MANU/SC/0167/2013Equivalent Citation: 2013III AD (S.C.

) 117, AIR2013SC3589,
2013(3)ALD97, 2013(2)J.L.J.R.75, JT2013(3)SC178, 2013LabIC2358,
2013(3)LLN21(SC), 2013(2)PL JR194, 2013(2)SCALE557, (2013)5SCC489,
(2013)2SCC(LS)68, [2013]4SCR364, 2013(2)SCT176(SC), 2013(2)SL J270(SC),
2013(2)SLR286(SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1389 of 2013 (Arising out of Special Leave Petition (Civil) No.
23312/2009)
Decided On: 18.02.2013
Appellants: K. Vijaya Lakshmi
Vs.
Respondent: Govt. of Andhra Pradesh Represented by its Secretary Home
(Courts C1) Department and Ors.
Hon'ble Judges/Coram:
A.K. Patnaik and H.L. Gokhale, JJ.
Counsels:
For Appearing Parties: Ranjit Kumar, R. Venkataramani, Sr. Advs., G.V.R. Choudhary, K.
Shivraj Choudhuri, A. Chandra Sekhar, G.N. Reddy, M. Ram Babu, S. Nagarajan, Ranjan
Kumar, Aljo K. Joseph, Neelam Singh, Supriya Garg, Shodhan Babu, Munawwar Naseem
and T.V. Ratnam, Advs.
Case Category:
MATTERS RELATING TO JUDICIARY - MATTERS PERTAINING TO SERVICE CONDITIONS,
ETC., OF INDIVIDUAL JUDICIAL OFFICER AND OTHER MATTERS NOT SPECIFIED ABOVE
JUDGMENT
H.L. Gokhale, J.
1. Leave Granted.
2. This appeal seeks to challenge the judgment and order dated 19.3.2009 rendered by
a Division Bench of Andhra Pradesh High Court in Writ Petition No. 26147 of 2008. By
that order the said writ petition of the Appellant disputing her non-appointment to the
post of a Civil Judge in Andhra Pradesh, has come to be dismissed.
Facts leading to this appeal
3 . The Appellant herein is an advocate practicing in the courts at Markapur, District
Prakasam in the State of Andhra Pradesh. The Andhra Pradesh High Court (Respondent
No. 2 herein) had invited applications for the appointments to 105 posts of (Junior)
Civil Judges (including 84 posts by direct recruitment) by its Notification No. 1/2007-RC
dated 14.5.2007. A written examination was conducted for that purpose on 28.10.2007,
and those who qualified therein, were called for an interview. After the interviews, some
81 candidates from amongst the direct recruits (and 17 by transfer) were selected by a
committee of Hon'ble Judges of the High Court, and this selection was approved by the
Full Court on the administrative side. The Appellant was one of those who were
selected, and her name figured at S. No. 26 in the list of selected candidates from the
general category.

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4 . However, it so transpired that whereas the other selected candidates were issued
appointment letters, the Appellant was not. She, therefore, applied on 3.11.2008 under
the provisions of The Right to Information Act, 2005, to find out the reason of her non-
appointment. She received a letter dated 11.11.2008 from the Respondent No. 1 which
gave the following reason therefor:
I am directed to invite your attention to the reference 2nd cited, and to inform
you that, adverse remarks were reported in the verification report, that your
husband Sri. Srinivasa Chowdary, who is practicing as an Advocate in the Courts
at Markapur is having close links with CPI (Maoist) Party which is a prohibited
organization.
5 . The Appellant was shocked to learn the above reason for her non-appointment.
Although nothing was stated against her in that letter, according to her what was stated
against her husband was also false. She, therefore, filed a Writ Petition bearing No.
26147 of 2008 in the High Court of Judicature of Andhra Pradesh, and prayed that a writ
of mandamus be issued to declare that the non-inclusion of her name in the list of
Junior Civil Judges issued on 23.10.2008 was illegal, arbitrary and in violation of Article
14 of the Constitution of India (Constitution for short), and consequently a direction be
issued to the Respondents to forthwith issue an order of appointment to her.
6. The Respondents contested the matter by filing their affidavits in reply. This time the
Respondent No. 1 alleged that the Appellant too had close links with the CPI (Maoist)
party. Paragraphs 4 and 5 of the affidavit of Respondent No. 1 stated as follows:
It is further submitted that the Superintendent of Police, has reported that in re-
verification of character and antecedents of Karanam Vijaya Lakshmi D/o. K.
