"It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service."
On 28 July 2008, the High Court of Judicature at Bombay, invited applications for filling in 14 vacancies for the post of District Judge in the Judicial Service of the State of Maharashtra. The process of recruitment was governed by the Maharashtra Judicial Service Rules, 2008. The High Court conducted a written examination, which 2 wp8106.10.sxw
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was followed by an interview. A list of 14 candidates who were eligible for appointment was drawn in order of merit under Rule 6(3) (a). The Petitioner was placed at Serial No.10 of that list. The Petitioner submitted an attestation form and in column 11(a), he disclosed the fact that he had been prosecuted in Regular Criminal Case No. 218 of 1993, which had ended in acquittal on 20 November 2001. On 4 August 2010, a communication was addressed to the Petitioner requiring him to disclose the relevant papers of the Criminal case. The Petitioner responded by his reply dated 9 August 2010. On 23 August 2010, a Committee of Administrative Judges of the High Court, considering the antecedents of the Petitioner, came to the conclusion that the Petitioner was not suitable for being appointed to the post of District Judge. The name of the Petitioner was not recommended for being appointed as District Judge under Rule 6(4) (a). A communication was issued to the Petitioner on 14 September 2010, informing him that a decision had been taken, not to recommend him for appointment as District Judge, the Committee having been of the view that the Petitioner was not suitable for the post.
2 The Petitioner is, in these proceedings under Article 226 of the 3 wp8106.10.sxw
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Constitution, seeking to challenge the communication dated 14 September 2010. The Petitioner also seeks the issuance of a writ of mandamus directing his appointment to the post of District Judge pursuant to the selection process conducted by the High Court. 3 In order to appreciate the submissions which have been urged before the Court, a brief reference to the facts of the Criminal case and the judgment of the Judicial Magistrate, First Class (JMFC), Malkapur, dated 20 November 2001 would be in order. The Petitioner was the second accused and was tried for the commission of an offence punishable under Section 326 read with Section 34 of the Penal Code. The allegation against the Petitioner was that on 9 November 1993, an incident took place at about 12.30 p.m., near the premises of Kirti Jewellers at Malkapur, when the Petitioner and his brother are alleged to have thrown acid on two persons, thereby causing severe injuries. The contention which has been urged on behalf of the Petitioner is that the Judgment of the JMFC at Malkapur, would indicate that: (i) The incident itself had not taken place; (ii) There was a civil dispute between the father of the Petitioner and the Complainants, who were tenants, and the father of the Petitioner had succeeded in obtaining a decree for eviction under the Rent Act. The submission of counsel, 4 wp8106.10.sxw
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with whose assistance we have perused the Judgment of the JMFC, is that this is not merely a case where the accused was given the benefit of doubt, but one where the very incident in question, has not been established.
4 Now, if the judgment of the JMFC dated 20 November 2001 is perused, it would, for the purposes of these proceedings under Article 226, be material to advert to some extracts from the judgment, which indicate the basis of the judgment. In paragraph 35 of the judgment, the JMFC held as follows:-
"The investigation carried in the present case is fairly below the mark. The investigation officer has intentionally delayed the interrogation of P.W.1 and 2 till 11-11-93, though they were in a position to depose and were at the disposal of investigation officer to give the statement. The prosecution has not examined eye witnesses though available and therefore, from all above aspects it looks that the prosecution is not forthcoming with true version before the court. The lodging of counter case also shows that the defence is also suppressing some aspect, and therefore, when the prosecution and defence both are not coming with clean hands before the court then in such circumstances how the matter is to be dealt a guidance has been given by Their Lordships in the case law reported in AIR 1974 SC Page 1822, in the case of Jamuna Chaudhary and others V. State of Bihar."
5 Again, in the concluding part of the judgment, it was held as follows:-
5 wp8106.10.sxw
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"So when prosecution as well as defence both not coming with true version and they tried suppressing its own aggeration, so accused deserves to be given benefit of doubt. So in view of above discussion I conclude that the evidence placed on record by the prosecution is not sufficient to prove the charge against the accused beyond reasonable doubt. The case of prosecution is lacking on material aspects. True accounts of the happening is suppressed from the court, for all these reasons accused deserves to be given benefit of doubt."
6 These two extracts would demonstrate that the Petitioner was given a benefit of doubt in a situation where the Magistrate came to the conclusion that the investigation was not proper; the prosecution had not examined the eye-witnesses though they were available and both, the prosecution and the defence, had not comeforth before the Court with a true version of the incident that had taken place. 7 In an earlier part of the Judgment, the Magistrate noted that though P.W. 1 and P.W. 2 were injured witnesses, their evidence was not free from doubt and there was a delay in recording their statements by the Investigating Officer.
