

Prasanna Kumar Karna v. State of Odisha

2017-09-21

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. The petitioner, in this writ petition, assails the notification showing appointment of selected candidates for the post of Additional District Judges passed by the opposite party no. 3. 2. FACTS The conspectus of the case of the petitioner is that the petitioner was initially appointed as Ad hoc Additional District Judge in the Fast Track Court established under the 11th Finance Commission with effect from 4.2.2004 and thereafter he worked for nine years as such in different places including Malkangiri. While continuing as such, a guideline was issued by the Hon’ble Supreme Court in the case of Brij Mohan Lal –V- Union of India and others; (2012) 6 SCC 502 in order to regularize the service of Additional District Judges of Fast Track Courts in the regular cadre of District Judge in the manner prescribed by Their Lordships. This judgment has also specifically upheld the decision of the Central Government for abolition of Fast Track Courts. 3. Be it stated that in the case of Brij Mohanlal (Supra), Their Lordships have directed to constitute a Selection Committee comprising of Hon’ble Chief Justice and four senior most Judges of the High Court in order to find out the suitability of the candidates, besides other directions. But as alleged in the present case, the opposite party no.3, contravening the directives of the aforesaid decision, conducted the interview in the Full Court where the Hon’ble Acting Chief Justice and eight Puisne Judges were present. Not only it violated the directives of the Hon’ble Supreme Court but also the fundamental right of the petitioner under Articles 14, 15, 16 and 19(1) of the Constitution of India. 4. The petitioner and 26 other Ad hoc Fast Tract Court Additional District Judges had appeared the written examination and fifteen out of them including the present petitioner have passed the said written examination. The fifteen officers, who qualified in the written examination, were called to the interview, but unfortunately said interview was conducted by the Full Court in utter violation of the directives of the Hon’ble Supreme Court. Out of fifteen candidates, fourteen candidates were awarded pass mark in the interview whereas the petitioner, to the ill luck of him, could not qualify in the interview in spite of having nine years of service experience as Ad hoc Additional District Judge under the Fast Track Court Scheme. 5. Out of fifteen candidates, fourteen candidates were awarded pass mark in the interview whereas the petitioner, to the ill luck of him, could not qualify in the interview in spite of having nine years of service experience as Ad hoc Additional District Judge under the Fast Track Court Scheme. 5. It is stated that 40% of mark was required to pass in the interview and as the petitioner had already nine years of experience as per the directives of the Hon’ble Supreme Court, he got nine marks due to such experience, but 31 marks were required to be added. It is alleged inter alia that the Full Court was consisting of Mr. Justice B.K. Mishra, who was also the Port-Folio Judge (Administrative Judge) of Malkangiri District, being vindictive to the petitioner awarded less mark for which the petitioner could not qualify in the interview. Out of ten questions, maximum questions were put by Mr. Justice B.K. Mishra to the petitioner and Mr. Justice B.K. Mishra took adverse view because of the animosity between one Bijayananda Mishra, Advocate and the petitioner at Athagarh. It is further stated that said Bijayananda Mishra is the cousin of Mr.Justice B.K.Mishra. 6. It is stated that had the directives of the Hon’ble Supreme Court been followed by the opposite party no.3, Mr. Justice B.K. Mishra, who was not a senior Judge, could not have been a member of the Selection Committee and awarded less mark to the petitioner. Apparently due to inclusion of the Port-Folio Judge in the Selection Committee (Full Court), the petitioner could not succeed in the interview and finally was not selected even if he has qualified in the written examinations having secured 4th position. It is stated that since the interview board was not constituted in accordance with the directives of the Hon’ble Supreme Court, the selection of the regular Additional District Judges recommended by the opposite party no.3 and appointment of them by the opposite party no.1 is not only illegal but also arbitrary and violative of the fundamental right of the petitioner. Hence, it is prayed to quash the appointment of regular Additional District Judges made pursuant to the notification dated 11.02.2013 issued by the opposite party no.3. 7. Hence, it is prayed to quash the appointment of regular Additional District Judges made pursuant to the notification dated 11.02.2013 issued by the opposite party no.3. 