PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the first respondent in G.O.Ms.No.310, dated 29.3.2012, Public (Special.A) Department and to quash the same and to consequently quash G.O.Ms.No.311, dated 29.3.2012, Public (Special.A) Department and to direct the respondents to implement G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 appointing the petitioner as District Judge (Entry Level) in original seniority from the dat of his appointment and to accord such posting to the petitioner. (amended as per order dated 23.4.2012 in M.P.No.2 of 2012 in W.P.(MD) No.739 of 2012).
ORDER
P.JYOTHIMANI,J.
1. It behooves us to give a short prelude to this case. The issue relating to appointment of District Judges (Entry Level) by way of direct recruitment came up for consideration in W.P.Nos.25778 and 26588 of 2010, wherein a notification issued by the Government in respect of the said appointments came to be challenged and ultimately, this Court by order dated 1.12.2010 (V.Yamuna Devi and another v. Registrar General, High Court, Madras and others, (2011) 1 MLJ 833), upheld the proceedings initiated by the Registrar General, High Court, Madras in shortlisting the candidates for selection to the post of District Judge (Entry Level).
2. After the selection process was completed, the Government, in consultation with the High Court, has issued G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 notifying the appointment of the following 17 persons as District Judges (Entry Level):
Tvl./Tmt./Selvi
1 R.Sakthivel, Advocate, Karur
2 A.Kanthakumar, Advocate, Tirunelveli
3 T.S.Nanda Kumar, Advocate, Chennai
4 S.Pandiarajan, Advocate, Tirunelveli
5 A.Nazeema Banu, Advocate, Dharmapuri
6 R.Anburaj, Advocate, Tiruchirapalli
7 S.Subadevi, Advocate, Chennai
8 R.Poornima, Advocate, The Nilgiris
9 P.Dhanabal, Advocate, Karur
10 C.Kumarappan, Advocate, Coimbatore
11 M.Jothiraman, Advocate, Tiruttani
12 M.D.Sumathi, Advocate, Tiruchirapalli
13 P.Murugan, Advocate, Chennai
14 M.Suresh Viswanath, Advocate, The Nilgiris
15 A.K.A.Rahmaan, Advocate, Cuddalore
16 K.Rajasekar, Advocate, Chennai
17 K.H.Elvazhagan, Advocate, Coimbatore
The government order clearly states that the appointees will be placed on probation for a period of two years and during the period of probation, the appointees will have to undergo:
(i) training as Civil Judge (Junior Division) for a period of not less than six months;
(ii) training as Civil Judge (Senior Division) for a period of not less than six months; and
(iii) training in Forensic Science for a period of not less than two months.
In addition to that, the said order also stipulates that the appointees should pass the Account Test for Executive Officers within the period of probation and explicitly states that only after satisfactory completion of the said training they will be posted as District Judges (Entry Level). In the said government order, it is also stated in paragraph (5) as follows:
"5. The posting orders for training as Civil Judges (Junior Division), Civil Judges (Senior Division), etc. and joining instructions will be issued by the Hon'ble Madras High Court. The above District Judges (Entry Level) are informed that other terms and conditions specified in Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, shall apply to them."
The name of the writ petitioner figures in the said government order as a person selected for the post of District Judge (Entry Level) at Serial Number (4).
3. While things stood thus on the one hand, a complaint was sent by one Kannan @ Arunachalam, son of Ramasamy Nadar addressed to the Chief Secretary to the Government of Tamil Nadu and also to the Hon'ble Chief Justice of this Court alleging that the petitioner was involved in Crime No.2 of 2007 on the file of Pavoorchatram Police Station and that another case in C.C.No.406 of 2006 against the petitioner and others is pending on the file of the Judicial Mapgistrate, Tenkasi.
4. It is beyond any cavil and is also seen from the application submitted by the petitioner pursuant to the notification issued by the Government that the petitioner has stated to the following effect against column (10):
"10 Whether the applicant is involved in any litigation Civil/Criminal Nil"
5. It appears that based on the said complaint forwarded by the Government, the antecedents of the petitioner and others were called for and after considering the report of the Government in that regard, except the petitioner other 16 persons were administered oath on 17.2.2011 and it is not in dispute that they have undergone the training as per the government order issued.
6. The remarks furnished by the Government in respect of the petitioner are to the effect that against the petitioner a case is pending in Crime No.2 of 2007 under Sections 147, 148, 452, 425, etc. of the Indian Penal Code on the file of the Pavoorchatram Police Station citing him as fourth accused and the case has been treated as "mistake of fact". It is also seen from the remarks submitted by the Government that C.C.No.406 of 2006, in which the petitioner was one of the accused, was dismissed for non prosecution by the learned Judicial Magistrate, Tenkasi on 25.9.2009.
7. The petitioner has made a representation on 17.2.2011 addressed to the Registrar General enclosing a copy of the RCS Order passed by the learned Judicial Magistrate, Tenkasi, whereby the learned Judicial Magistrate has recorded the statement of police as "mistake of fact" on 11.2.2011 recording the fact that no objection has been filed by anyone to the RCS notice affixed in the residence of the de facto complainant. It was based on a report of the Inspector of Police, Pavoorchatram Police Station dated 10.9.2007. The final order dated 11.2.2011 passed by the learned Judicial Magistrate, Tenkasi which puts an end to Crime No.2 of 2007 is as follows:
"Defacto complainant called absent. No representation. Notice sent to Defacto complainant through Registered post and Police. The S.I. of Police Pavoorchatram P.S. has filed his special report. On perusal of special report, inspite of several steps taken by Pavoorchatram Police, notice could not be be served to the Defacto complainant. Hence the RCS notice affixed in the residence of the Defacto complainant in the presence of Village Administrative Officers and others. No objection filed by any one for this RCS notice. Hence RCS is recorded."
The petitioner has also stated in the representation that he was unaware of Crime No.2 of 2007, however he has chosen to state in the representation that any complaint that would have been given is false.
8. That was followed by another representation by the petitioner dated 25.3.2011 addressed to the Registrar General, wherein he has reprised that he was unaware of the FIR and he has made entries in the application made for appointment to the post of District Judge (Entry Level) in respect of columns (10) and (11) stating "Nil" on the bona fide belief that there was no complaint pending against him. He has also stated in the said representation that the complaint lodged against the petitioner and 29 other persons, which includes four lawyers, is in respect of an alleged occurrence stated to have taken place within one kilometre from the police station and the police immediately on verification found that no such occurrence has taken place and, therefore, he was of the presumption that the complaint must have been closed as "mistake of fact". The representation also states that the police has sent the same to the Judicial Magistrate Court, Tenkasi in 2007 itself from Pavoorchatram Police Station, however the Judicial Magistrate Court, Tenkasi has taken nearly four years for the purpose of effecting service on the de facto complainant and eventually recorded the report of the police only on 11.2.2011 and according to the petitioner, he was unaware of all these things and therefore, he has requested for his appointment.
9. Curiously, this was followed by a letter dated 26.3.2011 of the counsel who is appearing for the petitioner, Mr.T.S.R.Venkatramana, denoting in the letterhead that he is Ex-MLA of Tenkasi, addressed to the Governor of Tamil Nadu stating that the writ petitioner is his junior and requested the Governor of the State to consider the case of the writ petitioner in the light of the judgment of the Supreme Court in Commissioner of Police v. Sandeep Kumar, 2011 INSC 276 and that was forwarded by the Governor's Secretariat to the Government on 29.3.2011.
10. Complaining inaction on the part of the respondents, the above writ petition came to be filed originally with a prayer to direct the respondents to implement G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 appointing the petitioner as District Judge (Entry Level) in original seniority from the date of appointment and also to grant posting, on the basis that the respondents have legal obligation to give effect to G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 by posting the petitioner and taking away the said right without even giving him an opportunity will amount to violation of principles of natural justice by the respondents, including the High Court.
11. Meanwhile, the representation sent by the petitioner and remarks of the Government recording the antecedents of the petitioner are stated to have been placed before the Administrative Committee of the High Court and the Committee, having found that the petitioner has given a false declaration and thereby rendered himself unsuitable for selection, resolved to withdraw the recommendation in respect of the petitioner for appointment as District Judge (Entry Level).
