# [1977] 2 S.C.R. 361

- **Citation:** [1977] 2 S.C.R. 361
- **Court:** Supreme Court of India
- **Decided:** 1976-12-09
- **Case number:** Civil Appeals Nos.1987-1988 of 1976
- **Bench:** A. N. Ray, Cj .• M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-361-7045
- **Pages:** 4

## Headnote

ColUlltutlon of Indio-Writ -of mandamu:t, when can be mlN for-Article
233,. 1eope of-Direct recruitment of Di.rtrict J11dges--Whether Governor bound
to- llCCept recommendation of High Court.
The Haryana High Court invited applications and interviewed candidates foc
fillln,. np vacancie& in the quota of direct recruits from tho bar. in the Haryana
Superior Judicial Service. Tho umes of the appellants were recommended to
the State _ Government who rejected them and asked tho High Court to invite
applications again. Accepting the position, the High Court issued the advertise~
menta. The appellants filed petitiollJ agairut the order rejecting their names and
l..il:od for mandamu.J for appointmenL Tho. n.me were dismiued by the High
Court oa the ll!"Ound that the appcllanto had ao locUJ sttmdl.
Diami•ainz tho .ppU.t.. tho Court,
Hu.D i (I) Thero mwt be a judicially onforceablo right u well u. a legally
prcMected right before OJIC 1ufferia1 a legal Jrieyance can a.!t for a mantiamll.1.
A penon can be ta.id to be aggrieved only when he is denied a lei:al right by
some one who ~
a legal duty to do aom.ething or to ·abstain frODJ.
doing
somctklq. (3620-H. 363A-BJ
, •
.
Stote of Haryan• ... SM~a.rh ChalUlu Marwaha & Or>. [1914) 1 S.C.R. 165;
Jasihlli Uotibhai Desai "'· Ro~han Kumar Haji Bashir Ahmed d Ors. [1976] 3
S.C.R. 58; Halsbury'• Law• of England 4th Ed. Vol. I, pargraph 122 and Ferris
Extr•-orrlina"Y ugal Remedi", paragraph 198, applied •.
A
B
c
D
E
(2) The initial appointmeot of District Judges under Article 233 is within·
the: exclusive jurisdiction of the Go"Yermnent after consultation with the High
Govrt though the consultation does :aot mean that the GoYernor must accept
whateTer advice or recommendation is given by the High Court. Article 233
only requires that the Governor should obtain from the High Court its viewsca the merit.! and demcrita of perso:m, aelected for promotion. ud direct recruit..
F
Sl<lll. [363A·B. F-OJ
Chandra Mohan ... Stale of Uttar Pradesh & Ors.
[1967]
1 S.C.R. 77;
Chandramouleshwar Pra.Jad T. Patna High Court & Ors. (1970] 2 S.C.R. 666
and A. Panduranga Rao v. Stal< of Andhra Pradesh & Ors. [1976] 1 S.C.R.
620, referred to.
- 0:vIL APPELLATE JURISDICTION: Civil Appeals Nos.1987-1988
of 1976.
(Appeals by Special Leave from the Judgment and Order dated
the 25-3-1975 of the Punjab and Haryana High Court in Civil Writ
Petn. Nos. 1228 & 1229 of 1975).
G. L. Singh, in CA 1988/76 with Hardev Singh, B. Datta and
G
N. S. Sodhi, for the appellants.
R
Niren De; Attorney General with Devan Chelan Dar, Adv. General, Prem Malhotra and R. N. Sachthey, for respondents Nos. 1 & 2.
Anand Swarup, and Mrs. S. Bhlmdare, tor rei.pondent No. 3.
A
B
c
D
E
F
G
H
362
SUPREME COURT REPORTS
[1977] 2 S.C.R.

