Sh. Surinder Singh vs The State of Punjab

N.K. Sodhi, J.—By a notification issued on 27.8.1996 the High Court of Punjab and Haryana invited applications for selection of two candidates by direct recruitment from the Bar to fill up two temporary posts of District/Additional District & Sessions Judges from the general category in the State of Punjab. Thereafter by another notification dated 20.11.1996 applications were invited for the selection of three candidates (two from general category and one from Scheduled Caste Category) by direct recruitment from the Bar which included the two posts already notified on 27.8.1996. Petitioner who is a practising Advocate at Chandigarh and belongs to a Scheduled Caste applied for one of the posts. He was called for interview on 11.2.1999. The petitioner along with other candidates was interview by Hon''ble the Chief Justice and four senior Judges of the Court. He was selected against the reserved seat meant for a Scheduled Caste and his name was recommended by the Selection Committee to the Full Court. The High Court in its meeting held on 17.2.1999 approved the recommendations and it was decided to recommend the name of the petitioner alongwith with two other candidates to the State Government for appointment as Additional District & Sessions judges from the Bar quota. Before the recommendation could be made to the State Government, two complaints of professional misconduct against the petitioner which were pending with the Punjab and Haryana Bar Council came to the notice of the court. Those complaints were placed before the Full Court on 24.2.1999 and it was decided that the name of the petitioner be not sent to the State Government for appointment as Additional District & Sessions Judge till further orders. It may be mentioned that the name of other two selected candidates were recommended to the Government and they have since been appointed. Since the High Court withheld the name of the petitioner, the letter made representations asking the former to recommend his name to the State Government for appointment as Additional District & Sessions Judge. On receipt of the recommendations the court looked into the two complaints to find out whether there was any substance in them or they were frivolous so as not to be taken note of. One of the complaints was filed by one Gurdev Singh was alleged that his younger brother Ranjit Singh in connivance with the petitioner managed to obtain the signatures of his father on a Will dated 10.1.1996 and even though that Will was superseded by another Will he (petitioner) as an Advocate filed a suit on behalf of Ranjit Singh for a declaration and permanent injunction on the basis of that Will. It was also alleged that the petitioner had drafted the Will and attested the same as a witness and the suit too had been filed by him. This complaint remained pending with the Bar Council of Punjab and Haryana for a period of one year thereafter it was transferred to the Bar Council of India u/s 36-B(i) of the Advocates Act. Before the Bar Council of India the complainant filed an affidavit standing that he did not want to pursue the complaint as the petitioner had withdrawn from the suit as an Advocate. The complaint was dismissed on 30.5.1999 by the Disciplinary Committee of the Bar Council of India, the other complaint was filed by one Baljinder Singh on 16.2.1997. It was alleged that the petitioner had caused appearance in a case titled Sunder Devi v. Baljinder Singh relating to ejectment of the complainant from the first floor of the house in Chandigarh in spite of the fact that the complainant had never engaged the petitioner or authorised him to appear on his behalf in that case. In other words, the petitioner had put in appearance on his own without having the power of attorney from the complainant. It was further alleged that this was done at the instance of the opposite party and her Advocate and that the petitioner had entered into some kind of "secret deal and compromise"

The complaint further alleged that since the petitioner was counsel for the complainant in another case he had disclosed some important documents to the opposite party. In the meantime, the complainant was murdered on 23.7.1998. This complaint too was transferred to the Bar Council of India where the complainant''s widow filed an affidavit withdrawing the same and the same was dismissed on 30.5.1999. Records of both the complaints were summoned from the Bar Council of India and also the files of the suits which were pending in the Civil Courts at Chandigarh and after examining the entire material, the High Court in its meeting held on 22.12.1999 decided that the petitioner was not suitable for appointment as Additional District & Sessions Judge. It is against this action of the High Court that the present petition has been filed under Article 226 of the Constitution for a mandamus directing it to recommend the name of the petitioner for appointment as Additional District & Sessions Judge and for a further direction to the State Government to appoint him to that post.

In response to the notice of motion, the High Court has filed its reply wherein a preliminary objection has been taken that the petitioner has no right to seek appointment to the post of Additional District & Sessions Judge and that the writ petition is mis-conceived. On merits, the action is sought to be justified on the ground that in view of the complaints which came to the notice of the High Court it was justified in rejecting the candidature of the petitioner and holding that he was not suitable for the post.