12. After consideration of the representations of the petitioner and that of his counsel by the Administrative Committee and based on the decision of the High Court, as stated above, in withdrawing the recommendation in respect of the petitioner, the Government has issued G.O.Ms.No.310, Public (Special.A) Department, dated 29.3.2012 directing the name of the petitioner contained in Serial Number (4) in G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 to be deleted with immediate effect. On the same day, the Government, in consultation with the High Court, has appointed Mr.P.Sivakumar, son of Mr.M.Prakasam, Salem as District Judge (Entry Level) vide G.O.Ms.No.311, Public (Special.A) Department, dated 29.3.2012.
13. Thereafter, the petitioner has filed petitions to amend the prayer in the writ petition thereby challenging G.O.Ms.No.310, Public (Special.A) Department, dated 29.3.2012 and G.O.Ms.No.311, Public (Special.A) Department, dated 29.3.2012, and also impleading P.Sivakumar as the fourth respondent in the writ petition.
14. As per the direction of this Court and inasmuch as the writ petition was pending, G.O.Ms.No.311, Public (Special.A) Department, dated 29.3.2012 appointing the fourth respondent has not been given effect to so far.
15. The petitioner while challenging the impugned G.O.Ms.No.310, Public (Special.A) Department, dated 29.3.2012, bases again his claim on the same grounds as stated above.
16. In the counter affidavit filed by respondents 1 and 2, namely the Government, it is stated that the selection as per G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 has been done as per the recommendation of the High Court and the Government has also adopted the counter affidavit filed by the Registrar General, High Court, Madras.
17.1. The third respondent, namely Registrar General, in the counter affidavit, while admitting that as per G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 the petitioner was one among the persons selected and notified by the Government, would however state that before any further orders were passed permitting the petitioner to undergo training as per the government order, on receipt of a copy of the complaint from the Government revealing that there were two criminal cases pending against the petitioner one in Crime No.2 of 2007 on the file of the Pavoorchatram Police Station and another in C.C.No.406 of 2006 on the file of the Judicial Magistrate, Tenkasi, and thereafter having found that the petitioner in column (10) of the application has not disclosed the same, has considered the report of the learned Principal District Judge, Tirunelveli regarding the antecedents of the petitioner and also the report of the Government dated 19.1.2011 in respect of all the 17 selected persons and since there were adverse remarks against the petitioner, except the petitioner all other 16 persons were administered oath on 17.2.2011 and deputed to undergo training.
17.2. It is also stated by the third respondent that the Government in the letter dated 18.2.2011 has furnished their remarks that the petitioner was arraigned as fourth accused along with others in Pavoorchatram Police Station in Crime No.2 of 2007 and there was another case on the file of the Judicial Magistrate, Tenkasi in C.C.No.406 of 2006, which was dismissed for non prosecution on 25.9.2009.
17.3. It is also stated that the petitioner has sent representation on 18.2.2011 and that was placed before the Administrative Committee of the High Court on 24.2.2011 and the Committee considered the remarks offered by the Government on 18.2.2011 as well as the representation of the petitioner dated 18.2.2011 and having found that the petitioner has given false declaration, resolved to withdraw the recommendation in respect of the petitioner for appointment as District Judge (Entry Level).
17.4. It is stated that even thereafter the petitioner has sent a representation stating that the allegations made against him are false and as per the directions of the Hon'ble Chief Justice, the matter was again placed before the Administrative Committee for consideration.
17.5. It is stated that, in the meantime, the Secretary to Government, Public Department has received another representation dated 25.3.2011 along with certain enclosures and that letter was from Mr.T.S.R.Venkataramana, Ex.MLA Tenkasi, who is the learned counsel appearing for the petitioner and that was also placed before the Hon'ble Administrative Committee. It is stated that the Committee meeting was convened on 12.12.2011 and it was resolved to reject the representation and the same was informed to the Government in the letter dated 12.12.2011.
17.6. It is also stated that it is false to say that Crime No.2 of 2007 on the file of Pavoorchatram Police Station was closed as mistake of fact on 10.9.2007, as it was closed by the learned Judicial Magistrate, Tenkasi in accordance with law only on 11.2.2011 by assigning RCS.No.9 of 2011. It is also stated that C.C.No.406 of 2006, which was filed against the petitioner and others, on the file of the Judicial Magistrate, Tenkasi was dismissed for non prosecution and that fact was also not revealed by the petitioner in the application.
17.7. It is denied that there is any violation of principles of natural justice and it is stated that principles of natural justice cannot be a defence to the petitioner having applied for the highest post in the district level as District Judge, by stifling with the pendency of criminal cases. It is also denied that the petitioner was oblivious of the criminal cases.
17.8. It is also stated that mere selection of the petitioner will not confer on him any right. The High Court has a duty to find out the antecedents of the petitioner and after considering the report and applying its mind, the Administrative Committee has resolved to withdraw the recommendation in respect of the petitioner, which, according to the third respondent, is well within its right.
18.1. Mr.T.S.R.Venkataramana, learned counsel appearing for the petitioner while reiterating that the petitioner was oblivious of the pendency of the FIR in Pavoorchatram Police Station, would submit that in such circumstances there is absolutely no occasion for him to state anything in the application made by him for appointment to the post of District Judge (Entry Level) and, therefore, there is no question of deliberate suppression.
18.2. Apropos the pendency of C.C.No.406 of 2006 which was dismissed for default on 25.9.2009, according to him, since it does not form part of the impugned order of the Government in G.O.Ms.No.310, Public (Special.A) Department, dated 29.3.2012, that cannot be a ground for the purpose of cancelling his appointment.
18.3. It is his submission that by virtue of G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 the petitioner is deemed to have been appointed as a District Judge (Entry Level) and thereafter his right is governed by the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 and in such event, if the High Court or the Government wants to terminate his services, the same should be done only after giving an opportunity to the petitioner.
18.4. It is his submission that the Selection Committee has acted with a mala fide intention and when the Committee was informed that there was some suppression, the petitioner should have been given a fair and reasonable opportunity. He would also submit that the Administrative Committee of the High Court has acted with total bias having failed to take note of the fact that the petitioner was unaware and there was no possibility for him to know about the FIR registered in the Pavoorchatram Police Station. He would go to the extent of submitting that not only the Selection Committee but also the Administrative Committee is biased towards the petitioner. To substantiate his contention on bias, he would rely upon the decision in Gullappalli Nageswararao and others v. State of Andhra Pradesh and others, AIR 1959 SC 1376.
18.5. According to him, the impugned order of the Government in cancelling the appointment of the petitioner based on consultation with the High Court is totally extraneous and untenable. He would add that inasmuch as the termination from service under the impugned order by the Government will amount to punishment, it requires following of the principles of natural justice.
18.6. He would also submit that what is required to be stated in Column (10) of the application was as to whether the petitioner was involved in any litigation civil or criminal and the term "involved" means that he should have committed an offence and inasmuch as he has not committed any offence and the police in respect of the said FIR on the very same day of filing of FIR, namely on 10.9.2007, has closed the same as "mistake of fact", the mere fact that it has taken four years because of the lethargic attitude of police in bringing to the Court of the Magistrate and serving the de facto complainant, cannot be put against the petitioner for the purpose of taking away the valuable right which has been conferred on him by G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011, especially when he was placed in Serial Number (4) of the selectees list. He would rely upon the decision in Venkata Narasinga Rao v. Vysyaraju Surayyaraju, 1946 II MLJ 245 and M.N.Mohammed Ali v. The State of Tamil Nadu and others, 1988 WLR 1 to substantiate his contention.
18.7. He would further submit that when once the police on 10.9.2007, namely on the date of the alleged crime, on investigation found that it is a mistake of fact, even though the said fact was recorded in the year 2011, it will go back to the date on which it was declared as mistake of fact by the police and, therefore, on the date when the petitioner has made application, there was nothing for him to suppress.
18.8. He would submit that G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 itself is sufficient to show that appointment has been completed and further formalities like the probation and undergoing of training are incidental and that cannot take away the right of appointment already conferred on the petitioner. He also submitted that the question that ought to have been considered is as to whether the petitioner was aware of the pendency of the FIR and how he should have been dealt with and when once appointment has been completed, the probation and other things are only consequential. In this regard, he would rely upon the decision in Daya Shankar Yadav v. Union of India and others, (2010) 14 SCC 103. He would add that even as per G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011, the appointing authority is not the High Court but is the Governor.