Balaguravaiah, Mangali Manyam, Markapur, Prakasam District who is selected as
Junior Civil Judge shows that the confidential intrinsic intelligence collected
recently with regard to the movements of CPI (Maoist), it came to light that Smt.
K. Vijaya Lakshmi (SI. No. 26 in the selected list) D/o. K. Balaguravaiah r/o
Mangali Manyam, Markapur who is selected for the post of Junior Civil Judge and
her husband Srinivasa Chowdary s/o. Sambasiva Rao who is practicing as an
advocate in the Courts at Markapur are having close links with CPI (Maoist)
Party, which is a prohibited organization and also in touch with UG cadre of the
CPI (Maoist) Party.
Further it is submitted that the CPI (Maoist) is a prohibited Organization by the
Government and as the candidate Smt. K. Vijaya Lakshmi SI. No. 26 in the
selected list D/o. K. Balaguravaiah r/o Mangali Manyam, Markapur and her
husband Srinivasa Chowdary S/o. Sambasiva Rao who is practicing as an
Advocate in the Courts at Markapur are having close links with CPI (Maoist)
Party, which is a prohibited organization and also in touch with UG cadre of the
CPI (Maoist) Party the Government feel that she should not be offered the
appointment to the post of Junior Civil Judge.
7. The Appellant filed a rejoinder on 8.2.2009, and denied all the allegations as being
false and incorrect.
8 . A counter affidavit was filed on behalf of the Respondent No. 2, by the Registrar
General of the High Court. In Para 4 of this affidavit it was stated that the Appellant was
provisionally selected by the High Court for the appointment to the post of a Civil
Judge, along with other candidates. A provisional list of 98 selected candidates was sent
to the first Respondent Government of Andhra Pradesh to issue orders approving the

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select list, after duly following the formalities like verification of antecedents. The first
Respondent, vide its G.O. Ms. 164 Home (Cts. C1) Dept. dated 23.10.2008, did
thereafter issue the order approving the Selection of 94 candidates. However, as far as
the Appellant is concerned, the affidavit stated that the first Respondent vide its memo
dated 8.5.2008, had requested the Superintendent of Police, Prakasam District, to get
verified the character and antecedents of the Appellant and other candidates. Thereafter,
the affidavit stated:
...The 1st Respondent through the letter dated 25.10.2008 informed the High
Court that the candidature of the Petitioner could not be considered as it was
reported in her antecedents verification report that she had links with prohibited
organization.
It is respectfully submitted that this Respondent has no role to play in the matter
since the 1st Respondent is the appointing authority in respect of Civil Judge
(Junior Division). Hence no relief can be claimed against this Respondent.
Thus, as can be seen, the High Court Administration was informed through a letter that
the Appellant had links with a prohibited organisation, but the affidavit does not state
that the High Court was informed as to which was that organization, or as to how the
Appellant had links with that organization. The High Court has also not stated whether it
made any inquiry with the Respondent No. 1 as to which was that organization, and in
what manner the Appellant was connected with it. Besides, as can be seen from the
affidavit, the Government at its own level had taken the decision in this matter that the
candidature of the Appellant could not be considered due to the adverse report, and
conveyed it to the High Court. This decision was accepted by the High Court, as it is, by
merely stating that it had no role to play since the Respondent No. 1 was the appointing
authority.
9 . When the Writ Petition came up before a Division Bench of the High Court, the
Division Bench by its order dated 18.9.2008 called upon the Respondents to produce
the material in support of the report which had been submitted by the Superintendent of
Police, Prakasam District. The report and the supporting material was tendered to the
Division Bench, and after going through the same the Bench held in para 19 of its
judgment that 'the allegations appearing from the antecedent verification report show
links/associations with the banned organization'. The Division Bench relied upon
judgment of this Court in K. Ashok Reddy v. Govt. of India reported in
MANU/SC/0400/1994 : 1994 (2) SCC 303 to state that judicial review is not available in
matters where the State was exercising the prerogative power, and applied it in the
present case since the appointment of the candidate concerned was to be made to a
sensitive post of a judge. The Division Bench also referred to and relied upon the
judgment of this Court in Union of India v. Kali Dass Batish reported in
MANU/SC/0139/2006 : 2006 (1) SCC 779 to the effect that when the appointing
authority has not found it fit to appoint the concerned candidate to a judicial post, the
court is not expected to interfere in that decision. The Division Bench therefore
dismissed the writ petition by its impugned judgment and order.