8 Now, it is in this background, that it is necessary for the Court to advert to the relevant provisions of the Maharashtra Judicial Service Rules, 2008. The Recruiting Authority under the Rules, is the High 6 wp8106.10.sxw
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Court of Judicature at Bombay, in the present case, under Rule 2(i). Under Rule 4, the Appointing Authority for the cadre of District Judge is the Governor of the State. Rule 6(3)(a) requires the Recruiting Authority to prepare a list of candidates eligible for appointment on the basis of cumulative marks secured by candidates in the written examination and the interview, in order of merit. Rule 6(4)(a) provides that the Recruiting Authority shall recommend the selected candidates by completing the selection process. Under Rule 6(5), every candidate applying for appointment by nomination, is required to furnish certificates, testifying to his character, or declarations as to educational qualification, experience, age, caste etc. as may be required by the Recruiting Authority, besides certificates. Rule 6(6) provides that the decision of the Recruiting Authority as to the eligibility or otherwise of a candidate for admission to the written and viva-voce examination shall be final. Rule 8 stipulates that no person selected for nomination shall be appointed, unless the Appointing Authority is satisfied that he is of good character and is, in all respects, suitable for appointment to the service.
9 In the present case, the Recruiting Authority drew up a list of the candidates on the basis of cumulative marks. The Recruiting Authority 7 wp8106.10.sxw
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decided not to recommend the name of the Petitioner on the ground that he was not suitable for appointment to the post of District Judge. The appointment in the present case was being made to a post in a Judicial Service of the State. In calling for disclosures in the attestation form, the Recruiting Authority requires candidates to make disclosures which would have a material bearing on their antecedents and their suitability to occupy Judicial office in the State. The holder of Judicial office in the District Judiciary has a pivotal role in maintaining the credibility of the administration of justice. The Recruiting Authority is justified in seeking a disclosure of such information and in determining as to whether on the basis of the material in its possession, the candidate does or does not fulfill the essential requirements for holding the office of a Judge. In the present case, the High Court which is a Recruiting Authority declined to recommend the candidature of the Petitioner to the Appointing Authority.
10 In the affidavit in reply, it has been stated that though the Petitioner was acquitted on 20 November 2001 in a Criminal case, the acquittal was as a result of the grant of benefit of doubt by the Magistrate. This conclusion, which has been drawn by the Recruiting 8 wp8106.10.sxw
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Authority and as communicated to the Petitioner, is questioned in these proceedings.
11 The decision of the Recruiting Authority is based on relevant and germane considerations. The Recruiting Authority has considered relevant material. The Recruiting Authority has not considered any material which is extraneous to the decision making process. The judgment of the Magistrate and the reasons which weighed in the acquittal of the Petitioner have an important bearing on the suitability of the Petitioner to hold judicial office. Undoubtedly, as Learned Counsel for the Petitioner asserts, there is a presumption of innocence in our criminal jurisprudence. That, coupled with the lacunae in the investigation led the Magistrate to order the acquittal of the Petitioner on a benefit of doubt. But when a Judge is being recruited to the judicial service, the Recruiting Authority as the custodian of public interest in the fair dispensation of justice was entitled to scrutinize the reasons which weighed in the judgment of acquittal, for they have an important bearing on the conduct and antecedents of the applicant. The administration of justice cannot bear the burden of a Judge whose conduct is not free from an element of doubt. Consequently, this Court would not exercise the power of judicial review under Article 9 wp8106.10.sxw
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226 of the Constitution to question the wisdom of the determination holding that the Petitioner is not suitable for being recommended for appointment to the post of District Judge in the Judicial Service of the State.
12 The name of the Petitioner was borne on the list which was prepared under Rule 6(3)(a). The Petitioner has no vested right to appointment under the Rules. Rule 6(7) stipulates that inclusion of the name of a candidate in any list prepared under clause (3) shall not confer any right of appointment on the candidate. 13 In Delhi Administration Through its Chief Secretary & Ors. Sushil kumar the Respondent, who had appeared in the Vs. 1,
recruitment test for appointment as constable in the police service, was found physically fit and upon clearing the prescribed test, he was selected provisionally. On verification, his antecedents were found to be such as not to warrant appointment to the post of constable. The Administrative Tribunal allowed the application filed by the Respondent on the ground that though he had been prosecuted for an offence punishable under Section 304 and Section 324 read with 1 (1996) 11 SCC 605
10 wp8106.10.sxw
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Section 34 of the Penal Code, he had been discharged and/or acquitted. Hence, the Tribunal was of the view that the candidate could not be denied a right of appointment. The Supreme Court set aside the decision of the Tribunal with the following observations:- "It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service."