18.9. He would submit that insofar as it relates to the term "posting" as contemplated under Articles 233 and 235 of the Constitution of India, it is only incidental and when once the appointment is given, a vested right is accrued and thereafter the petitioner gets a right of protection under Articles 309 to 311 of the Constitution of India, apart from the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007.
18.10. He would submit that when once the petitioner has been appointed, his appointment cannot be deleted and there is no jurisdiction to the High Court or the Government and according to him, such deletion is illegal. To buttress his argument, he would rely upon the decisions in K.Solomon v. The Deputy Inspector General of Prison, Chennai, (2010) 7 MLJ 966, Tarsem Singh v. State of Punjab and others, (2006) 13 SCC 581, and MRF Limited v. Manohar Parrikar and others, (2010) 11 SCC 374.
18.11. To substantiate his contention that the Executive has no power to review when once the government order has been issued giving appointment, he would rely upon the decision in S.P.Gupta v. Union of India, AIR 1982 SC 149, apart from Madan Mohan Choudhary v. State of Bihar and others, (1999) 3 SCC 396.
18.12. He would submit that in spite of the order of the High Court, the Registrar General has not chosen to show the entire file and in this regard, he would rely upon the decision in Chandramouleshwar Prasad v. The Patna High Court and others, 1969 (3) SCC 56, State of Kerala v. A.Lakshmikutty and others, (1986) 4 SCC 632, Shrawan Kumar Jha and others v. Sate of Bihar and others, 1991 Supp (1) SCC 330, Bachhittar Singh v. State of Punjab and another, AIR 1963 SC 395, P.Virabhagu v. Union of India, 2005 (1) CTC 429, D.Mahadevan v. Director General of Police, Chennai, (2008) 4 MLJ 88, V.Balaji v. The Director General of Police, Chennai, 2011 (2) CWC 834, Ram Kumar v. State of U.P. & Others, 2011 (6) CTC 440, T.S.Vasudavan Nair v. Director of Vikram Sarabhai Space Centre and Others, 1988 (Supp) SCC 795, Secretary, Department of Home Secretary, Andhra Pradesh and Others v. B.Chinnam Naidu, (2005) 2 SCC 746, State of Haryana and others v. Dinesh Kumar, (2008) 3 SCC 222 and Shanti Bhushan and another v. Union of India and another, 2009 (2) CTC 425.
18.13. Finally, it is his submission that by virtue of a false complaint given by some of the members of the bar, the petitioner, who has faired very well in the written examination as well as in the viva-voce before the Selection Committee, had to lose his right and the High Court as well as the Selection Committee, apart from the Administrative Committee failed to take note of the same and, therefore, according to him, it would amount to constructive bias.
19.1. Per contra, it is the contention of Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the third respondent/Registrar General of the High Court that the appointment given in G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 is only an offer of appointment and that should follow the further relevant acts like certificate verification, physical fitness and thereafter the selectee would be posted for training during the probation period.
19.2. He submits that after verification of the certificates and physical fitness, the supernumerary posts were created not within the cadre strength, but to enable the selectees to undergo training both as Civil Judges (Junior Division) as well as Civil Judges (Senior Division) and it was after completing the training of six months each, they would be posted to the cadre post of District Judges (Entry Level).
19.3. It is his submission that during the training, as per Rule 6 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, temporary additional posts are created by the Government in supernumerary manner and even that posting cannot be said to be permanent, since it is not posting to the cadre strength and the posting comes into effect only after completion of the training to the satisfaction of the appointing authority.
19.4. It is his submission that after viva-voce was completed on 13.11.2010, immediately on the very same day the list was sent to the Government for further action and the Government has issued G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011. In the meantime, a complaint was received from one Kannan @ Arunachalam, which was forwarded to the third respondent/Registrar General on 29.12.2010, enclosing a copy of the complaint in C.C.No.406 of 2006 and Crime No.2 of 2007. Immediately, when antecedents of all candidates were directed to be enquired by the High Court, especially by referring the complaint in respect of the petitioner to the Principal District Judge, Tirunelveli, he has submitted a report on 8.1.2011 confirming the fact that the petitioner was arraigned as an accused in both the cases.
19.5. It is his submission that the representation made by the petitioner has been considered by the Administrative Committee and a detailed resolution was passed, since the High Court has got an onerous responsibility to go into the antecedents of a person to be appointed as a District Judge.
19.6. It is also his submission that it is not as if the High Court on receipt of the copy of the complaint from the Government has straightaway cancelled the petitioner's appointment as per G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011, but even thereafter, the High Court has addressed letter to the Government and the petitioner's further representation dated 25.3.2011 was again considered.
19.7. It is his submission that Poovachatram is a small village and when one looks into the nature of the complaint, which is between two groups in respect of a temple, it cannot be said that the petitioner is unaware of the same. It is also his submission that even on a reference to the letter of the petitioner dated 17.2.2011 it cannot be said that the petitioner had no knowledge about the FIR.
19.8. He would submit that in any event insofar as it relates to C.C.No.406 of 2006, which is based on a complaint given by one Kalarani, even though it was closed in the year 2009 itself for non appearance of the complainant, the petitioner has appeared through counsel and he has not chosen to disclose the same in column (10) of the application.
19.9. It is his submission that the cancellation of appointment of the petitioner was after considering the representations of the petitioner and mere appointment vide G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 cannot be said to be final and it is only after the posting is given after completion of the training, the functioning of a person as District Judge commences and, therefore, there is no need to give any notice, especially when the Administrative Committee has considered in detail all the representations. In this regard, he would rely upon the decisions in Union of India and others v. Kali Dass Batish and another, (2006) 1 SCC 779, Union Territory of Chandigarh v. Dilbagh Singh and others, (1993) 1 SCC 154, Union of India v. Rati Pal Saroj and Another, (1998) 2 SCC 574.
19.10. His submission is that as per the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 governing the appointment of Judicial Officers, unless and until the posting is given and appointment is made to the cadre strength there is absolutely no protection. His submission is that Article 311 of the Constitution of India will not apply to the case of appointment of District Judges.
19.11. He would submit that even during the time of probation if a selectee is to be removed, there is no necessity for any enquiry. In this regard, he would rely upon the decisions in Rajesh Kohli v. High Court of Jammu and Kashmir and another, (2010) 12 SCC 783, Daya Shankar Yadav v. Union of India and others, (2010) 14 SCC 103, (2011) 4 LW 138 and a judgment of a Division Bench of the Bombay High Court in Khushalchand Bhairulal Varma v. High Court of Judicature at Bombay and Others, 2011 (113) BomLR 3232, which has been confirmed by the Supreme Court in the Special Leave Petition.
19.12. To substantiate his contention that principles of natural justice on the facts and circumstances of the present case becomes a useless formality, he would rely upon the decision in Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529.
19.13. The learned Senior Counsel has also forwarded the records.
20.1. Mr.A.L.Somayaji, learned Senior Counsel appearing for the fourth respondent, who was subsequently impleaded and who was posted in the place of the petitioner by dint of G.O.Ms.No.311, Public (Special.A) Department, dated 29.3.2012, would submit that inasmuch as in C.C.No.406 of 2006 the petitioner has entered appearance through counsel, there is no reason for not mentioning the same in column (10) of the application and that would amount to deliberate suppression. He would add that mere mentioning of petitioner's name in criminal cases is sufficient to disqualify him and in this regard he would rely upon the decisions in Delhi Bar Association v. Union of India and others, (2002) 10 SCC 159 and K.H.Siraj v. High Court of Kerala and others, (2006) 6 SCC 395.
20.2. It is his submission that even if G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 is taken as an appointment, it is not operative till the appointee joins in the services and mere appointment does not amount to joining. He would submit that unless and until the petitioner joins into service there is no question of giving opportunity to him and for cancellation of appointment there is no need to give opportunity to the petitioner. In this regard, he would rely upon the decisions in Dr.J.Shashidhara Prasad v. Government of Karnataka and another, (1999) 1 SCC 422, K.G.Ashok and others v. Kerala Public Service Commission and others, (2001) 5 SCC 419 and Manikandan and others v. The Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and others, 2008 (2) CTC 97.