## Text

361
MANI SUBRAT JAIN ETC.
v •
. STAIB OF HARYANA AND ORS.
December 9, 1976
[A. N. RAY, CJ .• M. H. BEG AND JASWANT SINGH JJ.]
ColUlltutlon of Indio-Writ -of mandamu:t, when can be mlN for-Article
233,. 1eope of-Direct recruitment of Di.rtrict J11dges--Whether Governor bound
to- llCCept recommendation of High Court.
The Haryana High Court invited applications and interviewed candidates foc
fillln,. np vacancie& in the quota of direct recruits from tho bar. in the Haryana
Superior Judicial Service. Tho umes of the appellants were recommended to
the State _ Government who rejected them and asked tho High Court to invite
applications again. Accepting the position, the High Court issued the advertise~
menta. The appellants filed petitiollJ agairut the order rejecting their names and
l..il:od for mandamu.J for appointmenL Tho. n.me were dismiued by the High
Court oa the ll!"Ound that the appcllanto had ao locUJ sttmdl.
Diami•ainz tho .ppU.t.. tho Court,
Hu.D i (I) Thero mwt be a judicially onforceablo right u well u. a legally
prcMected right before OJIC 1ufferia1 a legal Jrieyance can a.!t for a mantiamll.1.
A penon can be ta.id to be aggrieved only when he is denied a lei:al right by
some one who ~
a legal duty to do aom.ething or to ·abstain frODJ.
doing
somctklq. (3620-H. 363A-BJ
, •
.
Stote of Haryan• ... SM~a.rh ChalUlu Marwaha & Or>. [1914) 1 S.C.R. 165;
Jasihlli Uotibhai Desai "'· Ro~han Kumar Haji Bashir Ahmed d Ors. [1976] 3
S.C.R. 58; Halsbury'• Law• of England 4th Ed. Vol. I, pargraph 122 and Ferris
Extr•-orrlina"Y ugal Remedi", paragraph 198, applied •.
A
B
c
D
E
(2) The initial appointmeot of District Judges under Article 233 is within·
the: exclusive jurisdiction of the Go"Yermnent after consultation with the High
Govrt though the consultation does :aot mean that the GoYernor must accept
whateTer advice or recommendation is given by the High Court. Article 233
only requires that the Governor should obtain from the High Court its viewsca the merit.! and demcrita of perso:m, aelected for promotion. ud direct recruit..
F
Sl<lll. [363A·B. F-OJ
Chandra Mohan ... Stale of Uttar Pradesh & Ors.
[1967]
1 S.C.R. 77;
Chandramouleshwar Pra.Jad T. Patna High Court & Ors. (1970] 2 S.C.R. 666
and A. Panduranga Rao v. Stal< of Andhra Pradesh & Ors. [1976] 1 S.C.R.
620, referred to.
- 0:vIL APPELLATE JURISDICTION: Civil Appeals Nos.1987-1988
of 1976.
(Appeals by Special Leave from the Judgment and Order dated
the 25-3-1975 of the Punjab and Haryana High Court in Civil Writ
Petn. Nos. 1228 & 1229 of 1975).
G. L. Singh, in CA 1988/76 with Hardev Singh, B. Datta and
G
N. S. Sodhi, for the appellants.
R
Niren De; Attorney General with Devan Chelan Dar, Adv. General, Prem Malhotra and R. N. Sachthey, for respondents Nos. 1 & 2.
Anand Swarup, and Mrs. S. Bhlmdare, tor rei.pondent No. 3.
A
B
c
D
E
F
G
H
362
SUPREME COURT REPORTS
[1977] 2 S.C.R.
The Judgment of the Court was delivered by
RAY, C.J. These appeals are by special leave against the judgment dated 25 March, 1975 of the Punjab and Haryana High Court
dismissing the writ petitions.
The ap~llants in the writ petitions asked for a mandamus directing Respondents No. 1 and 2 to appoint the appellants to the posts
of Additional District and Sessions Judge.
The appellants also asked
for a mandamus or an appropriate writ quashing the orders of Respondents No. 1 and 2 whereby the High Court was informed that the
Government was not prepared to appoint the appellants to the post
of Additional District and Sessions Judge.
Respondent No. 1 is the State of Haryana. Respondent No. 2 is
the Chief Minister of Haryana. Respondent No. 3 is the High Court
of Punjab and Haryana.
The High Court dismissed the petitions on th~ ground that the
appellants had no locus standi to file the petitions. The reason given
by the High Court is that the appellants were not appointed and they
had no right to be appointed.
They had also no right to know why
they were not appointed.
The High Court by letter dated 19 February, 1972 invited applications from eligible members of the Bar to fill up two vacancies in
the quota of direct recruits from the Bar in the Haryana Superior
Judicial Service.
The High Court called for interview 9 candidates
on 18 October, 1972.
· The High Court thereafter recommended to the Haryana Government the names of the appellants for appointment as District/ Additional District & Sessions Judges.
After 27 months the Government rejected the recommendation
of the High Court.
Thereupon the appellants :Ii.led
writ
petitions
challenging the order of rejection and
asked
for
mandamus for
appointment.
There is a Jetter dated 8 September, 1972 from the Chief Secretary to the Government of Haryana to the Registrar of the
Hi~
Court.
In that letter the Government took exception to the inviting
of applications from members of the Bar without the High Court
having first obtained the approval of the Government for. that puroose.
