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Wednesday, February 20, 2013

non-appointment to the post of a Civil Judge in Andhra Pradesh as her husband Sri Srinivasa Chowdary, who is practicing as an Advocate in the Courts at Markapur is having close links with CPI (Maoist) Party which is a prohibited organization. - on selection, the Civil Judges remain on probation for a period of two years, and the District Judges and the High Court have ample opportunity to watch their performance. Their probation can be extended if necessary, and if found unsuitable or in engaging in activities not behoving the office, the candidates can be discharged. - Prima facie, on the basis of the material on record, it is difficult to infer that the appellant had links/associations with a banned organization. The finding of the Division Bench in that behalf rendered in para 19 of the impugned judgment can not therefore be sustained. - we are clearly of the view that the High Court has erred firstly on the administrative side in discharging its responsibility under Article 234 of the Constitution, and then on the Judicial side in dismissing the writ petition filed by the appellant, by drawing an erroneous conclusion from the judgment in the case of Kali Dass Batish (supra). Having stated so, the 33Page 34 Court can not grant the mandamus sought by the appellant to issue an appointment order in her favour. As held by this Court in para 17 of Harpal Singh Chauhan Vs. State of U.P. reported in 1993 (3) SCC 552, the court can examine whether there was any infirmity in the decision making process. The final decision with respect to the selection is however to be left with the appropriate authority. In the present matter the Division Bench ought to have directed the State Govt. to place all the police papers before the High Court on the administrative side, to enable it to take appropriate decision, after due consideration thereof. 30. Accordingly, the impugned judgment and order dated 19.3.2009 rendered by the Division Bench of the Andhra Pradesh High Court is hereby set-aside. The first respondent State Government is directed to place the police report (produced before the Division Bench) for the consideration of the High Court on the administrative side. The first respondent should do so within two weeks from the receipt of a copy of this judgment. The selection committee of the High Court shall, within four weeks thereafter consider all 34Page 35 relevant material including this police report, and the explanation given by the appellant, and take the appropriate decision with respect to the appointment of the appellant, and forward the same to the respondent no 1. The first respondent shall issue the consequent order within two weeks from the receipt of the communication from the High Court. This appeal and the Writ Petition No. 26147 of 2008 filed by the appellant in the High Court will stand disposed off with this order. In the facts of this case, we refrain from passing any order as to the cost.


Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1389 OF 2013
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO. 23312/2009)
Smt. K. Vijaya Lakshmi …  
Appellant
             Versus
Govt. of Andhra Pradesh
Represented by its Secretary
Home (Courts C1) Department
and another              …  
Respondents
J U D G  E M E N T
H.L. Gokhale J.
Leave Granted.
2. This appeal seeks to challenge the judgment and
order  dated  19.3.2009  rendered  by  a  Division  Bench  of
Andhra Pradesh High Court in Writ Petition No. 26147 of 2008.
By that order the said writ petition of the appellant disputing
Page 2
her non-appointment to the post of a Civil Judge in Andhra
Pradesh, has come to be dismissed.
Facts leading to this appeal
3. The appellant herein is an advocate practicing in
the  courts  at  Markapur,  District  Prakasam  in  the  State  of
Andhra Pradesh.
The Andhra Pradesh High Court (Respondent
No.2 herein) had invited applications for the appointments to
105 posts of (Junior) Civil Judges (including 84 posts by direct
recruitment)  by  its  Notification  No.1/2007-RC  dated
14.5.2007.  
A written examination was conducted for that
purpose on 28.10.2007, and those who qualified therein, were
called  for  an  interview.  
After  the  interviews,  some  81
candidates  from  amongst  the  direct  recruits  (and  17  by
transfer) were selected by a committee of Hon’ble Judges of
the High Court, and this selection was approved by the Full
Court on the administrative side.
The appellant was one of
those who were selected, and her name figured at S.No.26 in
the list of selected candidates from the general category.
4. However, it so transpired that whereas the other
selected  candidates  were  issued  appointment  letters,  the
2Page 3
appellant  was  not.   She,  therefore,  applied  on  3.11.2008
under the provisions of The Right to Information Act, 2005, to
find out the reason of her non-appointment.  She received a
letter dated 11.11.2008 from the respondent No.1 which gave
the following reason therefor:
“I  am  directed  to  invite  your  attention  to  the
reference  2nd cited,  and  to  inform  you  that,
adverse remarks were reported in the verification
report, that your husband Sri Srinivasa Chowdary,
who is practicing as an Advocate in the Courts at
Markapur is having close links with CPI (Maoist)
Party which is a prohibited organization.”
5. The  appellant  was  shocked  to  learn  the  above
reason for her non-appointment.  Although nothing was stated
against her in that letter, according to her what was stated
against her husband was also false. She, therefore, filed a Writ
Petition  bearing  No.  26147  of  2008  in  the  High  Court  of
Judicature  of  Andhra  Pradesh,  and  prayed  that  a  writ  of
mandamus be issued to declare that the non-inclusion of her
name in the list of Junior Civil Judges issued on 23.10.2008
was  illegal,  arbitrary  and  in  violation  of  Article  14  of  the
Constitution of India (Constitution for short), and consequently
3Page 4
a direction be issued to the respondents to forthwith issue an
order of appointment to her.