14 The Judgment of two learned Judges in Sushil Kumar's case was followed by a Bench of three learned Judges of the Supreme Court in Union of India Vs. Kali Dass Batish2. In that case, the selection related to the post of a Judicial Member of the Central Administrative Tribunal. Mr. Justice B.N. Srikrishna speaking for the 2 2006 AIR SCW 227
11 wp8106.10.sxw
ssm
Bench held that the principle which has been laid down in Sushil Kumar's case would apply with greater vigour in the case of an appointment of a Judicial Member of the Tribunal. The Supreme Court held that the mere inclusion of the candidate in a select list gave no enforceable right to appointment and if there was no right, there could be no occasion to maintain a Writ Petition for enforcement of a non-existing right.
15 Counsel on behalf of the Petitioner has placed reliance on a judgment of two learned Judges of the Supreme Court in Commissioner of Police and Ors. Vs. Sandeep Kumar . In that case, 3
the Respondent while applying for the post of a Head Constable did not mention in his application form that he had been involved in a Criminal case under Section 325 read with Section 34 of the Penal Code. On this ground, his candidature was cancelled. The Delhi High Court allowed the Petition filed by the candidate. While dismissing the Appeal, the Supreme Court observed that the incident took place when the candidate was about 20 years of age and his indiscretion was such as could be condoned. Hence, though in the application form the Respondent had not mentioned that he was involved in a 3 (2011) 4 SCC 644
12 wp8106.10.sxw
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Criminal case, it was held that this could be condoned. In so far as the present case is concerned, this Court would have to be guided by the decision of the Bench of three learned Judges of the Supreme Court in Kali Dass Batish (Supra) which specifically deals with a Judicial Appointment. Moreover, the present case does not raise an issue of suppression of fact as in Sandeep Kumar's case. The issue is as to whether consistent with the findings contained in the Judgment of the Magistrate, the Court on its administrative side was justified in declining to recommend the name of the Petitioner for appointment to the post of District Judge. For the reasons which are already indicated earlier, it cannot be possibly held that the decision of the Court on its administrative side suffers from any arbitrariness so as to warrant the interference of this Court under Article 226 of the Constitution. We also do not find any merit in the contention that it is only the Appointing Authority which could have had regard to the antecedents of the Petitioner under Rule 8. Even while making the recommendation under Rule 6(4) (a), the Recruiting Authority is entitled to scrutinize the antecedents and credentials of the candidate and to weed out at that stage a person who is not considered to be desirable for appointment in the Judicial service of the State. 13 wp8106.10.sxw
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16 Before concluding, it may be noticed that one of the submissions which has been urged in the Petition, is that the advertisement in the present case was issued on 28 July 2008, while the Maharashtra Judicial Service Rules, 2008 were notified on 25 August 2008 and were published in the Government Gazette on 27 August 2008. The applicability of the Rules to such a situation has been considered by a Division Bench of this Court presided over by the learned Chief Justice, at the Nagpur Bench, in Manoj Arvindrao Sabale Vs. The State of Maharashtra . In that case, it was urged before the Division 4
Bench that since the advertisement was issued on 28 July 2008, which was prior to the publication of the Recruitment Rules on 27 August, 2008, no minimum passing marks at the oral interview could have been prescribed. The Division Bench noticed that the last date for receiving applications was 30 August 2008. The High Court had approved the Rules of 2008 before 28 July 2008, which were then sent to the State Government and to the Maharashtra Public Service Commission. The Rules, were thereafter, made by the Governor and were issued through a Government Notification dated 25 August 2008 which was published in the Gazette on 27 August 2008. The Court, 4 WP 4313 OF 2010 decided on 27 September 2010
14 wp8106.10.sxw
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therefore, rejected the submission that the Rules were changed or altered after the commencement of the selection process. The same principle must apply to the facts of this case as well. 17 For all these reasons, we are of the view that no case for interference under Article 226 of the Constitution is made out. The Petition is accordingly dismissed. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)
Print Page
Bombay High Court
Khushalchand Bhairulal Varma vs High Court Of Judicature At on 8 August, 2011
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta
