ORDER

(per Hon'ble Sri Justice Vilas V. Afzulpurkar)

By this writ petition, petitioner is seeking to challenge the action of the respondents in not including her name for appointment to the post of Junior Civil Judge vide G.O.Ms No. 164 Home (Courts C1) Department dated 23.10.2008

2. Petitioner contends that in response to the notification of the year 2007 notifying 98 posts of Junior Civil Judge for recruitment, she appeared as a candidate and appeared for the written examination as well as the interview. Petitioner claims that her Roll Number is 570 and that she was provisionally selected and further procedure including the verification of antecedents of the candidates was completed and ultimately the first respondent issued G.O.Ms No. 164 dated 23.10.2008 approving the selection of 94 candidates as specified in the annexure to the said GO for appointment as Junior Civil Judges by Direct Recruitment and Recruitment by Transfer respectively. Since the name of the petitioner was not included in the said GO, petitioner alleges that she filed an application under Section 6 of the Right to Information Act and in response thereto the first respondent under his proceedings Letter No. 34200.Cts.C1/2008-1 dated 11.11.2008 informed the petitioner that adverse remarks are reported in the verification report that the husband of the petitioner, who is a practicing Advocate in the Courts at Markapur, is having close links with CPI (Maoist) Party, which is a prohibited organization.

3. Petitioner alleges that neither there is any case registered against her husband nor she has taken up any case pertaining to the Maoist party and no case is pending against her also either at the stage of investigation or otherwise. Petitioner is emphatically denying that she or her husband have participated in any Maoist movements, questioned denial of appointment to her by this writ petition on the ground that though there is no material against her, she has been unjustly denied appointment. Prior to filing this writ petition, she also made a representation to the first respondent dated 12.11.2008 and as no orders are passed, she approached this Court by way of this writ petition.

4. The first respondent - State has filed a counter affidavit mentioning that the Registrar (General) of the High Court of Andhra Pradesh had sent proposals for appointment of 105 selected candidates to the posts of Junior Civil Judge by Direct Recruitment and Recruitment by Transfer and while direct recruitment is sought to be made for 84 candidates, recruitment by transfer is for 21 candidates and as per the selection list prepared by the Committee of Honourable Judges 81 candidates were selected for Direct Recruitment according to the number of posts available to various categories and 17 candidates for Recruitment by transfer. The said selection by the Committee was approved by the Full Court and after the proposals were received by the Government, the other procedures such as verification of antecedents etc. was taken up by the Government. The Government also confirmed that the petitioner's name was found at Sl. No. 26 in the list of candidates selected in the General Category and after the verification of antecedents report, 98 candidates have been cleared by the Additional Director General of Police, Intelligence, Andhra Pradesh, Hyderabad and their selection was approved and they were appointed as Junior Civil Judges. So far as the petitioner is concerned, the verification of character and antecedents, however, shows that the confidential intrinsic intelligence collected recently has brought to the notice of the Government that the petitioner and her husband, who is a practicing advocate in the Courts at Markapur, are having close links with the CPI (Maoist) Party, which is a prohibited organization and are also in touch with the underground cadre of CPI (Maoist) party and thereupon, the Government felt that the petitioner should not be offered appointment to the post of Junior Civil Judge. Along with the counter affidavit the first respondent has filed a copy of the letter of the Superintendent of Police, Prakasam District, Ongole, addressed to the Secretary to the Government, Legislative Affairs and Justice, Home (Courts C) Department, Government of Andhra Pradesh bearing C. No. 804.SB-VII/08 dated 18.09.2008, which states as above regarding the petitioner on the basis of the recent confidential intrinsic intelligence collected.

5. The second respondent also filed a separate counter affidavit through the Registrar General. While reiterating the admitted process of selection as well as the proposals sent to the Government regarding all the selected candidates including the petitioner for appointment to the post of Junior Civil Judge, stated that the first respondent vide G.O.Ms No. 164 dated 23.10.2008 issued orders approving the selection of 94 candidates. Vide letter dated 25.10.2008 the first respondent 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 prohibition organization. Lastly, it is submitted that the second respondent has no role to pay in the matter, as the first respondent is the appointing authority, as such no relief can be claimed against the second respondent.

