Supreme Court of India
SMT. K. VIJAYA LAKSHMIversusGOVT. OF ANDHRA PRADESH REPRESENTED BY ITS SECRETARY HOME (COURTS C1) DEPARTMENT AND ANR.
- Citation
- 2013 INSC 107
- Decided
- 18 February 2013
- Disposal
- Disposed off
- Bench
- A K PATNAIK
Holding
The Supreme Court held that the State must place all relevant police reports before the High Court for meaningful consultation under Article 234, and that denial of appointment solely on alleged political affiliation without substantive evidence violates Articles 14 and 16, rendering the High Court's dismissal of the writ petition erroneous.
Summary
The appellant, an advocate, was selected for appointment as a Junior Civil Judge but was not appointed because the State Government relied on a police report alleging her and her husband’s links to a banned political party. The High Court dismissed her writ petition, holding that judicial review was unavailable and that the State’s decision was final. On appeal, the Supreme Court held that the State failed to fulfil the constitutional requirement of meaningful consultation under Article 234 by not forwarding all police investigation papers to the High Court, and that denying appointment solely on alleged political affiliation without concrete evidence violates Articles 14 and 16. The Court also affirmed that judicial review is permissible in appointment matters and that an advocate cannot be penalised for representing accused persons under Article 22(1) and the Advocates Act. Consequently, the Supreme Court set aside the High Court’s order, directed the State to place the police report before the High Court for consideration, and disposed of the writ petition.
Issues considered
- The adequacy of the High Court’s consultation with the State under Article 234 in the appointment of a civil judge.
- Whether denial of appointment on the basis of a police report alleging political affiliation violates Articles 14 and 16 of the Constitution.
- Whether judicial review is available in matters concerning appointment to the civil judiciary.
- Whether the appellant can be held liable for her husband’s alleged representation of accused persons under Article 22(1) and the Advocates Act.
- The requirement for the State to place all relevant police investigation papers before the High Court.
Legislation cited
- Advocates Act, 1961s. Section 49
- Andhra Pradesh State Judicial Service Rules, 2007s. Rule 10, s. Rule 11, s. Rule 4(1), s. Rule 4(2)(d), s. Rule 9
- Bar Council of India Ruless. Rule 11, s. Rule 15
- Constitution of Indias. Article 14, s. Article 16, s. Article 22(1), s. Article 233, s. Article 234, s. Article 235, s. Article 309, s. Article 320(3)
- Right to Information Act, 2005
Subjects
Article 234judicial appointmentpolitical affiliationjudicial reviewArticle 14Article 16Article 22civil judgehigh court consultationpolice reportadvocates' dutystate service rules
Judgment
[2013] 4 S.C.R. 364
A SMT. K. VIJAYA LAKSHMI
v.
GOVT. OF ANDHRA PRADESH REPRESENTED BY ITS
SECRETARY HOME (COURTS C1) DEPARTMENT AND
ANR.
B (Civil Appeal No.1389 of 2013)
FEBRUARY 18, 2013
[A.K. PAT.NAIK AND H.L. GOKHALE, JJ.]
C Constitution of India, 1950:
Article 234 - Appointment as Civil Judge denied - On
the basis of police report alleging association of the candidate
and her husband with banned political party - All the relevant
D papers of police investigation not placed by State
Government to the High Court on administrative side - State
itself took decision that her candidature could not be
considered in view of adverse police report - Held: Since the
complete papers were not placed before High Court on
administrative side, it cannot be said that there has been
E meaningful consultation with High Court as required u/Art. 234
- High Court administration thus failed in discharging its
responsibility u/Art. 234 - Direction to State Government to
place the Police Report before the High Court on the
administrative side.
F
Article 22(1) - Appointment as Civil Judge - Denied on
the basis of police report alleging association of candidate's
husband (an advocate) with a banned political party - Plea
of the candidate that her husband might have appeared as
G an advocate for some litigants belonging to that party - Held:
The candidate cannot be made to suffer for the role of her
husband who was discharging his duty as an advocate in
furtherance of fundamental rights provided u!Art. 22(1) of the
litigants - Also as per rules framed by Bar Council of India,
H 364
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 365
HOME AND ANR.
an advocate is bound to accept any brief and that it is duty of A
advocate to uphold the interests of his client - Constitution
of India, 1950- Article 22(1) - Advocates Act, 1961 - s. 49 -
Bar Council of India Rules - rr. 11 and 15 - Judicial Service.
Judicial Review - Concerning appointment of a civil 8
judge - Permissibility - Held: Judicial review in such matter
is permissible, if there is any breach or departure from Art.
234 or Judicial Service Rules - Constitution of India, 1950 -
Articles 226 and 234 - Judicial Service.