20.3. To substantiate his contention that in judicial services antecedents are to be necessarily looked into, he would rely upon the decision in Kazia Mohammed Muzzammil v. State of Karnataka, (2010) 8 SCC 155.
20.4. He would also reiterate that the Government as well as the High Court have considered the representations of the petitioner and passed orders.
21. Mr.P.S.Sivashanmuga Sundaram, learned Additional Government Pleader appearing for respondents 1 and 2, while adopting the arguments of Mr.R.Muthukumaraswamy as well as Mr.A.L.Somayaji, learned Senior Counsel, submits that inasmuch as under Article 233 of the Constitution of India the Government is expected to consult the High Court by way of an effective consultation, the consultation has been effected both at the stage when G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 was made and also at the stage when the cancellation order was passed in G.O.Ms.No.310, Public (Special.A) Department, dated 29.3.2012 and G.O.Ms.No.311, Public (Special.A) Department, dated 29.3.2012.
22. We have considered the submissions of respective counsel, perused the records and given our anxious thought to the issue involved in this case.
23. We earlier had an occasion to deal with the validity of the appointment of the District Judges (Entry Level) by taking into consideration the effect of Articles 233 and 235 of the Constitution of India relating to the effective consultation of the High Court in the matter of appointment of District Judges and upheld the selection in V.Yamuna Devi and another v. Registrar General, High Court, Madras and others, (2011) 1 MLJ 833. By referring to Article 233 of the Constitution of India, which is as follows:
"Article 233. Appointment of district judges.
(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."
and also a plethora of decisions by the Apex Court and various High Courts, we have held that conducting of written test and viva-voce in respect of appointment of District Judges (Entry Level) is entrusted to the High Court for the purpose of preserving absolute independence of the judiciary and to select meritorious candidates.
24. In the present case, the admitted fact is that the Government in consultation with the High Court as per Article 233 of the Constitution of India has made appointment of 17 District Judges (Entry Level) based on the selection process conducted by the High Court. The High Court conducted written examination on 3.10.2010 in which 2047 candidates have participated. The eligible candidates were shortlisted and 103 candidates were called for viva-voce which was held from 11.11.2010 to 13.11.2010 and 17 candidates were selected, including the petitioner whose name finds place in Serial Number (4) as seen in the G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011, as extracted above.
25. The said selection, which was notified by the Government in the above government order, was subject to the period of probation during which time the selectees have to undergo training as Civil Judges (Junior Division) for a period not less than six months and training as Civil Judges (Senior Division) for a period not less than six months, apart from training in Forensic Science for a period of not less than two months. That apart, the selectees should also pass the Account Test for Executive Officers within the period of probation and only after satisfactory completion of the training they will be posted as District Judges (Entry Level) and the posting order will be issued by the High Court. It is specifically stated in the said government order, as extracted above, that the terms and conditions specified in the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 will apply. The said government order itself is in terms of Rule 6 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, which is as follows:
"Rule 6. Training, test and Confirmation:-
(1) Training:-
a) Every person appointed to the category of District Judges (Entry Level) by direct recruitment, shall undergo:-
(i) training as Civil Judge for a period of not less than six months:-
(ii) training as Senior Civil Judge for a period of not less than six months, and
(iii) training in Forensic Science for a period of not less than two months.
(b) As many temporary additional posts in the cadre of District Judge as there are directly recruited District Judges undergoing training shall be created for the duration of the said training.
(c) Every person appointed to the category of Civil Judge shall undergo training for a period of twelve months.
The District Judges (Entry Level)/Civil Judges appointed by direct recruitment, shall be paid the minimum of the time scale of pay applicable to the post of District Judge/Civil Judge during the period of training and allowed annual increment even during the period of training.
If they pass the Account Test for Executive Officers before the completion of one year of service, they shall be eligible to draw the first increment in advance from the date following the date of passing such examination.
(2) Tests:-
Every person appointed to the categories of District Judge (Entry Level)/Civil Judge by direct recruitment shall, within the period of probation, pass the Account Test for Executive Officers.
(3) Confirmation:-
An officiating District Judge (Entry Level) or an officiating Civil Judge shall be confirmed by the High Court to be a full member of the service in the category concerned at the earliest possible opportunity in any substantive vacancy which may exist or arise in the category in which he/she is officiating according to his/her seniority in the category concerned."
26. A reference to the said Rule makes it abundantly clear that apart from the training for six months in each of the cadre, during the period of training, temporary additional posts are created as supernumerary posts and it makes it very clear in Rule 6(3) of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 that during the said period they are officiating District Judges (Entry Level) and they shall be confirmed by the High Court as full members of the service and posted in a substantive vacancy according to their seniority.
27. It is also not in dispute that in the application submitted by the petitioner against columns (10) and (11), which are as follows:
10 Whether the applicant is involved in any litigation Civil/Criminal
11 Whether the applicant has come up for adverse notice of the Police/Bar Council, the petitioner has stated "Nil". That application was dated 6.7.2010.
28. By a covering letter dated 29.12.2010, signed by the Joint Secretary to the Government on 4.1.2011, the Government has enclosed a complaint against the petitioner received from one Kannan @ Arunachalam, in which he has stated that against the petitioner in Pavoorchatram Police Station in Crime No.2 of 2007 a case is pending, apart from C.C.No.406 of 2006 pending on the file of the learned Judicial Magistrate, Tenkasi.
29. A copy of the private complaint given by one Kalarani registered as C.C.No.406 of 2006 on the file of the learned Judicial Magistrate, Tenkasi shows that the petitioner and others with a conspiracy have created a bogus will and filed a suit in O.S.No.431 of 2004 in the District Munsif Court, Tenkasi. That apart, it is stated that the petitioner and others have created bogus will and other documents, including marriage invitation for the purpose of knocking away the property belonging to the complainant. In respect of the said crime, the petitioner was arraigned as second accused and he has appeared through counsel. The said case was dismissed for non prosecution by the learned Judicial Magistrate, Tenkasi on 25.9.2009. This fact, as it is seen in the application of the petitioner, he has not chosen to disclose in column (10).
30. Insofar as it relates to the registration of Crime No.2 of 2007 on the file of Pavoorchatram Police Station, it is seen that the FIR was registered on 3.1.2007 by the Head Constable of the said police station based on a complaint given by one Amudha Tamil Pandian under Sections 147, 148, 452, 295, 379, 506(ii) and 109 of the Indian Penal Code against Dharmaraj and 29 others, including the petitioner, accusing unlawful assembly with deadly weapons; criminal trespass into Keelapavoor Muppidathiamman temple after breaking open the locks of the temple; causing damage to the property; defiling the statute of the deity; and committing theft of cash of ` 50,000/- and ornaments. The said Amudha Tamil Pandian is stated to be the hereditary trustee of the temple and President of Keelapavoor Nadar Community. The learned Magistrate has received the complaint on 4.1.2007. Admittedly, no one was arrested based on the complaint and Amudha Tamil Pandian himself was a practicing advocate in Tenkasi bar. It appears that the Inspector of Police, Pavoorchatram has investigated from 3.1.2007 to 10.9.2007 and found that there was no substance in the complaint and sent his report as mistake of fact to the learned Judicial Magistrate, Tenkasi for recording the same. Admittedly, in the Court of the Magistrate, the said report of the police was pending since steps were being taken for the purpose of serving notice to the de facto complainant. The learned Judicial Magistrate, Tenkasi has recorded the report of the police on 11.2.2011, as it is seen in R.C.No.9 of 2011. In fact, before recording the report of the police dated 10.9.2007, the learned Judicial Magistrate, Tenkasi seems to have taken steps for the purpose of serving the de facto complainant and service could not be effected and ultimately, as stated above, on 11.2.2011, the statement of police was recorded.
31. The application of the petitioner for the post of District Judge (Entry Level) is dated 6.7.2010. The Government has notified the selection of 17 persons, including the petitioner, vide G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 and the final report in respect of the FIR has been recorded by the learned Judicial Magistrate, Tenkasi on 11.2.2011. The said dates cannot be lightly brushed aside while considering the antecedents of the petitioner.