6. Petitioner filed a reply affidavit denying the allegations appearing against her in the counter affidavits as above and asserted that she is no way connected with any political party or banned organization. It is also stated that though her husband is a practising advocate, any of his links with CPI (Maoist) party were denied and it is asserted that even if her husband might have appeared in some bail applications, petitioner herself has not appeared in a single case. The said reply affidavit also points out the variance between the reply given to her under the Right to Information Act and the counter affidavit and it is asserted that the petitioner was issued Passport after due verification of antecedents in November 2007 and as such, the present antecedents report of 08.05.2008 cannot be true.

7. We have heard Sri P. Venugopal, learned counsel for the petitioner as well as the learned Government Pleader for Home appearing for the first respondent and Sri G. Vidyasagar, learned standing counsel appearing for the second respondent.

8. It is contended by the learned counsel for the petitioner that while the reply received by the petitioner under the Right to Information Act merely states that the husband of the petitioner, who is a practising advocate, is having close links with prohibited organization whereas the counter filed by the first respondent goes further to claim that the petitioner and her husband are having close links with the prohibited organization and are also in touch with the underground cadre of the said organization. He also points out that the statements of Superintendent of Police in his letter dated 18.09.2008 referred to above is too vague ad is not based on any material and cannot be used to deny appointment to the petitioner when she has been duly selected after successfully coming out of the written test as well as the interview. Learned counsel also submits that a valuable right accrued to the petitioner cannot be denied without putting her to notice of the materials, which appear against her and the conclusion of the first respondent based upon the alleged report of the Superintendent of Police referred to above is too vague, cryptic and unsupported by any material and as such is in the nature of a mere suspicion.

9. Learned counsel has relied upon a decision of the Supreme Court in STATE OF MADHYA PRADESH v. RAMASHANKER RAGHUVANSHI AIR 1983 SC 374 and relied upon the following portion of Para 3 extracted as under:

“………We do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution. We think it offends the Fundamental Rights guaranteed by Arts. 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual's service…”

10. Learned Government Pleader appearing for the first respondent has produced records, which include the letter addressed by the Superintendent of Police bearing C. No. 804.SB-VII/08 dated 18.09.2008 based upon the confidential report of activities of CPI (Maoist) activists and their sympathizers, submitted to the Superintendent of Police, Prakasam District, Ongole by the Inspector of Police, District Special Branch, Ongole dated 15.09.2008 The said report so far as the petitioner is concerned mentions that she is the sympathizer of the said prohibited organization and is a member of the frontal organization thereof and along with other members she is trying to intensify the activities of the said frontal organization especially in Markapuram area. There is also reference to some members of the underground cadre meeting the petitioner and her husband for various purposes as mentioned therein and also contains in brief the activities of the petitioner and her husband. A separate reference also appears with respect to the husband of the petitioner including some members of the prohibited organization meeting him and his wife (petitioner) for various professional and other works. In the further letter of the Superintendent of Police bearing C. No. 94.SB-XI/08 dated 15.02.2009 same conclusions as mentioned in the report dated 18.09.2008 are reiterated.

11. Learned Government Pleader further contended that verification of antecedents of the petitioner is subject to the satisfaction about her candidature being approved by the Government and as such when the appointing authority is not satisfied on account of links/associations with a prohibited organization, the Government has not approved her name and as such does not find place in the list of selected candidates appointed vide G.O.Ms No. 164 dated 23.10.2008 referred to above. Learned Government Pleader has relied upon a recent decision of the Supreme Court in UNION OF INDIA v. KALI DASS BATISH 2006 2 ALT 58 SC and contended that the appointing authority found it not desirable to appoint the candidate especially to a very responsible and sensitive post of Junior Civil Judge.

12. Learned Standing Counsel appearing for the second respondent while reiterating the stand that it is the first respondent, which is the appointing authority has also cited a decision in INSPECTOR GENERAL of POLICE, POLICE TRANSPIRT ORGANISATION, HYDERABAD v. V. VENKATESHWARULU 2005 2 ALD 506 DB for the proposition that character and antecedents of the candidate are necessary to be verified by the appointing authority by exercising discretion after taking into consideration the facts and circumstances.