6. The respondents contested the matter by filing their
affidavits in reply. This time the Respondent No 1 alleged that
the appellant too had close links with the CPI (Maoist) party.
Paragraphs 4 and 5 of the affidavit of respondent No. 1 stated
as follows:-
“It is further submitted that the Superintendent of
Police, has reported that in re-verification of character
and  antecedents  of  Karanam  Vijaya  Lakshmi  D/o  K.
Balaguravaiah, Mangali Manyam, Markapur, Prakasam
District who is selected as Junior Civil Judge shows that
the confidential intrinsic intelligence collected recently
with regard to the movements of CPI (Maoist), it came
to light that Smt. K. Vijaya Lakshmi (Sl. No.26 in the
selected list) D/o K. Balaguravaiah r/o Mangali Manyam,
Markapur who is selected for the post of Junior Civil
Judge  and  her  husband  Srinivasa  Chowdary  s/o
Sambasiva Rao who is practicing as an advocate in the
Courts  at  Markapur  are  having  close  links  with  CPI
(Maoist) Party, which is a prohibited organization and
also in touch with UG cadre of the CPI (Maoist) Party.
Further  it  is  submitted  that  the  CPI  (Maoist)  is  a
prohibited Organization by the Government and as the
candidate  Smt.  K.  Vijaya  Lakshmi  Sl.  No.26  in  the
selected list D/o K. Balaguravaiah r/o Mangali Manyam,
Markapur  and  her  husband  Srinivasa  Chowdary  S/o
Sambasiva Rao who is practicing as an Advocate in the
Courts  at  Markapur  are  having  close  links  with  CPI
(Maoist) Party, which is a prohibited organization and
also in touch with UG cadre of the CPI (Maoist) Party
the Government feel that she should not be offered the
appointment to the post of Junior Civil Judge.”
4Page 5
7. The appellant filed a rejoinder on 8.2.2009, and
denied all the allegations as being false and incorrect.
8. A  counter  affidavit  was  filed  on  behalf  of  the
Respondent No. 2, by the Registrar General of the High Court.
In Para 4 of this affidavit it was stated that the appellant was
provisionally selected by the High Court for the appointment
to the post of a Civil Judge, along with other candidates.  A
provisional list of 98 selected candidates was sent to the first
respondent Government of Andhra Pradesh to issue orders
approving the select list, after duly following the formalities
like verification of antecedents.  The first respondent, vide its
G.O.Ms.  164  Home  (Cts.  C1)  Dept.  dated  23.10.2008,  did
thereafter  issue  the  order  approving  the  Selection  of  94
candidates. However, as far as the appellant is concerned, the
affidavit stated that the first respondent vide its memo dated
8.5.2008,  had  requested  the  Superintendent  of  Police,
Prakasam  District,  to  get  verified  the  character  and
antecedents  of  the  appellant  and  other  candidates.
Thereafter, the affidavit stated:-
5Page 6
“…The  1
st
 Respondent  through  the  letter
dated 25.10.2008 informed the High Court that
the  candidature  of  the  petitioner  could  not  be
considered as it was reported in her antecedents
verification  report  that  she  had  links  with
prohibited organization.
It  is  respectfully  submitted  that  this
Respondent has no role to play in the matter since
the 1
st
 Respondent is the appointing authority in
respect of Civil Judge (Junior Division).  Hence no
relief can be claimed against this respondent.”
Thus,  as  can  be  seen,  the  High  Court  Administration  was
informed through a letter that the appellant had links with a
prohibited organisation, but the affidavit does not state that
the  High  Court  was  informed  as  to  which  was  that
organization, or as to how the appellant had links with that
organization.  The High Court has also not stated whether it
made any inquiry with the Respondent No. 1 as to which was
that  organization,  and  in  what  manner  the  appellant  was
connected with it.  Besides, as can be seen from the affidavit,
the Government at its own level had taken the decision in this
matter that the candidature of the appellant could not be
considered due to the adverse report, and conveyed it to the
High Court. This decision was accepted by the High Court, as
6Page 7
it is, by merely stating that it had no role to play since the
Respondent No 1 was the appointing authority.
9. When the Writ Petition came up before a Division
Bench of the High Court, the Division Bench by its order dated
18.9.2008  called  upon  the  respondents  to  produce  the
material in support of the report which had been submitted by
the Superintendent of Police, Prakasam District. The report
and the supporting material  was tendered to the Division
Bench, and after going through the same the Bench held in
para 19 of its judgment that ‘the allegations appearing from
the antecedent verification report show links/associations with
the  banned  organization’.  The  Division  Bench  relied  upon
judgment of this court in  K.  Ashok  Reddy  Vs.  Govt.  of
India  reported in 1994  (2)  SCC  303 to state that judicial
review  is  not  available  in  matters  where  the  State  was
exercising the prerogative power, and applied it in the present
case since the appointment of the candidate concerned was
to be made to a sensitive post of a judge. The Division Bench
also referred to and relied upon the judgment of this Court in
Union of India Vs. Kali Dass Batish  reported in 2006 (1)
7Page 8
SCC 779 to the effect that when the appointing authority has
not found it fit to appoint the concerned candidate to a judicial
post, the court is not expected to interfere in that decision.
The Division Bench therefore dismissed the writ petition by its
impugned judgment and order.
