Supreme Court of India
K.Vijaya Lakshmi vs Govt.Of A.P.Tr.Sec.Home & Anr on 18 February, 2013
Equivalent citations: AIR 2013 SUPREME COURT 3589, 2013 (5) SCC 489, 2013 AIR SCW 1258, 2013 LAB. I. C. 2358, (2013) 1 GUJ LH 577, (2013) 138 FACLR 9, (2013) 3 LAB LN 21, (2013) 2 SCT 176, (2013) 2 SERVLR 286, (2013) 3 ANDHLD 97, (2013) 2 SCALE 557, (2013) 2 SERVLJ 270, 2013 (3) SCC (CRI) 330
Author: H.L. Gokhale
Bench: H.L. Gokhale, A.K. Patnaik
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 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 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 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.”
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:-
“…The 1st 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 1st 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 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) 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 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 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 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 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:-
“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:-
“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 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 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 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:
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.
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. 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:-
“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:
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) 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 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 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
Punjab Government. This Court called it as an act of ‘self-abnegation’.
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 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 sub-article
(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 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 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 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 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 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.
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 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 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 18th, 2013
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