Andhra HC (Pre-Telangana)
B. Shivakumar vs Govt. Of A.P., Law Department, ... on 13 April, 1999
Equivalent citations: 1999(3)ALD528, 1999(3)ALT389
ORDER S.V. Maruthi, J.
1. The petitioner is seeking a writ of mandamus declaring the action of the 1st respondent in not appointing him to the post of District and Sessions Judge Gr. II in spite of the recommendations by the High Court-2nd respondent as violative of Articles Hand 16 of the Constitution of India besides violative of principles of natural justice.
2. The petitioner had obtained BL degree from Sri Venkateswara University in the year 1987. He got himself enrolled as an Advocate on the rolls of the A.P. State Bar Council on 24-4-1987. He started his practice in Kavali by joining as a junior advocate in the office of one Sri M. Eshwara Prasad who is a senior advocate in the Bar of Kavali. The petitioner is also a member of the Kavali Bar Association. The petitioner has been assisting his senior in civil and criminal cases in the Courts of Subordinate Judge and District Munsif Courts at Kavali besides appearing before Revenue Courts and Consumer Forums under different statutes. Thus, the petitioner was handling civil and criminal cases independently. While practising, he also obtained degree in Master of Law in 1991 after obtaining permission from the Bar Council of Andhra Pradesh. Since he has completed his degree in post graduation, the Principal of Indira Priyadarshini Law College of Ongole requested him to teach the students of the Colleges as a part-time lecturer. The petitioner accepted the request and used to teach for one or two hours as per his convenience and without affecting his regular practice as an advocate. The distance from Kavali to Ongole is one hour by train and there are number of trains passing from Kavali to Ongole. The petitioner claims that besides appearing in the Courts of Kavali, he used to appear before the Sessions Court at Nellore, Kandakur and Ongole.
3. A notification was published on 2-8-1996 calling for the application for the recruitment for the post of District and Sessions Judge (Gr. II) in the A.P. Higher Judicial Services. The petitioner applied for the said post on 17-8-1996, A Written Examination was conducted on 24-11-1996 and the petitioner appeared for the written examination. As the petitioner was successful in the written examination, he was placed in the merit list and was called for the interview by the 2nd respondent. The petitioner appeared for the interview. He was asked to furnish the particulars in the attestation form in triplicate. Accordingly the petitioner sent the attestation form in triplicate duly furnishing the particulars. Since the petitioner was successful in the written examination and also in the interview and since his name was included in the merit list, the 2nd respondent recommended his name to the 1st respondent-Government for appointment as District and Sessions Judge (Gr.II). However, the 1st respondent issued G.O. Ms. No.291, Law (LA & JSC.F) Department, dated 4-12-1997 by appointing four candidates as District and Sessions Judge (Gr. II) tho'ugh the notification was for the recruitment of six posts. The 1st respondent has neither appointed him nor communicated the reason for not appointing him as the District and Sessions Judge (Gr. H). Hence the present writ petition.
4. In the counter-affidavit filed by the 2nd respondent, it is admitted that the petitioner was successful in the written examination as well as in the interview and that his name was recommended to the Government by the High Court on 13-3-1997 for appointment to the post of District and Sessions Judge (Gr. II) along with 5 other candidates. However, it is stated that a complaint petition was received against the petitioner stating that he is not a practicing advocate, that he is full time Lecturer in the Law College in Ongole, that he is staying at Ongole with one married woman who was not his wife and got a son out of the illicit contacts with the said married woman, that his conduct is not good and that his appointment is unjust as he is not possessed of required qualifications. When the said complaint petition was placed before the Hon'ble the Chief Justice, an enquiry was ordered and the Dislrict Judge, Nellore and the Sub-Judge, Kavali were requested on 5-4-1997 to enquire whether the petitioner is working as full time/part time Lecturer in Law College at Ongole and also as to his character and conduct.
