1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2019 CORAM THE HONOURABLE Mr. JUSTICE [ENTITY] [CASE NUMBER] and W.M.P.No. 32050 of 2018 [ENTITY] petitioner Vs The [ENTITY] c/o.The Additional Director General of Police/Inspector General of Prisons Egmore, Chennai 600 008. Respondent PRAYER: Writ Petition filed under [SECTION] of the [ACT], to issue a Writ of Certiorarified Mandamus, calling for the records of the respondent in No.3583/EW1/2017-7 dated 17.05.2018 and quash the same and consequently direct the respondent to appoint the petitioner as Grade II Jail Warder. For Petitioner : M/s.[ENTITY] For Respondent : Mr.[ENTITY] Special Government Pleader http: www.judis.nic.in 2 ORDER
The order of rejection dated 17.05.2018, rejecting the candidature of the writ petitioner for appointment to the post of Grade-
II Jail Warder in proceedings dated 17.05.2018 is under challenge in the present writ petition.
2. Pursuant to the Recruitment Notification issued by the respondent, the writ petitioner submitted an application to participate in the selection process for appointment to the post of Grade -II Jail Warder. The writ petitioner was successful in the written examination and participated in the physical efficiency test.
3. The learned counsel for the writ petitioner states that earlier the writ petitioner filed [CASE NUMBER] and the Madurai Bench of this Court passed an order on 24.01.2018, directing the authorities to consider the case of the writ petitioner and take a decision afresh within a period of twelve weeks.
4. Pursuant to the orders of the Madurai Bench of this Court, the respondent issued the present impugned order rejecting the claim of the petitioner in proceedings dated 17.05.2018. The reasons stated in http: www.judis.nic.in the impugned order is that the writ petitioner is a candidate provisionally selected for appointment to the post of Grade II Jail Warder for the year 2017, subject to Police Verification and Medical Examination. While conducting Police Verification and Medical Examination it was found that he was involved in a criminal case in a Keeranur Police Station and [CASE NUMBER] was registered under [SECTION], [SECTION], [SECTION] of [ACT]. The case ended in acquittal on the ground of benefit of doubt by Judicial Magistrate, keeranur on 03.08.2017. Due to his involvement in the Criminal case, his case was not considered for the appointment to the post of Grade II Jail Warder, which was informed to the writ petitioner in Official Memo dated 17.11.2017. The authorities had considered the orders passed by the Madurai Bench of Madras High Court [CASE NUMBER].
The competent authority came to the conclusion that the writ petitioner is not suitable for appointment to the post of Grade II Jail Warder and accordingly rejected the candidature of the writ petitioner.
5. This Court is of the opinion that this Court had elaborately considered the issue relating to the verification of antecedents and character and the decision taken by the competent authority in respect of the suitability for appointment to the post in availing the services.
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6. The judgments of the Hon'ble Supreme Court of India, the Hon'ble Full Bench of the High Court of Madya Pradesh answered the questions in relation to the selection. In the case of [PRECEDENT], the Hon'ble Full Bench formulated the following questions for the decision of the Larger Bench.
1. Whether in all cases, where an FIR lodged against a person for minor offences has been quashed on the basis of a compromise arrived at between the parties or a person has been acquitted on account of a compromise between the parties, the character of the person applying for appointment thereafter, has to be treated as Good and such a person cannot be held ineligible for appointment under the Rules of 1994?
2. Whether the High Court in exercise of its powers under [SECTION] of the [ACT], can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person?
3. Whether the High Court while allowing such a petition in exercise of its powers under [SECTION] of the [ACT] can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates were appointed and to grant him back dated seniority and all other benefits or whether the High Court should simply remit the matter back to the authority for taking a decision in this regard?
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4. Whether the high standards of adjudging the good character of a candidate for appointment as a Judicial Officer, which has been adopted and followed by the State under the Rules of 1994 till the decision in the case of [ENTITY] (supra) were and are right and proper or whether in view of the decision in the case of [ENTITY] (supra), the same should be considered to be relaxed to the extent that in all cases the character of a person should be treated to be good where he has been acquitted for minor offences on the basis of a compromise?
5. Whether the decision in the case of [ENTITY] (supra) lays down the correct law?
6. Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide?
