- (1.) Heard learned Counsel for the parties. The learned Counsel for the petitioners in this petition has challenged the appointment of Fast Track Judges in the State of Jharkhand. Learned Counsel for the petitioners has submitted that an advertisement was issued by the High Court of Jharkhand on 23rd May, 2001 whereby the posts of Additional District Judges were advertised. This advertisement was pursuant to the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 (hereinafter referred to as the Rules of 2001). According to the learned Counsel, the advertisement was meant exclusively for appointment in terms of the Rules of 2001 and no posts outside these Rules could have been made the subject matter of appointment. The appointment of the Fast Track Judges (Respondents) as direct recruits to the Fast Track Court have been made from the selection which was pursuant to this advertisement. Since this advertisement was meant only for the regular Additional District Judges, the Fast Track Judges could not have been appointed pursuant to this advertisement. Learned Counsel for the petitioners further argued that the advertisement was issued in the month of May, 2001 and for the first time the State of Jharkhand sanctioned the posts of Additional District Judges for Fast Track Court in November, 2001. The argument of the learned Counsel for the petitioners is that in 2001 when there were no posts available, by no stretch of imagination it can be said that the appointment could be made on the posts of Fast Track Judges pursuant to this advertisement. In that view of the matter, learned Counsel urges that any appointment made from the list prepared from a selection made pursuant to the advertisement issued in the month of May, 2001 cannot be considered to be valid, because is this de horse the Rules. The appointment made on the posts which were not contemplated on the date of issue of this appointment could not be made. It could not even be considered to be a future vacancy as on the day of issuance of notice they were not in existence and also were not the vacancy under the Rules of 2001. Any appointment on the post of such vacancy is against the law as has been held by the Hon'ble Supreme Court in the case of Prem Singh v. Haryana State Electricity Board, 1996 4 SCC 319. According to the learned Counsel the posts which can be filled in by a particular advertisement are the posts already existing or contemplated and not the future vacancy. Learned Counsel further submitted that since the posts have come into being only in the month of November, 2001, they can not fall even the category of future vacancy as on the day of issuance of advertisement they were not as sanctioned posts rather they were never the sanctioned posts under the Rules of 2001. Therefore the appointments were invalid right from the beginning. Learned Counsel for the petitioners submitted that the selection process for the advertised post i.e. Additional District Judge comes to an end no sooner the appointments were made for the advertised posts. Any appointment made from the left out list of candidates on an altogether another post viz. Fast Track Judges which are sanctioned subsequently, will not have the sanction of law and therefore invalid. Though the other grounds have also been urged in the writ petition,but, the arguments were not heard on those grounds because aforesaid ground itself appeared to be so important that the respondents were called up on to answer.
(2.) Learned Counsel for the respondents Mr. P.K.Prasad assisted by Miss Deolina Sen, submitted that the petitioners have no locus standi to challenge the appointment of the respondents. He further submitted that the necessary parties to the writ petition have not been joined therefore, the writ petition is bad on account of nonjoinder of parties. Learned Counsel for the respondents further urged that since the Finance Commission had already sanctioned these posts, the process was going on and the Central Government has made recommendation and the State Government was actively considering the same, so these can be considered to be contemplated posts and in that view of the matter, the appointments are valid.
(3.) Learned Counsel Mr. Anil Kumar Sinha appearing for few of the respondents submitted that the Rules of 2001, speaks of only appointment on the post of Additional District Judge and this should mean the temporary posts as well and since the respondents were appointed against the temporary posts of A.D.J., Fast Track Courts, they should be considered to be valid as the selection was made pursuant to the advertisement issued in May, 2001. He further emphasized that in Rule 25 of the Rules, 2001 the temporary appointment has been referred and at best it can be said that his clients are the temporary appointees and therefore they should be regularized in terms of Rule 25. The Rule is quoted hereinbelow for ready reference : 25. Notwithstanding anything to the contrary contained in these rules, an Additional District Judge appointed on temporary basis shall be eligible for permanent appointment to the service without there being any upper age limit subject to the conditions that : (i) he has completed two years of service from the date of his first appointment. (ii) he has passed such tests as may from time to time be prescribed in the Departmental Examination Rules, if any, and (iii) he is recommended by the High Court for such permanent appointment. Learned Counsel further emphasized that those future vacancies should be treated as contemplated vacancies and since the process was going on for seeking appointment of the Fast Track Judges, therefore, it should be deemed that the posts were covered by the advertisement issued.;