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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
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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
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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
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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.”
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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:-
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“…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
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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)
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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
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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
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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
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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
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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:-
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“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:-
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“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
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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
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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
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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:
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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.
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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.
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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:-
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“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:
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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)
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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
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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
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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
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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