7. Per contra, counter affidavit has been filed by opposite party no.3 and in the said counter affidavit, it is averred that in accordance with the directives of the Hon’ble Supreme Court in Brij Mohanlal’s case (Supra), the procedure has been adopted for regularization/absorption of the Fast Track Court Ad hoc Additional District Judges and no illegality was committed. As per Article 223 of the Constitution of India, Hon’ble Acting Chief Justice is to perform the duties of Chief Justice. The constitution of Full Court having Hon’ble Acting Chief Justice and other Judges forming the Selection Committee to conduct the interview is quite in consonance with the principles laid down by the Hon’ble Supreme Court in the above case. It is admitted that the petitioner, being appointed as Ad hoc Additional District Judge in the Fast Track Court under the 11th Finance Commission, was a candidate for selection of the regular Additional District Judge as directed by the Hon’ble Supreme Court and he has also passed the written examination. The interview was conducted in accordance with the directives of the Hon’ble Supreme Court and the petitioner was not qualified in the interview. The allegations of discrimination or arbitrary treatment meted out to the petitioner are not correct and the allegations regarding the animosity with Bijayananda Mishra, Advocate at Athagarh with the petitioner was not a matter of record. Since the selection has been made strictly in accordance with the directions of the Hon’ble Supreme Court, the question of challenging the same does not arise. Mere experience of nine years as Ad hoc Additional District Judge rendered by the petitioner is of no consequence to appoint him as a regular Additional District Judge. So, it is prayed to dismiss the writ petition. 8. The petitioner filed rejoinder affidavit to the counter affidavit filed by the opposite party no.3 and in that rejoinder affidavit, it has been stated by the petitioner that the written examination and interview module should have been framed by the High Court keeping in mind that the applicant along with his other colleagues have put in number of years as Fast Track Court Judges and served the country by administering justice in accordance with law. But the opposite parties have failed to observe the directives of the Hon’ble Supreme Court in Brij Mohanlal’s case. In the rejoinder affidavit, he averred that the selection was against the directives of the Hon’ble Supreme Court for the reasons that 40% interview mark by the opposite party no.3 is contrary to the principles enunciated by the Hon’ble Supreme Court in the aforesaid case. The petitioner, being an OBC candidate, the pass mark in the interview should have been 35% instead of 40% including nine marks awarded towards his nine years of service experience as a Fast Track Court Judge. The petitioner further questions the authority of the Hon’ble Acting Chief Justice for inclusion of all the Hon’ble Judges including the junior most Judge (Mr. B.K. Mishra) instead of constituting the Selection Committee as per the directions of the Hon’ble Supreme Court. 9. SUBMISSIONS Mr. Nanda, learned counsel for the petitioner submitted that the petitioner has joined as an Ad hoc Additional District Judge in the Fast Track Court under the 11th Finance Commission in 2004 and the Hon’ble Supreme Court in the case of Brij Mohanlal (Supra) have issued guidelines to regularize the service of the petitioner and similarly situated Ad hoc Additional District Judges. Guidelines of the Hon’ble Supreme Court were issued at Paragraph-207.9 of the said judgment whereunder the Selection Committee was to consist of Hon’ble Chief Justice and four senior most Judges. In the instant case, the then Hon’ble Acting Chief Justice, contravening the directives of the Hon’ble Supreme Court in Paragraph-207.9 of the aforesaid judgment, called the Full Court for the selection of the Ad hoc Additional District Judges to the post of regular Additional District Judges. According to him, had there been Hon’ble Acting Chief Justice and four senior most Judges in the Selection Committee as per the direction of the Hon’ble Supreme Court, Mr. Justice B.K. Mishra, who was the junior most judge by then, could not have been a member of said Selection Committee so that the petitioner could have secured more marks to get selected for the appointment to the post of regular Additional District Judges. He further submitted that due to the contravention of the said directive of the Hon’ble Supreme Court, the right of the petitioner under Article 14 of the Constitution of India has been clearly violated. He further submitted that Mr. He further submitted that due to the contravention of the said directive of the Hon’ble Supreme Court, the right of the petitioner under Article 14 of the Constitution of India has been clearly violated. He further submitted that Mr. Justice B.K. Mishra was ill disposed of the petitioner being the Port Folio Judge as his cousin, namely, Bijayananda Mishra, an Advocate was in inimical term with the petitioner while the petitioner was posted as an Ad hoc Additional District Judge at Athagarh prior to his posting at Malkangiri and the petitioner, being a candidate from OBC category, has secured good marks in written test but for only one mark, he could not qualify in the interview. 