5. After obtaining the reports from the Dislrict Judge, Nellore and Sub-Judge, Kavali, the Administrative Committee of the Hon'ble Judges in its meeting held on 23-6-1997 called for a report from the Government: on the allegations against the petitioner and one Sri Rahamatullah Khadri, another candidate whose name was also recommended for appointment. On receipt of the report from the Government, the High Court in its Full Court meeting held on 17-10-1997 resolved that in view of the fact that the petitioner and the another candidate withheld the information when they made the applications for the selection that they are engaged as Lecturers in Law College and that while so employed they were not practicing as Advocates, their names be withdrawn from the recommendations made by High Court's letter dated 13-3-1997 and accordingly the High Court informed the Government on 21-10-1997. Therefore, the Government issued G.O. Ms. No.291 Law (L.A. & J-SDV) Department dated 4-12-1997 appointing 4 candidates as District and Sessions Judge (Gr. II) by direct recruitment.
It is also stated that the Sub-Judge, Kavali in his report categorically stated that the petitioner had joined as a Lecturer in Indira Priyadarshini Law College, Ongole in 1992 on a monthly salary of Rs.1500/- per month and that his pay was raised from time to time to Rs.4,000/ - and that on personal verification of the Attendance Register and Salary Disbursement Register, he found that the petitioner had been attending the College for both morning sessions from 8.00 a.m. to 11.00 a.m. and evening sessions from 6.00 p.m. to 9.00 p.m. and that his enquiries revealed that the petitioner has been working as full time Lecturer. In view of the report of the Sub-Judge, Kavali, the High Court is justified in coming to the conclusion that the petitioner being a full time lecturer has not been an Advocate with 7 years standing and, therefore, the petitioner is ineligible for appointment as a District and Sessions Judge (Gr. II). Further under Rule 70 of the Bar Council of India Rules, an Advocate can accept a part time employment tor leaching law if the number of hours in a day do not exceed 2 hours. Such part-time employment requires the permission of the Bar Council. Since the petitioner is a full time Lecturer, he cannot be treated as a practicing Advocate and, therefore, the writs petition is liable to be dismissed.
6. In the Rejoinder filed by the petitioner to the counter-affidavit filed by the 2nd respondent, the petitioner states that the copies of the complaint petition reports of the District Judge, Nellore, and Sub-Judge Kavali and the report of the Government called for by the High Court were not furnished. Therefore, the procedure adopted by the High Court on its administrative side withholding the recommendation is contrary to 'the principles of natural justice. The complaint is a false complaint and the reports are also false. The petitioner stated that he worked as a part-time Lecturer in Indira Priyadarshini Law College, Ongole, that the distance between Kavali and Ongole is 40 miles and that there are number of buses and trains to travel between Kaval i and Ongole and it takes one hour time for journey between Kavali and Ongole by train. The petitioner submits that he obtained seasons tickets from the railway authorities for his travel from Kavali to Ongole, etc. The petitioner submits that the Principal-in-charge of the College requested him to teach law for one hour in the evening sessions from 6.00 p.m. to 7.00 p.m. on a consolidated payment of Rs.1500/-pcr month in the year 1992. Subsequently from August 1994, he was requested to teach law for hour from 8.00 a.m. to 9.00 a.m. in the evening session and agreed to pay consolidated payment of Rs.3,000/- per month.
There was no written appointment order as he was not recruited by a regularly constituted committee. The petitioner reiterated that he never took more than 2 hours on any day after August, 1994, that he has not withheld any information and that he had mentioned all the material particulars by filling up the application filed for appointment. He has also stated that under Section 49(A) of the Advocates Act 1961, (he Central Government framed the Rules called "The Advocates (Right to take up law teaching) Rules 1979 which came into force on 26-10-1979. Under Rule 3 of the said rules, an Advocate while practicing is entitled to take up teaching of law in any educational institution which is affiliated to University within the meaning of the University Grants Commission Act, 1956, so long as the hours during which one is so engaged in the teaching of law do not exceed three hours a day; and that the employment in the educational institution for the teaching of law for a period of 3 hours be deemed to be a part-time employment irrespective of the manner in which such employment is described or the remuneration receivable (whether by way of a fixed amount or on the basis of any time scale of pay/or any other manner) by the advocate for such employment. Under Rule 51 of the Bar Council of India Rules, an Advocate is entitled to review parliamentary bills for a remuneration edit legal text books at a salary, do 'press-vetting' for news papers, coach pupils for legal examination, etc. Thus, the part-time engagement in teaching law without detriment to practice is complimentary and supplementary in synthesising theory with practice and improving articulation rather than derogatory to the efficiency of legal practice and, therefore, the withdrawal of the name of the petitioner from the recommended list is arbitrary and unjust.