10. Being aggrieved by this decision, the appellant has
filed the present appeal. When the matter reached before this
Court,  the  respondents  were  called  upon  to  produce  the
report which was relied upon before the High Court.  After a
number of adjournments, the report was ultimately produced
alongwith an affidavit of one M.V. Sudha Syamala, Special
Officer (I/C).  A document titled ‘Report over the activities
of CPI (Maoist) activists and their sympathizers’ dated
15.9.2008  by  Inspector  of  Police,  District  Special  Branch,
Ongole was annexed with that affidavit.  Para 5 of this report
made certain adverse remarks against the appellant.  This
para 5 reads as follows:-
“5.  Kasukurthi  Vijayalakshmi,  Advocate,
Markapur  CPI  (Maoist)  frontal  organization
member and sympathizer of CPI (Maoist):- She is
wife of Srinivasarao @ Srinivasa Chowdary.  She is
a  sympathizer  of  CPI  (Maoist)  party.   She  is  a
8Page 9
member of Chaitanya Mahila Samakhya (CMS), a
frontal  organization  of  CPI  (Maoist).   She  along
with  other  members  Nagireddy  Bhulakshmi  @
Rana  and  Cherukuri  Vasanthi,  Ongole  town  is
trying  to  intensify  the  activities  of  CMS  in
Prakasam district, especially in Markapuram area.”
One more affidavit was filed on behalf of the first respondent,
viz,  that of one Shri Kolli Raghuram  Reddy who  produced
along  therewith  some  of  the  documents  of  the  police
department, known as ‘A.P. Police Vachakam’. He, however,
accepted in para 5 of this affidavit that:-
“There  is  no  particular  documentary  proof
that the Chaitanya Mahila Samakhya is a frontal
organization to the CPI (Maoist) except the above
publication in A.P. Police Vachakam part III.” 
11. The appellant filed a reply affidavit and denied the
allegations. She stated that she was not a member of CPI
(Maoist), nor did she have any connection with the banned
organization or with any of its leaders. She disputed that any
such organization, by name CMS existed, and in any case, she
was not a member of any such organization. She submitted
that  her  husband  must  have  appeared  in  some  bail
applications of persons associated with this party, but she has
never appeared in any such case. She further stated that her
9Page 10
husband was a member of a panel of advocates who had
defended political prisoners, against whom the district police
had  foisted  false  cases,  and  those  cases  had  ended  in
acquittals.  She  disputed  the  bona-fides  of  the  police
department in making the adverse report, and relied upon the
resolutions passed by various bar associations expressing that
her husband was being made to suffer for opposing the police
in matters of political arrests.  We may note at this stage that
the Respondent No. 2 has not filed any counter in this appeal.
Submissions of the rival parties
12. Mr.  Ranjit  Kumar,  learned  senior  counsel  for  the
appellant submitted that the respondents have changed their
stand from time to time.  Initially, all that was stated was that
the husband of the appellant was having close links with CPI
(Maoist)  party,  which  is  a  prohibited  organization.
Subsequently,  it  was  alleged  that  the  appellant  was  also
having connection with the same party, and lastly it was said
that she was a member of CMS, which was named to be a
Maoist Frontal Organization.  The learned Counsel called upon
the respondents to produce any document to show that CMS
10Page 11
was in any way a Frontal Organization of CPI (Maoist), but no
such material has been produced before us.
13. Reliance was placed by Mr. Ranjit Kumar, on the
judgment of this Court in  State  of  Madhya  Pradesh  Vs.
Ramashanker Raghuvanshi reported in AIR 1983 SC 374.
That  was  a  case  concerning  the  respondent  who  was  a
teacher.  He was absorbed in a Govt. school on 28.2.1972 but
his service was terminated on 5.11.1974, on the basis of an
adverse report of Deputy Superintendent of Police. The High
court of Madhya Pradesh quashed that termination order, for
being in violation of Article 311 of the Constitution.  This Court
(per O. Chinappa Reddy, J.) while upholding the judgment of
the High Court, elaborated the concepts of freedom of speech,
expression and association enshrined in the constitution.  It
referred to some of the leading American judgments on this
very issue.  The Court noted that the political party ‘Jansangh’
or  RSS,  with  which  the  respondent  was  supposed  to  be
associated, was not a banned organization, nor was there any
report  that  the  respondent  was  involved  in  any  violent
activity.   The  Court  observed  that  it  is  a  different  matter
11Page 12
altogether if a police report is sought on the question of the
involvement of the candidate in any criminal or subversive
activity,  in  order  to  find  out  his  suitability  for  public
employment. But otherwise, it observed in para 3:-
“……Politics is no crime’. Does it mean
that only True Believers in the political faith of the
party in power for the time being are entitled to
public employment?...... Most students and most
young men are exhorted by national leaders to
take part in political activities and if they do get
involved in some form of agitation or the other, is
it to be to their ever-lasting discredit?  Some times
they get involved because they feel strongly and
badly about injustice, because they are possessed
of  integrity  and  because  they  are  fired  by
idealism.   They  get  involved  because  they  are
pushed into the forefront by elderly leaders who
lead and occasionally mislead them.   Should all
these  young  men  be  debarred  from  public
employment?  Is  Government  service  such  a
heaven that only angels should seek entry into it?”
This Court therefore in terms held that any such view to deny
employment to an individual because of his political affinities
would be offending Fundamental Rights under Articles 14 and
16 of the Constitution.