10. Being aggrieved by this decision, the Appellant has filed the present appeal. When
the matter reached before this Court, the Respondents were called upon to produce the
report which was relied upon before the High Court. After a number of adjournments,
the report was ultimately produced alongwith an affidavit of one M.V. Sudha Syamala,
Special Officer (I/C). A document titled 'Report over the activities of CPI (Maoist)
activists and their sympathizers' dated 15.9.2008 by Inspector of Police, District

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Special Branch, Ongole was annexed with that affidavit. Para 5 of this report made
certain adverse remarks against the Appellant. This para 5 reads as follows:
5. Kasukurthi Vijayalakshmi, Advocate, Markapur CPI (Maoist) frontal
organization member and sympathizer of CPI (Maoist): She is wife of
Srinivasarao @ Srinivasa Chowdary. She is a sympathizer of CPI (Maoist) party.
She is a member of Chaitanya Mahila Samakhya (CMS), a frontal organization of
CPI (Maoist). She along with other members Nagireddy Bhulakshmi @ Rana and
Cherukuri Vasanthi, Ongole town is trying to intensify the activities of CMS in
Prakasam district, especially in Markapuram area.
One more affidavit was filed on behalf of the first Respondent, viz., that of one Shri
Kolli Raghuram Reddy who produced along therewith some of the documents of the
police department, known as 'A.P. Police Vachakam'. He, however, accepted in para 5 of
this affidavit that:
There is no particular documentary proof that the Chaitanya Mahila Samakhya is
a frontal organization to the CPI (Maoist) except the above publication in A.P.
Police Vachakam part III.
11. The Appellant filed a reply affidavit and denied the allegations. She stated that she
was not a member of CPI (Maoist), nor did she have any connection with the banned
organization or with any of its leaders. She disputed that any such organization, by
name CMS existed, and in any case, she was not a member of any such organization.
She submitted that her husband must have appeared in some bail applications of
persons associated with this party, but she has never appeared in any such case. She
further stated that her husband was a member of a panel of advocates who had
defended political prisoners, against whom the district police had foisted false cases,
and those cases had ended in acquittals. She disputed the bona-fides of the police
department in making the adverse report, and relied upon the resolutions passed by
various bar associations expressing that her husband was being made to suffer for
opposing the police in matters of political arrests. We may note at this stage that the
Respondent No. 2 has not filed any counter in this appeal.
Submissions of the rival parties
1 2 . Mr. Ranjit Kumar, learned senior Counsel for the Appellant submitted that the
Respondents have changed their stand from time to time. Initially, all that was stated
was that the husband of the Appellant was having close links with CPI (Maoist) party,
which is a prohibited organization. Subsequently, it was alleged that the Appellant was
also having connection with the same party, and lastly it was said that she was a
member of CMS, which was named to be a Maoist Frontal Organization. The learned
Counsel called upon the Respondents to produce any document to show that CMS was
in any way a Frontal Organization of CPI (Maoist), but no such material has been
produced before us.
13. Reliance was placed by Mr. Ranjit Kumar, on the judgment of this Court in State of
Madhya Pradesh v. Ramashanker Raghuvanshi reported in MANU/SC/0347/1983 :
AIR 1983 SC 374. That was a case concerning the Respondent who was a teacher. He
was absorbed in a Govt. school on 28.2.1972 but his service was terminated on
5.11.1974, on the basis of an adverse report of Deputy Superintendent of Police. The
High court of Madhya Pradesh quashed that termination order, for being in violation of
Article 311 of the Constitution. This Court (per O. Chinappa Reddy, J.) while upholding
the judgment of the High Court, elaborated the concepts of freedom of speech,

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expression and association enshrined in the constitution. It referred to some of the
leading American judgments on this very issue. The Court noted that the political party
'Jansangh' or RSS, with which the Respondent was supposed to be associated, was not
a banned organization, nor was there any report that the Respondent was involved in
any violent activity. The Court observed that it is a different matter altogether if a police
report is sought on the question of the involvement of the candidate in any criminal or
subversive activity, in order to find out his suitability for public employment. But
otherwise, it observed in para 3:
...Politics is no crime'. Does it mean that only True Believers in the political faith of the
party in power for the time being are entitled to public employment?...
Most students and most young men are exhorted by national leaders to take part in
political activities and if they do get involved in some form of agitation or the other, is it
to be to their ever-lasting discredit? Some times they get involved because they feel
strongly and badly about injustice, because they are possessed of integrity and because
they are fired by idealism. They get involved because they are pushed into the forefront
by elderly leaders who lead and occasionally mislead them. Should all these young men
be debarred from public employment? Is Government service such a heaven that only
angels should seek entry into it?
This Court therefore in terms held that any such view to deny employment to an
individual because of his political affinities would be offending Fundamental Rights
under Articles 14 and 16 of the Constitution.