The appellant, who was a practicing advocate C
participated in the recruitment process for the post of
(Junior) Civil Judge. She was selected for the post and
her name appeared in the merit list. But she was not
appointed on the ground that her husband, a practicing
advocate was having close links with CPI (Maoist) Party D
which was a prohibited organization.
The appellant filed writ petition challenging the non-
inclusion of her name in the list of Junior Civil Judges,
as illegal, arbitrary and violative of Art.14 of the E
Constitution and she sought for mandamus to issue her
order of appointment. While contesting the petition, the
State Government alleged that the appellant too had close
links with CPI (Maoist) Party. The Division Bench of the
High Court dismissed the writ petition holding that when
F
the appointing authority i.e. State Government did not find
it fit to appoint the concerned candidate to the judicial
post, the High Court was not expected to interfere in that
decision; and that judicial review was not available in
matters where the State was exercising the prerogative
power. G
In appeal to this Court, a police report was produced
whereby it was alleged that the appellant was
sympathizer of CPI (Maoist) Party and was also a member
of Chaitanya Mahila Samakhya (CMS) a frontal H
366 SUPREME COURT REPORTS [2013] 4 S.C.R.
A organization of CPI (Maoist).
Disposing of the appeal, the Court
HELD: 1. The High Court erred on the administrative
side in discharging its responsibility under Article 234 of
B the Constitution, and then on the Judicial side in
dismissing the writ petition filed by the appellant. 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
C in that behalf can not therefore be sustained. There is no
material on record to show that CMS was a banned
organization or that the appellant was its member. It is
also not placed on record in which manner she had
participated in any of their activities, and through which
D programme she tried to intensify the activities of CMS, as
claimed in the report. 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
E appearing to oppose the police in criminal matters. [Para
27 and 29] [390-F-H; 391-A-B; 392-C-D]
2. To deny public employment to a candidate solely
on the basis of the police report regarding the political
F 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
unless there is clear material indicating the involvement
of the candidate in the subversive or violent activities of
G 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
H that there is no documentary proof that CMS is a frontal
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 367
HOME AND ANR.
organization of CPI (Maoist). As far as her connection A
with CPI (Maoist) is concerned, there is no material except
the report of police, the bonafides of which are very much
disputed by the appellant. [Para 25] [389-B-E]
State of Madhya Pradesh vs. Ramashanker 8
Raghuvanshi AIR 1983 SC 374: 1983 (2) SCR 393 - relied
on.
3. Those who participate 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 C
or detentions. The merit of a democracy lies in
recognizing the right of every arrested or detained
person to be defended by a legal practitioner of his
choice. Article 22(1) of the Constitution specifically lays
down that no person shall be denied the right to consult, D
and to be defended by a legal practitioner of his choice,
as a Fundamental Right. 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 E
contrary view in the facts of the present case will result
into making the appellant suffer for the role of her
husband who was discharging his duty as an advocate
in furtherance of this Fundamental Right of the arrested
persons. Rules 11 and 15 of the Rules framed by Bar F
Council of India also lay down that "an advocate is bound
to accept any brief' and that "it shall be the duty of an
advocate fearlessly to uphold the interests of his clients".
[Paras 19 and 20] [382-F-G; 383-B-C, F-H; 384-B]
A. S. Mohammed Rafi vs. State of Tamil Nadu 2011 (1) G
sec 688: 2010 (14) SCR 792 - relied on.
4.1. Article 234 of the Constitution requires a
meaningful consultation with the High Court in the matter
of recruitment to judicial service. In view of the mandate H
368 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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 form a relevant part of its consideration. [Para
25] [388-H; 389-A-B]
B
4.2. In the present case all the relevant papers of the
Police Investigation were not forwarded to the High Court
on the administrative side to facilitate its decision. On the
other hand, the Government itself had taken the decision
C 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
D 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
E be guided by the opinion of the High Court. 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
F 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.
G In the present case, the High Court has thrown up its
hands, and has not sought any more information from the
State Government. Since the report was neither
submitted to nor sought by the High Court, there has not
been any consideration thereof by the High Court
H Administration. Thus, there has not been any meaningful
K. VIJAYA LAKSHMI v. GOVT. OF A P. TR. SEC. 369
HOME AND ANR.
consultation with the High Court on the material that was A
available with the Government. The High Court
administration failed in discharging its responsibility
under Article 234 of the Constitution. [Paras 22 and 25]
[386-A-F; 389-E-F]
B
5. The High Court 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. The appointment to the post of a Civil
Judge is covered under Article 234 and the State Judicial C
Service Rules, and if there is any breach or departure
therefrom, a judicial review of such a decision can
certainly lie. [Para 26] [390-C-E]
Shamsher Singh vs. State of Punjab AIR 1974 SC 2192:
1975 (1) SCR 814 - followed. D
Union of India vs. Kali Dass Batish 2006 (1) SCC 779:
2006 (1) SCR 261 - distinguished.
