Court No. - 29
Case :- WRIT - A No. - 23371 of 2018 Petitioner :- Pradeep Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ravi Shankar Prasad, Himanshu Kumar, Mr. Zafar Naiyer, Sr. Advocate Counsel for Respondent :- C.S.C., Ashish Mishra, Manish Goyal
Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.
The petitioner has preferred this writ petition for issuing a writ of mandamus commanding the respondent No.1, State of U.P. through Principal Secretary, U.P. Government, Department of Personal and Appointment to issue appointment letter to him as Additional District Judge as per the recommendation made on 18.8.2017 by the respondent No.3, High Court of Judicature at Allahabad on the basis of his selection on qualifying the Direct Recruitment To The Higher Judicial Service Examination - 2016 and to send him for training accordingly.
There is no dispute to the fact that respondent No.3 had issued an advertisement on 10.5.2016 inviting applications for selection and direct recruitment to the U.P. Higher Judicial Service against 72 vacancies of which 37 were General, 19 reserved for other backward castes (OBC), 15 for Scheduled Caste (SC) and 1 for Scheduled Tribes (ST).
The petitioner had applied in the OBC category. He successfully qualified the preliminary as well as the main examination and after interview was declared qualified and successful for appointment. His name was accordingly recommended on 18.8.2017 by the respondent No.3 to the State Government for appointment.
The petitioner has not been appointed as probably the verification process of his credentials/certificates could not be completed. Since sufficient time elapsed from the date his name was recommended for appointment, he was left with no option but to approach the Court.
On the presentation of the petition, learned Additional Advocate General appearing for the State Government and Sri Ashish Mishra, learned counsel appearing for the High Court were directed to seek instructions in the matter as to why there is delay in issuing appointment letter to the petitioner. In response to the above order, Sri Ashish Mishra informed that the petitioner could not be appointed as verification could not be completed and the matter continues to remain pending with the State Government. At the same time, learned Standing Counsel reported that according to his instructions there are serious adverse reports against the conduct of the petitioner and for that reason no decision could be taken for issuing appointment letter to him.
Sri Saurabh Srivastava, Chief Standing Counsel - III appeared for the State of U.P. on 31.7.2019 and stated that on account of some very serious adverse information regarding the candidature of the petitioner the verification of his credentials has been delayed and a report from the Intelligence Bureau is awaited to enable the State Government to form opinion with regard to the suitability of the petitioner.
In the above background, the matter has come up on the list today and has been taken up.
We have heard Sri Zafar Naiyer and Sri Ravi Shankar Prasad, Senior Counsel assisted by Sri Himanshu Kumar, learned counsel for the petitioner, Sri Saurabh Srivastava, Chief Standing Counsel - III and Sri Ashish Mishra, learned counsel for the High Court.
Sri Ashish Mishra submits that the job of the High Court is to hold the examination for selection and to recommend the names of the selected candidates to the Government for appointment. The High Court has completed its job and had made the recommendations. The matter of appointment of the petitioner is pending for want of verification before the State Government in which the High Court has no role to play. The High Court is simply entitled to send reminders to the State Government for necessary action on the names recommended and that it has no information as to why the appointment of the petitioner has been delayed or if it stands rejected by the State Government. The State Government on the satisfaction of the Hon'ble Governor regarding the suitability of the candidate to the service in accordance with Rule 13 of the Uttar Pradesh High Judicial Service Rules, 1975 (hereinafter referred to as "the Rules") makes appointment.
Sri Saurabh Srivastava, Chief Standing Counsel - III has placed before us the letter of the Special Secretary, Government of U.P., Lucknow dated 20th August, 2019 along with certain enclosures, one of which is a report dated 28th July, 2019 of the District Magistrate, Kanpur and the other is a confidential report dated 27th July, 2019 of Colonel Administrative Commandant, Station Headquarters, Kanpur. Since this Court is a Court of Record, we have taken the above letter and the documents enclosed with it on record.
The confidential report dated 27th July, 2019 of the Administrative Commandant reveals that there are serious reports of Intelligence Agencies against the petitioner in relation to the security of the Nation. The petitioner was even arrested in connection of his alleged activities.
The District Magistrate vide report dated 28th July, 2019 informed that there are serious inputs of the Intelligence Agencies that the petitioner was on the radar of the Military Intelligence in 2002 and his activities were such which threatened the security of the Nation. The petitioner may have been acquitted from the criminal charges but he has not mentioned about the pendency of the Sessions Trial No.236 of 2004 in his application for recruitment in the Higher Judicial Service.