14. In paragraph 7 of its judgment the Court referred to the observations of Douglas, J.
in Lerner v. Casey which are to the following effect:
7. In Lerner v. Casey MANU/USSC/0200/1958 : (1958) 357 US 468 Douglas, J.
said:
We deal here only with a matter of belief. We have no evidence in either
case that the employee in question ever committed a crime, ever moved
in treasonable opposition against this country. The only mark against
them -- if it can be called such -- is a refusal to answer questions
concerning Communist Party membership. This is said to give rise to
doubts concerning the competence of the teacher in the Beilan case and
doubts as to the trustworthiness and reliability of the subway conductor
in the Lerner case....
There are areas where government may not probe...But government
has no business penalizing a citizen merely for his beliefs or
associations. It is government action that we have here. It is
government action that the Fourteenth and First Amendments protect
against...Many join associations, societies, and fraternities with less
than full endorsement of all their aims.
Thereafter, in para 9 this Court once again quoted Douglas, J's statement in Speiser v.
Randall MANU/USSC/0197/1958 : (1958) 357 US 513 to the following effect:
9...Advocacy which is in no way brigaded with action should always be protected by the
First Amendment. That protection should extend even to the ideas we despise....
Ultimately this Court dismissed that petition. What it observed in paragraph 10 thereof,
is equally relevant for our purpose. This para reads as follows:

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 10. We are not for a moment suggesting, that even after entry into Government
service, a person may engage himself in political activities. All that we say is that
he cannot be turned back at the very threshold on the ground of his past
political activities. Once he becomes a Government servant, he becomes subject
to the various rules regulating his conduct and his activities must naturally be
subject to all rules made in conformity with the Constitution.
15. Mr. Venkataramni, learned senior Counsel appearing for the Respondents, on the
other hand, drew our attention to the judgment of a bench of three judges of this Court
in Union of India v. Kali Dass Batish (supra), which was relied upon by the Division
Bench. That was a case where the first Respondent was a candidate for the post of a
judicial member in the Central Administrative Tribunal. The selection committee, under
the chairmanship of a judge of this Court, had selected him for consideration. When his
antecedents were verified by the Intelligence Bureau, a noting was made by the Director
(AT), Ministry of Personnel, on 25.10.2001, to the following effect:
...(i) In legal circles, he is considered to be an advocate of average caliber. (ii)
It is learnt that though he was allotted to the Court of Justice R.L. Khurana, the
learned Judge was not happy with his presentation of cases and asked the
Advocate General to shift him to some other court, which was done. (iii) He was
a contender for the Shimla AC seat on BJP ticket in 1982 and 1985. When he did
not get the ticket, he worked against the party and was expelled from the party
in 1985. He was subsequently re-inducted by the party in 1989....
The Director, however, gave him the benefit of doubt, since his name had been
recommended by a selection committee headed by a Judge of Supreme Court. The Joint
Secretary, Ministry of Personnel also made a similar note. The Secretary, Ministry of
Personnel, however, made a note that he need not be appointed, since his performance
was poor. The Minister of State made a note that the departmental recommendations be
sent to the Chief Justice of India (C.J.I.). When the proposal was subsequently
submitted with the confidential memorandum to the C.J.I., he concurred with the
memorandum submitted by the Secretary, Ministry of Personnel, and the name of the
first Respondent was dropped.
1 6 . It is on this background that first Respondent Kali Dass Batish (supra)
approached the Himachal Pradesh High Court, which directed that his case be
reconsidered afresh. When that judgment was challenged, this Court noted the above
referred facts, and held that when the appropriate decision-making procedure had been
followed, and the C.J.I. had accepted the opinion of the Ministry to drop the candidature
of the first Respondent, there was no reason for the High Court to interfere with that
decision. Provisions of the Administrative Tribunals Act, 1985 required a consultation
with the C.J.I. under Section 6(3) thereof. That, having been done, and the first
Respondent having not been found suitable, there was no case for reconsideration. Mr.
Venkataramni tried to emphasize that the involvement in political activities was the
factor which went against the Respondent No. 1 in that case, and so it is for the
Appellant herein. However, as we can see from that judgment, the political connection
was not the relevant factor which went against Kali Dass Batish. Principally, it is the fact
that the he was reported to be a mediocre advocate which led to the rejection of his
candidature.
17. It was also submitted on behalf of the Respondents that the name of a candidate
may appear in the merit list but he has no indefeasible right to an appointment.