14. In paragraph 7 of its judgment the Court referred to
the observations of Douglas, J. in Lerner Vs. Casey which are
to the following effect:-
12Page 13
“7. In  Lerner v.  Casey,  (1958)  357  US  468
Douglas, J.  said:
“We deal here only with a matter of belief. We
have no evidence in either case that the employee
in question ever committed a crime, ever moved
in treasonable opposition against this country. The
only mark against them — if it can be called such
—  is  a  refusal  to  answer  questions  concerning
Communist Party membership. This is said to give
rise to doubts concerning the competence of the
teacher in the Beilan case and doubts as to the
trustworthiness  and  reliability  of  the  subway
conductor in the Lerner case....
There  are  areas  where  government  may  not
probe  .  .  .  But  government  has  no  business
penalizing  a  citizen  merely  for  his  beliefs  or
associations. It is government action that we have
here. It is government action that the Fourteenth
and First Amendments protect against . . . Many
join associations, societies,  and fraternities with
less than full endorsement of all their aims.”
Thereafter, in para 9 this Court once again quoted Douglas, J’s
statement in  Speiser  Vs.  Randall  (1958)  357  US  513 to
the following effect:-
“9……..Advocacy  which  is  in  no  way
brigaded with action should always be protected
by the First Amendment. That protection should
extend even to the ideas we despise…….”
Ultimately this Court dismissed that petition. What it observed
in paragraph 10 thereof, is equally relevant for our purpose.
This para reads as follows:-
13Page 14
“10. We are not for a moment suggesting,
that even after entry into Government service, a
person may engage himself in political activities.
All that we say is that he cannot be turned back at
the  very  threshold  on  the  ground  of  his  past
political  activities.   Once  he  becomes  a
Government servant, he becomes subject to the
various  rules  regulating  his  conduct  and  his
activities  must  naturally  be  subject  to  all  rules
made in conformity with the Constitution.”
15. Mr. Venkataramni, learned senior counsel appearing
for the respondents, on the other hand, drew our attention to
the  judgment  of a bench  of  three  judges  of this Court in
Union  of  India  Vs.  Kali  Dass  Batish  (supra), which was
relied upon by the Division Bench. That was a case where the
first respondent was a candidate for the post of a judicial
member in the Central Administrative Tribunal.  The selection
committee, under the chairmanship of a judge of this Court,
had selected him for consideration.  When his antecedents
were verified by the Intelligence Bureau, a noting was made
by the Director (AT), Ministry of Personnel, on 25.10.2001, to
the following effect:-
“……..(i) In legal circles, he is considered to
be an advocate of average caliber. (ii) It is learnt
that though he was allotted to the Court of Justice
R.L. Khurana, the learned Judge was not happy
with  his  presentation  of  cases  and  asked  the
14Page 15
Advocate General to shift him to some other court,
which was done. (iii) He was a contender for the
Shimla AC seat on BJP ticket in 1982 and 1985.
When he did not get the ticket, he worked against
the  party  and  was  expelled  from  the  party  in
1985.  He  was  subsequently  re-inducted  by  the
party in 1989…..”
The Director, however, gave him the benefit of doubt, since
his name had been recommended by a selection committee
headed by a Judge of Supreme Court.  The Joint Secretary,
Ministry of Personnel also made a similar note.  The Secretary,
Ministry of Personnel, however, made a note that he need not
be appointed, since his performance was poor.  The Minister
of State made a note that the departmental recommendations
be sent to the Chief Justice of India (C.J.I.).  When the proposal
was  subsequently  submitted  with  the  confidential
memorandum  to  the  C.J.I.,  he  concurred  with  the
memorandum  submitted  by  the  Secretary,  Ministry  of
Personnel, and the name of the first respondent was dropped.
16. It is on this background that first respondent  Kali
Dass Batish (supra) approached the Himachal Pradesh High
Court, which directed that his case be reconsidered afresh.
When that judgment was challenged, this Court noted the
15Page 16
above  referred  facts,  and  held  that  when  the  appropriate
decision-making procedure had been followed, and the C.J.I.
had  accepted  the  opinion  of  the  Ministry  to  drop  the
candidature of the first respondent, there was no reason for
the High Court to interfere with that decision.  Provisions of
the Administrative Tribunals Act, 1985 required a consultation
with the C.J.I. under Section 6(3) thereof.  That, having been
done, and the first respondent having not been found suitable,
there was no case for reconsideration.  Mr. Venkataramni tried
to emphasize that the involvement in political activities was
the factor which went against the respondent no.1 in that
case, and so it is for the appellant herein.  However, as we
can see from that judgment, the political connection was not
the  relevant  factor  which  went  against  Kali  Dass  Batish.
Principally, it is the fact that the he was reported to be a
mediocre  advocate  which  led  to  the  rejection  of  his
candidature.
17. It was also submitted on behalf of the respondents
that the name of a candidate may appear in the merit list but
he has no indefeasible right to an appointment.  Reliance was
16Page 17
placed on the judgment of a Constitution Bench of this Court
in Shankarsan Dash Vs. Union of India  reported in 1991
(3) SCC 47.  We must however, note that while laying down
the above proposition, this Court has also stated that this
proposition does not mean that the State has the license for
acting in an arbitrary manner.  The relevant paragraph 7 of
this judgment reads as follows:-
“7.  It  is  not  correct  to  say  that  if  a  number  of
vacancies are notified for appointment and adequate
number  of  candidates  are  found  fit,  the  successful
candidates  acquire  an  indefeasible  right  to  be
appointed  which  cannot  be  legitimately  denied.