On 28 July 2008, the High Court of Judicature at Bombay, invited applications for filling in 14 vacancies for the post of District Judge in the Judicial Service of the State of Maharashtra. The process of recruitment was governed by the Maharashtra Judicial Service Rules, 2008. The High Court conducted a written examination, which 2 wp8106.10.sxw
ssm
was followed by an interview. A list of 14 candidates who were eligible for appointment was drawn in order of merit under Rule 6(3) (a). The Petitioner was placed at Serial No.10 of that list. The Petitioner submitted an attestation form and in column 11(a), he disclosed the fact that he had been prosecuted in Regular Criminal Case No. 218 of 1993, which had ended in acquittal on 20 November 2001. On 4 August 2010, a communication was addressed to the Petitioner requiring him to disclose the relevant papers of the Criminal case. The Petitioner responded by his reply dated 9 August 2010. On 23 August 2010, a Committee of Administrative Judges of the High Court, considering the antecedents of the Petitioner, came to the conclusion that the Petitioner was not suitable for being appointed to the post of District Judge. The name of the Petitioner was not recommended for being appointed as District Judge under Rule 6(4) (a). A communication was issued to the Petitioner on 14 September 2010, informing him that a decision had been taken, not to recommend him for appointment as District Judge, the Committee having been of the view that the Petitioner was not suitable for the post.
2 The Petitioner is, in these proceedings under Article 226 of the 3 wp8106.10.sxw
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Constitution, seeking to challenge the communication dated 14 September 2010. The Petitioner also seeks the issuance of a writ of mandamus directing his appointment to the post of District Judge pursuant to the selection process conducted by the High Court. 3 In order to appreciate the submissions which have been urged before the Court, a brief reference to the facts of the Criminal case and the judgment of the Judicial Magistrate, First Class (JMFC), Malkapur, dated 20 November 2001 would be in order. The Petitioner was the second accused and was tried for the commission of an offence punishable under Section 326 read with Section 34 of the Penal Code. The allegation against the Petitioner was that on 9 November 1993, an incident took place at about 12.30 p.m., near the premises of Kirti Jewellers at Malkapur, when the Petitioner and his brother are alleged to have thrown acid on two persons, thereby causing severe injuries. The contention which has been urged on behalf of the Petitioner is that the Judgment of the JMFC at Malkapur, would indicate that: (i) The incident itself had not taken place; (ii) There was a civil dispute between the father of the Petitioner and the Complainants, who were tenants, and the father of the Petitioner had succeeded in obtaining a decree for eviction under the Rent Act. The submission of counsel, 4 wp8106.10.sxw
ssm
with whose assistance we have perused the Judgment of the JMFC, is that this is not merely a case where the accused was given the benefit of doubt, but one where the very incident in question, has not been established.
4 Now, if the judgment of the JMFC dated 20 November 2001 is perused, it would, for the purposes of these proceedings under Article 226, be material to advert to some extracts from the judgment, which indicate the basis of the judgment. In paragraph 35 of the judgment, the JMFC held as follows:-
"The investigation carried in the present case is fairly below the mark. The investigation officer has intentionally delayed the interrogation of P.W.1 and 2 till 11-11-93, though they were in a position to depose and were at the disposal of investigation officer to give the statement. The prosecution has not examined eye witnesses though available and therefore, from all above aspects it looks that the prosecution is not forthcoming with true version before the court. The lodging of counter case also shows that the defence is also suppressing some aspect, and therefore, when the prosecution and defence both are not coming with clean hands before the court then in such circumstances how the matter is to be dealt a guidance has been given by Their Lordships in the case law reported in AIR 1974 SC Page 1822, in the case of Jamuna Chaudhary and others V. State of Bihar."
5 Again, in the concluding part of the judgment, it was held as follows:-
5 wp8106.10.sxw
ssm
"So when prosecution as well as defence both not coming with true version and they tried suppressing its own aggeration, so accused deserves to be given benefit of doubt. So in view of above discussion I conclude that the evidence placed on record by the prosecution is not sufficient to prove the charge against the accused beyond reasonable doubt. The case of prosecution is lacking on material aspects. True accounts of the happening is suppressed from the court, for all these reasons accused deserves to be given benefit of doubt."