The aforesaid reports are of sensitive nature and the Court is of the opinion that its confidentiality has to be maintained. Accordingly, it is directed that the said reports and connected documents be placed in sealed cover under the care of the Section Officer concerned.
The Rules provide for recruitment to the Higher Judicial Service from three sources, namely, (1) by promotion from amongst the Civil Judges (Senior Division) subject to passing a suitability test; (2) by promotion through limited competitive examination of Civil Judges (Senior Division) having not less than five years of qualifying service; and (3) by direct recruitment from amongst the Advocates of not less than seven years standing.
The petitioner is a candidate by direct recruitment from amongst the Advocates and has admittedly qualified the recruitment examination whereupon his name has been recommended to the State Government for appointment by the High Court.
Rule 13 of the Rules provides that the character of a candidate for direct recruitment must be such as may be found suitable in the opinion of the Hon'ble Governor for appointment to the service and that no candidate who has been dismissed by the Union Government, or by a State Government or by a Corporation owned or controlled by the Union or State Government shall be eligible for recruitment.
The aforesaid Rule 13 of the Rules for the sake of convenience is quoted below:
"13. Character - (1) The character of a candidate for direct recruitment must be such as to render him suitable in the opinion of the Governor, in all respects for appointment to the service.
Note - Persons dismissed by the Union Government, or by a State Government or by a Corporation owned or controlled by the Union or State Government shall not be eligible for recruitment.
(2) The candidates for direct recruitment must produce a certificate of good character from the District Judge of the district in which they have been practising, and in the case of candidates normally practising in the High Court, from the Registrar of the High Court and also from two responsible persons of status (not related to candidates) who are well acquainted with them in private life and are unconnected with their University, College or School."
A reading of Rules 17 and 18 of Rules which provides for the procedure for direct recruitment, makes it clear that the High Court on examining the recommendation of the Selection Committee and having regard to the number of direct recruits to be taken, prepare a list of candidates in order of merit and forward the same to the Hon'ble Governor.
Rule 22 of the Rules provide that the Hon'ble Governor on receipt from the Court the list as mentioned in Rule 18 of the Rules make appointments by taking candidates from the list in the order in which they stand.
In view of the above provisions, it is clear as crystal that after selection the High Court submits a list of selected candidates for appointment to the Hon'ble Governor and that the Hon'ble Governor, if is of the opinion that the character of the candidate for direct recruitment is such as to render him suitable in all respects for appointment in the service, may proceed to make appointments.
In other words, in view of Rule 13 of the Rules, apart from verification of the documents of the candidates the character of a candidate for direct recruitment plays an important role and of the opinion of the Hon'ble Governor in that regard is sine qua non.
Thus, in the light of the forgone discussions, ignoring the delay on the part of the State Government in verifying the documents of the petitioner or in getting the opinion of the Hon'ble Governor regarding his character, we are of the opinion that as the Governor till date has not expressed his opinion regarding the candidature of the petitioner as required under Rule13 of the Rules, it is incumbent upon him to take a decision in the matter of appointment of the petitioner on the basis of the material collected by the State Government, if necessary in consultation with the High Court At the same time, we find that there is no explanation as to what the State Government had been doing for the last two years in getting the documents of the petitioner verified or in forming the opinion regarding his character for appointment to the Higher Judicial Service. In the absence of any explanation for this inaction, we hold the State Government to be careless and negligent in pursuing the matter of appointment to the Judicial Service of the State. Such casual attitude on the part of the State in the matter concerning judicial appointments is beyond comprehension and cannot be ignored or left unattended.
In view of the aforesaid facts and circumstances, we dispose of this writ petition with the direction to the respondent No.1 to place the matter of appointment of the petitioner in the Higher Judicial Service of the State of U.P. pursuant to the recommendation of the High Court dated 18.8.2017 before the Hon'ble Governor of the State immediately within two weeks and have his opinion within next one month, after necessary consultation with any other authority, as may be deemed proper, and thereafter to proceed, if necessary, with the appointment.
In the end, we saddle the respondent No.1 with an exemplary cost of Rs.10 Lakh for the indifferent attitude shown by it in the matter of appointment of the Judicial Officer and for remaining inactive on the recommendation of the High Court for a period of two years. The said cost is directed to be deposited in the Registry of the Court within a period of one month to be utilized for the benefit of the litigants by the High Court.
Order Date :- 21.8.2019 Brijesh