Mani Subrat Jain et al. v. State of Haryana and Ors.

361 MANI SUBRAT JAIN ETC. _v •_ . 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 **a** judicially onforceablo right u well u. **a** legally **prcMected** **right** **before** **OJIC** **1ufferia1 a legal Jrieyance can** **a.!t** **for a** _**mantiamll.1.**_ A penon can be ta.id to be aggrieved only when he is denied a lei:al right by **some** **one** **who** ~ **a 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**_ **d** _**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 •. A B ## c D E (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..** **F** 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 _G._ _L._ _Singh,_ in _CA_ 1988/76 with _Hardev Singh, B. Datta_ and _N. S. Sodhi,_ for the appellants. R _Niren De; Attorney General_ with _Devan Chelan_ Dar, _Adv. Gene-_ _ral,_ _Prem Malhotra_ and _R. N. Sachthey,_ for respondents Nos. 1 & 2. _Anand Swarup,_ and _Mrs. S. Bhlmdare, tor_ rei.pondent No. 3. A B ### c D E F G H 362 SUPREME COURT REPORTS [1977] 2 S.C.R. The Judgment of the Court was delivered by RAY, C.J. These appeals are by special leave against the judgment dated 25 March, 1975 of the Punjab and Haryana High Court dismissing the writ petitions. The ap~llants in the writ petitions asked for a _mandamus_ directing Respondents No. 1 and 2 to appoint the appellants to the posts of Additional District and Sessions Judge. The appellants also asked for a _mandamus_ or an appropriate writ quashing the orders of Respondents 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 applications from eligible members of the Bar to fill up two vacancies in the quota of direct recruits from the Bar in the Haryana Superior Judicial Service. The High Court called for interview 9 candidates on 18 October, 1972. - The High Court thereafter recommended to the Haryana Government the names of the appellants for appointment as District/ Additional 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 a Jetter dated 8 September, 1972 from the Chief Secretary 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 applications. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a _mandamus_ without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a _mandamus._ A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty _!_ MANI SUBRAT JAIN _v._ HARYANA _(Ray, C.J.)_ 363 to do something or to abstain from doing something (See Halsbury's A 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 B 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 recommendation. 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 a po.sition to express views on the judicial work of persons who are recommended for appointment to the posts of District Judges. The High Court knows the merits and demerits of persons who will be promoted from the service to the post. The High Court interviews persons who will be appointed by direct 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. ### c D E F In regard to persons who are appointed by promotion or direct recruitment this Court has held that it is not open to the Govern· G ment to choose a 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. (3) [1967} I S.C.R. 77. (5 [_ 976] l S.C.R. 620. (2) [1976] 3 S.C.R. 58. H (4) [1970]2 S.C.R. 666. **A** **B** 364 SUHBMB COURT llPOllTS (1977] 2 S.C.R. 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 appointments before issuing advertisements therefor. In any event,, after the Government communicated to tho High Court that tho recommendations were not accepted a new situation developed. The Government asked the High Court to issue advertisements and to invite applications for appointment to the pos~. The High Court a.ccepkd that position and acted upon it. The Hi&h Court issued the adver• tisemen~. # c 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 Government and yet the High Court supported before this Court tho appellant's case by pleading for the "candidature" of tho appellants. The High **D** Court should not take a partisan view by supporting the candidature of any person. We were a little surprised that the High Court supported the appellants. This **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. M.R. _Appeals_ _dismissed._