1976 JTR(SC) 493
1977 AIR(SC) 276 ; 1977 KLT(SN) 1 ; 1977 LIC 52 ; 1977 1 SCC 486 ; 1977 SCC(L&S) 166 ; 1977 1 SCJ 455 ; 1977 2 SCR 361 ; 1977 1 SLR 272 ; 1977 UJ 89 ; 1977 KHC 1
SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG, JASWANT SINGH, JJ.
Mani Subrat Jain etc. etc., Appellants
Versus
State of Haryana and others, Respondents.
Civil Appeals Nos. 1987-1988 of 1976,
D/- 9-12-1976.
Advocates appeared
Mr. G. L. Sanghi, Sr. Advocate, (in C. A. 1988/76), (M/s. Hardev Singh, B. Datta and R. S. Sodhi, Advocates with him), for Appellants; Mr. Niren De, Attorney General Mr. Devan Chetan Das, Advocate-General, (M/s. Prem Malhotra and R. N. Sachthey, Advocates, with them), for Respondents Nos. 1 & 2; Mr. Anand Swarup, Sr. Advocate, (Mrs. S. Bhandare, Advocate, with him), for Respondent No. 3.
Act Referred :CONSTITUTION OF INDIA : Art.226, Art.233
Constitution of India, 1950 - Article 233 - Posts of Additional District and Sessions Judge - Exclusive jurisdiction of Government – Employment and service - Appellants in writ petitions asked for a mandamus directing Respondents Nos. 1 and 2 to appoint appellants to posts of Additional District and Sessions Judge - Appellants also asked for a mandamus or an appropriate writ quashing orders of Respondents Nos. 1 and 2 whereby High Court was informed that Government was not prepared to appoint appellants to posts of Additional District and Sessions Judge - Respondent No. 1 is State - Respondent No. 2 is Chief Minister - Respondent No. 3 is High Court - High Court dismissed petitions on ground that appellants had no locus standi to file petitions - Reason given by High Court is that appellants were not appointed and they had no right to be appointed - They had also no right to know why they were not appointed - High Court by letter invited applications from eligible members of Bar to fill up two vacancies in quota of direct recruits from the Bar in Superior Judicial Service - High Court called for interview nine candidates on October - High Court thereafter recommended to Government names of appellants for appointment as District/Additional District and Sessions Judges – Held, Court has also held that consultation of Governor with High Court does not mean that Governor must accept whatever advice or recommendation is given by High Court - Article 233 requires that Governor should obtain from High Court its views on the merits and demerits of persons selected for promotion and direct recruitment - In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to Government to choose a candidate for appointment by direct recruitment or by promotion unless and until his name is recommended the High Court – There is an observation that Government could tell High Court its reasons for not accepting recommendations of High Court in regard to certain persons - Observation in case was made in facts and circumstances of that case and in particular controversial correspondence - In present case Government pointed out that High Court had not written to Government about proposed appointments before issuing advertisements therefore - In any event after Government communicated to High Court that recommendations were not accepted a new situation developed - Government asked High Court to issue advertisements and to invite applications for appointment to posts - High Court accepted that position and acted upon it - High Court issued advertisements - Attitude of High Court has been peculiar - When High Court decided to ask for fresh applications High Court also accepted position that original recommendations which had been made by High Court were not accepted by State Government and yet High Court supported before this court appellants case by pleading for candidature of appellants - High Court should not take a partisan view by supporting candidature of any person - Court were a little surprised that High Court supported appellants - This is not proper particularly when High Court dismissed writ petitions of appellants - Appeals are dismissed
Constitution of India, 1950 - Article 233 - Posts of Additional District and Sessions Judge - Exclusive jurisdiction of Government – Employment and service - Appellants in writ petitions asked for a mandamus directing Respondents Nos. 1 and 2 to appoint appellants to posts of Additional District and Sessions Judge - Appellants also asked for a mandamus or an appropriate writ quashing orders of Respondents Nos. 1 and 2 whereby High Court was informed that Government was not prepared to appoint appellants to posts of Additional District and Sessions Judge - Respondent No. 1 is State - Respondent No. 2 is Chief Minister - Respondent No. 3 is High Court - High Court dismissed petitions on ground that appellants had no locus standi to file petitions - Reason given by High Court is that appellants were not appointed and they had no right to be appointed - They had also no right to know why they were not appointed - High Court by letter invited applications from eligible members of Bar to fill up two vacancies in quota of direct recruits from the Bar in Superior Judicial Service - High Court called for interview nine candidates on October - High Court thereafter recommended to Government names of appellants for appointment as District/Additional District and Sessions Judges – Held, Court has also held that consultation of Governor with High Court does not mean that Governor must accept whatever advice or recommendation is given by High Court - Article 233 requires that Governor should obtain from High Court its views on the merits and demerits of persons selected for promotion and direct recruitment - In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to Government to choose a candidate for appointment by direct recruitment or by promotion unless and until his name is recommended the High Court – There is an observation that Government could tell High Court its reasons for not accepting recommendations of High Court in regard to certain persons - Observation in case was made in facts and circumstances of that case and in particular controversial correspondence - In present case Government pointed out that High Court had not written to Government about proposed appointments before issuing advertisements therefore - In any event after Government communicated to High Court that recommendations were not accepted a new situation developed - Government asked High Court to issue advertisements and to invite applications for appointment to posts - High Court accepted that position and acted upon it - High Court issued advertisements - Attitude of High Court has been peculiar - When High Court decided to ask for fresh applications High Court also accepted position that original recommendations which had been made by High Court were not accepted by State Government and yet High Court supported before this court appellants case by pleading for candidature of appellants - High Court should not take a partisan view by supporting candidature of any person - Court were a little surprised that High Court supported appellants - This is not proper particularly when High Court dismissed writ petitions of appellants - Appeals are dismissed
Appointment - This case was cited for the proposition that the Governor is not bound to accept the High Court's recommendation for appointment of District Judges under Article 233.
