Full Judgment Text
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PETITIONER:
A. PANDURANGA RAO
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH & ORS.
DATE OF JUDGMENT02/09/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1975 AIR 1922 1976 SCR (1) 620
1975 SCC (4) 709
CITATOR INFO :
RF 1977 SC 276 (11,15)
R 1980 SC1426 (13)
R 1987 SC 331 (19,24,25)
ACT:
Constitution of India-Art. 233(2)-Scope of.
HEADNOTE:
Under Article 233(2) of the Constitution a person not
already in service of the Union or of the State shall only
be eligible to be appointed a District Judge, if he has been
for not less than 7 years an advocate or pleader and is
recommended by the High Court for appointment.
After interviewing a large number of candidates to fill
six posts of District Judges the High Court recommended six
persons as the most suitable candidates from among the
applicants. The appellant was one of’ them. This
recommendation having leaked out, the Government requested
the High Court to send a list of persons whom the High Court
considered to have reasonable claims to the appointment.
’The High Court sent the entire list of the candidates
interviewed by it with the marks obtained by them, but
without offering any remarks. Treating the entire list of
candidates sent by the High Court as candidates recommended
by it in the order of merit, respondents 3 to 6 were
selected, in addition to two candidates earlier recommended
by the High Court. The appellant’s name did not find place
in the final list. He, therefore moved the High Court
contending that respondents 3 to 6 were appointed in
violation of the provisions contained in Art. 233. The High
Court dismissed the petition holding that the entire list of
the candidates should be taken as recommended by the High
Court.
Allowing the appeal to this Court,
^
HELD :In the case of appointment of District Judges
from the Bar it is not open to the Government to choose a
candidate for appointment unless and until this name is
recommended by the High Court. The word ’recommend’ means
"suggest as rut for employment."
(2) ’The Government was not bound to accept all the
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recommendations made by the High Court but could tell the
High Court its reasons for not accepting its recommendations
in regard to certain persons. If the High Court agreed with
the reasons in case of a particular person the
recommendation in his case stood withdrawn and there was no
question of appointing him. But it was certainly wrong and
incompetent for the Government to write to the High Court
and ask it to send the list of persons whom it considered to
have reasonable claim to the appointment. It was very much
wrong on the part of the High Court to forward the entire
list of the candidates interviewed with the marks obtained
by them and adding at the same time that the High Court had
no further remarks to offer.. ’The reply sent by the High
Court was by no means a recommendation of the High Court of
all the candidates interviewed that all of them had
reasonable claims or in other words were fit to be appointed
as District Judges. [623 H; 624 B, D-E]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967] 1
S.C.R. 77, referred to
(3) Respondents 3 to 6 were not eligible to be
appointed as District Judges as their names had never been
recommended by the High Court. [625-A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2059 of
1974.
Appeal by special leave from the Judgment and order
dated the 10th June, 1974 of the Andhra Pradesh High Court
in Writ Petition No. 895 Of 1974
621
P.A. Chowdhary and K. Rajendra Chaudhury, for the
appellant.
P. Ram Reddy and P. P. Rao, for respondent No. 1.
A. V. Rangam and A. Subhashini, for respondent No. 2.
G. Narasimhulu, for respondents Nos. 3, 5 and 6.
G. N. Rao, for respondent No. 4.
A. V. K. Rao, the intervener, appeared in person.
The Judgment of the Court was delivered by
UNTWALIA, J.-In this appeal by special leave we are
once again called upon to lay down the meaning and scope of
Article 233 of the Constitution of India relating to the
appointment of District Judges. This Article alongwith other
Articles in Chapter VI of Part VI of the Constitution came
up for consideration and was interpreted by this Court on
several occasions in the past, yet, a Bench of the High
Court of Andhra Pradesh in its judgment under appeal felt
persuaded to take a wholly erroneous view as to the meaning
of the Article and committed a serious error in the
application of the principles of law settled by this Court
to the facts of the instant case.
We shall state the facts in a narrow compass shorn of
unnecessary details. On 3-1-1972 the Government of Andhra
Pradesh, respondent No. 1 was requested by the High Court,
respondent No. 2, to take necessary steps "for filling up
six vacancies by notifying six posts of District and
Sessions Judges, Grade II for direct recruitment." By a D.O.
letter dated 14-9-1972 the first respondent informed the
second respondent that the six vacancies were being notified
for direct recruitment. They were actually notified in the
Gazette of that date. With the approval of the High Court,
an advertisement was published on 1-8-1972 in the Deccan
Chronicle. The total number of applications received in
response to the advertisement was 381. Twenty six
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applications were found to be not in order and rejected. The
remaining 355 candidates were called by the High Court for
interview. 92 did not turn up and the remaining 263 were
interviewed by the Selection Committee of the High Court on
various dates. Shri A. Panduranga Rao, the sole appellant in
this appeal was one of the candidates interviewed on 14-6-
1973.