The letter also stated that in the past two occasions the High Court
obtained the approval of the State Government before inviting applications.
The High Court rightly dismissed the petitions. It is elementary
though it is to be restated that no one can ask for a mandamus
without a legal right.
There must be a judicially enforceable right
as well as a legally protected right before one suffering a legal grievance
can ask for a mandamus.
A person can be said to be aggrieved only
when a person is denied a legal right by some one who has a legal duty
!
MANI SUBRAT JAIN v. HARYANA (Ray, C.J.)
363
to do something or to abstain from doing something (See Halsbury's
A
Laws of England 4th Ed. Vol. I, paragraph 122; State of Haryana v.
Subash Chander Marwaha & Ors.(') lasbhai Motibhai Desai v. Roshan
Kumar Haji Bashir Ahmed & Ors. (2) and Ferris Extraordinary Legal
Remedies paragraph 198.
The initial appointment of District Judges under Article 233 is
within the exclusive jurisdiction of the Government after consultation
B
with the High Court. The Governor is not bound to act on the
a<lVice of the High Court.
The High Court recommends the names
of persons for appointment. If the names are recommended by the
High Court it is not obligatory on the Governor to accept the recommendation.
Counsel for the appellants relied on the decisions of this Court
in Chandra Mohan v. State of Uttar Pradesh & Ors.(8); Chandramouleshwar Prasad v. Patna High Court & Ors(4 ) and A. Panduranga Rao v. State of Andhra Pradesh & Ors.(5 ) in support of two
contentions.
First, the Governor should accept the recommendations
made by the High Court. Second, if the Governor will not accept
the recommendations he should give reasons for not accepting the
recommendations.
None of the decisions supports the contentions.
In these three cases the scope and content of Article 233
was
examined.
This Court has held that the Constitution contemplates
consultation of the Governor with the High Court inasmuch as the
High Court is in a po.sition to express views on the judicial work of
persons who are recommended for appointment to the posts of District Judges. The High Court knows the merits and demerits
of
persons who will be promoted from the service to the
post.
The
High Court interviews persons who will be appointed by direct re·
cruitment.
The High Court in
those
circumstances
will
select
candidates for promotion and· direct recruitment and send their names
to the Government.
This Court has also held that the consultation of the Governor
with the High Court dqes not mean that the Governor must acceot
whatever advice or recommendation is given by the
High
Court.
Article 233 requires that the Governor should
obtain from
the
High Court its views on the merits and demerits of persons, selected
for promotion and direct rocruitment.
c
D
E
F
In regard to persons who are appointed by promotion or direct
recruitment this Court has held that it is not open to the Govern·
G
ment to choose a candidate for appointment by direct recruitment or
by promotion unless and until his name is recommended
bv
the
High Court.
In Panduranga Rao's case (supra) there is an observation that the
GQvernment could tell the High Court its reasons for not accepting
(!) [1974] I S.C.R. 165.
(3) [1967} I S.C.R. 77.
(5
[_ 976] l S.C.R. 620.
(2) [1976] 3 S.C.R. 58.
(4) [1970]2 S.C.R. 666.
H
A
B
c
364
SUHBMB COURT llPOllTS
(1977] 2 S.C.R.
the recommendations of the High Court in regard to certain persons.
The observation in Panduranga Rao's caso (supra) was made in the
facts and circumstances of that case and in particular the controversial
correspondence.
In the l'fesent case the Government pointed out that the High
Court had not written to the Government about the proposed appointments before issuing advertisements therefor.
In any event,, after
the Government communicated to tho High Court that tho recommendations were not accepted a new
situation developed.
The
Government asked the High Court to issue advertisements and to invite
applications for appointment to the pos~.
The High Court a.ccepkd
that position and acted upon it.
The Hi&h Court issued the adver•
tisemen~.
The attitude of the High Court has been peculia:t".
When the
High Court decided to ask for fresh applications the High Court alM>
accepted the position that the original recommendations which had
been made by the High Court were not accepted by the State Government and yet the High Court supported before this Court tho appellant's
case by pleading for the "candidature" of tho appellants.
The High
D
Court should not take a partisan view by supporting the candidature
of any person.
We were a little surprised that the High Court supported the appellants.
This ii not proper particularly when
the
High Court dismissed the writ petitions of the appellants.
For the foregoing reasons the appeals are dismissed.
There will
be no order as to costs.
M.R.
Appeals dismissed.