7. The undisputed facts are that the petitioner was enrolled as an Advocate on 24-4-1987 and started practicing at Kavali. He appeared for written examination on 24-11-1996 pursuant to a notification dated 2-8-1996 for recruitment to the post of District and Sessions Judge (Gr. II) in the A.P. Higher Judicial Service. He was successful in the written examination and he was called for an interview. The petitioner was successful in the interview and his name was recommended by the High Court to the Government for appointment as District and Sessions Judge (Gr. II). However, the petitioner was not appointed on the basis of a complaint received saying that he was ceased to be in practice as an Advocate as he was employed as a full time Lecturer. Pursuant to the complaint, a report was called for form the District Judge Nellore and the Sub-Judge, Kavali. The Sub-Judge, Kavali reported after verification of the Attendance Register and the Salary Disbursement Register that the petitioner was a Full Time Lecturer in Indira Priyadarshini Law College working in the morning session from 8.00 a.m. to 11.00 a.m. and in the evening session from 6.00 p.m. to 9.00 p.m. On the basis of the report received from the Sub-Judge Kavali and the District Judge. Nellore, the High Court withheld the recommendation made by it to the Government.
8. Shri M. V. Ramana Reddy, the learned Counsel appearing for the petitioner raised the following contentions :
(1) that the High Court withheld the recommendation of the petitioner made by it to the Government on the undisclosed reports, i.e., on the reports which were not disclosed to the petitioner. Hence, there is violation of principles of natural justice;
(2) Having recommended the name of the petitioner to the Government for appointment as District and Sessions Judge (Gr. II), under Article 233 of the Constitution of India, the High Court has no power to withhold the recommendation. Hence the action of the respondent No.2 in withholding, the recommendation is arbitrary;
(3) The petitioner was treated unfairly as he was expecting legitimately that he would be appointed as the District and Sessions Judge (Gr. II) as he faired well in the interview after passing the written test and also as he received attestation form from the respondent. Therefore, the High Court acted contrary to the Doctrine of Legitimate Expectation.
The learned Counsel produced before us the material in support of his contention that the petitioner actively practised in the Courts of Additional District Judge, Nellore, Sub-Judge, Kavali, District Forum-cum-District Court, Ongole, 3rd Addl. Munsif Magistrate, Ongole, Special Court under the NDPS Act at Ongole, Additional Sub-Judge, Ongole, Additional District and Sessions Judge, Court, at Ongole, etc. The Counsel also relied upon a Certificate issued by the President of the Bar Association, Kavali certifying that the petitioner is a Member of Kavali Bar Association from 26-4-1987 till 14-9-1996 and the Certificate issued by the Sub-Judge, Kavali certifying that the petitioner is practising in his Court. It is contended that the above material establish that the petitioner is actively practising in the District Court, Ongole, Sub-Court, Kavali, Additional District Judge Court, Nellore, etc. The learned Counsel also submitted that in view of the over-whelming evidence evidencing the appearance of the petitioner in various Courts, the report of the Sub-Judge that the petitioner was employed as a full time Lecturer in the Law College is contrary to the evidence on record and, therefore, the report should not be relied upon.