Ordinarily  the  notification  merely  amounts  to  an
invitation  to  qualified  candidates  to  apply  for
recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill
up all or any of the vacancies. However, it does not
mean that the State has the license of acting in an
arbitrary  manner.  The  decision  not  to  fill  up  the
vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled
up,  the State is bound to  respect the comparative
merit  of  the  candidates,  as  reflected  at  the
recruitment  test,  and  no  discrimination  can  be
permitted……….”
Consideration of the rival submissions:
17Page 18
Duties of an advocate in the context of Article 22(1) of
the Constitution, and  the  provisions  of  the  Advocates
Act, 1961:
18. We have noted the submissions of the rival parties
on the issue of denial of appointment on the basis of a police
report.   The appellant has denied any association with CPI
(Maoist) party or CMS.  She has, however, stated that maybe
her husband had appeared as an advocate for some persons
associated  with  the  CPI  (Maoist)  Party  in  their  bail
applications. Initially, as stated in the first respondent’s letter
dated  11.11.2008,  the  basis  of  the  adverse  police  report
against the appellant was that her husband is having close
links  with  the  CPI  (Maoist)  party,  which  is  a  prohibited
organization. Mr. Ranjit Kumar submitted that the appellant
can’t be made to suffer because of her husband appearing for
some litigant, and secondly he asked: ‘in any case can her
husband be criticized for appearing to seek any bail order for
a  person  on  the  ground  that,  the  person  belongs  to  CPI
(Maoist) party?’ As an advocate, he was only discharging his
duties for the litigants who had sought his assistance.
18Page 19
19.   We quite see the merit of this submission. Those
who are participating in politics, and are opposed to those in
power, have often to suffer the wrath of the rulers. It may
occasionally result in unjustifiable arrests or detentions. The
merit of a democracy lies in recognizing the right of every
arrested  or  detained  person  to  be  defended  by  a  legal
practicenor  of  his  choice.  Article  22(1)  of  our  Constitution
specifically lays down the following as a Fundamental Right:-
“22. Protection against arrest and detention
in  certain  cases- (1) No person who is arrested
shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and
to  be  defended  by,  a  legal  practitioner  of  his
choice.”
(emphasis supplied)
All such accused do have the right to be defended lawfully
until  they  are  proved  guilty,  and  the  advocates  have  the
corresponding duty to  represent  them,  in  accordance with
law.  Taking any contrary view in the facts of the present case
will result into making the appellant suffer for the role of her
husband  who  is  discharging  his  duty  as  an  advocate  in
furtherance of this Fundamental Right of the arrested persons.
19Page 20
We cannot ignore that during the freedom struggle, and even
after  independence,  many  leading  lawyers  have  put  in
significant  legal  service  for  the  political  and  civil  right
activists, arrested or detained.  In the post independence era
we may refer, in this behalf, to the valuable contribution of
Late Sarvashri M.K. Nambiar, (Justice) V.M. Tarkunde, and K.G.
Kannabiran (from Andhra Pradesh itself) to name only a few of
the  eminent  lawyers,  who  discharged  this  duty  by
representing such arrested or detained persons even when
they belonged to banned organizations.
20. We may, at this stage, note that the Bar Council of
India, which is a regulating body of the advocates, has framed
rules under Section 49 of the Advocates Act, 1961.  Chapter-II
of Part-VI thereof, lays down the Standards of Professional
Conduct and Etiquette.  Section-I, consisting of rules 1 to 10
thereof, lays down the duties of the advocates to the court,
whereas Section-II lays down the duties to the client.  Rules
11 and 15 of this Section are relevant for us.  These two rules
read as follows:-
20Page 21
“11. An  advocate  is  bound  to  accept  any
brief in the Courts or Tribunals or before any other
authorities  in  or  before  which  he  proposes  to
practice at a fee consistent with his standing at
the  Bar  and  the  nature  of  the  case.   Special
circumstances may justify his refusal to accept a
particular brief.
       …….
15. It  shall  be  the  duty  of  an  advocate
fearlessly to uphold the interests of his clients by
all fair and honourable means without regard to
any unpleasant consequences to himself or any
other.   He shall defend a person  accused of a
crime regardless of his personal opinion as to the
guilt  of  the  accused,  bearing  in  mind  that  his
loyalty is to the law which requires that no man
should be convicted without adequate evidence.”
In A.S. Mohammed Rafi Vs. State of Tamil Nadu reported
in  2011  (1)  SCC  688, this Court was concerned with the
resolution passed by a Bar Association not to defend accused
policemen in criminal cases.  This Court in terms held that
such  resolutions  violate  the  right  of  an  accused  to  be
defended, which right is specifically recognised under Article
22(1) of the Constitution as a Fundamental Right, and such
resolutions are null and void.