K. Ashok Reddy vs. Govt. of India 1994 (2) SCC 303:
1994 (1) SCR 662 - held inapplicable. E
Council of Civil Service Union vs. Minister for the Civil
Service 1984 (3) All ER 935 - referred to.
6. The Court can not grant the mandamus sought by F
the appellant to issue an appointment order in her favour.
The final decision with respect to the selection is 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 G
decision, after due consideration thereof. Accordingly,
the State Government is directed to place the police
report (produced before the Division Bench of the High
Court) for consideration of the High Court on the
administrative side. [Paras 29 and 30] [392-D-H] H
370 SUPREME COURT REPORTS [2013) 4 S.C.R.
A Harpal Singh Chauhan vs. State of UP. 1993 (3) SCC
552: 1993 (3) SCR 969 - relied on.
Lerner v. Casey (1958) 357 US 468; Speiser vs. Randall
(1958) 357US 513; Shankarsan Dash vs. Union of India
B 1991 (3) SCC 47: 1991 (2) SCR 567; State of Bihar vs. Bal
Mukund Sah AIR 2000 SC 1296: 2000 (2) SCR 299;
Supreme Court A.O.R Association vs. Union of India (1993)
4 SCC 441: 1993 (2) Suppl. SCR 659- referred to.
Case Law Reference:
c 1994 (1) SCR 662 held inapplicable Para 9, 26
2006 (1) SCR 261 distinguished Para 9, 15,
16, 22, 29
1983 (2) SCR 393 relied on Para 13, 25
D
(1958) 357 us 468 referred to Para 14
(1958) 357 us 513 referred to Para 14
1991 (2) SCR 567 referred to Para 17
E
2010 (14) SCR 792 relied on Para 20
1975 (1) SCR 814 followed Para 23
2000 (2) SCR 299 referred to Para 24
F 1984 (3) All ER 935 referred to Para 26
1993 (2) Suppl. SCR 659referred to Para 26
1993 (3) SCR 969 referred to Para 29
G CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1389 of 2013.
From the Judgment & Order dated 19.03.2009 of the High
Court of Andhra Pradesh at Hyderabad in Writ Petition No.
H 26147 of 2008.
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 371
HOME AND ANR.
Ranjit Kumar, R. Venkataramani, G.V.R. Choudhary, K. A
Shivraj Choudhuri, A. Chandra Sekhar, G.N. Reddy, M.
Rambabu, S. Nagarajan, Ranjan Kumar, Aljo Joseph, Neelam
Singh, Supriya Garg, Shodhan Babu, Munawar Naseem, T.V.
Ratnam, G.N. Reddy for the appearing parties.
B
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. Leave Granted.
2. This appeal seeks to challenge the judgment and order
dated 19.3.2009 rendered by a Division Bench of Andhra c
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.
D
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 E
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 F
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 G
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 H
372 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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:
"/ am directed to invite your attention to the reference 2nd
cited, and to inform you that, adverse remarks were
B
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."
C 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
D 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
E 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
F 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 Dlo K.
G 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 (SI. No. 26 in the
H selected list) Dlo K. Balaguravaiah rlo Mangali Manyam,
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 373
HOME AND ANR. [H.L. GOKHALE, J.)
Markapur who is selected for the post of Junior Civil A
Judge and her husband Srinivasa Chowdary s/o
Sambasiva Rao who is practicing as an advocate in the
Courts at Markapur· are having close Jinks with CPI
(Maoist) Party, which is a prohibited organization and a/so
in touch with UG cadre of the CPI (Maoist) Party. B
Further it is submitted that the CPI (Maoist) is a prohibited
Organization by the Government and as the candidate
Smt. K. Vijaya Lakshmi Si. No.26 in the selected list DI
o K. Balaguravaiah rlo Manga/i Manyam, Markapur and C
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 D
of Junior Civil Judge."
7. The appellant filed a rejoinder on 8.2.2009, and denied
all the allegations as being false and incorrect.
E
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
F
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 G
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 H
374 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G 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
H judgment that 'the allegations appearing from the antecedent
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 375
HOME AND ANR. [H.L. GOKHALE, J.)
verification report show links/associations with the banned A
organization'. The Division Bench relied upon judgment of this
court in K. Ashok Reddy Vs. Govt. of India reported in 1994
(2) sec 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 B
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) sec 779 to the effect that when the
appointing authority has not found it fit to appoint the concerned c
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 D
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 (l/C).
A document titled 'Report over the activities of CPI (Maoist) E
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:- F
"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.
G
She is a member of Chaitanya Mahi/a 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
H
376 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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,
B 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 Mahi/a Samakhya is a frontal organization to
the CPI (Maoist) except the above publication in A.P.
C Police Vachakam part Ill."