9. While the learned Counsel for the respondent No.2 Sri Nagarjuna Reddy contended that the petitioner has no right to be heard before as he has no right to appointment. He has only a right to be considered. Therefore, there is no obligation on the part of the respondents to furnish copies of the reports of the District Judge, Nellore and Sub-Judge, Kavali and the report of the Government. The Counsel also submitted that under Article 233(2) of the Constitution of India, a person is eligible to be appointed as District Judge, if he has been an Advocate for not less than 7 years or a pleader and he is recommended by the High Court for appointment. Since the petitioner ceases to be an Advocate on his appointment as a full time Lecturer in Priyadarshini Law College, he has not fulfilled the requirements under Article 233(2) of the Constitution, and, therefore, he is ineligible to be appointed as a District Judge. In the absence of a right to appointment the question of legitimate expectation docs not arise. The question of legitimate expectation arises only in cases where a promise is negatived or an undertaking is withdrawn. On the facts of the present case, neither a promise is negatived nor an undertaking is withdrawn and, therefore, the question of legitimate expectancy does not arise. Further the Supreme Court has made it clear that the question of legitimate expectancy does not arise in cases of recruitment to a post. The report of the Sub-Judge, Kavali, is based on the Attendance Register and the Salary Disbursement Register, according to which, the petitioner was appointed as a full time Lecturer and his salary was raised from Rs. 1500/- to Rs.4500/- and in 1992 he was teaching in the morning session and from August, 1994 he was teaching both in the morning and evening Sessions. Since the report of the Sub-Judge, Kavali is based on his inspection and on relevant material and since the basis for the report was disclosed in the counter-affidavit, the onus shifts to the petitioner to establish that he is only a part-time Lecturer and not a full time Lecturer, He has not produced any material to establish that he is only a part-time Lecturer working for one hour. The Counsel also submitted that Kavali is 65 Kms. from Ongole. He is working as a Lecturer in Ongole and practising in Kavali and it is practically impossible for him to travel 260 Kms. (for four trips) in a day. The onus is on the petitioner to establish that his working as a Lecturer does not exceed 3 hours.
10. Article 233 of the Constitution of India deals with the appointment of the District Judges. Sub-Article (1) of Article 233 provides that the appointment, posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. Sub-Article (2) of Article 233 provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
11. From the above, it is clear that the appointing authority of a District Judge is the Governor and the Governor in consultation with the High Court has to appoint the District Judge. A person who has been practising for not less than 7 years is eligible for appointment as a District Judge on a recommendation made by the High Court. Therefore, the essential qualification for appointment as a District Judge is that a candidate should have been an Advocate for not less than seven years. If he fulfils this qualification, he is eligible for consideration for appointment as a District Judge.
12. Therefore, let us examine whether the petitioner possesses the relevant qualification for appointment as a District and Sessions Judge Gr. II. The case of the petitioner is that he was enrolled as an Advocate on 24-4-1987 and joined the office of one M. Eswara Prasad and commenced his practice at Kavali. In August, 1992 he joined as a part-time Lecturer in Indira Priyadarshini Law College from 6.00 p.m. to 7.00 p.m. in the evening session and in August 1994 he accepted to work/teach one hour in the morning in the same College, and, therefore, he is eligible for appointment as a District and Sessions Judge, Gr. II under Article 233(2) of the Constitution as he has been an Advocate for not less than 7 years. While the respondents contend that though he was enrolled on 24-4-1987 and joined in the office of Sri Eswara Prasad, senior Advocate and commenced his practice at Kavali, by virtue of his appointment as a full time Lecturer in August, 1992, he ceases to be an Advocate and by that time he has not completed 7 years of practice and, therefore, ineligible.
13. The foundation, for the view of the respondents is, the report of the Sub-Judge, Kavali dated 25-4-1997. The said report was called for by the High Court on the basis of a complaint made by one Sri K. Prabhakar and Sri C. V. Reddy. The relevant portion of the report of the Sub-Judge, Kavali dated 25-4-1997 reads as follows:
"I submit that I got verified the files of Sub-Court and PDM Courts, Kavali. Sri B. Siva Kumar had filed vakalat for defendant in OS No.61 of 1996 on 30-1-1997. The said suit is still pending. Except the above said suit the individual has not been conducting any other case on the file of Sub-Court or Principal District Munsif Courts, Kavali. He had conducted a Sessions Case SC 168 of 1994 on the file of Asst. Sessions Judge (Sub-Court), Kavali. Since OS 61 of 1996 is still pending on the file of Sub-Court, Kavali, it can be said that Sri B Siva Kumar is presently practising as an advocate at Kavali.
I further submit that Sri B. Siva Kumar has joined as Lecturer in "Indira Priyadarshini Law College" Ongole in 1992 on a monthly salary of Rs.1500/-. His pay was raised form time to time to Rs.4000/- per month. The said college is a private law college affiliated to "Andhra Kesari Vidya Kendra" Ongole. I have personally verified attendance register and salary disbursement register of the said college and found that Sri B. Siva Kumar has been attending the College for both morning session from 8.00 a.m. to 11.00 a.m. and evening session from 6.00 p.m. to 9.00 p.m. Therefore, my enquiry reveals that he has been working as an "Full time Lecturer".