Requirements for the appointment of a judicial officer,
under  Article  234  of  Constitution  and  Judicial  Service
Rules:
21Page 22
21. In this appeal, we are concerned with the question
as  to  whether  the  first  respondent  (the  Govt.  of  Andhra
Pradesh) and the second respondent (the High Court) have
proceeded  correctly  in  the  matter  of  appointment  of  the
appellant.  In this behalf we must refer to Article 234 of the
Constitution, which is the governing article when it comes to
the recruitment of persons other than District Judges to the
judicial service.  This article reads as follows:-
“234.   Recruitment  of  persons  other
than  district judges to the judicial  service –
Appointment of persons other than district judges
to the judicial service of a State shall be made by
the Governor of the State in accordance with rules
made by him in that behalf after consultation with
the State Public Service Commission and with the
High  Court  exercising  jurisdiction  in  relation  to
such State.”
22. In the instant case, appointments to the posts of
Civil Judges are governed by the Andhra Pradesh State Judicial
Service Rules, 2007 framed under Articles 233, 234, 235, 237
proviso to Article 309 and proviso to Article 320(3) of the
Constitution.   Rule  4  (1)  of  these  rules  declares  that  the
Governor of the State shall be the Appointing Authority for the
categories of District Judges and Civil Judges.  Rule 4 (2) (d)
22Page 23
lays  down  that  the  appointments  to  the  category  of  civil
Judges shall be by direct recruitment from among the eligible
advocates  on  the  basis  of  written  and  viva-voce  test,  as
prescribed by the High Court.  Accordingly, in the present
case an advertisement was issued, and written and oral tests
were conducted.  The appellant appeared for the same and
was declared successful in both the tests.  Thereafter her
name figured in the select list.  It was at this stage that the
investigation  was  carried  out  by  the  Intelligence  Bureau,
which gave an adverse report about her.  We do not find from
the affidavit of the Registrar General, filed during the hearing
of the Writ Petition,  that all relevant papers of the police
investigation  were  submitted  to  the  High  Court  on  the
administrative  side.    Now,  the  question  arises  viz.  as  to
whether it was proper for the respondent No. 1 to decide on
its own that the candidature of the appellant could not be
considered on the bias of that report?  The police report dated
15.9.2008 was produced before the Division Bench only when
the respondent No. 1 was called upon to produce the material
relied  upon  against  the  appellant.   And  if  the  report  was
23Page 24
adverse,  was  it  not  expected  of  the  respondent  no.1  to
forward  all  those  relevant  papers  to  the  High  Court  on
administrative side for its consideration?  This is what was
done in the case of  Kali  Dass  Batish  (supra) wherein an
adverse report was received after the inclusion of the name of
the respondent no.1 in the select list, and the report was
forwarded to the C.J.I.  In the present case it has not been
placed on record that all such papers were forwarded to the
High Court on the administrative side to facilitate its decision.
On  the  other  hand  the  Government  itself  had  taken  the
decision that appellant’s candidature could not be considered
in view of the adverse reports. It can not therefore be said
that there has been a meaningful consultation with the High
Court  before  arriving  at  the  decision  not  to  appoint  the
appellant.   Article  234  specifically  requires  that  these
appointments are to be made after consultation with the State
Public  Service  Commission  and  the  High  Court  exercising
jurisdiction  in  the  concerned  state.   The  High  Court  may
accept the adverse report or it may not.  Ultimately, inasmuch
as the selection is for the appointment to a judicial post, the
24Page 25
Governor will have to be guided by the opinion of the High
Court.  In the present case as is seen from the affidavit of the
Registrar-General in reply to the Writ Petition, in view of the
letter from the Home Department, the High Court has thrown
up its hands, and has not sought any more information from
the first respondent.  It is the duty of the Government under
Article 234 to forward such reports to the High court, and then
it is for the High Court to form its opinion which will lead to
the consequential decision either to appoint or not to appoint
the candidate concerned.  Such procedure is necessary to
have a meaningful consultation as contemplated under this
Article.  Any other approach will mean that whatever is stated
by the police will be final, without the same being considered
by the High Court on the administrative side.
23. In Shamsher Singh Vs. State of Punjab reported
in AIR 1974 SC 2192, a Constitution bench of this Court was
concerned with a matter where the Punjab and Haryana High
Court had handed over the work of conducting an enquiry
against a judicial officer to the Vigilance Department of the
25Page 26
Punjab Government.  This Court called it as an act of ‘selfabnegation’.  Para 78 of this judgment reads as follows:-
“78. The High Court for reasons which are not stated
requested the Government to depute the Director of
Vigilance to hold an enquiry. It is indeed strange that
the High Court which had control over the subordinate
judiciary  asked  the  Government  to  hold  an  enquiry
through the Vigilance Department. The members of the
subordinate judiciary are not only under the control of
the High Court but are also under the care and custody
of the High Court. The High Court failed to discharge
the duty of preserving its control. The request by the
High Court to have the enquiry through the Director of
Vigilance was an act of self abnegation. The contention
of  the  State  that  the  High  Court  wanted  the
Government to be satisfied makes matters worse The
Governor will act on the recommendation of the High
Court. That is the broad basis of Article 235. The High
Court should have conducted the enquiry preferably
through  District  Judges.  The  members  of  the
subordinate judiciary look up to the High Court not only
for discipline but also for dignity. The High Court acted
in  total  disregard  of  Articles 235 by  asking  the
Government  to  enquire  through  the  Director  of
Vigilance.”