13. In the light of the above, the following questions arise for consideration:

1. What is the extent of judicial review permissible in a situation where a candidate is selected by following due selection process but is not appointed by the appointing authority on account of antecedents verification report?

2. Whether the action of the Government, as appointing authority, is justified in acting on the basis of antecedents verification report and declining to appoint the petitioner to the post for which she was selected?

14. So far as the first question is concerned, the facts and circumstances in Kali Dass Batish's case ( supra) are quite close to the present case. In the aforesaid decision, the selection of Judicial Member to the Central Administrative Tribunal was in issue and related to two candidates i.e Mr. K.D Batish and Mr. Ram Kishore Prasad. Both the said candidates were found in the list of selected candidates and were recommended for appointment. Thereafter, as in the present case, their antecedents were required to be verified through the Intelligence Bureau (IB) and after obtaining the report from IB, the Secretary (Personnel) recommended that in view of the report the candidate need not be not recommended for appointment vide Confidential Memorandum together with all the reports and impugned proceedings and the note of Minister of State were sent for concurrence of the Chief Justice of India and after securing his concurrence appointment of selected candidates were notified but the two candidates referred to above were not appointed on account of adverse report of IB. Mr. Ram Kishore Prasad moved Jharkhand High Court challenging the action in not appointing him as Judicial Member of CAT whereas Mr. K.D Batish moved the Himachal Pradesh High Court for a similar relief. While the Jharkhand High Court dismissed the writ petition of Mr. Ram Krishna Prasad as well as the review petition moved thereon, the said petitioner filed SLP before the Supreme Court. The writ petition filed by Mr. K.D Batish, however, was allowed by the Himachal Pradesh High Court, which was challenged by the Union of India in Civil Appeal before the Supreme Court. Both the matters were decided by the Supreme Court under the aforesaid decision, inter alia, holding that the High Court ought not to have sat on appeal over the issues raised in the IB report and further attempted to disprove it by taking oral and written statements across the Bar. It was also held that judicial review is not available in such matters as it amounted to prerogative power of the Government as enunciated by the Supreme Court in the case of K. Ashok Reddy v. Government of India [(1994) 2 SCC 303]. It was also held that even if a candidate is found physically fit, had passed written test and interview and was primarily selected, if the appointing authority feels that he is not desirable to be appointed based upon the antecedents report, the view taken by the appointing authority could not be said to be unwarranted nor could it be interdicted in judicial review. In this regard the earlier decision of the Supreme Court in Delhi Administration v. Sushil Kumar [(1996) 11 SCC 605] was relied upon by the Supreme Court. Consequently, therefore, the Supreme Court agreed and confirmed the view of the Jharkhand High Court while reversing the decision of the Himachal Pradesh High Court and allowed the appeal of the Union of India.

15. The extent of judicial review, as mentioned above, stands excluded in matters of this nature as it could depend on the subject matter of the prerogative power, which is exercised. In K. Ashok Reddy's case the Supreme Court has already held that:

“Prerogative powers such as those relating to making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as well as others are not susceptible to judicial review because their nature and the subject matter are such as not to be amenable to judicial process”.

16. In the present case though the petitioner is selected by following the selection process in accordance with law, that by itself does not give any legal right to the petitioner. It is now well settled that merely being in the select list would not give any legal right to a person to claim appointment. The appointing authority has the discretion to consider such selected candidates from the standpoint of all the circumstances, reports and antecedents. The antecedents report in the present case at least, prima facie, shows that the petitioner and her husband have associations with a prohibited organization. It may be, as contended by the learned counsel for the petitioner, that both being practicing advocates professionally, they might have been consulted or contacted. However, the post to which the appointment is sought to be made being a responsible and sensitive post of a Judge, the association with unlawful organizations or political affiliations are the relevant circumstances, which the first respondent took into consideration while exercising its discretion.