6 These two extracts would demonstrate that the Petitioner was given a benefit of doubt in a situation where the Magistrate came to the conclusion that the investigation was not proper; the prosecution had not examined the eye-witnesses though they were available and both, the prosecution and the defence, had not comeforth before the Court with a true version of the incident that had taken place. 7 In an earlier part of the Judgment, the Magistrate noted that though P.W. 1 and P.W. 2 were injured witnesses, their evidence was not free from doubt and there was a delay in recording their statements by the Investigating Officer.
8 Now, it is in this background, that it is necessary for the Court to advert to the relevant provisions of the Maharashtra Judicial Service Rules, 2008. The Recruiting Authority under the Rules, is the High 6 wp8106.10.sxw
ssm
Court of Judicature at Bombay, in the present case, under Rule 2(i). Under Rule 4, the Appointing Authority for the cadre of District Judge is the Governor of the State. Rule 6(3)(a) requires the Recruiting Authority to prepare a list of candidates eligible for appointment on the basis of cumulative marks secured by candidates in the written examination and the interview, in order of merit. Rule 6(4)(a) provides that the Recruiting Authority shall recommend the selected candidates by completing the selection process. Under Rule 6(5), every candidate applying for appointment by nomination, is required to furnish certificates, testifying to his character, or declarations as to educational qualification, experience, age, caste etc. as may be required by the Recruiting Authority, besides certificates. Rule 6(6) provides that the decision of the Recruiting Authority as to the eligibility or otherwise of a candidate for admission to the written and viva-voce examination shall be final. Rule 8 stipulates that no person selected for nomination shall be appointed, unless the Appointing Authority is satisfied that he is of good character and is, in all respects, suitable for appointment to the service.
9 In the present case, the Recruiting Authority drew up a list of the candidates on the basis of cumulative marks. The Recruiting Authority 7 wp8106.10.sxw
ssm
decided not to recommend the name of the Petitioner on the ground that he was not suitable for appointment to the post of District Judge. The appointment in the present case was being made to a post in a Judicial Service of the State. In calling for disclosures in the attestation form, the Recruiting Authority requires candidates to make disclosures which would have a material bearing on their antecedents and their suitability to occupy Judicial office in the State. The holder of Judicial office in the District Judiciary has a pivotal role in maintaining the credibility of the administration of justice. The Recruiting Authority is justified in seeking a disclosure of such information and in determining as to whether on the basis of the material in its possession, the candidate does or does not fulfill the essential requirements for holding the office of a Judge. In the present case, the High Court which is a Recruiting Authority declined to recommend the candidature of the Petitioner to the Appointing Authority.
10 In the affidavit in reply, it has been stated that though the Petitioner was acquitted on 20 November 2001 in a Criminal case, the acquittal was as a result of the grant of benefit of doubt by the Magistrate. This conclusion, which has been drawn by the Recruiting 8 wp8106.10.sxw
ssm
Authority and as communicated to the Petitioner, is questioned in these proceedings.
11 The decision of the Recruiting Authority is based on relevant and germane considerations. The Recruiting Authority has considered relevant material. The Recruiting Authority has not considered any material which is extraneous to the decision making process. The judgment of the Magistrate and the reasons which weighed in the acquittal of the Petitioner have an important bearing on the suitability of the Petitioner to hold judicial office. Undoubtedly, as Learned Counsel for the Petitioner asserts, there is a presumption of innocence in our criminal jurisprudence. That, coupled with the lacunae in the investigation led the Magistrate to order the acquittal of the Petitioner on a benefit of doubt. But when a Judge is being recruited to the judicial service, the Recruiting Authority as the custodian of public interest in the fair dispensation of justice was entitled to scrutinize the reasons which weighed in the judgment of acquittal, for they have an important bearing on the conduct and antecedents of the applicant. The administration of justice cannot bear the burden of a Judge whose conduct is not free from an element of doubt. Consequently, this Court would not exercise the power of judicial review under Article 9 wp8106.10.sxw
ssm
226 of the Constitution to question the wisdom of the determination holding that the Petitioner is not suitable for being recommended for appointment to the post of District Judge in the Judicial Service of the State.
12 The name of the Petitioner was borne on the list which was prepared under Rule 6(3)(a). The Petitioner has no vested right to appointment under the Rules. Rule 6(7) stipulates that inclusion of the name of a candidate in any list prepared under clause (3) shall not confer any right of appointment on the candidate. 13 In Delhi Administration Through its Chief Secretary & Ors. Sushil kumar the Respondent, who had appeared in the Vs. 1,
recruitment test for appointment as constable in the police service, was found physically fit and upon clearing the prescribed test, he was selected provisionally. On verification, his antecedents were found to be such as not to warrant appointment to the post of constable. The Administrative Tribunal allowed the application filed by the Respondent on the ground that though he had been prosecuted for an offence punishable under Section 304 and Section 324 read with 1 (1996) 11 SCC 605
10 wp8106.10.sxw
ssm
Section 34 of the Penal Code, he had been discharged and/or acquitted. Hence, the Tribunal was of the view that the candidate could not be denied a right of appointment. The Supreme Court set aside the decision of the Tribunal with the following observations:- "It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service."