10. Learned counsel for the petitioner further submitted that the petitioner was asked ten questions and he has given satisfactory answer to the same, as per his memories, reduced into writing vide Annexure-1. Since the interview was not conducted by a properly constituted Selection Committee as per the directives of the Hon’ble Supreme Court, the proceedings of the interview are and not sustainable in law. Since the final selection of the candidates was published basing on the marks secured in the interview, the entire impugned notification showing the selection of the candidates for regular Additional District Judge is de hors the principles of law and hence, liable to be quashed. 11. Mr. B.P. Tripathy, learned Additional Government Advocate submitted that although the petitioner has cleared the written examination but miserably failed in the interview. Although, the Hon’ble Supreme Court has directed for constitution of Selection Committee comprising the Chief Justice and four senior most Judges, the constitution of Full Court to conduct the interview cannot be said to be illegal because instead of five Judges including the Hon’ble Chief Justice, the Hon’ble Acting Chief Justice has constituted the Full Court to make the selection of the Additional District Judges more transparent and acceptable. 12. It was also submitted by the learned Additional Government Advocate that the allegation of the petitioner against the then Port Folio Judge of Malkangiri District and the dispute between him and Mr. Bijayananda Mishra, Advocate of Athagarh, who happens to be cousin of Mr. Justice B.K. Mishra, are disputed questions of fact and in exercise of its jurisdiction the writ Court seldom decides such questions of fact. Bijayananda Mishra, Advocate of Athagarh, who happens to be cousin of Mr. Justice B.K. Mishra, are disputed questions of fact and in exercise of its jurisdiction the writ Court seldom decides such questions of fact. He further submitted that the selection of the Additional District Judges by this Court having been entrusted by the Hon’ble Supreme Court, it has got absolute power to conduct the interview keeping in mind the necessity of the interview to select the Additional District Judges. 13. Mr. Tripathy, learned Additional Government Advocate again contended that the petitioner, being a candidate of OBC category, as per the additional affidavit filed by the opposite party no.3, has secured 61 marks in the written examination but could not secure 40% in the interview for which he could not be selected. Hence, the petitioner has no justifiable reason to challenge the selection of regular Additional District Judges. Hence, the writ petition is devoid of merit and should be dismissed. 14. POINT FOR DETERMINATION The main point for consideration is as to whether the selection of the regular Additional District Judges out of the Ad hoc Fast Track Court Additional District Judges is legal and proper by not selecting the petitioner? 15. DISCUSSIONS It is admitted fact that the petitioner was appointed as an Ad hoc Additional District Judge under Fast Track Court Scheme in 2004. It is not in dispute that in the case of Brij Mohanlal’s case, the Hon’ble Supreme Court have directed for abolition of Fast Track Court Scheme, but passed order to regularize the services of Fast Track Court Additional District Judges subject to passing of their qualifying written examination and interview. It is not in dispute that the petitioner had qualified in the written examination having secured 61 marks out of 150 but failed to secure pass mark in the interview. It is the admitted fact that the Full Court was constituted to conduct the interview of the candidates qualified in the written examination. Out of 15 candidates appeared in the interview, fourteen candidates have qualified except the petitioner. 16. In the case of Brij Mohanlal, the following directives have been imparted by the Hon’ble Supreme Court for the selection of the Ad hoc Additional District Judges of the Fast Track Courts to regular Additional District Judges: “207.9. Out of 15 candidates appeared in the interview, fourteen candidates have qualified except the petitioner. 16. In the case of Brij Mohanlal, the following directives have been imparted by the Hon’ble Supreme Court for the selection of the Ad hoc Additional District Judges of the Fast Track Courts to regular Additional District Judges: “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 Service of the respective States only in the following manner: (a) The direct recruits to FTCs who opt for regularization 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. (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. (c) There shall be 150 marks for the written examination and 100 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 State for direct appointment to Higher Judicial Services. (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 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. (f) The candidates who qualify the written examination and obtain consolidation percentage as aforementioned 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 cadre, we hereby direct the State Government to create such additional vacancies as may be necessary keeping