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
0 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
E 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-tides of the police department in making the adverse
report, and relied upon the resolutions passed by various bar
F 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.
G 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
H
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 377
HOME AND ANR. [H.L. GOKHALE, J]
husband of the appellant was having close links with CPI A
(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 8
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. C
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 D
court of Madhya Pradesh quashed that termination order, for
being in violation of Article 311 of the Constitution. This Court
(per 0. 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 E
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. F
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:- G
" ..... .Politics is no crime'. Does it mean that only
True Believers in the political faith of the patty in power
for the time being are entitled to public employment? ..... .
Most students and most young men are exhorled by
H
378 SUPREME COURT REPORTS [2013] 4 S.C.R.
A national leaders to take part in political activities and if
they do get involved m 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
B 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?"
c
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.
D
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.
E 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
F 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
G 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
H
K. VIJAYA LAKSHMI v. GOVT OF A. P. TR. SEC. 379
HOME AND ANR. [HL GOKHALE, J.)
action that we have here. It is government action that the A
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, B
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 C
ideas we despise ....... "
Ultimately this Court dismissed that petition. What it observed
in paragraph 1O thereof, is equally relevant for our purpose.
This para reads as follows:- D
"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 E
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."
F
15. Mr. Venkataramni, learned senior counsel appearing
for the respondents, on the other hand, drew our attent!on to
the judgment of a bench of three judges of this Court in Union
of India Vs. Kali Dass Balish (supra), which was relied upon
by the Division Bench. That was a case where the first G
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), H
380 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B
cases and asked the Advocate General to shift him to
some other court, which was done. (iii) He was a
contender for the Shim/a 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
c 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
D headed :Jy 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
E 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.
F 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
G 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
H 6(3) thereof. That, having been done, and the first respondent
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 381
HOME AND ANR. [H.L. GOKHALE, J.]
having not been found suitable, there was no case for A
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 B
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
c
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 D
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 E
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 F
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 G
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
H
382 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
8 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
C 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
o 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
E 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.
F 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
G 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
H cases- (1) No person who is arrested shall be detained
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 383
HOME AND ANR. [H.L. GOKHALE, J.]
in custody without being informed, as soon as may be, A
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) 8
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 C
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, D
arrested or detained. In the post independence era we may
refer, in this behalf, to the valuab!e 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 E
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
F
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 G
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 H
384 SUPREME COURT REPORTS [2013] 4 S.C.R.
A with his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept
a particular brief.
B 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
C 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 AS. Mohammed Rafi Vs. State of Tamil Nadu reported in
0 2011 (1) sec 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
E 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:
F
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
G 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
H judges to the judicial service - Appointment of oersons
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 385
HOME AND ANR. [H.L. GOKHALE, J.]
other than district judges to the judicial service of a State A
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." B
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 C
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 D
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 E
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 F
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 G
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 H
386 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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
c 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
D 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
E 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
F other approach will mean that whatever is slated 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
G 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-
H abnegation'. Para 78 of this judgment reads as follows:-
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 387
HOME AND ANR. [H.L. GOKHALE, J.]
"78. The High Court for reasons which are not stated A
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 B
subordinate judiciary are not only under the control of the
High Court but are a/so 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 c
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
0
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 E
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 F
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 G
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 I/I and thereafter
H
388 SUPREME COURT REPORTS (2013] 4 S.C.R.
A 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
B 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
c '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
D
'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
E 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
F 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.·
G
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
H High Court in the matter of recruitment to judicial seivice. In view
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 389
HOME AND ANR. [H.L. GOKHALE, J.]
of the mandate of Article 234, High Court has to take a decision A
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 B
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 c
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 0
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.
E
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 F
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 G
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), H
390 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B 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
c A.0.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
0
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.
E 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
F 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
G 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
H oppose the police in criminal matters. Prima facie, on the basis
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 391
HOME AND ANR. [H.L. GOKHALE, J.]
of the material on record, it is difficult to infer that the appellant A
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,
B
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 C
discharged. The relevant rules of the Andhra Pradesh State
Judicial Service being Rule Nos. 9, 10 and 11 read as follows:-
119_ Probation and officiation:
(a) Every person who is appointed to the category of D
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 E
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. F
(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) G
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
H
392 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 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
B
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."
c
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
D 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
E Singh Chauhan Vs. State of UP. reported in 1993 (3) SCC
552, the court can examine whether there was any infirmity in
the decision making process. The final decision with re.spec!
to the selection is however to be left with the appropriate
authority. In the present matter the Division Bench ought to have
F 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
G 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
H
K. VIJAYA LAKSHMI v. GOVT. OF A. P. TR. SEC. 393
HOME AND ANR. [H.L. GOKHALE, J.]
this judgment. The selection committee of the High Court shall, A
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 B
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. c
K.K.T. Appeal disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Article 234"Sign in to search