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The Supreme Court has held that nativity cannot be the sole basis for selection of judicial officers. The judgment was passed in a challenge by the Telangana Judges Association against guidelines proposed by the Hyderabad High Court which prioritised seniority over domicile status in selecting judges to the state.
Relying, inter alia, on the case of J Panduranga Rao v Andhra Pradesh Public Service Commission, the Bench of Justices AK Sikri and Ashok Bhushan held,
“… nativity for public employment runs counter to the fundamental right guaranteed under Article 16(2) except when it is provided by a Parliamentary Law as per exception carved out in Article 16(3) of the Constitution of India…
… The aspiration of petitioners that no senior officer, should come to State of Telangana, which may mar their prospect of promotion is neither in accord with the constitutional scheme nor as per ethos of culture of this country. “
Draft guidelines initially framed by the Hyderabad High Court in February 2016 had provided that preference for the domicile of the candidate could give an edge over seniority when it comes to the selection of subordinate judges.
However, in July 2017, the High Court modified the guidelines so that the seniority criterion took precedence over the domicile/nativity criterion. The relevant clause states as follows,
“(ii) Officers will be considered for allocation in the following order – (a) those who have opted and are senior; (b) those who have opted for the State in which the district declared by them at the time of entering service falls; (c) if allocable posts still remain then allocation would be done in the reverse order of seniority.”
This final version of the guidelines was also accepted by the Department of Personnel and Training (DoPT), in consonance with Section 77 of the Andhra Pradesh Reorganisation Act, 2014 (2014 Act).
However, the Telangana Judges Association objected to the High Court’s decision to put forth the seniority of judges as the primary criterion for selecting judicial officers in the two states.
It was contended that since there were a large number of senior candidates from Andhra Pradesh, the prospects of candidates from Telangana would be marred. This, it was argued, entailed a watering down of the 2014 Act and the perpetuation of the injustices meted out to people from Telengana.
To buttress their case, reliance was placed on Section 371D of the Constitution, which allows the State to allot employment on the basis of domicile with respect to Andhra Pradesh. However, the Court dismissed this contention, observing that this Article is not applicable to the appointment of judges. As noted in the judgment,
“The basis for Article 371D is to provide equal opportunity to the people of Andhra Pradesh by introducing domicile as the basis for appointment to services and admissions in educational institutions, however, Article 371D has no application in respect of the appointment to the posts of District Judges and Judges Subordinate thereto, in view of the constitutional scheme of separation of powers and express provisions having been made by the Constitution.“
The guidelines formulated by the Kamalanathan Committee in the context of other civil services were also found to be irrelevant as far as judicial appointments were concerned.
Once these, among other, grounds were dismissed, the Court noted that the petitioners did not have any statutory ground to base their case on.
It was observed that the general rule is that nativity cannot be a ground for public employment. An exception to this rule can only be carved out by parliamentary law. No such ground was found to help the Telangana Judges Association’s case.
“No Parliamentary Law is relied by the petitioner, which provides residence as an eligibility to the employment in Judicial Service. In Act, 2014, there is no provision, which expressly provides for allotment of the State on the basis of place of birth or residence. Sections 77, 78 and 79 of the Act do not refer to allotment on the basis of place of birth. When for entering into Judicial Service, no condition can be put regarding residence of particular area for allocation of a State, consequent to Act, 2014, nativity cannot be sole basis, as is contended by the petitioner.“
The Court also noted that no such intent was evident in the 2014 Act.
“The entire Statement of Objects and Reasons does not indicate that with respect to public employment, nativity is to play a dominant role…
… It is true that Judicial Officers belonging to Telangana territorial area may have desired or expectation to choose or to opt for their cadre in Telangana area, which is a legitimate aspiration, but giving predominance to nativity only is not spelled from any statutory provision or scheme.“
The High Court ultimately upheld the modified rules proposed by the Hyderabad High Court, while also emphasising that seniority in service is a valuable right of the employee or officer. Further, it was also noted that by giving precedence to domicile, after seniority, the Hyderabad High Court had also acted to balance the interests of Telangana natives while not disregarding the seniority criterion.
“The modified guidelines submitted by the High Court and accepted by the DoPT itself at second place give preference to nativity. Thus, the High Court while formulating the guidelines has tried to balance the right of option of each Judicial Officer.“
In view of these observations, the Court upheld the modified guidelines submitted by the Hyderabad High Court in July 2017. It has directed that the selection of judicial officers be finalised within two months, in consonance with the new guidelines. As stated in the judgment,
“The above guidelines is to be accepted and approved. In view of the foregoing discussions, we dispose of the writ petition with direction to respondents to finalise options of all the Judicial Officers as per the above guideline and complete the process of allocation within a period of two months from today.“
Read the judgment below.