MANI SUBRAT JAIN ETC. versus STATE OF HARYANA AND ORS.

MANI SUBRAT JAIN ETC.

. STAIB OF HARYANA AND ORS. December 9, 1976

[A. N. RAY, CJ .• M. H. BEG AND JASWANT SINGH JJ.]

ColUlltutlon of Indio-Writ -of mandamu:t, when can be mlN for-Article 233,. 1eope of-Direct recruitment of Di.rtrict J11dges--Whether Governor bound to- llCCept recommendation of High Court.

The Haryana High Court invited applications and interviewed candidates foc fillln,. np vacancie& in the quota of direct recruits from tho bar. in the Haryana Superior Judicial Service. Tho umes of the appellants were recommended to the State _ Government who rejected them and asked tho High Court to invite applications again. Accepting the position, the High Court issued the advertise~ menta. The appellants filed petitiollJ agairut the order rejecting their names and l..il:od for mandamu.J for appointmenL Tho. n.me were dismiued by the High Court oa the ll!"Ound that the appcllanto had ao locUJ sttmdl.

Diami•ainz tho .ppU.t.. tho Court,

Hu.D i (I) Thero mwt be judicially onforceablo right u well u. legally prcMected right before OJIC 1ufferia1 legal Jrieyance can a.!t for mantiamll.1. penon can be ta.id to be aggrieved only when he is denied lei:al right by some one who ~ legal duty to do aom.ething or to ·abstain frODJ. doing somctklq. (3620-H. 363A-BJ , • .

Stote of Haryan• ... SM~a.rh ChalUlu Marwaha & Or>. [1914) 1 S.C.R. 165; Jasihlli Uotibhai Desai "'· Ro~han Kumar Haji Bashir Ahmed Ors. [1976] 3 S.C.R. 58; Halsbury'• Law• of England 4th Ed. Vol. I, pargraph 122 and Ferris Extr•-orrlina"Y ugal Remedi", paragraph 198, applied •.

(2) The initial appointmeot of District Judges under Article 233 is within· the: exclusive jurisdiction of the Go"Yermnent after consultation with the High Govrt though the consultation does :aot mean that the GoYernor must accept whateTer advice or recommendation is given by the High Court. Article 233 only requires that the Governor should obtain from the High Court its views-ca the merit.! and demcrita of perso:m, aelected for promotion. ud direct recruit.. Sl<lll. [363A·B. F-OJ

Chandra Mohan ... Stale of Uttar Pradesh & Ors. [1967] 1 S.C.R. 77; Chandramouleshwar Pra.Jad T. Patna High Court & Ors. (1970] 2 S.C.R. 666 and A. Panduranga Rao v. Stal< of Andhra Pradesh & Ors. [1976] 1 S.C.R. 620, referred to.

- 0:vIL APPELLATE JURISDICTION: Civil Appeals Nos.1987-1988 of 1976.

(Appeals by Special Leave from the Judgment and Order dated the 25-3-1975 of the Punjab and Haryana High Court in Civil Writ Petn. Nos. 1228 & 1229 of 1975).

G. L. Singh, in CA 1988/76 with Hardev Singh, B. Datta and N. S. Sodhi, for the appellants.

Niren De; Attorney General with Devan Chelan Dar, Adv. Gene-ral, Prem Malhotra and R. N. Sachthey, for respondents Nos. 1 & 2.

The Judgment of the Court was delivered by

RAY, C.J. These appeals are by special leave against the judg-ment dated 25 March, 1975 of the Punjab and Haryana High Court dismissing the writ petitions.

The ap~llants in the writ petitions asked for mandamus direct-ing Respondents No. 1 and 2 to appoint the appellants to the posts of Additional District and Sessions Judge. The appellants also asked for mandamus or an appropriate writ quashing the orders of Res-pondents No. 1 and 2 whereby the High Court was informed that the Government was not prepared to appoint the appellants to the post of Additional District and Sessions Judge.

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.

The High Court dismissed the petitions on th~ 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.

The High Court by letter dated 19 February, 1972 invited appli-cations 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.

· The High Court thereafter recommended to the Haryana Govern-ment the names of the appellants for appointment as District/ Addi-tional District & Sessions Judges.

After 27 months the Government rejected the recommendation of the High Court. Thereupon the appellants :Ii.led writ petitions challenging the order of rejection and asked for mandamus for appointment.

There is Jetter dated 8 September, 1972 from the Chief Secre-tary to the Government of Haryana to the Registrar of the Hi~ Court. In that letter the Government took exception to the inviting of applications from members of the Bar without the High Court having first obtained the approval of the Government for. that puroose. The letter also stated that in the past two occasions the High Court obtained the approval of the State Government before inviting appli-cations.

The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for mandamus without legal right. There must be judicially enforceable right as well as legally protected right before one suffering legal grievance can ask for mandamus. person can be said to be aggrieved only when person is denied legal right by some one who has legal duty

to do something or to abstain from doing something (See Halsbury's Laws of England 4th Ed. Vol. I, paragraph 122; State of Haryana v. Subash Chander Marwaha & Ors.(') lasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed & Ors. (2) and Ferris Extraordinary Legal Remedies paragraph 198.

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 a<lVice 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 recom-mendation.

Counsel for the appellants relied on the decisions of this Court in Chandra Mohan v. State of Uttar Pradesh & Ors.([8]); Chandra-mouleshwar Prasad v. Patna High Court & Ors([4 ]) and A. Pandu-ranga Rao v. State of Andhra Pradesh & Ors.([5 ]) 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.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 po.sition to express views on the judicial work of persons who are recommended for appointment to the posts of Dis-trict 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 re· cruitment. The High Court in those circumstances will select candidates for promotion and· direct recruitment and send their names to the Government. This Court has also held that the consultation of the Governor with the High Court dqes not mean that the Governor must acceot 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 rocruitment. In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to the Govern· ment to choose candidate for appointment by direct recruitment or by promotion unless and until his name is recommended bv the High Court.

In Panduranga Rao's case (supra) there is an observation that the GQvernment could tell the High Court its reasons for not accepting

(!) [1974] I S.C.R. 165. (2) [1976] 3 S.C.R. 58. (3) [1967} I S.C.R. 77. (4) [1970]2 S.C.R. 666. (5 [_ 976] l S.C.R. 620.

the recommendations of the High Court in regard to certain persons. The observation in Panduranga Rao's caso (supra) was made in the facts and circumstances of that case and in particular the controversial correspondence.

In the l'fesent case the Government pointed out that the High Court had not written to the Government about the proposed appoint-ments before issuing advertisements therefor. In any event,, after the Government communicated to tho High Court that tho recom-mendations were not accepted new situation developed. The Government asked the High Court to issue advertisements and to invite applications for appointment to the pos~. The High Court a.ccepkd that position and acted upon it. The Hi&h Court issued the adver•

tisemen~.

The attitude of the High Court has been peculia:t". When the High Court decided to ask for fresh applications the High Court alM> accepted the position that the original recommendations which had been made by the High Court were not accepted by the State Govern-ment and yet the High Court supported before this Court tho appellant's case by pleading for the "candidature" of tho appellants. The High Court should not take partisan view by supporting the candidature of any person. We were little surprised that the High Court sup-ported the appellants. This ii not proper particularly when the High Court dismissed the writ petitions of the appellants.

For the foregoing reasons the appeals are dismissed. There will be no order as to costs.

Appeals dismissed.