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2004 DIGILAW 328 (GAU)

Th. Ibohal Singh v. State of Manipur

2004-05-11

AMITAVA ROY, P.P.NAOLEKAR

body2004
JUDGMENT P.P. Naolekar, J. 1. The facts of the case, in brief, are that in response to the advertisement dated 20th November, 2000 for appointment on the post of Grade-I officer of Manipur Judicial Service the appellant Th. Ibohal Singh and the respondent No. 4 Shri K Bipinchandra Sharma filed their applications along with other candidates. The High Court conducted the written examination on 5.3.2001 and the viva-voce on 19-4-2001. The appellant figured at Sl.No. 1 in the merit list whereas the respondent No. 4 figured at Sl. No. 2. The High Court in its Full Court Meeting took up the matter of recommendation to the Governor for appointment of the candidates selected, under Article 233 of the Constitution of India. When the matter came before the Full Court on 2.6.2001 as Add Item No. 4 the Full Court passed a resolution as follows : "Considered the recommendation of the Selection Committee for appointment to the post of Grade I of Manipur Judicial Service. It is RESOLVED that separate reports from Vigilance, Police Department and Registrar, Imphal Bench with regard to character and antecedent of the selected and wait listed candidates, including criminal proceedings, if any, pending against them, be obtained." In the meantime the High Court received the complaints from one Shri AK Singh, Advocate, Imphal and Maj VK Pundir, 17 Assam Rifles, against the appellant/petitioner objecting his selection and appointment on the post of Grade-I Judicial Officer. The Full Court of the High Court took up the matter along with other agenda on 21-9-2001 and resolved at Item Nos. 9 and 10 as under : "On the basis of the material regarding the antecedents of Th Ibohal Singh, the Full Court is of the view that his name be not recommended for appointment to the post of Grade-I of Manipur Judicial Service. The Full Court further resolved that Shri K Bipinchandra Sharma, the candidate who was wait listed, be recommended for appointment to the post. The recommendation be sent to the concerned Government for issuing appointment order." 2. In pursuance of the resolution passed by the Full Court of the High Court, the High Court issued the formal order vide communication dated 27th September, 2001 recommending the name of the respondent No. 4 K Bipinchandra Sharma for appointment on the post of Grade-I of Manipur Judicial Service. In pursuance of the resolution passed by the Full Court of the High Court, the High Court issued the formal order vide communication dated 27th September, 2001 recommending the name of the respondent No. 4 K Bipinchandra Sharma for appointment on the post of Grade-I of Manipur Judicial Service. This gave rise to a writ petition filed by the appellant in the High Court seeking relief of quashing the resolution of the Full Court of the High Court adopted in its meeting dated 21.9.2001 so far it relates to Resolution Nos. 9 and 10 and also for quashing the letter of recommendation issued by the High Court to the Government recommending the appointment of the respondent No. 4. Shri K Bipinchandra Sharma on the post of Grade-I of Manipur Judicial Service. Before the appointment process started, the appellant who was holding the post of Additional Govt. Advocate, Manipur in the Gauhati High Court, Imphal Bench, the personnel of Assam Rifles visited the residence of the appellant/petitioner and enquired about his whereabouts on 11.9.2000. On the following day the appellant/ petitioner approached the High Court Bar Association, Imphal, Manipur seeking redressal against the action taken by the Assam Rifles. The Executive Committee of the High Court Bar Association, Imphal convened a meeting on 13.9.2000 and made two resolutions, firstly, the Association urged upon the State Government to provide adequate security to the appellant/petitioner and secondly assure all sorts of legal assistance to the appellant/petitioner. The appellant/petitioner moved an Anticipatory Bail Petition in Criminal Original (Bail) Application No. 27/2000 and the court admitted the petition fixing 18-9-2000 with a direction to the authority concerned for not arresting the petitioner until further orders of the court and vide order dated 20.9.2000 the Court directed the Assam Rifles Authority that in case of verification of any information required to be had from the petitioner that should be done through IG (Law and Order), Manipur Police and in case the petitioner's presence was required that should be done in presence of a State Police Officer not below the rank of Superintendent of Police as the petitioner is a salaried Addl Govt. Advocate. On 20.9.2000 Maj. Advocate. On 20.9.2000 Maj. Sukhmeet Singh asked the appellant/petitioner to appear in the office of the Commandant, 17 Assam Rifles on 23.9.2000 and it is the case of the appellant that on 26.9.2000 the appellant was interrogated by the Assam Rifles personnel and was found to be innocent not having any involvement with any unlawful activities. The learned Single Judge of this court dismissed the writ petition filed by the appellant/petitioner. While dismissing the writ petition the learned Single Judge, in paragraph 12 of the judgment, has held : "Having regard to the nature, responsibility and stature of the