Reliance was placed on the judgment of a Constitution Bench of this Court in

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Shankarsan Dash v. Union of India reported in MANU/SC/0373/1991 : 1991 (3)
SCC 47. We must however, note that while laying down the above proposition, this
Court has also stated that this proposition does not mean that the State has the license
for acting in an arbitrary manner. The relevant paragraph 7 of this judgment reads as
follows:
7. It is not correct to say that if a number of vacancies are notified for appointment and
adequate number of candidates are found fit, the successful candidates acquire an
indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any
of the vacancies. However, it does not mean that the State has the license of acting in an
arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for
appropriate reasons. and if the vacancies or any of them are filled up, the State is bound
to respect the comparative merit of the candidates, as reflected at the recruitment test,
and no discrimination can be permitted....
Consideration of the rival submissions:
Duties of an advocate in the context of Article 22(1) of the Constitution, and
the provisions of the Advocates Act, 1961:
1 8 . We have noted the submissions of the rival parties on the issue of denial of
appointment on the basis of a police report. The Appellant has denied any association
with CPI (Maoist) party or CMS. She has, however, stated that maybe her husband had
appeared as an advocate for some persons associated with the CPI (Maoist) Party in
their bail applications. Initially, as stated in the first Respondent's letter dated
11.11.2008, the basis of the adverse police report against the Appellant was that her
husband is having close links with the CPI (Maoist) party, which is a prohibited
organization. Mr. Ranjit Kumar submitted that the Appellant can't be made to suffer
because of her husband appearing for some litigant, and secondly he asked: 'in any
case can her husband be criticized for appearing to seek any bail order for a person on
the ground that, the person belongs to CPI (Maoist) party?' As an advocate, he was only
discharging his duties for the litigants who had sought his assistance.
19. We quite see the merit of this submission. Those who are participating in politics,
and are opposed to those in power, have often to suffer the wrath of the rulers. It may
occasionally result in unjustifiable arrests or detentions. The merit of a democracy lies
in recognizing the right of every arrested or detained person to be defended by a legal
practicenor of his choice. Article 22(1) of our Constitution specifically lays down the
following as a Fundamental Right:
2 2 . Protection against arrest and detention in certain cases- (1) No
person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his
choice.
(Emphasis supplied)
All such accused do have the right to be defended lawfully until they are proved guilty,
and the advocates have the corresponding duty to represent them, in accordance with
law. Taking any contrary view in the facts of the present case will result into making the

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Appellant suffer for the role of her husband who is discharging his duty as an advocate
in furtherance of this Fundamental Right of the arrested persons. We cannot ignore that
during the freedom struggle, and even after independence, many leading lawyers have
put in significant legal service for the political and civil right activists, arrested or
detained. In the post independence era we may refer, in this behalf, to the valuable
contribution of Late Sarvashri M.K. Nambiar, (Justice) V.M. Tarkunde, and K.G.
Kannabiran (from Andhra Pradesh itself) to name only a few of the eminent lawyers,
who discharged this duty by representing such arrested or detained persons even when
they belonged to banned organizations.
20. We may, at this stage, note that the Bar Council of India, which is a regulating
body of the advocates, has framed rules under Section 49 of the Advocates Act, 1961.
Chapter-II of Part-VI thereof, lays down the Standards of Professional Conduct and
Etiquette. Section-I, consisting of Rules 1 to 10 thereof, lays down the duties of the
advocates to the court, whereas Section-II lays down the duties to the client. Rules 11
and 15 of this Section are relevant for us. These two rules read as follows:
11. An advocate is bound to accept any brief in the Courts or Tribunals or before
any other authorities in or before which he proposes to practice at a fee
consistent with his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.
...
15. It shall be the duty of an advocate fearlessly to uphold the interests of his
clients by all fair and honourable means without regard to any unpleasant
consequences to himself or any other. He shall defend a person accused of a
crime regardless of his personal opinion as to the guilt of the accused, bearing
in mind that his loyalty is to the law which requires that no man should be
convicted without adequate evidence.
In A.S. Mohammed Rafi v. State of Tamil Nadu reported in MANU/SC/1035/2010 :
2011 (1) SCC 688, this Court was concerned with the resolution passed by a Bar
Association not to defend accused policemen in criminal cases. This Court in terms held
that such resolutions violate the right of an accused to be defended, which right is
specifically recognised under Article 22(1) of the Constitution as a Fundamental Right,
and such resolutions are null and void.
Requirements for the appointment of a judicial officer, under Article 234 of
Constitution and Judicial Service Rules:
2 1 . In this appeal, we are concerned with the question as to whether the first
Respondent (the Govt. of Andhra Pradesh) and the second Respondent (the High Court)
have proceeded correctly in the matter of appointment of the Appellant. In this behalf
we must refer to Article 234 of the Constitution, which is the governing article when it
comes to the recruitment of persons other than District Judges to the judicial service.