The High Court eventually made its recommendations in
its D.O. letter dated 13-7-1973 recommending in order of
merit six persons "as most suitable candidates from among
the applicants, for being appointed as District and Sessions
Judges, Grade II." This letter was written by the Registrar
of the High Court as directed "by the Hon’ble the Chief
Justice, and the Hon’ble Judges of the Andhra Pradesh High
Court." The appellant’s name was the fifth amongst the six
names recommended.
Although it is not very relevant to say so, just to
complete the link in the chain of relevant events, it may be
stated here that the recommendations made by the High Court
seems to have leaked out. Whoever might have been
responsible for this leakage it was all the same a very
unfortunate thing. This led the Bar Association City Civil
Court, Hyderabad and the High Court Bar Association to pass
certain
622
resolutions and to send certain memoranda to the Government
even to the extent of making some adverse comments against
some of the persons recommended by the High Court for
appointment. On receipt of the same, Government wrote a D.O.
letter to the High Court on 24-7-1973 expressing surprise at
the leakage of secret information but at the same time
inviting the High Court to send its comments. The High Court
sent a detailed reply and comments in its D.o. letter dated
26-7-1973 pointing out that the leakage of the secret
information could not be possible at the High Court end. It
is not necessary for us to advert to the comments or
resolutions of the Bar Associations or the views of the
High, Court expressed in its letter dated 26-7-1974.
We now come to the relevant letters in question. A D.o.
letter dated 26-7-1973 was written by the Government to the
High Court with reference to the latter’s letter of
recommendation dated 13-7-1973. We may point out here that
this letter dated 26-7-1973 was written by the Government
without any reference to, and in all probability, before the
receipt of the High Court’s letter dated 26-7-1973 in reply
to the Government’s of 24-7-1973. In the Government’s letter
dated 26-7-1973 attention of the High Court was invited to
Instruction 12(5) of the Secretariat instructions and a
request was made "to send the list of persons whom the High
Court considered to have reasonable claims to the
appointment or suitable therefore the posts of District and
Sessions Judges, Grade II alongwith remarks regarding the
qualifications and claims of the several persons in the
list." It may be stated here that as usual the
correspondence was going on between the Chief Secretary on
behalf of the Government and the Registrar on behalf of the
High Court. The latter in reply to the former’s letter dated
26-7-1973 sent the following reply on 1-8-1973:
"Your letter reached me on 28-7-1973. With
reference to your above letter dated 26-7-1973, I have
been directed to forward the entire list of the
candidates interviewed by the High Court, with the
marks obtained by them. the High Court has no further
remarks to offer. All the applications of the
candidates sent by you are returned separately."
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Thereupon the Government wrote D.o. letter dated 30-11-
1973 to the Chief Justice of the High Court intimating that
Government had decided to select the six candidates
mentioned in that letter for filling up the six vacancies.
Out of the persons so selected two were those who had been
recommended by the High Court alongwith four others in its
letter dated 13-7-1973. They were serials 1 and 4. Four out
of the six were not appointed and in their place, as it
appears, treating the entire list of 263 as a list
recommended by the High Court in order of merit persons at
serials 9, 12, 13 and 16 were selected by the Government for
appointment. And finally orders appointing the six persons
so selected were issued on 7-12-1973. Several writ
applications were filed in the High Court to challenge the
appointments made by the Government. We are in this appeal
concerned with the judgment of the High Court dismissing the
Writ Petition No. 895/1974 filed by the appellant to
challenge the appointment of only four viz.,, respondents 3
to 6 and the non-appointment of the appellant. His case was
that respondents 3 to
623
6 were appointed in violation of the constitutional
provision contained in Article 233 and that he was not
appointed on grounds which are unsustainable in law. The
High Court has taken the view that the appointments have
been made by the Government consistent with the requirement
of Article 233(2) out of the entire list of 263 recommended
by the High Court. The appellant’s claim on merits for
appointment to the post has not found favour with the High
Court. In the view which we take as to the violation of
Article 233 in this case, we would not like, nor is it
necessary to do so, to examine the claim of the appellant
for appointment in one of the six vacancies.
It would be convenient to read once again Article 233
of the Constitution. "
(1) Appointments of persons to be, and the 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.
(2) A person not already in the service of the
Union or of the State shall only be eligible to be
appointed 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."