post concerned, the integrity and antecedents of a candidate to be recommended for being appointed to the post of Additional District Judge, a comprehensive consideration on all available materials is a healthy acknowledged procedure. The approach of the High Court shall not be confined to the academic brilliancy, legal acumen and professional efficiency of a candidate already interviewed by the select Committee. Before making recommendation for such appointment, the High Court is to assess the total suitability of the candidate which undoubtedly includes character, antecedents and professional integrity of the candidate to be recommended for such appointment. It is an inbuilt prerogative of the High Court under Article 233 of the Constitution of India to take assistance of any agency or sources which it thinks expedient to get information regarding character, antecedents and professional integrity of such candidate before making recommendation. The confidential report of Assam Rifles. Indeed demonstrated insinuative materials pertaining to unhealthy antecedents of the petitioner. On over all consideration of the totality of the circumstances, the private respondent No. 4 has been bitterly placed and as such the High Court in its Full Court meeting rightly recommended the name of respondent No. 4." 3. The learned counsel for the appellant has mainly argued before this court challenging the High Court's authority to base its opinion on the information received by the High Court regarding appellant's antecedents and could it be said to be legal information or it is a mere pretence, hence a rumour. According to the learned counsel, the personnel of 17 Assam Rifles could not have visited the residence of the appellant on 11.9.2000 to verify the information with them that the appellant was harbouring terrorists unless information precedes their visit. According to the learned counsel, the personnel of 17 Assam Rifles could not have visited the residence of the appellant on 11.9.2000 to verify the information with them that the appellant was harbouring terrorists unless information precedes their visit. Even if it is assumed that the 17 Assam Rifles Authority had any information with them that the appellant is guilty of harbouring terrorists, in that event also the 17 Assam Rifles Authority could not have visited the residence of the appellant to verify the information. That apart, the power of entry and search conferred in Clause (d) of Section 4 of the Armed Forces (Assam and Manipur) Special Powers Act, 1958 can be exercised for the purpose of effecting arrest only within the meaning of Clause (c) of Section 4 of the Act and not for eliciting information. It is further submitted that the action of the 17 Assam Rifles Authorities asking the appellant to appear in the office of the Commandant on 23-9-2000 is absolutely illegal and without any authority of law. We need not go into all these questions regarding legality of the search of the house of the appellant and the appellant being called for interrogation. So far the material placed before the High Court relating to the appellant was concerned, that had been considered by the Full Court only to finding out the suitability of the appellant to hold the judicial post. 4. Article 233 of the Constitution of India reads as under : "233. (1) Appointment 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." Under Article 233 apart from laying down the eligibility criteria for candidates to be appointed from the Bar as District Judge the said provision further lays down that only those recommended by the High Court for such appointment could be appointed by the Governor of the State. Article 233 of the Constitution provides that appointment in the post of the District Judge shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. The direct appointment of the candidates on the post of District Judge can be made only if he has been an advocate/pleader for 7 years and is recommended by the High Court, that for appointment. The exercise of the power of appointment by the Governor is not the condition of consultation with the High Court, that is to say, the Governor can appoint only such persons to the post of District Judge who has been recommended by the High Court. 5. The Constitution Bench of the Apex Court in the matter of Chandra Mohan v. State of UP reported in AIR 1966 SC 1987 has held : "The Constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'Judicial Service' or to the Bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so, for his mind may be influenced by other persons not entitled to advise him." In the matter of Chandramouleshwar Prasad v. Patna High Court, reported in the Apex Court held that the underlying idea of Article 233 is that the Governor should make up his mind after there has been a deliberation with the High Court. The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows the merits as also their demerits and that the consultation with the High Court under Article 233 is not an empty formality. 6. The entry point for recruitment and appointment on the post of Presiding Officer of the higher judiciary of the courts subordinate to the High Court, shall be governed by Article 233 of the Constitution of India. For appointment on the post of District Judge Article 233 Sub-article (2) leaves no room for doubt that unless a candidate is recommended by the High Court the Governor cannot appoint him as a District Judge. 