14. The report of the Sub-Judge, Kavali discloses three things, viz., (1) That the petitioner filed Vakalat in OS No.61 of 1996 and the said suit is still pending; (2) that he conducted Sessions Case SC 168 of 1994 before the Asst. Sessions Judge; and (3) That he is working as a full time Lecturer from 1992 on payment of salary of Rs.1500/-per month which was raised from time to time to Rs.4000/- in the Indira Priyadarshini Law College, which is a private College.
15. The report of the Sub-Judge is that the petitioner is a full time Lecturer from 1992, while the petitioner contends that he is only a part time Lecturer and, therefore, continues to be an Advocate. We have already extracted the relevant portions of the report of the Sub-Judge. It discloses that the Sub-Judge has verified personally the Attendance Register and Salary Disbursement Register of the Indira Priyadarshini Law College and he was working from 8.00 a.m. to 11.00 a.m. and 6.00 p.m. to 9.00 p.m. To accept the contention of the petitioner, it is necessary that the petitioner has to produce the material establishing that he is only a part-time Lecturer and not a full time Lecturer as stated by the Sub-Judge in his report. The onus shifts to the petitioner to disprove the contents of the report to establish that he is only a part-time Lecturer and, therefore, he is eligible to be appointed as District and Sessions Judge, Gr. II. The petitioner has not discharged the said onus. He has not produced any material to establish that he is not a full time Lecturer, but only a part-time Lecturer. Except his ipsi dixit and the certificate issued by the Principal of the Indira Priyadarshini College, Ongole, dated 31-12-1997, there is no material at all to accept the contention of the petitioner. The certificate issued by the Principal cannot be relied upon in view of the report of Sub-Judge based on evidence. Further under Rule 3 of the Advocates (Right to take up Law Teaching) Rules, 1979, an Advocate while practising take up teaching of law in any educational institution which is affiliated to University within the meaning of the University Grants Commission Act, 1956 as long as the hours during which is engaged in the teaching of law do not exceed three hours a day. The same Rule provides that if the teaching of law does not exceed three hours, he shall be treated as a part-time employee irrespective of the manner in which such employment is described or the remuneration receivable (whether by way of a fixed amount or on the basis of any time-scale of pay or any other manner) by the Advocate for such employment. Therefore, irrespective of the mode of payment of salary, the hours which an advocate is permitted to teach is only three hours. From the report of the Sub-Judge, Kavali, it is clear that the petitioner was working for six hours daily as a Lecturer. Therefore, he is ceased to be an Advocate on his appointment as a Lecturer in Indira Priyadarshini Law College in the absence of the material produced by the petitioner to disprove the contents of the report. It is not the case of the petitioner that the Attendance Register and the Salary Disbursement Register relied on by the Sub-Judge in his report does not reflect the real position.
16. In mis context, we may refer to the judgment of the Supreme Court in Sushma Sun v. NCT of Delhi, 1998 (5) Scale 490. The Supreme Court was considering the scope of Rule 49 of the Bar Council of India Rules under which an Advocate shall not be a full time employee. The petitioner in the said case passed the examination of Advocate on Record conducted by the Supreme Court of India in 1982 and in 1986 she was appointed as Assistant Government Advocate. Thereafter she was promoted to the post of Additional Government Advocate in the Supreme Court of India. The High Court of Delhi called for applications from candidates who have worked as an Advocate for recruitment to Delhi Higher Judicial Service. When the petitioner applied for the same but she was not called for the interview, she filed a writ petition before the High Court of Delhi. The High Court held that the petitioner is not entitled to be considered. The Supreme Court in Special Leave Petition interpreting the expression 'advocate' as defined under sub-section 2(a) of the Advocates Act read with Rule 49 of the Bar Council of India, held that the expression 'members of the Bar' in the relevant rule would only mean that a particular class of persons who arc actually practising in Courts of law as pleaders or advocates. It was also held that 'the test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a Court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such Law Officer engaged by the Government docs - whether he acts or pleads in Court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate '..... Therefore, Bar Council of India has understood the expression 'advocate' as one who is actually practising before Courts which expression would include even those who are law officers appointed as such by the Government or body corporate.'
17. From the above, it is clear that an Advocate is a person who actually practices in the Courts and engaged to act and plead on behalf of his client in a Court of Law.