17. It is also required to be noticed that Delhi Administration's case referred to above was a case relating to recruitment of a Constable and after passing all the necessary tests and after provisional selection, the candidature was referred to character and antecedents verification by the local police. On such verification it was found that the antecedents were such that appointment to the post of Constable was not found desirable and accordingly, his candidature was rejected. The Honourable Supreme Court observed that verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State and when the appointing authority, on the basis of said verification, found that the appointment was not desirable, the said decision cannot be said to be unwarranted. The above decision of the Supreme Court, therefore, shows that the decision of the appointing authority based upon antecedents verification report, particularly, keeping in view the nature of the post to which the appointment is sought to be made, cannot be said to be arbitrary nor in judicial review, this Court can sit in appeal over it.

18. In the light of the above legal position, the judgment relied on by the learned counsel for the petitioner first cited, is to be understood. It is noteworthy that the said case related to appointment of a candidate in the Government service to the post of a teacher based upon the antecedents verification report. The Supreme Court found that it was not alleged in the antecedents verification report that that said candidate ever participated in any illegal, vicious or subversive activity and there was no hint that the respondent was or is a perpetrator of violent deeds or that he exhorted anyone to commit violent deeds. There was also no reference to any addiction to violence or vice or any incident involving violence, vice or other crime and only allegation was that he has taken part in ‘RSS or Jansangh’ activities and neither of the said organizations was alleged to be engaged in any subversive or other illegal activity nor are the organizations banned. In the light of these facts, the Supreme Court disapproved the denial of appointment to the said candidate. Para 3 on which the learned counsel has placed strong reliance and which is extracted in the paragraphs above, is therefore, required to be understood in the background of the factual position as appearing in the said case as mentioned above. In the context, therefore, the present case stands on an entirely different footing inasmuch as the allegations appearing from the antecedent verification report shows links/associations with the banned organization and the appointment of the present candidate is to be made to a sensitive post of a Judge. We, therefore, feel that the fact situation as existing in the decision first cited is not attracted to the facts and circumstances of the present case and in any case the later decisions of the Supreme Court referred to above clearly apply to the present case. In view of the above, therefore, the first question is answered against the petitioner.

19. So far as the second question is concerned, it is evident from the discussion as above that the subjective satisfaction of the appointing authority is clearly based upon the material which was before the Government, the discretion to appoint or not to appoint a particular candidate is accordingly based upon the said antecedents verification report. It cannot, therefore, be said that the discretion exercised by the Government in deciding not to appoint the petitioner is either arbitrary or capricious. The contention of the learned counsel for the petitioner that the petitioner ought to be put on notice such report or material before denying her appointment is also liable to be rejected for the reason that no legal right of the petitioner is infringed merely because she is provisionally selected and the said antecedents verification report is one of the materials available to the Government for taking a decision while exercising discretion to appoint or not to appoint. In this context, We may notice another latest decision of the Supreme Court in R. RADHAKRISHNAN v. DIRECTOR GENERAL OF POLICE 2008 1 SCC 660. This was a case where recruitment of the candidate in question was to be made to a uniform service to the post of fireman, the candidate was provisionally selected and he submitted verification roll in which with respect to queries about any involvement in any criminal case or arrest/conviction or sentence in any previous criminal case past or pending was answered by the candidate in negative. However, it was found that the candidate was involved in an incident under Section 294(b) IPC and was arrested and released on bail.

Though subsequently he was acquitted, the appointment was denied on the ground that he had made a false statement in the verification roll. Questioning that, he moved the State Administrative Tribunal, which allowed his application, against which, the writ petition filed by the respondent was allowed. Questioning the same, SLP was filed by the candidate. It is significant to note that the Supreme Court followed the ratio in Delhi Administration's case referred to be above and the Supreme Court declined to exercise discretion in his favour in view of the wrong information disclosed by the candidate, who was seeking appointment to a uniform service.

20. Thus, the criteria, which applies to the post of Judicial Member of CAT as in K.D Batish's case ( supra) would apply with equal rigor to the present case, especially when the same is applied by the Supreme Court in the case relevant to appointment to the post of Constable or other uniform service. We are, therefore, of the opinion that the discretion exercised by the first respondent in not appointing the petitioner cannot be said to be arbitrary, unreasonable and in view of the same the second question is also answered against the petitioner.

In the result, therefore, the writ petition is dismissed. However, there shall be no order as to costs.