This article reads as follows:
234. Recruitment of persons other than district judges to the judicial
service - Appointment of persons other than district judges to the judicial
service of a State shall be made by the Governor of the State in accordance with
rules made by him in that behalf after consultation with the State Public Service
Commission and with the High Court exercising jurisdiction in relation to such
State.

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22. In the instant case, appointments to the posts of Civil Judges are governed by the
Andhra Pradesh State Judicial Service Rules, 2007 framed under Articles 233, 234, 235,
237 proviso to Article 309 and proviso to Article 320(3) of the Constitution. Rule 4(1) of
these rules declares that the Governor of the State shall be the Appointing Authority for
the categories of District Judges and Civil Judges. Rule 4(2)(d) lays down that the
appointments to the category of civil Judges shall be by direct recruitment from among
the eligible advocates on the basis of written and viva-voce test, as prescribed by the
High Court. Accordingly, in the present case an advertisement was issued, and written
and oral tests were conducted. The Appellant appeared for the same and was declared
successful in both the tests. Thereafter her name figured in the select list. It was at this
stage that the investigation was carried out by the Intelligence Bureau, which gave an
adverse report about her. We do not find from the affidavit of the Registrar General,
filed during the hearing of the Writ Petition, that all relevant papers of the police
investigation were submitted to the High Court on the administrative side. Now, the
question arises viz. as to whether it was proper for the Respondent No. 1 to decide on
its own that the candidature of the Appellant could not be considered on the bias of that
report? The police report dated 15.9.2008 was produced before the Division Bench only
when the Respondent No. 1 was called upon to produce the material relied upon against
the Appellant. and if the report was adverse, was it not expected of the Respondent No.
1 to forward all those relevant papers to the High Court on administrative side for its
consideration? This is what was done in the case of Kali Dass Batish (supra) wherein
an adverse report was received after the inclusion of the name of the Respondent No. 1
in the select list, and the report was forwarded to the C.J.I. In the present case it has
not been placed on record that all such papers were forwarded to the High Court on the
administrative side to facilitate its decision. On the other hand the Government itself
had taken the decision that Appellant's candidature could not be considered in view of
the adverse reports. It can not therefore be said that there has been a meaningful
consultation with the High Court before arriving at the decision not to appoint the
Appellant. Article 234 specifically requires that these appointments are to be made after
consultation with the State Public Service Commission and the High Court exercising
jurisdiction in the concerned state. The High Court may accept the adverse report or it
may not. Ultimately, inasmuch as the selection is for the appointment to a judicial post,
the Governor will have to be guided by the opinion of the High Court. In the present
case as is seen from the affidavit of the Registrar-General in reply to the Writ Petition,
in view of the letter from the Home Department, the High Court has thrown up its
hands, and has not sought any more information from the first Respondent. It is the
duty of the Government under Article 234 to forward such reports to the High court, and
then it is for the High Court to form its opinion which will lead to the consequential
decision either to appoint or not to appoint the candidate concerned. Such procedure is
necessary to have a meaningful consultation as contemplated under this Article. Any
other approach will mean that whatever is stated by the police will be final, without the
same being considered by the High Court on the administrative side.
23. I n Shamsher Singh v. State of Punjab reported in MANU/SC/0073/1974 : AIR
1974 SC 2192, a Constitution bench of this Court was concerned with a matter where
the Punjab and Haryana High Court had handed over the work of conducting an enquiry
against a judicial officer to the Vigilance Department of the Punjab Government. This
Court called it as an act of 'self-abnegation'. Para 78 of this judgment reads as follows:
78. The High Court for reasons which are not stated requested the Government to
depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High
Court which had control over the subordinate judiciary asked the Government to hold an
enquiry through the Vigilance Department. The members of the subordinate judiciary are

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not only under the control of the High Court but are also under the care and custody of
the High Court. The High Court failed to discharge the duty of preserving its control. The
request by the High Court to have the enquiry through the Director of Vigilance was an
act of self abnegation. The contention of the State that the High Court wanted the
Government to be satisfied makes matters worse The Governor will act on the
recommendation of the High Court. That is the broad basis of Article 235. The High
Court should have conducted the enquiry preferably through District Judges. The
members of the subordinate judiciary look up to the High Court not only for discipline
but also for dignity. The High Court acted in total disregard of Articles 235 by asking the
Government to enquire through the Director of Vigilance.