18. We may also refer to the judgment of this Court to which one of us S.V. Maruthi, J., is a party in Syed Rahmatullah Khadri v. Govt. of A.P., , where this Court was of the view that "In practice, therefore, it means that the candidate should be regularly attending the Court and arguing the case if not on his own but on behalf of others. We arc convinced that a person cannot be qualified merely by lapse of seven years after enrolment, if it is shown that during that period he did not actually attended the Court or could not have attended the Court by reason of his employment elsewhere."
19. The Supreme Court in Madanlal v. State of J.K., AIR 1995 SC 1058, also held that "the word 'actual practice' as employed in Rule 9 that the concerned Advocate must be whole time available as a profession attached to the concerned Court and must not be pursuing any other full time avocation.
20. It follows from the above that on his appointment as a full-time Lecturer in the Indira Priyadarshini Law College, the petitioner ceased to be an advocate as he was not actually practising in a Court of law. It is true that the petitioner has filed before us the orders and judgments in OS No. 136 of 1998, OS No. 137 of 1998, OS No.138 of 1988; OS No. 143/88, OS No. 126/88, OS No. 158/88, OS No. 174/94, OS No. 57/91, OSNo.92/91, OS No. 157/91, OS No. 13/92, SC No.24/89, SC No.29/89, SC No.210/90, SC 213/90, SC 214/ 90, SC 28/91 CC No. 1/94, SC No. 168/94, 129/96 etc. From a perusal of the orders produced before us, it appears that the petitioner filed Vakalats in all these matters along with his seniors. However, all these matters relate to the period from 1988 to 1990 and 1992-1996. The date of order of the Sub-Judge in OS 61/96 is 25-6-1997. On that date issues were framed. This order was passed by the Sub-Judge, Kavali. Similarly in Crl. MP 1201 of 1995, the petitioner appeared before the Spl. Court, Ongole, and it is a bail application. The order is dated 12-6-1995. In Crl. RP 2/96, the petitioner appeared for the accused. In OS 23/95, before the Addl. Sub-Judge, Ongolc, the petitioner filed vakalat and on 23-9-1996 issues were framed. On 4-12-1995 the petitioner appeared for the petitioner in Crl. MP 1763 of 1995 before the Addl. Munsif Magistrate, Ongole.
21. From the above, it is clear that the appearanee of petitioner after 1992 is only in four cases, though prior to 1992 he has filed vakalat independently and along with the senior advocates in number of cases. The relevant date for the purpose of determining whether the petitioner ceased to be an Advocate is August, 1992 as on that date he was appointed as a Lecturer in the Indira Priyadarshini Law College. No reliance can be placed on these orders to arrive at the conclusion that the petitioner continues to be an advocate in the absence of evidence that the petitioner was not appointed as a full time Lecturer in the Law College. Sporadic filing of Vakalat and appearance in one or two cases in Courts while holding a full time employment cannot be taken into account for holding that he continues to be an Advocate.
22. The argument of the learned Counsel for the petitioner is that the report of the Sub-Judge, Kavali was not furnished to the petitioner, and therefore, the decision of the High Court in withholding ihe recommendation is in violation of principles of natural justice. In support of this contention, he relied on the following judgments : State of Orissa v. Binapani Dcvi, ; C.B. Boar-ding and Lodging v. Stale of Mysore, ; S. Govindaraju v. K.S.R.T.C., ; Benny T.D. v. Registrar, Co-operative Societies, ; and Madan Mohan Choudhary v, State of Bihar, ; and contended that even in the case of administrative order which involves civil consequences, the principles of natural justice should be complied with and that the dividing line between administrative power and quasi judicial power is quite thin and is being gradually obliterated and that, therefore, when once the petitioner's case was considered and recommended to the Governor, the High Court should not have withheld the said recommendation on the basis of the report of the Sub-Judge, Kavali without disclosing the said document to the petitioner. ' He further contended that the Constitution has conferred upon the High Court a sacred and noble duty to give the best of advice or opinion to the Governor and it is, therefore, essentially a matter of trust and confidence between the Governor and the High Court and that the High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust.