32. From 2007 till 11.2.2011, especially after the notification of appointment was made, why the FIR was kept pending; why steps have not been taken for the purpose of closing it at an earlier point of time; and as to why notice could not be served on the de facto complainant are all the million dollar questions. Therefore, the vehement contention made by the learned counsel for the petitioner as if the petitioner was most righteous cannot be accepted on the face of it, even if it is true, since the Government as well as the High Court while appointing a person as a District Judge, who is going to head the District judiciary, have an onerous responsibility and should be chary of the consequences involved in making such appointments and squarely that is the reason why the appointment of District Judges has been entrusted by the Constitution-makers to the High Court under Article 233 of the Constitution of India and the appointments are to be made by the Governor of the State in consultation with the High Court.
33. It is seen from the records that a grave allegation has been made against a group of accused numbering 29, including the petitioner, of breaking open the locks of the temple; stealing amount and ornaments; and defiling the statute of the deity and in such a small village when such an incident happens and a complaint about the same is given, it is very hard to believe that the petitioner against whom the complaint was given is unaware of the same. In any event, in respect of the complaint given by Kalarani, which is not less serious than the other FIR, it is not as if the petitioner has been honourably acquitted. The case was dismissed for non appearance of the complainant and why the said Kalarani could not appear before the Magistrate Court is again the million dollar question. Therefore, there is no question of absolute exoneration of the petitioner and one cannot come to a conclusion that either the Government or the High Court ought to have appointed such person in spite of such drastic revelation. In our considered view, even assuming that the petitioner is innocent, after such allegations have been made against the petitioner, if appointment was made by the High Court, it would have been totally unfair and unjustified, for Caesar's wife must be above suspicion.
34. That apart, the records abundantly show that the representations of the petitioner on many occasions have been considered by the Administrative Committee. In fact, in the resolution of the Administrative Committee dated 24.2.2011, the Committee has not only considered the report of the learned Principal District Judge, Tirunelveli dated 8.1.2011, but also the representations made by the petitioner, and has taken a very cautious decision that such a person who has chosen to suppress the pendency of the criminal cases, especially relating to C.C.No.406 of 2006, renders himself disqualified for appointment to the post and, therefore, decided to withdraw his recommendation to the Government. Taking into consideration the paramount interest of the judiciary and its independence, the wild allegations and contentions made by the petitioner as well as his counsel of bias against the Administrative Committee are unwarranted and totally baseless.
35. The admitted fact that the petitioner who was involved in C.C.No.406 of 2006, which of course ended in dismissal due to non appearance of the complainant in the year 2009,has not disclosed the same in column (10) of the application itself is sufficient to show that the claim of principles of natural justice by the petitioner is only a ruse devised by the petitioner to get into the highest post in the district judiciary with a tarnished image. In such circumstances, in our considered view, the question of natural justice does not arise and it becomes a useless formality.
36. It was in Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529 the Supreme Court has formulated in the form of guidelines where the following of the principles of natural justice is not necessary, as in cases where by quashing an order on the ground of breach of natural justice it would result in revival of another illegal order; where no prejudice will be caused to the person concerned; and in cases where it is an empty formality. In this regard, it is relevant to reproduce the following paragraphs:
"21. As pointed recently in M.C. Mehta v. Union of India, (1999) 6 SCC 237 there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 828, it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C. Mehta v. Union of India, (1999) 6 SCC 237 it was pointed out that at one time, it was held in Ridge v. Baldwin, 1964 AC 40 that breach of principles of natural justice was in itself treated as prejudice and that no other de facto prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379, Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows:
'[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.'
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364. In that case, the principle of prejudice has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P., (1996) 5 SCC 460.
25. The useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta v. Union of India, referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
37. When complaints have been made against a person who was appointed as District Judge in the State of Jammu and Kashmir who was under probation and in fact has also earned increments that he had been abusing the employees and had created lot of problems at District he was posted, the Full Court of the High Court of Jammu and Kashmir has resolved that his services were not satisfactory and probation was not extended and his services were dispensed with. When that was challenged, the Supreme Court in Rajesh Kohli v. High Court of Jammu and Kashmir and another, (2010) 12 SCC 783 while observing that not only it is imperative to maintain a high benchmark of honesty, but the public's perception of judiciary matters and for that the judges should sustain the culture of integrity, virtue and ethics, held that the resolution of the Full Court in not extending the services without giving opportunity to the person concerned cannot be said to be opposed to the principles of natural justice. It was held that the High Court had a solemn duty to consider and appreciate the service of a judicial officer before confirming him, which requires not only his judicial performance but also probity as to how he has conducted himself. It is relevant to extract the following passages of the said judgment:
"31. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards the society.
32. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of the litigants, but also to sustain the culture of integrity, virtue and ethics among Judges. The public's perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct."
38. The importance of finding out the antecedents and verification of character in the public appointment with reference to appointment to Armed Forces came to be considered by the Apex Court in Daya Shankar Yadav v. Union of India and others, (2010) 14 SCC 103 and in that decision, the Supreme Court has held as follows:
"15. When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences:
(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant s fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non-disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above.
16. Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: (i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college, etc.; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case). This ground is distinct from the ground of previous antecedents and character, as it shows a current dubious conduct and absence of character at the time of making the declaration, thereby making him unsuitable for the post."
39. The verification of antecedents was declared as relevant by the Full Bench of the Apex Court even earlier in Union of India and others v. Kali Dass Batish and another, (2006) 1 SCC 779, while dealing with the appointment of an Executive Officer of the Central Administrative Tribunal constituted under Article 323-A of the Constitution of India. In that case it was also held that mere inclusion of a person in the select list does not confer on him any right. It is apposite to extract the following paragraphs of the said decision:
"13. There is merit in the submissions of the learned Solicitor General. It appears that the High Court has acted in the matter as if dealing with an appointment made by an executive officer. It must be remembered that CAT is a Tribunal constituted under Article 323-A of the Constitution and is expected to have the same jurisdiction as that of a High Court. Consequently, Parliament has taken great care to enact, vide Sections 6 and 7 of the Act, that no appointment of a person possessing the qualifications prescribed in the Act as a member shall be made, except after consultation with the Chief Justice of India. The consultation with the Chief Justice of India is neither a routine matter, nor an idle formality. It must be remembered that a member of an Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate thereagainst. It is for this reason, that a policy decision had been taken by the Government of India that while considering members of the Bar for appointment to such a post, their antecedents have to be verified by IB. The antecedents would include various facts, like association with antisocial elements, unlawful organisations, political affiliations, integrity of conduct and moral uprightness. All these factors have necessarily to be verified before a decision is taken by the appointing authority to appoint a candidate to a sensitive post like member of CAT. In Delhi Admn. v. Sushil Kumar, (1996) 11 SCC 605 this Court emphasised that even for the appointment of a constable in police services, verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable for a post under the State. Even if such candidate was found physically fit, had passed the written test and interview and was provisionally selected, if on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a constable, the view taken by the appointing authority could not be said to be unwarranted, nor could it be interdicted in judicial review. These are observations made in the case of a constable, they would apply with greater vigour in the case of appointment of a judicial member of CAT. It is for this precise reason that sub-section (7) to Section 6 of the Act requires that the appointment of a member of CAT cannot be made except after consultation with the Chief Justice of India . This consultation should, of course, be an effective consultation after all necessary papers are laid before the Chief Justice of India, and is the virtual guarantee for appointment of absolutely suitable candidates to the post...
15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right."
40. It was held in Union Territory of Chandigarh v. Dilbagh Singh and others, (1993) 1 SCC 154 that in cancelling a dubious select list there is no question of giving opportunity or confirming to the principles of natural justice. It is relevant to extract the following paragraphs of the said decision:
"8. Affording of an opportunity of hearing by an Administration to the members of a Selection Board constituted by it, before cancelling a dubious select list of candidates for appointment to civil posts prepared by such Selection Board is not and cannot be a requirement of either law or any principle of natural justice. It is so for the reason that no member of a Selection Board acquires any vested right or interest in sustaining a select list prepared by the Selection Board. Besides, there is no personal right or interest of any member of a Selection Board which could be adversely affected, by the Administration cancelling a select list of candidates prepared by Selection Board when it is found to have been prepared by the Selection Board in unfair and injudicious manner. Therefore, there can arise no need to any Administration to afford an opportunity of hearing to the members of the Selection Board before cancelling a dubious select list of candidates for appointment to civil posts, prepared by it. Hence, we must hold that the CAT was wholly wrong in setting aside the Chandigarh Administration's order by which the dubious select list of candidates for appointment as conductors in CTU prepared by Selection Board constituted by it had been cancelled, on its erroneous view that non-affording of an opportunity of hearing to the members of the Selection Board before cancelling its select list had vitiated that order. This would be our answer to the question adverted to at the outset..
