PETITIONER:
MANI SUBRAT JAIN ETC.
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT09/12/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SINGH, JASWANT
CITATION:
1977 AIR 276 1976 SCR (2) 361
1977 SCC (1) 486
ACT
Constitution of India--Writ of mandamus, when can be
asked for Article 233, scope of--Direct recruitment of
District Judges--Whether Governor bound to accept, recommen-
dation of High Court.
HEADNOTE
The Haryana High Court invited applications and interviewed
candidates for filling up vacancies in the quota of direct
recruits from the bar, in the Haryana Superior Judicial
Service. The names of the appellants were recommended to
the State Government who rejected them and asked the High
Court to invite application again. Accepting the position,
the High Court issued the advertisements. The appellants
filed petitions against the order rejecting their names and
asked for mandamus for appointment. The same were dismissed
by the High Court on the ground that the appellants had no
locus standi.
Dismissing the appeals, the Court,
HELD: (1) 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 he is denied a legal right by some
one who has legal duty to do something or to abstain from
doing something. [362G-H, 363A-B]
State of Haryana v. Subash Chander Marwaha & Ors. [1974]
1 S.C.R. 165; Jasbhai Motibhai Desai v. Roshan Kumar Haji
Bashir Ahmed & Ors. [1976] 3 S.C.R. 58; Halsbury’s Laws of
England 4th Ed. Vol. I, pargraph 122 and Ferris Extra-ordi-
nary Legal Remedies, paragraph 198, applied.
(2) The initial appointment of District Judges under Article
233 is within the exclusive jurisdiction of the Government
after consultation with the High Court though the consulta-
tion does not mean that the Governor must accept whatever
advice or recommendation is given by the High Court. Article
233 only requires that the Governor should obtain from the
High Court its views on the merits and demerits of per-
sons, selected for promotion and direct recruitment.[363A-B.
F-G]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]
1 S.C.R. 77; Chandramouleshwar Prasad v. Patna High Court &
Ors. [1970] 2 S.C.R. 666 and A. Panduranga Rao v. State of
Andhra Pradesh & Ors. [1976] 1 S.C.R. 620. referred to.
JUDGMENT
CIVIL 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 Chetan Das, Adv.
General, Prem Malhotra and R.N. Sachthey, for respondents
Nos. 1 & 2.
Anand Swarup, and Mrs. S. Bhandare, for respondent No. 3.
362
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 appellants in the writ petitions asked for a manda-
mus directing Respondents No. 1 and 2 to appoint the appel-
lants 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 Govern-
ment 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 the ground
that the appellants had no locus standi to file the peti-
tions. The reason given by the High Court is that the appel-
lants were not appointed and they had no right to be ap-
pointed. 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 reacted the recommendation of
the High Court. Thereupon the appellants filed writ
petitions challenging the order of rejection and asked for
mandamus for appointment.
There is a letter dated 8 September, 1972 from the Chief
Secretary to the Government of Haryana to the Registrar of
the High Court. In that letter the Government took excep-
tion to the inviting of applications from members of the Bar
without the High Court having first obtained the approval
of the Government for that purpose. The letter also stated
that in the past two occasions the High Court obtained the
approval of the State Government before inviting applica-
tion.
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
363
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.(1) Jasbhai
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 advice 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 obli-
gatory 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.(3); Chandramouleshwar Prasad v. Patna High Court &
Ors(4) and A. Panduranga 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 recommenda-
tions. 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 Constitu-
tion contemplates consultation of the Governor with the High
Court inasmuch as the High Court is in a position 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 recruit-
ment. 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 does not mean that the Governor
must aceept 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
recruitment.
In regard to persons who are appointed by promotion or
direct recruitment this Court has held that it is not open
to the Government to choose a candidate for appOintment by
direct recruitment or by promotion unless and until his name
is recommended by the High Court.
In Panduranga Rao’s case (supra) there is an observation
that the Government could tell the High Court its reasons
for not accepting
(1) [1974] 1 S.C.R. 165. (2) [19761 3 S.C.R. 58.
(3) [1967] 1 S.C.R. 77. (4) [19701 2 S.C.R. 666.
(5) [1976] 1 S.C.R. 620.
364
the recommendations of the High Court in regard to certain
persons. The observation in Panduranga Rao’s case (supra)
was made in the facts and circumstances of that case and in
particular the controversial correspondence.
In the present case the Government pointed out that the
High Court had not written to the Government about the
proposed appointments before issuing advertisements there-
for. In any event, after the Government communicated to
the High Court that the 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 posts. The High Court accepted that
position and acted upon it. The High Court issued the
advertisements.
The attitude of the High Court has been peculiar. When
the High Court decided to ask for fresh applications the
High Court accepted the position that the original recom-
mendations which had been made by the High Court were not
accepted by the State Government and yet the High Court
supported before this Court the appellant’s case by pleading
for the "candidature" of the appellants. The High Court
should not take a partisan view by supporting the candida-
ture of any person. We were a little surprised that the
High Court supported the appellants. This is not proper
particularly when the High Court dismissed the writ peti-
tions of the appellants.
For the foregoing reasons the appeals are dismissed.
There will be no order as to costs.
M.R. Appeals dis-
missed.
365