7. In the matter of State of Bihar v. Bal Mukund Sah reported in (paragraph 37) Hon'ble Majmudar, J, speaking for the majority of the Constitution Bench has said : "It is, therefore, obvious that the State Legislature has no role to play while controlling appointments of District Judges under Article 233 or appointment of Civil Judges to the Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to the Judiciary at grass-root level as enjoined by Article 234 and can only act on recommendation by the High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233 Sub-article (2). There is no third method or third authority which can intervene in the process or can have its say, whether legislative authority or executive authority, as the case may be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two articles. It is therefore, difficult to appreciate the contention of learned senior counsel for the appellant-State that paramount legislative power of the State Legislature stands untouched by the scheme of the aforesaid two articles of the Constitution." 8. From the aforesaid there is no manner of doubt that it is the High Court which is to recommend the appointment as District Judge as laid down under Article 233 Sub-article (2) of the Constitution of India. The Governor has to act on the recommendation of the High Court for appointment. From the aforesaid there is no manner of doubt that it is the High Court which is to recommend the appointment as District Judge as laid down under Article 233 Sub-article (2) of the Constitution of India. The Governor has to act on the recommendation of the High Court for appointment. Thus, it is the High Court which has to see the suitability and credibility of the person to be recommended for appointment on the post of District Judge under Article 233. 9. In a democracy governed by Rule of Law the judiciary is the sentinel on the germane to protect the fundamental rights and to keep even sense of justice between the citizens of the State or the State' interest, independence of judiciary is an essential attribute of Rule of Law. The judicial service is not a service in the sense of 'employment'. As numbers of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the member of the Council of Ministers and the members of the Legislature. It is an office of public trust. The Judges, at whatever level they may be, represent the State and its authority unlike the bureaucracy or the members of the other service. They are often required to do a job which they are entrusted, that is to make decision. The members of the Subordinate Judicial Service are the kingpins in the hierarchical system of administration of justice. The Judge directly comes in contact with litigant in the trial proceeding and a great responsibility lies on him to build solemn atmosphere in dispensation of justice. The potentiality, knowledge, judicial restraint, capacity to maintain dignity, character, conduct - official as well as personal, and integrity are the aspects which make the functioning of the court successful and acceptable in law. It is, therefore, necessary for the High Court, before recommending the name for appointment on the post of a Judge of the higher judiciary in the Subordinate courts, to assess the total suitability of the candidate to be appointed on the post and the character, antecedents and the professional integrity of the Judge is required to be above board. It is often said that the Judge is not only to discharge the judicial function and decide the matters but the decisions should also appear to have been done judiciously. It is often said that the Judge is not only to discharge the judicial function and decide the matters but the decisions should also appear to have been done judiciously. The conduct and the reputation of the Judge are required to be above board for the public to repose confidence on him. The power of the Judge to decide the matters and acceptance of his decisions is based on the implicit faith put on the Judge by the public in general of his ability to decide the matters impartially and this faith would be dependent on the character, antecedents and the professional integrity of the person concerned who is to be appointed on the post of a Judge. If the High Court finds that the antecedents of the candidate to be recommended for appointment to the post of a Judge are doubtful, although the candidate stood above in the merit list, the decision taken by the Full Court of the High Court not to recommend the candidate for appointment on the post of a Judge cannot be found fault with. We have also taken into consideration the materials placed on record before the Full Court, before the decision was taken by the Full Court and we find ourselves in complete agreement with the decision arrived at by the Full Court. For the aforesaid reasons we do not find any infirmity in the order passed by the learned Single Judge. 10. The appeal is dismissed. The matter of appointment on the post of Grade-I of Manipur Judicial Service is pending since long and, therefore, we direct the State Government to take up the matter of appointment of respondent No. 4, as recommended by the High Court, within a period of three weeks from the date of receipt of this order. Appeal dismissed.