24. In State of Bihar Vs. Bal Mukund Sah reported
in AIR 2000 SC 1296, a Constitution bench of this Court was
concerned with the issue as to whether it was permissible to
lay  down  the  recruitment  procedure  for  the  district  and
subordinate  judiciary  by  framing  rules  under  Article  309
without having a consultation with the High Court, in the teeth
26Page 27
of Articles 233 to 235.  This Court examined the scheme of
the relevant articles of the Constitution and the rules framed
by Government of Bihar, in this behalf.   Paragraph 20 of this
judgment is relevant for our purpose, and it reads as follows:-
“20.  Part VI of the Constitution  dealing with the
States, separately deals with the executive in Chapter II,
the State Legislature under Chapter III and thereafter
Chapter IV dealing with the Legislative Powers of the
Governor and then follows Chapter V dealing with the
High Courts in the States and Chapter VI dealing with the
Subordinate Courts. It is in Chapter VI dealing with the
Subordinate Courts that we find the provision made for
appointment  of  District  Judges  under  Article 233,
recruitment of persons other than the District Judges to
the Judicial Services under Article 234 and also Control
of the High Court over the Subordinate Courts as laid
down by Article  235. Article 236 deals with the topic of
'Interpretation'  and  amongst  others,  defines  by  subarticle (b) the expression "judicial service" to mean "a
service consisting exclusively of persons intended to fill
the post of District Judge and other civil judicial posts
inferior  to  the  post  of  District  Judge."  It  becomes,
therefore, obvious that, the framers of the Constitution
separately dealt with 'Judicial Services' of the State and
made exclusive provisions regarding recruitment to the
posts  of  District  Judges  and  other  civil  judicial  posts
inferior to the posts of the District Judge. Thus these
provisions  found  entirely  in  a  different  part  of  the
Constitution stand on their own and quite independent of
Part  XIV  dealing  with  Services  in  general  under  the
'State'.  Therefore,  Article 309,  which,  on  its  express
terms,  is  made  subject  to  other  provisions  of  the
Constitution,  does get  circumscribed to  the extent  to
which from its general field of operation is carved out a
separate  and  exclusive  field  for  operation  by  the
relevant provisions of Articles dealing with Subordinate
27Page 28
Judiciary  as  found  in  Chapter  VI  of  Part  VI  of  the
Constitution to which we will make further reference at
an appropriate stage in the later part of this judgment.”
25. These  judgments  clearly  lay  down  the  principles
which guide the interpretation and role of Articles 233 to 235
of  the  Constitution  to  safeguard  the  independence  of  the
subordinate  judiciary.   Article  234  requires  a  meaningful
consultation with the High Court in the matter of recruitment
to judicial service.  In view of the mandate of Article 234, High
Court has to take a decision on the suitability of a candidate
on the administrative side, and it cannot simply go by the
police reports, though such reports will, of course, form a
relevant part of its consideration. As held in paragraph 3 of
Ramashankar  Raghuvanshi  (supra)  to  deny  a  public
employment to a candidate solely on the basis of the police
report regarding the political affinity of the candidate would
be offending the Fundamental Rights under Article 14 and 16
of the Constitution, unless such affinities are considered likely
to effect the integrity and efficiency of the candidate, or (we
may  add)  unless  there  is  clear  material  indicating   the
involvement  of  the  candidate  in  the  subversive  or  violent
28Page 29
activities of a banned organization. In the present case there
is  no  material  on  record  to  show  that  the  appellant  has
engaged in any subversive or violent activities. The appellant
has denied her alleged association with CPI (Maoist) party or
CMS.   Respondent  No.  1  has  accepted  that  there  is  no
documentary proof that CMS is a frontal organization of CPI
(Maoist).   And  as  far  as  her  connection  CPI  (Maoist)  is
concerned, there is no material except the report of police,
the  bonafides  of  which  are  very  much  disputed  by  the
appellant.  Besides, since the report was neither submitted to
nor  sought  by  the  High  Court,  there  has  not  been  any
consideration thereof by the High Court Administration. Thus,
there has not been any meaningful consultation with the High
Court on the material that was available with the Government.
The High Court administration has thus failed in discharging
its responsibility under Article 234 of the Constitution.
26. The Division Bench has relied upon the observations
of  this  Court  in  K.  Ashok  Reddy (supra)  to  bring  in  the
principle of prerogative power to rule out judicial review. In
that  matter  the  petitioner  had  sought  a  declaration
29Page 30
concerning the judges of the High Courts that they are not
liable to be transferred. One of his submissions was that there
is absence of judicial review in the matter of such transfers,
and  the  same  is  bad  in  law.   As  noted  in  the  impugned
judgment, in K. Ashok Reddy (supra), this Court did refer to
the observations of Lord Roskill in Council of Civil Service
Union v. Minister for the Civil Service  reported in  1984
(3)  All  ER  935 that  many  situations  of  exercise  of
prerogative  power  are  not  susceptible  to  judicial  review,
because of the very nature of the subject matter such as
making  of  treaties,  defence  of  realm,  and  dissolution  of
Parliament to mention a few.  Having stated that, as far as the
transfer of judges is concerned, this court in terms held that
there was no complete exclusion of judicial review, instead
only the area of justiciability was reduced by the judgment in
Supreme  Court  A.O.R  Association  Vs.  Union  of  India
reported  in  (1993)  4  SCC  441. The  reliance  on  the
observations from  K.  Ashok  Reddy  (supra) was therefore
totally misplaced.  Besides, the appointment to the post of a
Civil Judge is covered under Article 234 and the State Judicial
30Page 31
Service  Rules,  and  if  there  is  any  breach  or  departure
therefrom, a judicial review of such a decision can certainly
lie. The High Court, therefore, clearly erred in holding that
judicial review of the decision concerning the appointment of
a  Civil  Judge  was  not  permissible  since  that  post  was  a
sensitive one.