24. I n State of Bihar v. Bal Mukund Sah reported in MANU/SC/0195/2000 : AIR
2000 SC 1296, a Constitution bench of this Court was concerned with the issue as to
whether it was permissible to lay down the recruitment procedure for the district and
subordinate judiciary by framing rules under Article 309 without having a consultation
with the High Court, in the teeth of Articles 233 to 235. This Court examined the
scheme of the relevant articles of the Constitution and the rules framed by Government
of Bihar, in this behalf. Paragraph 20 of this judgment is relevant for our purpose, and
it reads as follows:
20. Part VI of the Constitution dealing with the States, separately deals with the
executive in Chapter II, the State Legislature under Chapter III and thereafter Chapter IV
dealing with the Legislative Powers of the Governor and then follows Chapter V dealing
with the High Courts in the States and Chapter VI dealing with the Subordinate Courts. It
is in Chapter VI dealing with the Subordinate Courts that we find the provision made for
appointment of District Judges under Article 233, recruitment of persons other than the
District Judges to the Judicial Services under Article 234 and also Control of the High
Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the
topic of 'Interpretation' and amongst others, defines by Sub-article (b) the expression
"judicial service" to mean "a service consisting exclusively of persons intended to fill the
post of District Judge and other civil judicial posts inferior to the post of District Judge."
It becomes, therefore, obvious that, the framers of the Constitution separately dealt with
'Judicial Services' of the State and made exclusive provisions regarding recruitment to
the posts of District Judges and other civil judicial posts inferior to the posts of the
District Judge. Thus these provisions found entirely in a different part of the Constitution
stand on their own and quite independent of Part XIV dealing with Services in general
under the 'State'. Therefore, Article 309, which, on its express terms, is made subject to
other provisions of the Constitution, does get circumscribed to the extent to which from
its general field of operation is carved out a separate and exclusive field for operation by
the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter
VI of Part VI of the Constitution to which we will make further reference at an
appropriate stage in the later part of this judgment.
25. These judgments clearly lay down the principles which guide the interpretation and
role of Articles 233 to 235 of the Constitution to safeguard the independence of the
subordinate judiciary. Article 234 requires a meaningful consultation with the High
Court in the matter of recruitment to judicial service. In view of the mandate of Article
234, High Court has to take a decision on the suitability of a candidate on the
administrative side, and it cannot simply go by the police reports, though such reports
will, of course, form a relevant part of its consideration. As held in paragraph 3 of
Ramashankar Raghuvanshi (supra) to deny a public employment to a candidate
solely on the basis of the police report regarding the political affinity of the candidate
would be offending the Fundamental Rights under Article 14 and 16 of the Constitution,

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unless such affinities are considered likely to effect the integrity and efficiency of the
candidate, or (we may add) unless there is clear material indicating the involvement of
the candidate in the subversive or violent activities of a banned organization. In the
present case there is no material on record to show that the Appellant has engaged in
any subversive or violent activities. The Appellant has denied her alleged association
with CPI (Maoist) party or CMS. Respondent No. 1 has accepted that there is no
documentary proof that CMS is a frontal organization of CPI (Maoist). and as far as her
connection CPI (Maoist) is concerned, there is no material except the report of police,
the bonafides of which are very much disputed by the Appellant. Besides, since the
report was neither submitted to nor sought by the High Court, there has not been any
consideration thereof by the High Court Administration. Thus, there has not been any
meaningful consultation with the High Court on the material that was available with the
Government. The High Court administration has thus failed in discharging its
responsibility under Article 234 of the Constitution.
26. The Division Bench has relied upon the observations of this Court in K. Ashok
Reddy (supra) to bring in the principle of prerogative power to rule out judicial review.
In that matter the Petitioner had sought a declaration concerning the judges of the High
Courts that they are not liable to be transferred. One of his submissions was that there
is absence of judicial review in the matter of such transfers, and the same is bad in law.
As noted in the impugned judgment, in K. Ashok Reddy (supra), this Court did refer to
the observations of Lord Roskill in Council of Civil Service Union v. Minister for
the Civil Service reported in 1984 (3) All ER 935 that many situations of exercise of
prerogative power are not susceptible to judicial review, because of the very nature of
the subject matter such as making of treaties, defence of realm, and dissolution of
Parliament to mention a few. Having stated that, as far as the transfer of judges is
concerned, this Court in terms held that there was no complete exclusion of judicial
review, instead only the area of justiciability was reduced by the judgment in Supreme
Court A.O.R. Association v. Union of India reported in MANU/SC/0073/1994 :
(1993) 4 SCC 441. The reliance on the observations from K. Ashok Reddy (supra) was
therefore totally misplaced. Besides, the appointment to the post of a Civil Judge is
covered under Article 234 and the State Judicial Service Rules, and if there is any
breach or departure therefrom, a judicial review of such a decision can certainly lie. The
High Court, therefore, clearly erred in holding that judicial review of the decision
concerning the appointment of a Civil Judge was not permissible since that post was a
sensitive one.