14 The Judgment of two learned Judges in Sushil Kumar's case was followed by a Bench of three learned Judges of the Supreme Court in Union of India Vs. Kali Dass Batish2. In that case, the selection related to the post of a Judicial Member of the Central Administrative Tribunal. Mr. Justice B.N. Srikrishna speaking for the 2 2006 AIR SCW 227
11 wp8106.10.sxw
ssm
Bench held that the principle which has been laid down in Sushil Kumar's case would apply with greater vigour in the case of an appointment of a Judicial Member of the Tribunal. The Supreme Court held that the mere inclusion of the candidate in a select list gave no enforceable right to appointment and if there was no right, there could be no occasion to maintain a Writ Petition for enforcement of a non-existing right.
15 Counsel on behalf of the Petitioner has placed reliance on a judgment of two learned Judges of the Supreme Court in Commissioner of Police and Ors. Vs. Sandeep Kumar . In that case, 3
the Respondent while applying for the post of a Head Constable did not mention in his application form that he had been involved in a Criminal case under Section 325 read with Section 34 of the Penal Code. On this ground, his candidature was cancelled. The Delhi High Court allowed the Petition filed by the candidate. While dismissing the Appeal, the Supreme Court observed that the incident took place when the candidate was about 20 years of age and his indiscretion was such as could be condoned. Hence, though in the application form the Respondent had not mentioned that he was involved in a 3 (2011) 4 SCC 644
12 wp8106.10.sxw
ssm
Criminal case, it was held that this could be condoned. In so far as the present case is concerned, this Court would have to be guided by the decision of the Bench of three learned Judges of the Supreme Court in Kali Dass Batish (Supra) which specifically deals with a Judicial Appointment. Moreover, the present case does not raise an issue of suppression of fact as in Sandeep Kumar's case. The issue is as to whether consistent with the findings contained in the Judgment of the Magistrate, the Court on its administrative side was justified in declining to recommend the name of the Petitioner for appointment to the post of District Judge. For the reasons which are already indicated earlier, it cannot be possibly held that the decision of the Court on its administrative side suffers from any arbitrariness so as to warrant the interference of this Court under Article 226 of the Constitution. We also do not find any merit in the contention that it is only the Appointing Authority which could have had regard to the antecedents of the Petitioner under Rule 8. Even while making the recommendation under Rule 6(4) (a), the Recruiting Authority is entitled to scrutinize the antecedents and credentials of the candidate and to weed out at that stage a person who is not considered to be desirable for appointment in the Judicial service of the State. 13 wp8106.10.sxw
ssm
16 Before concluding, it may be noticed that one of the submissions which has been urged in the Petition, is that the advertisement in the present case was issued on 28 July 2008, while the Maharashtra Judicial Service Rules, 2008 were notified on 25 August 2008 and were published in the Government Gazette on 27 August 2008. The applicability of the Rules to such a situation has been considered by a Division Bench of this Court presided over by the learned Chief Justice, at the Nagpur Bench, in Manoj Arvindrao Sabale Vs. The State of Maharashtra . In that case, it was urged before the Division 4
Bench that since the advertisement was issued on 28 July 2008, which was prior to the publication of the Recruitment Rules on 27 August, 2008, no minimum passing marks at the oral interview could have been prescribed. The Division Bench noticed that the last date for receiving applications was 30 August 2008. The High Court had approved the Rules of 2008 before 28 July 2008, which were then sent to the State Government and to the Maharashtra Public Service Commission. The Rules, were thereafter, made by the Governor and were issued through a Government Notification dated 25 August 2008 which was published in the Gazette on 27 August 2008. The Court, 4 WP 4313 OF 2010 decided on 27 September 2010
14 wp8106.10.sxw
ssm
therefore, rejected the submission that the Rules were changed or altered after the commencement of the selection process. The same principle must apply to the facts of this case as well. 17 For all these reasons, we are of the view that no case for interference under Article 226 of the Constitution is made out. The Petition is accordingly dismissed. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)
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