Nativity Can’t Be Sole Basis: SC Upholds Guidelines Issued By HC For Allocation Of Subordinate Judicial Officers In Telangana [Read Judgment]

“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 pre-dominance to nativity only is not spelled from any statutory provision or scheme.”

The Supreme Court, while upholding the modified guidelines issued by the high court for an allocation of Subordinate Judicial Officers in Telangana, has observed that nativity cannot be the sole basis for allocation and the seniority in a service is a valuable right of an employee or officer.

“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,” the bench comprising Justice AK Sikri and Justice Ashok Bhushan said while directing the high court to finalise options of all the judicial officers as per the guideline it had framed and completed the process of allocation within two months.

Background

The Telangana Judges Association had approached the apex court contending that by permitting seniors to opt for Telangana, there being a large number of senior judicial officers from Andhra Pradesh, the prospects of promotion of officers who belong to Telangana region is being marred which will be nothing but perpetuating the injustice meted out to them.

The Guidelines

The relevant part of the guidelines read as follows:

“Officers will be considered for allocation in the following order (a) those who have opted and are senior; (b) those who have opted for he 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.”

Giving pre-dominance to nativity only is not spelled from any statutory provision or scheme

The bench of Justice AK Sikri and Justice Ashok Bhushan observed that 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. It said: “No Parliamentary Law is relied by the petitioner, which provides residence as 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 bench further observed that giving pre-dominance to nativity only is not spelled from any statutory provision or scheme. “It is true that the State of Telangana stand formed to realise the democratic aspirations of the people of Telangana. We have noticed the Statement of Objects and Reasons of Act, 2014, which clearly establish that the creation of a separate State of Telangana is for the betterment of the social, economic, political and other aspirations of the people of that region, which contemplated allocation of separate State of Telangana. 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 pre-dominance to nativity only is not spelled from any statutory provision or scheme,” the court said.

Guidelines have tried to balance the right of option of each Judicial Officer

The bench also noted that the judicial officers belonging to Telangana having opted were allocated the Telangana State. Upholding the guidelines, the bench said: “When a Judicial Officer has been given a right of option to choose either of the successor State, right of option has to be given same meaning and content. Right of option can be defeated only when there is some impediment in accepting the option. The seniority of a Judicial Officer is a first criteria for accepting the option. The seniority in a service is a valuable right of an employee or officer. In service jurisprudence, several benefits and perquisites are attached to the seniority. The petitioners are asking that option be accepted not on the basis of seniority but only on the basis of nativity, i.e. those who are senior even if they opt the State option, their option should not be selected and option of those should be first accepted, who are natives of Telangana. The petitioner’s apprehension is that in event option of senior officers are accepted and they are posted in State of Telangana, the future prospects of promotion of the petitioners shall be marred. Whether the officers, who in the seniority list, which was prevalent on the date of formation of new State, i.e. on 02.06.2014 where senior should loose their seniority or their seniority cannot be said to play any role on account of formation of two successor States is the question to be answered. 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. 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.”