Hence, the conclusion:
27. Here  we  are  concerned  with  a  question  as  to
whether  the  appellant  could  be  turned  back  at  the  very
threshold,  on  the ground of her alleged political activities.
She has denied that she is in any way connected with CPI
(Maoist) or CMS.  There is no material on record to show that
this CMS is a banned organization or that the appellant is its
member.
It is also not placed on record in which manner she
had participated in any of their activities, and through which
programme  she  tried  to  intensify  the  activities  of  CMS  in
Markapuram area, as claimed in paragraph 5 of the report
quoted above.
 While accepting that her husband may have
appeared for some of the activists of CPI (Maoist) to seek bail,
the appellant has alleged that the police are trying to frame
31Page 32
her due to her husband appearing to oppose the police in
criminal matters.
Prima facie, on the basis of the material on
record,  it  is  difficult  to  infer  that  the  appellant  had
links/associations with a banned organization. 
The finding of
the Division Bench in that behalf rendered in para 19 of the
impugned judgment can not therefore be sustained. 
28. We may as well note at this stage, that
on selection,
the Civil Judges remain on probation for a period of two years,
and  the  District  Judges  and  the  High  Court  have  ample
opportunity to watch their performance.  Their probation can
be  extended  if  necessary,  and  if  found  unsuitable  or  in
engaging in activities not behoving the office, the candidates
can be discharged.  
The relevant rules of the Andhra Pradesh
State Judicial Service being Rule Nos. 9, 10 and 11 read as
follows:-
“9. Probation and officiation:
a) Every  person  who  is  appointed  to  the
category  of  District  Judges  by  direct
recruitment from the date on which he joins
duty shall be on probation for a period of two
years.
b) Every  person  who  is  appointed  to  the
category of    District Judges otherwise than
on direct recruitment shall be on officiation
for a period of two years.
32Page 33
c) Every  person  who  is  appointed  to  the
category of Civil Judges shall be on probation
for a period of two years.
d) The period of probation or officiation, may be
extended by the High Court by such period,
not  exceeding  the  period  of  probation  or
officiation, as the case may be, as specified
in clauses (a) to (c) herein above.
10. Confirmation/Regularisation:  A person who
has  been  declared  to  have  satisfactorily
completed his period of probation or officiation
as the case may be shall be confirmed as a full
member of the service in the category of post
to which he had been appointed or promoted,
as against the substantive vacancy which may
exist or arise.
11. Discharge of unsuitable probationers: If at
the  end  of  the  period  of  probation  or  the
period of extended probation, the Appointing
authority on the recommendation of the High
Court,  considers  that  the  probationer  is  not
suitable  to  the  post  to  which  he  has  been
appointed, may by order discharge him from
service after giving him one month’s notice or
one month’s pay in lieu thereof.”
29. In view of this constitutional and legal framework,
we are clearly of the view that the High Court has erred firstly
on  the  administrative  side  in  discharging  its  responsibility
under Article 234 of the Constitution, and then on the Judicial
side in dismissing the writ petition filed by the appellant, by
drawing an erroneous conclusion from the judgment in the
case of  Kali  Dass  Batish  (supra).   Having stated so, the
33Page 34
Court can not grant the mandamus sought by the appellant to
issue an appointment order in her favour.  As held by this
Court in para 17 of  Harpal  Singh  Chauhan  Vs.  State  of
U.P. reported in 1993 (3) SCC 552, the court can examine
whether  there  was  any  infirmity  in  the  decision  making
process. The final decision with respect to the selection is
however  to  be  left  with  the  appropriate  authority.  In  the
present matter the Division Bench ought to have directed the
State Govt. to place all the police papers before the High
Court  on  the  administrative  side,  to  enable  it  to  take
appropriate decision, after due consideration thereof.  
30. Accordingly,  the  impugned  judgment  and  order
dated  19.3.2009  rendered  by  the  Division  Bench  of  the
Andhra  Pradesh  High  Court  is  hereby  set-aside.  The  first
respondent State Government is directed to place the police
report  (produced  before  the  Division  Bench)  for  the
consideration of the High Court on the administrative side.
The first respondent should do so within two weeks from the
receipt of a copy of this judgment. The selection committee of
the High Court shall, within four weeks thereafter consider all
34Page 35
relevant  material  including  this  police  report,  and  the
explanation given by the appellant, and take the appropriate
decision with respect to the appointment of the appellant, and
forward the same to the respondent no 1. The first respondent
shall issue the consequent order within two weeks from the
receipt of the communication from the High Court. This appeal
and the Writ Petition No. 26147 of 2008 filed by the appellant
in the High Court will stand disposed off with this order. In the
facts of this case, we refrain from passing any order as to the
cost.     
                         …………………………………
..J.
[ A.K. Patnaik ]
………………………………….
.J.
[ H.L. Gokhale  ]
New Delhi
Dated : February 18
th
, 2013
35