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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