Appointment - This case was distinguished on the ground that it does not support the contention that the Governor must accept the High Court's recommendations or give reasons for rejecting them.
Mandamus - This case was relied upon to establish the principle that a writ of mandamus cannot be issued without a judicially enforceable legal right.
Appointment - This case was cited but its observation that the government could give reasons for not accepting recommendations was limited to its specific facts.
Mandamus - This case was cited as an authority for the proposition that a mandamus requires a legal right and a corresponding legal duty.
Appointment - This case was relied on by the appellant but the court noted it does not support the contention that the Governor must accept recommendations.
Appointment - This case was relied on by the appellant but the court noted it does not support the contention that the Governor must accept recommendations.
Appointment - This case was cited for the observation that the government could inform the High Court of its reasons for not accepting recommendations, limited to its facts.
ANAND SWAROOP, B.DUTTA, B.L.HARDEV SING, DVARAKA DAS, G.L.SANGHI, NIREN DEY, PRIM MALHOTRA, R.J.F.SUCHTHTY, R.S.SODHI, S.BHANDAVAT
Judgment
RAY, C.J.I.:- These appeals are by special leave against the judgment dated 25 March, 1975 of the Punjab and Haryana High Court dismissing the writ petitions.
2. The appellants in the writ petitions asked for a mandamus directing Respondents Nos. 1 and 2 to appoint the appellants to the posts of Additional District and Sessions Judge. The appellants also asked for a mandamus or an appropriate writ quashing the orders of Respondents Nos. 1 and 2 whereby the High Court was informed that the Government was not prepared to appoint the appellants to the posts of Additional District and Sessions Judge.
3. Respondent No. 1 is the State of Haryana. Respondent No. 2 is the Chief Minister of Haryana. Respondent No. 3 is the High Court of Punjab and Haryana.
4. The High Court dismissed the petitions on the ground that the appellants had no locus standi to file the petitions. The reason given by the High Court is that the appellants were not appointed and they had no right to be appointed. They had also no right to know why they were not appointed.
5. The High Court by letter dated 19 February, 1972 invited applications from eligible members of the Bar to fill up two vacancies in the quota of direct recruits from the Bar in the Haryana Superior Judicial Service. The High Court called for interview 9 candidates on 18 October, 1972.
6. The High Court thereafter recommended to the Haryana Government the names of the appellants for appointment as District/Additional District and Sessions Judges.
7. After 27 months the Government rejected the recommendation of the High Court. Thereupon the appellants filed writ petitions challenging the order of rejection and asked for mandamus for appointment.
8. There is a letter dated 8 September, 1972 from the Chief Secretary to the Government of Haryana to the Registrar of the High Court. In that letter the Government took exception to the inviting of applications form members of the Bar without the High Court having first obtained the approval of the Government for that purpose. The letter also stated that in the past two occasions the High Court obtained the approval of the State Government before inviting applications.
9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. (See Halsburys Laws of England 4th Ed. Vol. I, paragraph 122); State of Haryana v. Subash Chander, (1974) 1 SCR 165; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahemd, (1976) 3 SCR 58 and Ferris Extraordinary Legal Remedies paragraph 198.
10. The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
11. Counsel for the appellants relied on the decisions of this Court in Chandra Mohan v. State of Uttar Pradesh, (1967) 1 SCR 77; Chandramouleshwar Prasad v. Patna High Court, (1970) 2 SCR 666 and A. Panduranga Rao v. State of Andhra Pradesh, (1976) 1 SCR 620 in support of two contentions. First, the Governor should accept the recommendations made by the High Court. Second, if the Governor will not accept the recommendations he should give reasons for not accepting the recommendations. None of the decisions supports the contentions.
12. In these three cases the scope and content of Article 233 was examined. This Court has held that the Constitution contemplates consultation of the Governor with the High Court inasmuch as the High Court is in a position to express views on the judicial work of persons who are recommended for appointment to the posts of District Judges. The High Court knows the merits and demerits of persons who will be promoted from the service to the post. The High Court interviews persons who will be appointed by direct recruitment. The High Court in those circumstances will select candidates for promotion and direct recruitment and send their names to the Government.
13. This Court has also held that the consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice or recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons, selected for promotion and direct recruitment.
14. In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to the Government to choose a candidate for appointment by direct recruitment or by promotion unless and until his name is recommended by the High Court.
15. In Panduranga Raos case (AIR 1975 SC 1922) (supra) there is an observation that the Government could tell the High Court its reasons for not accepting the recommendations of the High Court in regard to certain persons. The observation in Panduranga Raos case (supra) was made in the facts and circumstances of that case and in particular the controversial correspondence.
16. In the present case the Government pointed out that the High Court had not written to the Government about the proposed appointments before issuing advertisements therefor. In any event, after the Government communicated to the High Court that the recommendations were not accepted a new situation developed. The Government asked the High Court to issue advertisements and to invite applications for appointment to the posts. The High Court accepted that position and acted upon it. The High Court issued the advertisements.
17. The attitude of the High Court has been peculiar. When the High Court decided to ask for fresh applications the High Court also accpeted the position that the original recommendations which had been made by the High Court were not accepted by the State Government and yet the High Court supported before this court the appellants case by pleading for the "candidature" of the appellants. The High Court should not take a partisan view by supporting the candidature of any person. We were a little surprised that the High Court supported the appellants. This is not proper particularly when the High Court dismissed the writ petitions of the appellants.
18. For the foregoing reasons the appeals are dismissed. There will be no order as to costs.
Appeals dismissed.
For Citation : AIR 1977 SC 276