We have heard counsel for the parties and are of the view that there is no merit in the writ petition. It is true that the Selection Committee consisting of Hon''ble the Chief Justice and four senior Judges of the High Court interviewed the candidates and found the petitioner suitable for appointment to the post in question and it is also true that the recommendation of the Selection Committee was approved by the Full Court in its meeting held on 17.2.1999 wherein it was decided that the name of the petitioner be recommended for appointment as Additional District & Sessions Judge against the reserved seat for a Scheduled Caste from the Bar quota but till this time two complaints referred to in the earlier part of this judgment had not come to the notice of the High Court. Before the name of the petitioner could be recommended two complaints came to the notice of the High Court and it was decided that the name of the petitioner be withheld till further orders. When the petitioner started making representations that his name be recommended to the State Government for appointment as Additional District & Sessions Judge the High Court looked into the two complaints to find out whether there was any substance in them. It appears that while the High Court was looking into those complaints the petitioner managed to get the complaints withdrawn which had by then been transferred to the Bar Council of India. Notwithstanding the fact that the complaints were withdrawn the nature of the allegations made against the petitioner did reflect on his professional integrity and, therefore, the High Court in its wisdom was justified in holding that the petitioner is not suitable for appointment to the post of Additional District & Sessions Judge. It must be remembered that the post to which he was seeking appointment is a high judicial office in Superior Judicial Service of the State and it is absolutely imperative that persons possessing high degree of integrity alone are appointed to occupy such office. Little doubt in this regard would justify the appointing authority in holding that a candidate is unsuitable. In this view of the matter, the High Court was justified in not recommending the name of the petitioner for appointment as Additional District & Sessions Judge. It is by now well settled that mere selection by the Selection Committee does not confer any right for appointment.

In State of Haryana v. Subhash Chander Marwaha and Ors. 1973(2) S.L.R. 137 the writ petitioners therein had been selected by the Haryana Public Service Commission against the 15 vacancies advertised in Haryana Civil Service (Judicial Branch). The State Government made seven appointments out of the list of candidates recommended by the Haryana Public Service Commission and refused to appoint the petitioners therein because they had less than 55 per cent marks which percentage had been fixed by the State Government below which no one could be appointed. They sought a mandamus from this court and the writ petition was allowed holding that since the vacancies were available the writ petitioners who were within the first 15 candidates of the merit list ought to have been selected. The decision was reversed by the Apex Court and it was observed as under:

"One fails to see how the existence of vacancies gives a legal right to a candidate to a selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate''s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part-C is that if and when the State Government propose to make appointments for Subordinate Judge, the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selected for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case, neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence."

Same is the view expressed by the Apex Court in Mani Subrat Jain and Others Vs. State of Haryana and Others, and State of Kerala Vs. Smt. A. Lakshmikutty and others, .

In the case before us, the petitioner has not even been selected in the final analysis because, as already observed before his name could be recommended the High Court found him unsuitable in view of the complaints referred to above on the basis of which the High Court was justified in not selecting him. The petitioner is seeking a mandamus to compel the respondents to select him and appoint him as Additional District & Sessions Judge. He has no right to claim that he be selected nor is there any legal duty on the High Court for the enforcement of which he has approached this Court on the judicial side. The writ petition, in our view, is clearly mis-conceived.

Before concluding we may mention that the counsel for the petitioner-referred to Asha Kaur and Anr. v. State of Jammu and Kashmir and Ors. 1993(2) S.L.R. 560 Awadhesh Kumar Sharma v. Union of India and Ors. 2000(4) R.S.J. 66 Manju Rani v. State of Punjab and Ors. 2001(1) R.S.J. 379 and some others to contend that the High Court did not act fairly in not recommending the name of the petitioner when he had earlier been selected. We are unable to agree with this contention. We have carefully gone through these judgments and are of the view that these do not advance the case of the petitioner. As already observed by us, High Court was justified in not recommending the name of the petitioner in view of the serious nature of the complaints made against him.

In the result, the writ petition fails and the same stands dismissed with no order as to costs.

Sd/- Jasbir Singh, J.