12. If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the instant case, when the Chandigarh Administration which received the complaints about the unfair and injudicious manner in which select list of candidates for appointment as conductors in CTU was prepared by the Selection Board constituted for the purpose, found those complaints to be well founded on an enquiry got made in that regard, we are unable to find that the Chandigarh Administration had acted either arbitrarily or without bona fide and valid reasons in cancelling such dubious select list. Hence, the contentions of the learned counsel for the respondents as to the sustainability of the judgment of CAT under appeal on the ground of non-affording of an opportunity of hearing to the respondents (candidates in the select list) is a misconceived one and is consequently rejected."
41. Even after a candidate passed in the physical fitness test and interview and he was provisionally selected for appointment to the post of Constable, when it was found that his antecedents were not desirable, the Supreme Court in Delhi Administration, through its Chief Secretary and others v. Sushil Kumar, (1996) 11 SCC 605, held as follows:
"3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6-9-1995 in OA No. 1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18-12-1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? 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."
42. Even in a case where a person was recruited to judicial service and it was found later that he was acquitted in a criminal case on benefit of doubt, a Division Bench of the Bombay High Court in Khushalchand Bhairulal Varma v. High Court of Judicature at Bombay and Others, 2011 (113) BomLR 3232 (which decision came to be confirmed by the Apex Court by dismissing the Special Leave to Appeal filed by the candidate on 14.10.2011 in Special Leave to Appeal (Civil) No.27136 of 2011)), has held that in the recruitment of judges to judicial service, the recruiting authority acts as a custodian of public interest and the administration of justice cannot bear the burden of a judge whose conduct is not free from an element of doubt. The fascinating expression by the Division Bench of the Bombay High Court which presumes such sacred duty on the part of the recruiting authority in appointment of judges is as follows:
"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 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."
43. The Supreme Court in Union of India v. Rati Pal Saroj and Another, (1998) 2 SCC 574 has held that following of principles of natural justice does not arise when once the appointing authority comes to a conclusion that such a person is not suitable for appointment, in the following words:
"7. The respondent, in the present case, is not, in the strict sense, governed by Regulation 13 of the Indian Administrative Service (Appointment by Competitive Examination) Regulations, 1955, since the appointment has been withdrawn after the appointment order was issued and not before. The Indian Administrative Service (Probation) Rules of 1955 also do not apply to the respondent because he does not belong to the Indian Administrative Service as a probationer. He is in the intermediate stage of a person who has accepted the appointment offer but has not joined the new Service. What are his rights?
8. His position appears more akin to the position of a selectee rather than a probationer because he has not joined the new Service when the appointment is cancelled. He continues to belong to the Service which he had joined and to which he belonged prior to his present selection. One thing at least is clear (he cannot have higher rights than a probationer. It is well settled that a probationer's service can be terminated during the period of probation if he is found unsuitable. No enquiry is necessary for such termination of the services of a probationer. In the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 a Bench of this Court consisting of seven Judges, inter alia, held that the services of a probationer can be terminated when the authorities are satisfied regarding his inadequacy for the job, or unsuitability for temperamental or other reasons not involving moral turpitude, or when his conduct may result in dismissal or removal but without a formal enquiry. An enquiry is necessary only when the termination is by way of a punishment, and to determine this the substance of the order and not the form is decisive. The same position has been reaffirmed in Anoop Jaiswal v. Govt. of India, (1984) 2 SCC 369 where the decision in Samsher Singh v. State of Punjab has been quoted extensively. Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. If it comes to the conclusion that the probationer is not suitable he is liable to be discharged. He cannot, in this situation, claim the benefit of Article 311(2).
9. There is no reason why the same right to terminate the offer of appointment on the ground of the prospective employee's unsuitability should be denied to the Central Government. An employee who has not yet joined the Central Government Service cannot be put on a higher pedestal than a probationer. If an employee who has been offered a post by the Central Government is not in a position to join on the date fixed under the appointment letter and there is no prospect of his joining for several years to come, the Central Government would be entitled to terminate the appointment as the person appointed is not available to the Central Government within a reasonable time of the appointment and hence he is not suitable. This does not cast any stigma nor is it a punishment for the prospective employee. If the employee has a right to be appointed by virtue of his acceptance of the offer of appointment, that right has to be exercised within a reasonable time. It is not a right which remains for an indefinite period of time. In the same way, if the Government discovers after the offer of appointment, circumstances relating to the prospective employee which make him unsuitable for the post, the appointment can be cancelled. If the circumstances raise a doubt about the suitability of the candidate for the post or the Service in question, the doubt should be dispelled within a reasonable time. Otherwise the employer is entitled to cancel the appointment. This is not by way of a punishment nor does it cast a stigma on the prospective employee...
11. In the present case looking to the facts and circumstances it was not necessary to give a hearing to the respondent. It is urged that the withdrawal of appointment was on account of the FIR filed against the respondent and, therefore, the respondent should have been heard and given an opportunity to present his case before withdrawing his appointment. Or his appointment should be kept in abeyance till he is found guilty or acquitted. The earlier correspondence, however, shows that the respondent was unable to join as a probationer on the due date because he was not being relieved from his post. The Central Government thereafter learnt why the respondent was not being relieved from his post. If thereafter it came to a conclusion that the respondent was not a suitable person, or that it was not possible to wait for a long period for the respondent to join, it would be entitled to withdraw the appointment. Indian Administrative Service is a premier administrative service of the Central Government. All those who are members of the Indian Administrative Service are called upon to discharge heavy responsibilities which require on the part of an incumbent to the post the highest degree of probity, rectitude and an impeccable character. If in the facts and circumstances of the present case the Central Government decided that the respondent was unsuitable to be given a post in the Indian Administrative Service, the decision cannot be faulted. The impugned letter merely withdraws the offer of appointment. It casts no stigma. So long as the decision is taken bona fide on relevant facts and in the interests of the Service it cannot be faulted."
44. A Full Bench of this Court in Manikandan and others v. The Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and others, 2008 (2) CTC 97, while observing that suppression of material fact is a vitiating factor for any person, held that a person seeking appointment in certain important services must disclose the facts and non-disclosure of involvement in criminal case will certainly disentitle a person to have a right of appointment, in the following terms:
"31. Coming to the second question referred to us, it is seen that the Apex court has always held suppression of a material fact to be a vitiating factor. The only case in which the Supreme Court held the non disclosure by a person of his conviction in a criminal case to be of no consequence, is the one in T.S.Vasudevan Nair v. Director of Vikram Sarabai Space Centre and others (1988 (supp) SCC 795). But the Supreme Court made it clear in the said judgment that it was passed in the special facts and circumstances of the case. That case arose out of the denial of employment to a person, who was convicted under the Defence of India Rules for shouting slogans against the Government during emergency. He did not disclose it while seeking employment. Therefore he was denied employment. The Supreme Court considered the special facts and circumstances of the case and directed his appointment. The Supreme Court did not lay down, any proposition of law in the said case, that the non disclosure by a person of his involvement or conviction in a criminal case, can be condoned...
35. The issue is now set at rest by the Apex court in R.Radhakrishnan v The Director General of Police and others 2007 (12) SCALE 539, which is the latest in this series of decisions. The Supreme Court has clarified the law on the point, as follows:
'10. Indisputably, the Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who has not made such disclosures and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Administration through its Chief Secretary and others v. Sushil Kumar (1996) 11 SCC 65, wherein it was categorically held:
'3.... The Tribunal in the impugned order allowed the application on the ground that since the respondent and been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC. and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? 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.....'
12. Mr.Prabhakar has relied upon a decision of this Court in T.S.Vasudevan Nair v. Director of Vikram Sarabhai Space Centre and Others, 1998 Supp. SCC 795. The said decision has been rendered, as would be evident from the judgment itself, on special facts and circumstances of the said case and cannot be treated to be a binding precedent.