23. There cannot be any doubt about the propositions laid down by ihe Suprem^ Court and relied upon by the teamed Counsel for the petitioner in the above decisions. The queslion is whether the said propositions are applicable to the petitioner and whether the petitioner is entitled for the copy of the report of the Sub-Judge, Kavali. On the basis of which the recommendation recommending the name of the petitioner for appointment as District and Sessions Judge, Gr. II to the Governor was withheld by the High Court. In this context, we may refer to the judgment of the Supreme Court in Shankarsan Dash v. Union of India, MR 1991 SC 1612. It is essential to refer to the facts of this case in brief as there are some decisions of the Supreme Court which have taken a contrary view to the view taken in this case. The Judgment in Shankarsan Dash's case (supra) is by a Constitution Bench consisting of five Judges. The appellant was selected in the combined Civil Services Examinations held by the Union Public Service Commission for appointment to several services including the Indian Police Service (in short 'the IPS') and the Police Services Group 'B'. The appellant appeared for the Examination and his position was not high enough in the merit list to be included in the IPS and, therefore, he was offered appointment to the Delhi Andaman and Nicobar Police Service (for short 'DAMP') in Police Service Group 'B' which he accepted. In June 1979 14 vacancies arose in the IPS due to selected candidates not joining the service. Out of the same 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed in DANIP Service, but no appointments were made to the general category. The appellant, by a representation, prayed that these vacancies also should be filled up which was turned down. The appellant was not successful in the High Court under Article 226, In the Special Leave Petition before the Supreme Court, it was held that :
"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 docs not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons."
The learned Judges referred to the observations of the Supreme Court in State of Haryana v. Subhash Chander Marwaha, , wherein it was held that:
"It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate."
It was also held that:
"The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules."
24. It follows from the above that the mere fact that the petitioner was successful in the written examination and the viva voce test does not confer on him an indefeasible right to be appointed. When once he docs not acquire an indefeasible right for appointment he is not entitled for the copy of the report of the Sub-Judge and, therefore, he cannot complain that the principles of natural justice have been violated. At any rate, the petitioner had post decisional opportunity before this Court when he sought for judicial review of the decision of the High Court withholding the recommendation of his appointment. Therefore, we are of the view that since the petitioner had not indefeasible right to appointment as a District and Sessions Judge, Gr. II, there is no obligation on the part of the respondents to furnish a copy of the report of the Sub-Judge. The petitioner is, therefore, not entitled to complain that there is violation of principles of natural justice. Even assuming that there is such violation, Still the petitioner had a post decisional opportunity which he has not availed of by producing satisfactory evidence before this Court to establish that he is not a full time lecturer.
25. At this stage, a specific reference may be made to the judgments of the Supreme Court in S. Govindaraju's case (supra); K. Vijayalakshmi v. Union of India, 1999 (1) ALT 19 (SC) and Basudeo Tiwary v. Sido Kanhu University, JT 1998 (6) 464. The Judgment in Govindaraju 's case (supra) is a case where the appellant was selected and his name was included in the select list prepared for the purpose of appointment as Conductor as and when vacancy arises. His name was also included in the Badli list of workers and in pursuance thereof he was given employment and he was in continuous service for more than one year. While he was in continuous service, his services were terminated without giving him any opportunity. In this context, it was held by the Supreme Court that the order of termination was in violation of principles of natural justice. It is a case where the appellant was appointed and when once he was appointed he gets a right to continue in service unless there are reasons for termination of the services. Therefore, the judgment is distinguishable on facts and is not applicable to the facls of the present case.
26. The judgment in Vijayalakshmi's case (supra) is a case where the appellant's name was not included in the panel of selected name prepared on the ground that she adopted unfair means in the written examination although she stood first in the test held for selection to the post of Assistant Personnel Officer. The said conclusion was arrived at mainly relying on the opinion of Forensic Department that the answers sheets had been replaced. A show-cause notice was issued without supplying to the appellant a copy of the opinion based on which the conclusion reached. The Supreme Court held that deleting the name of the appellant from the panel of selected candidates without supplying a copy of the opinion and without giving an opportunity of being heard to explain her case is in violation of the principles of natural justice. However, from the judgment it appears that the judgment of the Supreme Court in Shankarsan Dash's case (supra) was not brought to the notice of the learned Judges. Further the name of the appellant was deleted from the select list on the ground that she has adopted unfair means in the written examination which is an insinuation made against her. In that context, it was held that deletion of the name of the appellant from the select list is in violation of principles of natural justice.