As pointed out at page 89 by this Court in Chandra Mohan v.
State of Uttar Pradesh & Ors (1)
"There are two sources of recruitment, namely, (1)
service of the Union or of the State, and (ii) members
of the Bar. The said judges from the first source are
appointed in consultation with the High Court and those
from the second source are appointed on the
recommendation of the High Court."
A candidate for direct recruitment from the Bar does
not become eligible for appointment without the
recommendation of the High Court. He becomes eligible only
on such recommendation under clause (2) of Art. 233. The
High Court in the judgment under appeal felt some difficulty
in appreciating the meaning of the word "recommend". But the
literal meaning given in the Concise oxford Dictionary is
quite simple and apposite. It means "suggest as fit for
employment." In case of appointment from the Bar it is not
open to the Government to choose a candidate for appointment
until and unless his name is recommended by the High Court.
The recommendation of the High Court for filling up the
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six vacancies was contained in its letter dated 13-7-1973.
Government was not bound to accept all the recommendations
but could tell the High Court its reasons for not accepting
the High Court’s recommendations in regard to certain
persons. If the High Court agreed with the reasons in case
of a particular person the recommendation in his case stood
with drawn and there was no question of appointing him. Even
if the High
(1) [1967] 1 S.C.R. 77.
624
Court did not agree the final authority was the Government
in the matter of appointment and for good reasons it could
reject the High Court’s recommendations. In either event it
could ask the High Court to make more recommendations in
place of those who have been rejected. But surely it was
wrong and incompetent for the Government to write a letter
like the one dated 26-7-1973 inviting the High Court’s
attention to Instruction 12(5) of the Secretariat
instructions and on the basis of that to ask it to send the
list of persons whom the High Court considered to have
reasonable claims to the appointment. On the basis of the
furore created by two Bar Associations of Hyderabad and the
High Court’s letter dated 26-7-1973 written in reply to the
Government’s letter dated 24-7-1973 no person’s candidature
recommended by the High Court had been rejected when the
letter dated 26-7-1973 was written by the Government. Even
after rejection the Government could not ask the High Court
to send the list of all persons whom the High Court
considered to have reasonable claim to the appointment We
feel distressed to find that instead of pointing out the
correct position of law to the Government and itself acting
according to it, a letter hike the one dated 1-8-1973 was
sent by the High Court in reply to the Government’s letter
dated 26-7-1973. It is not clear from this letter whether it
was written under the direction of the Chief Justice alone
or under the directions of Chief Justice and the other
Judges of the High Court as in the case of the letter dated
13-7-1973. But surely it was very much wrong on the part of
the High Court to forward the entire list of the candidates
interviewed with the marks obtained by them and adding at
the same time that the High Court had no further remarks to
offer. We could not understand the reason for writing such a
letter by the High Court. But if we may hazard a surmise it
seems to have been written in utter disgust at the
Government’s unreasonable attitude displayed in its letter
dated 26-7-1973. By no means could it be, nor was it, a
recommendation by the High Court of all there 263 candidates
interviewed, that all of them had a reasonable claim, or in
other words, were fit to be appointed District Judges. We
must express our displeasure at and disapproval of all that
happened between the Government and the High Court in the
former writing the letter dated 26-7-1973 and the letter
sending the reply dated 1-8-1973.
Then comes the letter dated 30-11-1973. After tracing
the history of the recommendation made by the High Court in
its letter dated l 3-7-1973 and "in the light of the further
information about these candidates as required from High
Court", Government decided to select the six candidates
mentioned therein including respondents 3 to 6 as if they
were from "the list recommended by the High Court . It was
further stated in this letter "Reasons for not selecting
candidates placed by the High Court higher than those now
selected are given in the annexure enclosed to this D.o.
letter." The High Court, to be more accurate, the Chief
Justice to whom the letter dated 30-11-1973 was addressed
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seems to have not resented or protested against the
selection so made by the Government in clear violation of
Article 233 of the Constitution. We find it intriguing that
the letter written by the Registrar of the High Court on 1-
8-1973 was treated as a recommendation of all the 263
candidates as having been found fit for appointment as
District Judges. By no means could it be so. It was not so.
And yet the High Court or the
625
Chief Justice did not object to the appointment of
respondents 3 to 6 as District Judges. They were not
eligible to be so appointed as their names had never been
recommended.
In the result we allow this appeal and set aside the
judgment of the High Court. The writ application filed by
the appellant succeeds only to this extent that the
appointments of respondents 3 to 6 are quashed. The four
posts manned by them are declared vacant. There will be no
order as to costs.
P.B.R. Appeal allowed.
626