in view the number of candidates selected. (g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Government 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 examination 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.” With due respect the above decision, it appears that Clause (b) of the aforesaid directions is to constitute a Selection Committee consisting of the Chief Justice and four senior most Judges of the High Court to conduct an interview after the candidates qualified in the written examination. So, the directive was again to conduct the interview by a Selection Committee consisting of five Judges including the Hon’ble Chief Justice. In the instant case, Mr.Nanda, learned counsel for the petitioner stressed on the need of following such direction of the Hon’ble Supreme Court by the opposite party no.3. According to him, such direction has been departed than observance. 17. In the counter affidavit filed by the opposite party no.3, the plea has taken that as per Article 223 of the Constitution of India, the Acting Chief Justice can act as Chief Justice and in accordance with the observation made by the Hon’ble Supreme Court, the Full Court was constituted to conduct the interview. In fact Article 223 of the Constitution of India empowers the Acting Chief Justice to discharge the function and office of the Chief Justice without any limitation. At paragraph-27 of the judgment rendered in the case of Ashok Tanwar –V- State of Himachal Pradesh; (2005) 2 SCC 104 , it has been observed as follows: “27.In the very terms of Article 223 of the Constitution, when the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of the office of the Chief Justice, duties of the office of Chief Justice shall be performed by such one or the other Judges of the Court as the President may appoint for the purposes. Plain reading of this Article shows that one or the other Judges of the High Court appointed in the vacancy of Chief Justice of a High Court for the time being can perform the duties of the office of Chief Justice. No restriction or limitation in performance of duties by Acting Chief Justice can be read into the said Article. The Article also does not indicate as to which of the duties of the Chief Justice can be performed or which of the duties cannot be performed by the Acting Chief Justice. Appointment of one or the other Judges of a High Court as Acting Chief Justice is meant to carry on the work of the High Court and the judiciary in the State. May be sometimes appointment of Chief Justice to a High Court may take some time for various reasons and consequently Acting Chief Justice continues to work for longer period, but that itself does not take away the powers conferred by the Constitution on a Judge to act as Chief Justice to perform the duties of the Chief Justice. Normally the senior most puisne Judge is appointed as Acting Chief Justice. Such puisne Judge is expected to act appropriately in discharging the duties of the office of Chief Justice. It is rule of prudence that the Acting Chief Justice may not take major decisions which otherwise could have been taken by the Chief Justice or which decisions could wait for a Chief Justice. Assuming that some decisions taken by an Acting Chief Justice are required to be modified or corrected, that can be done either on administrative side or on the judicial side by the High Court or by this Court including the Chief Justice of India, as the case may be. In some cases if appointment of Chief Justice of a High Court takes longer time and the Acting Chief Justices cannot discharge the duties of the office of the Chief Justice the work of the High Court or the State judiciary or for the matter wherever the opinion of Chief Justice is required like the one under Section 16 of the Act, it will result in anomalous position leading to paralyzing the working or may be sometimes creating a deadlock. When Article 223 of the Constitution in specific terms confers powers on acting Chief Justice to discharge the functions of the office of Chief Justice without any limitation or rider, it cannot be accepted that an Acting Chief Justice cannot perform the duties expected to be performed by him under Section 16 of the Act.” Xx xx xx xx” With due respect to the above decision, it appears that in absence of Chief Justice, the Acting Chief Justice can perform all the acts of the Chief Justice. So, in the instant case, in absence of Hon’ble Chief Justice, the Hon’ble Acting Chief Justice has worked as Chief Justice to conduct the interview. It is true that the entire Full Court was comprising of nine Judges including the Acting Chief Justice as available from the writ petition as well as counter affidavit. The directive of the Hon’ble Supreme Court is to constitute a Selection Committee consisting of Chief Justice and four senior most Judges but in the instant case, four more Judges beyond five Judges have participated in the interview. In the Judgment of Brij Mohanlal’s case, Their Lordships have quietly observed that since the Judicial Officers already worked as Ad hoc Additional District Judges of Fast Track Courts, the nature of recruitment should be lenient keeping in view of the experience already gathered by the Ad hoc Additional District Judges of the Fast Track Courts. For that, perhaps Their Lordships have limited the number of Judges to form the Selection Committee, but that does not mean participation of number of Judges in the interview would frustrate or negate the object of selection in the interview. It is believed that more numbers of Judges participating in the interview would enhance the confidence of the candidate and would dilute the discretion for selecting the candidates. 