27. The judgment in Basudeo Tiwary's case (supra) is also distinguishable on facts as the appellant was working as a lecturer in a post sanctioned by the Government. At the time of taking over of the College by the University, the name of the appellant was not disclosed to the University although he was working in the College. His services were terminated on the ground that his appointment is contrary to the provisions of the Act, statutes, rules or regulations. In that context, the Supreme Court held that violation to furnish a copy of the report is in violation of principles of natural justice and the termination of the services of the petitioner is arbitrary and violative of Article 14 of the Constitution. This judgment is distinguishable on facts as the appellant was appointed to the post.
28. The learned Counsel for the petitioner Sri M.V. Ramana Reddy next contended relying on the Doctrine of Legitimate Expectation that since the name of the petitioner was recommended by the High Court to the Governor, before withholding or withdrawing the recommendation, it is necessary that an opportunity is given to the petitioner. While the learned Standing Counsel for the respondent No.2 submitted that in a case where the petitioner has right to appointment, the question of legitimate expectation does not arise. The Counsel for the petitioner relied on Union of India v. Hindustan Development Corpn., ; National Buildings Construction Corpn. v. S. Raghunathan, ; and Ghaziabad D.A. v. Delhi Auto & General Finance Pvt. Ltd., .
29. It is true the Supreme Court in Hindustan Development Corporation case (supra) held that:
"Legitimate Expectations made come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. By and large they arise in cases of promotions which are in normal course expected, though not guaranteed by way of a statutory right, in cases of contracts, distribution of largesse by the Government and in somewhat similar situations."
It is also held:
"Legitimate expectation gives the applicant sufficient locus standi for judicial review. The doctrine of legitimate expectation is to be confined mostly !o right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine docs not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise .....
Legitimate expectation being less than a right operates in the field of public and not private law and to some extent such legitimate expectation ought to be protected though not guaranteed. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits."
30. From the above, it is clear that the question of legitimate expectation arises only in cases of promotions which are in normal course expected and in cases of contracts, distribution of largess by the Government and in cases of promise or withdrawing an undertaking an it is less than a right and it arises when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The recommendation of the High Court in the present case recommending the name of the petitioner to the Governor for appointment as District and Sessions Judge Grade II can neither be treated as a promise or withdrawing an undertaking or a contract or distribution of largess by the Government or negativing the representation made by the High Court or by past practice aroused expectation. It is no doubt true that a right to legitimate expectation gives right to a fair hearing before decision is taken negativing a promise or withdrawing an undertaking. It is also no doubt true that absence of legitimate expectation will absolve the public authority from affording an hearing: In our view, the recommendation made by the High Court does not fall within any of the categories of cases enumerated by the Supreme Court in Hindustan Development Corporation case (supra) so as to attract the Doctrine of Legitimate Expectation and it is a mere hope or a wish. The Doctrine of Legitimate Expectation does not operate in the field of appointments. When the recommendation made by the High Court does not attract the Doctrine of Legitimate Expectation, it absolve the High Court from affording a hearing before withdrawing the recommendation. Therefore, there is no substance in this connection of the learned Counsel for the petitioner.
31. The judgment of the Supreme Court in Hindustan Corporation case (supra) is followed in National Buildings Construction Corporation case (supra) and in Ghaziabud Development Authority's case (supra). In the light of the view which we. have expressed, it is not necessary to refer to these judgments once again. No arguments were advanced by the learned Counsel for the petitioner as to why the High Court becomes functus officio after recommendation is made.
32. Coming to the actual facts, the contention of the petitioner is that he is working as a part-time lecturer in the Indira Priyadarshini Law College, Ongole and that he is practising in Kavali before the Sub-Judge. The distance between Kavali and Ongole is 65 Kms. It is practically impossible for the petitioner to travel 260 Kms., per day. Therefore, even taking into account the probabilities of the case, it would be improbable for the petitioner, if not impossible, to travel 260 Kms. in a day and work as a lecturer in the College and also attend to the Court work, even assuming that there are transport facilities available.
33. In any view of the matter, the writ petition has no merit and it is accordingly dismissed. No costs.