13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise."
Thus the above latest decision of the Apex Court has cleared the cloud of suspicion on the issue. Therefore we hold that the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. His subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. In any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the 2 Explanations under clause (iv) of Rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honorable or otherwise."
45. The importance of maintenance of high discipline among the judicial officers and the significance of proper superintendence of the High Court over the Judicial Officers was highlighted by the Apex Court in Kazia Mohammed Muzzammil v. State of Karnataka, (2010) 8 SCC 155. The Supreme Court also issued certain directions to the High Court to be followed while making appointment of judicial officers. It is apt to reproduce the following paragraphs:
"17. Highly competitive standard of service discipline and values are expected to be maintained by the Judicial Officers as that alone can help them for better advancement of their service career. In such circumstances, the significance of proper superintendence of the High Court over the Judicial Officers has a much greater significance than what it was in the past years. In fact, in our view, it is mandatory that such confidential reports should be elaborate and written timely to avoid any prejudice to the administration as well as to the officer concerned...
61. Although for the reasons aforerecorded we find no merit in this appeal and dismiss the same. While dismissing the appeal we feel constrained to issue the following directions:
(1) The judgment of this Court shall be placed before the Hon'ble the Chief Justice of the Karnataka High Court for appropriate action. We do express a pious hope that steps will be taken to ensure timely recording of the confidential reports of the Judicial Officers by appropriate authority (which in terms of Chapter VI with particular reference to the provisions of Article 235 of the Constitution is the High Court) and in an elaborate format depicting performance of the Judicial Officers in all relevant fields, so as to ensure that every judicial officer in the State will not be denied what is due to him in accordance with law and on the basis of his performance;
(2) We direct the Secretary of the Union of India, Ministry of Personnel, Public Grievances and Pension as well as all the Chief Secretaries of the States to issue appropriate guidelines, in the light of this judgment, within eight weeks from the date of the pronouncement of this judgment;
(3) We further direct that all the High Courts would ensure that police verification reports , conducted in accordance with law, are received by the authority concerned before an order of appointment/posting in the State Judicial Service is issued by the said authority."
46. The attribute of a person to become a judicial officer and its relevancy has been reiterated by the Apex Court in Delhi Bar Association v. Union of India and others, (2002) 10 SCC 159 in the following words:
"3. Mr Rohatgi also informs us that in the last recruitment only 6 persons were selected though 40 vacancies were advertised. It is indeed surprising that not more than 6 persons were regarded as being of suitable material, so to say, to be appointed as judges. What has to be seen is the potential in the candidate: whether a person is intelligent and will in due course of time become a good judge. It may not be necessary for him to be academically brilliant or knowing all the law at the time when the process of selection is undertaken. What has to be seen is, as we have already observed, whether the candidate has the attributes of becoming a good Judicial Officer, namely, integrity, honesty, basic knowledge of law and robust common sense. We hope that in future more Judicial Officers would be selected and efforts should be made to advertise for the remaining vacancies also to be filled."
47. The word "suitable" with reference to the power conferred upon the High Court in making appointment of judicial officers came for judicial interpretation by the Apex Court in K.H.Siraj v. High Court of Kerala and others, (2006) 6 SCC 395. The Supreme Court has discussed the role of the High Court as well as the qualities of the judicial officers and explained as follows:
"49. So far as the first submission is concerned, we have already extracted Rule 7 in paragraph supra. Rule 7 has to be read in this background and the High Court's power conferred under Rule 7 has to be adjudged on this basis. The said rule requires the High Court firstly to hold examinations written and oral. Secondly, the mandate is to prepare a select list of candidates suitable for appointment as Munsif Magistrates. The very use of the word suitable gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the judicial officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of Subordinate Judge, Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected...
52. The place of the High Court in the matter of administration of justice was very elaborately and poignantly delineated by S.B. Majmudar, J., who, speaking for the Constitution Bench in State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640, said that the very responsible and onerous duty is cast on the High Court under the constitutional scheme and it has been given a prime and paramount position in this matter, with the necessity of choosing the best available talent for manning the subordinate judiciary. The repercussions of wrongful choice are also pointed out in the said judgment...
57. The qualities which a judicial officer would possess are delineated by this Court in Delhi Bar Assn. v. Union of India, (2002) 10 SCC 159. A judicial officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like. Existence of such capacities can be brought out only in an oral interview. It is imperative that only persons with a minimum of such capacities should be selected for the judiciary as otherwise the standards would get diluted and substandard stuff may be getting into the judiciary. Acceptance of the contention of the appellant-petitioners can even lead to a postulate that a candidate who scores high in the written examination but is totally inadequate for the job as evident from the oral interview and gets zero marks may still find a place in the judiciary. It will spell disaster to the standards to be maintained by the subordinate judiciary. It is, therefore, the High Court has set a benchmark for the oral interview, a benchmark which is actually low as it requires 30% for a pass. The total marks for the interview are only 50 out of a total of 450. The prescription is, therefore, kept to the bare minimum and if a candidate fails to secure even this bare minimum, it cannot be postulated that he is suitable for the job of Munsif Magistrate, as assessed by five experienced Judges of the High Court."
48. The Supreme Court in the decision reported in High Court of Judicature at Bombay v. Shashikant S. Patil and Another, (2000) 1 SCC 416 : AIR 2000 SC 22 highlighted a marked and significant difference between the judicial service and other services and observed as follows:
"23.The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of the other service. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public offices of great trust and responsibility. If a judicial officer "tips the scales of justice its rippling effect would be disastrous and deleterious". A dishonest judicial personage is an oxymoron."
49. Ergo, the plethora of the above judgments of the Apex Court as well as various High Courts in categoric terms enunciate that in respect of appointment of judicial officers the role of the recruiting authority either High Court or the Government is not similar to that of appointment to any other office. The High Court while making such appointment is not only discharging its onerous duty in selecting persons who can never be found fault with, but is also looking for persons with ability, integrity and honesty, and above all persons who in the opinion of the public have some respect. The appointment of any other persons who are likely to be disrespected due to various reasons, which may be even obnoxious, can never be justified.
50. The contention of the learned counsel for the petitioner as if the notification of selection of the petitioner in G.O.Ms.No.16, Public (Special.A) Department, dated 5.1.2011 will confer on him a right under Article 311 of the Constitution of India is a total misnomer not only on the basis of the hierarchy of judgments in respect of appointment of judicial officers, narrated above, but also on the basis that the appointment of judicial officers is not covered under Article 311 of the Constitution of India.
51. The stout contention of the learned counsel for the petitioner that the Governor of the State should have applied his mind instead of being swayed by the bias attitude of the High Court regarding the allegation of criminal case against the petitioner is a total farce. The law is well settled, as it is elicited above, that in respect of the appointment of District Judges under the constitutional provisions the effective consultation of the Governor with the High Court is stipulated, as the High Court is cognizant about the requirements of the judicial officers and the unimpeachable qualities and stature of such candidates.
52. The repeated allegation of bias either by the Selection Committee or Administrative Committee by the learned counsel for the petitioner is to be condemned to the total extent and, therefore, the reliance placed by the learned counsel for the petitioner on the decision in Gullappalli Nageswararao and others v. State of Andhra Pradesh and others, AIR 1959 SC 1376 is not applicable.
53. On the other hand, the records categorically show that in addition to the representations made by the petitioner, which were considered in detail by the Administrative Committee, the learned counsel appearing for the petitioner, who happened to be a Former MLA, in his letterhead stating as a Former MLA has chosen to write to the Governor of the State, which really is unwarranted and beyond the pale. It can be taken as a way to exercise influence over the higher authority and it cannot be lightly discarded.
54. The comparison drawn by the learned counsel for the petitioner for the meaning of the word "involves" with reference to the Government of India Act, 1935 to that of column (10) of the application which states as to whether the applicant was involved in any civil or criminal case, based on the decision of a Division Bench of this Court in Venkata Narasinga Rao v. Vysyaraju Surayyaraju, 1946 II MLJ 245, especially in the words of Patanjali Sastri,J. (as His Lordship then was), which is as follows:
"We are asked to certify under Section 205 of the Government of India Act, 1935, that this case involves a substantial question of law as to the interpretation of that Act. Although one of the questions raised and argued before us was a substantial question as to the interpretation of Sections 99 and 100 of that Act it was considered unnecessary to decide it and the appeal was disposed of on another point. Can it then be said that the case "involves" that question? We think not. Sub-section 2 of Section 205 clearly contemplates that such question should not only have been raised but also decided by the High Court, for otherwise it would not be possible for any party in the case to appeal to the Federal Court " on the ground that any such question as aforesaid has been wrongly decided." Reading Sub-sections (1) and (2) together, it would seem that a case cannot be said to "involve" a question unless its decision is necessary for the purpose of the case."
in our view, is off the track and impertinent to the facts of the present case.