Hence, the conclusion:
27. Here we are concerned with a question as to whether the Appellant could be turned
back at the very threshold, on the ground of her alleged political activities. She has
denied that she is in any way connected with CPI (Maoist) or CMS. There is no material
on record to show that this CMS is a banned organization or that the Appellant is its
member. It is also not placed on record in which manner she had participated in any of
their activities, and through which programme she tried to intensify the activities of
CMS in Markapuram area, as claimed in paragraph 5 of the report quoted above. While
accepting that her husband may have appeared for some of the activists of CPI (Maoist)
to seek bail, the Appellant has alleged that the police are trying to frame her due to her
husband appearing to oppose the police in criminal matters. Prima facie, on the basis of
the material on record, it is difficult to infer that the Appellant had links/associations
with a banned organization. The finding of the Division Bench in that behalf rendered in
para 19 of the impugned judgment can not therefore be sustained.

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28. We may as well note at this stage, that on selection, the Civil Judges remain on
probation for a period of two years, and the District Judges and the High Court have
ample opportunity to watch their performance. Their probation can be extended if
necessary, and if found unsuitable or in engaging in activities not behaving the office,
the candidates can be discharged. The relevant rules of the Andhra Pradesh State
Judicial Service being Rule Nos. 9, 10 and 11 read as follows:
9. Probation and officiation:
a) Every person who is appointed to the category of District Judges by
direct recruitment from the date on which he joins duty shall be on
probation for a period of two years.
b) Every person who is appointed to the category of District Judges
otherwise than on direct recruitment shall be on officiation for a period
of two years.
c) Every person who is appointed to the category of Civil Judges shall
be on probation for a period of two years.
d) The period of probation or officiation, may be extended by the High
Court by such period, not exceeding the period of probation or
officiation, as the case may be, as specified in Clauses (a) to (c) herein
above.
10. Confirmation/Regularisation: A person who has been declared to have
satisfactorily completed his period of probation or officiation as the case may be
shall be confirmed as a full member of the service in the category of post to
which he had been appointed or promoted, as against the substantive vacancy
which may exist or arise.
11. Discharge of unsuitable probationers: If at the end of the period of
probation or the period of extended probation, the Appointing authority on the
recommendation of the High Court, considers that the probationer is not suitable
to the post to which he has been appointed, may by order discharge him from
service after giving him one month's notice or one month's pay in lieu thereof.
29. In view of this constitutional and legal framework, we are clearly of the view that
the High Court has erred firstly on the administrative side in discharging its
responsibility under Article 234 of the Constitution, and then on the Judicial side in
dismissing the writ petition filed by the Appellant, by drawing an erroneous conclusion
from the judgment in the case of Kali Dass Batish (supra). Having stated so, the
Court can not grant the mandamus sought by the Appellant to issue an appointment
order in her favour. As held by this Court in para 17 of Harpal Singh Chauhan v.
State of U.P. reported in MANU/SC/0369/1993 : 1993 (3) SCC 552, the court can
examine whether there was any infirmity in the decision making process. The final
decision with respect to the selection is however to be left with the appropriate
authority. In the present matter the Division Bench ought to have directed the State
Govt. to place all the police papers before the High Court on the administrative side, to
enable it to take appropriate decision, after due consideration thereof.
30. Accordingly, the impugned judgment and order dated 19.3.2009 rendered by the
Division Bench of the Andhra Pradesh High Court is hereby set-aside. The first
Respondent State Government is directed to place the police report (produced before

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the Division Bench) for the consideration of the High Court on the administrative side.
The first Respondent should do so within two weeks from the receipt of a copy of this
judgment. The selection committee of the High Court shall, within four weeks thereafter
consider all relevant material including this police report, and the explanation given by
the Appellant, and take the appropriate decision with respect to the appointment of the
Appellant, and forward the same to the Respondent No. 1. The first Respondent shall
issue the consequent order within two weeks from the receipt of the communication
from the High Court. This appeal and the Writ Petition No. 26147 of 2008 filed by the
Appellant in the High Court will stand disposed off with this order. In the facts of this
case, we refrain from passing any order as to the cost.
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