18. When following the object of the interview, the Full Court decided to award marks as per the answers rendered by the candidates including the petitioner, it cannot be said that there is any prejudice by any of the Judge with petitioner. Learned counsel for the petitioner has alleged that the petitioner has annexed the questions and answers held in the interview vide Annexure-1. But, the same, being a question of fact required to be determined, should not be agitated in this writ petition. Learned counsel for the petitioner has alleged that the petitioner has annexed the questions and answers held in the interview vide Annexure-1. But, the same, being a question of fact required to be determined, should not be agitated in this writ petition. It is the petitioner who claims about the questions put by the Judges of the Full Court but the answers rendered by him are also subject to verification without which the same cannot be accepted to have been rendered by the petitioner. On the other hand, in the interview, as stated earlier, only questions and answers are not material but the personality, the appearance, attire and many other aspects are to be looked into to evaluate the candidature in the interview. 19. Mr. Nanda, Learned counsel for the petitioner submitted that one advocate of Athagarh, namely, Bijayananda Mishra, had made some bald allegations against the petitioner while he was posted at Athagarh as Ad hoc Additional District Judge and Sri Mishra is the cousin of Mr. Justice B.K. Mishra, a former Judge of this Court, who participated in the Full Court proceeding. In this case, Mr. Justice B.K. Mishra is not a party to the writ petition. Moreover, the enmity of Sri BiJayananda Mishra with the petitioner is a question of facts and relations between Sri Bijayananda Mishra with Mr. Justice B.K. Mishra is another question of fact. Since all these facts are required to be determined, which are not permissible in a writ proceeding, the same are nipped in the bud to extend favour to the petitioner. 20. In the writ petition, except the constitution of the Selection Committee and prejudice by one of the then Judge of this Court, no other allegations have been made challenging the correctness of the selection to the post of regular Additional District Judges. From the aforesaid material, the constitution of the Full Court in place of Selection Committee, being not apposite to the directives of the Hon’ble Supreme Court in the case of Brij Mohanlal and being not mala fide one, is answered negative against the petitioner. So far as prejudice is concerned, the same cannot be decided in this writ proceeding under Article 226 of the Constitution of India being depended on facts finding. So far as prejudice is concerned, the same cannot be decided in this writ proceeding under Article 226 of the Constitution of India being depended on facts finding. Moreover, the prejudice by one of the member of the Full court does not determine the total marks awarded to the petitioner in the interview even if it is assumed that it is prejudice to the interest of the petitioner. Therefore, the interview conducted by the opposite party no.3 cannot said to be illegal and improper and consequently, the award of 34 marks to the petitioner in the interview out of 100 marks as per the additional affidavit filed by the opposite party no.3 cannot be said to be with ill-motive or prejudice to the right of the petitioner. Moreover, the petitioner having participated in the interview cannot have right to challenge the same interview to have not been constituted as per the decision. On the other hand, the petitioner has failed to establish that the interview conducted by the opposite party no.3-High Court is not in consonance with the directives of the Hon’ble Supreme Court in Brij Mohanlal’s case or against any recruitment rules. So, the selection of 14 candidates out of 15 during the interview can be said as legal and proper and not subjected to any further scrutiny. The point is answered accordingly. 21. CONCLUSION In terms of the aforesaid discussions, we are of the considered opinion that the interview conducted by the opposite party no.3 is fully in consonance with the directives of the Hon’ble Supreme Court in the case of Brij Mohanlal and no irregularity is committed by the recruiting authority. Hence, the impugned notification showing the selection of Ad hoc Fast Track Additional District Judges to the post of regular Additional District Judges is legal and proper and the same sans merit. Hence, the writ petition, being devoid of any merit, stands dismissed. No cost.