55. The further reliance placed on the judgment of a Division Bench of this Court in M.N.Mohammed Ali v. The State of Tamil Nadu and others, 1988 WLR 1 by the learned counsel for the petitioner to emphasize that the averment which has not been disputed by counter affidavit is deemed to have been accepted is also unacceptable.
56. The reliance placed on a decision of a learned Single Judge in K.Solomon v. The Deputy Inspector General of Prison, Chennai, (2010) 7 MLJ 966 and the decision of the Supreme Court in Tarsem Singh v. State of Punjab and others, (2006) 13 SCC 581 relating to the applicability of Article 311 of the Constitution of India does not apply to the facts of the present case.
57. The further reference to a judgment of the Supreme Court in MRF Limited v. Manohar Parrikar and others, (2010) 11 SCC 374, wherein by referring to Article 166 of the Constitution of India it was held that the order passed by the Minister without reference to the decision taken by the Council of Ministers is not binding, has again no relevance to the facts of the present case.
58. The learned counsel for the petitioner, who has relied on the decision in Madan Mohan Choudhary v. State of Bihar and others, (1999) 3 SCC 396, especially paragraph (27) which is as follows:
"27. The word consult in its ordinary meaning means to ask advice or to take counsel . The Governor is thus a consultor and the High Court is the consultee which is treated as an expert body in all matters of service including appointments, disciplinary action, compulsory retirement etc. relating to State Judicial Services. Since the Governor cannot act on his own unless he has consulted the High Court, the Constitution has conferred upon the High Court a sacred and noble duty to give the best of advice or opinion to the Governor; an advice tendered after due deliberation and after taking into consideration all the relevant material and record relating to the problem on which consultation is made or advice is sought by the Governor. It is, therefore, essentially a matter of trust and confidence between the Governor and the High Court. The High Court cannot act arbitrarily in giving its opinion to the Governor or else it will be a betrayal of that trust. If the advice is not supportable by any material on record and is arbitrary in character, it may not have any binding value.",
has totally ignored the fact that it is not as if the High Court has decided to withdraw the name of the petitioner without any material and, therefore, there is no question of betrayal of trust.
59. The further reliance on the decision in Chandramouleshwar Prasad v. The Patna High Court and others, 1969 (3) SCC 56 to insist that consultation by the Governor to the High Court is an effective consultation is totally not in dispute and it is not as if there was no consultation made or the petitioner has been arbitrarily singled out for no fault of him.
60. The reliance placed by the learned counsel for the petitioner on paragraph (23) of the decision in State of Kerala v. A.Lakshmikutty and others, (1986) 4 SCC 632, which is as follows:
"23. Indubitably, the power of appointment of persons to be District Judges conferred on the Governor, meaning the State Government, under Article 233(1) in consultation with the High Court is an executive function. It has been settled by a long line of decisions of this Court starting from Chandra Mohan v. State of U.P., AIR 1966 SC 1987 to M.M. Gupta v. State of J&K, (1982) 3 SCC 412 that the power of the State Government is not absolute and unfettered but is hedged in with conditions. The exercise of the power of the Governor under Article 233(1) in the matter of appointment of District Judges is conditioned by consultation with the exercise of the power that the power can only be exercised in consultation with the High Court."
is fallacious. It is not as if the Government has gone against the consultation of the High Court on the facts of the present case.
61. Inasmuch as we have held that the appointment of the petitioner becomes operative only after completion of his training and posting is effected by the High Court in accordance with the Constitution of India, there is no question of removal of the petitioner on disciplinary grounds and, therefore, the question of giving opportunity or framing charges against him does not arise.
62. The reliance placed on by the learned counsel for the petitioner on the order of the learned Single Judge of This Court in D.Mahadevan v. Director General of Police, Chennai, (2008) 4 MLJ 88 to the effect that a person's involvement in the criminal case shall not be a bar for selection if he is otherwise qualified and eligible is not applicable in the case of appointment of District Judges, who are governed by the Constitution of India.
63. Again, the reliance on the judgment of the Apex Court in Secretary, Department of Home Secretary, Andhra Pradesh and Others v. B.Chinnam Naidu, (2005) 2 SCC 746 is not helpful to the case of the petitioner. In that case the Apex Court has held that mere selection will not give any person any right of appointment, even though there are some civil rights accrued to him, but it does not mean that in spite of the tainted character the petitioner has to be necessarily appointed.
64. The other decisions relied upon by the learned counsel for the petitioner, in our considered view, are not at all relevant to the facts of the present case.
65. The judicial review permissible with respect to the appointment/disciplinary action against Judges of subordinate judiciary was considered by the Supreme Court in the decision in Registrar General, Patna High Court v. P.G.Prasad, (2012) 5 MLJ 142 (SC). In the said case, dismissal of a judicial officer by the Patna High Court on the recommendation of the Standing Committee ratified by the Full Court was set aside by the Division Bench of the Patna High Court. While reversing the said judgment, the Supreme Court, relying on the earlier decisions, held that evaluation made by the Standing Committee and then by the Full Court was not so arbitrary, capricious or so irrational so as to shock the conscience of the Division Bench to justify its interference and when the conscious decision was taken to award punishment, evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and it would be difficult, rather almost impossible to subject such an exercise undertaken by the Full Court, to judicial review, save and except in an extra-ordinary case when the Court is convinced with some exceptional thing which ought not to have taken place has really happened and not merely because there could be another possible view. The Supreme Court further held that having regard to the materials on record in the said case, the Division Bench clearly exceeded its jurisdiction by interfering with the decision of the Full Court.
66. In this case as per the findings given by us, the Administrative Committee twice considered the entire issue and came to a conclusion to write to the Government on 12.12.2011 and thereafter only the Government issued G.O.Ms.No.310 Public (Special-A) Department, dated 29.3.2012 cancelling the appointment of the petitioner. The said decision of the Administrative Committee and the order of the Government is not shocking the conscience of this Court to interfere under Article 226 of the Constitution of India.
67. In these circumstances, we see absolutely no reason to interfere with the impugned orders of the Government deleting the name of the petitioner and appointing the fourth respondent in the place of the petitioner.
68. Before parting with the case, we are of the view that while commenting about the selection process, especially relating to the high post in the District Judiciary, wherein the appointee is going to sit as a District Judge heading the judicial wing of the district, the responsibility of the appointing authority is very high and people who have confidence in the democracy and the judicial system expect the persons of high caliber and dignity to be appointed to the post and such caliber and dignity is not merely on the basis of the marks obtained by the candidates in the qualifying examination, but also dependent on the apparent conduct of the persons, which should be above reproach and they should follow the straight and narrow everyday of their lives. The extraordinary power invested in the judicial office demands a high standard of behaviour. Independence has always been considered a cardinal feature of the role of a Judge, however, the reason for this grant of independence must not be lost. The concept of justice must not only be done but also seen to be done is very relevant in cases of appointment of judicial officers. The premise underlying the grant of judicial independence is that it is in the interest of justice. It is also vital that the independence be vested in persons who will behave in an ethical manner even in their personal lives. Even a slight doubt on the part of the citizen about the character of a judge will have a great effect of making inroad into the very concept of judiciary, which has proved itself to be a basic pillar of the entire concept of democracy throughout the world. In such circumstances, well educated persons, especially the one belonging to the noble profession of law, must be restrained in their making comments about the appointing authority and unnecessarily imputing motive or bias without any material. Such act of the bar again would make a great damage to the institution to which they belong to. These words we are constrained to make with great pain because of not only the attitude of the petitioner, but also his counsel, who in his emotional way to safeguard the interest of his junior has chosen to make unwarranted remarks.
In the result, the writ petition is dismissed. No costs.