7. The Hon'ble Full Bench elaborately adjudicated the issues involved in respect of selection and the pendency of criminal case against the candidates and the relevant paragraphs 33 to 45 of the judgment cited supra are extracted hereunder:
33. This brings us to consider the Question Nos. 2 and 3 referred to for the opinion, which read as under: QUESTION Nos. 2 & 3:
2. Whether the High Court in exercise of its powers under [SECTION] of the [ACT], can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person?
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3. Whether the High Court while allowing such a petition in exercise of its powers under [SECTION] of the [ACT] can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates were appointed and to grant him back dated seniority and all other benefits or whether the High Court should simply remit the matter back to the authority for taking a decision in this regard?
34. The power of judicial review under [SECTION] of the [ACT] is not that as of Court of appeal but to find out whether the decision-making process is in accordance with law and is not arbitrary or irrational. In a [ACT] Bench judgment reported as [PRECEDENT] it was held that the High Court has power to issue writs in a case where subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of record but such jurisdiction is not wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned. Relevant extract of the said decision is reproduced as under: (11) In dealing with the powers of the High Court under [SECTION] of the [ACT] this Court has expressed itself in almost similar terms vide - [PRECEDENT] at pp.
195-196 (I) and said:
Such writs as are referred to in [SECTION] are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction, vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and http: www.judis.nic.in examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made. These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under [SECTION] of the [ACT].
(24). As regards the omission to include hiring charges the High Court has observed that the Tribunal did not record any finding that such hiring was proved. The Tribunal has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges. The matter has been dealt with in paragraph 29(d) of the Tribunal's order and the entire evidence has been gone through.
We are unable to say that the finding of the Tribunal that the respondent No. 1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence. Reference may be made in this connection to paragraph 29(f) of the Tribunal's order which deals with the matter in detail. On the whole our opinion is that the so-called apparent errors pointed out by the High Court are neither errors of law nor do they appear on the face of the record. An appellate Court might have on a review of this evidence come to a different conclusion but these are not matters which would justify the issue of a writ of certiorari. In our opinion the judgment of the High Court cannot be supported and this appeal must be allowed. The writ issued by the High Court will therefore be vacated. We make no order as to costs of this appeal.
35. In another [ACT] Bench judgment reported as AIR 1965 SC 532 (State of Mysore v. K.N. Chandrasekhara), the question examined was in relation to the appointment to the post of [ENTITY] by the Karnataka Public Service Commission. The Court held that if the High http: www.judis.nic.in Court was satisfied that the persons, who were occupying the post were appointed contrary to the Rules, the High Court could set aside the proceedings of the Commission and direct preparation of fresh list according to law but could not direct to include the name of the six petitioners only because they applied to the Court. The relevant extract read as under: 10. It may at once be observed that the order passed by the High Court cannot in any view of the case be sustained. The High Court could, if it held that the notification issued by the Commission and the appointments made by the State pursuant thereto were made in violation of the statutory rules, quash the list but the High Court could not direct that the names of six persons merely because they had applied for setting aside the list of candidates selected for promotion be incorporated in that list. The direction made by the High Court was in the nature of mandamus. Such a direction could be issued against a person or body to compel the performance of a public duty imposed upon it by law- statutory or common. The commission is undoubtedly a body constituted pursuant to the provisions of the [ACT] and has to exercise powers and perform functions entrusted to it by the Rules framed under Art.
309. But the order which the High Court made was not for compelling performance of its duty imposed upon the Commission by statute or common law. If the High Court came to the conclusion that the proceeding of the Commission was vitiated on account of some irregularity or illegality, it could declare the proceeding void. The High Court however held that the orders including respondents 4 to 13 to the petitions in the list of persons eligible for appointment should be allowed to stand, because the petitioners in the petitions before it did not insist on the issue of a writ of quo warranto. If the High Court was satisfied on an application specifically made in that behalf that the persons who were occupying posts to which they were appointed contrary to the rules governing the appointment and consequently were not competent to occupy the posts, it is difficult to appreciate the ground on which the High Court would be justified in declining to pass appropriate orders. Either the High Court could set aside the proceeding of the Commission and direct http: www.judis.nic.in preparation of a fresh list according to law, or the High Court could dismiss the petitions because in its view the list was regularly prepared. But the order passed by the High Court maintaining the inclusion of respondents 4 to 13 in the list and then directing the Commission to include the names of the six petitioners in the list merely because they had applied to the High Court is without authority.
36. In another judgment reported as [PRECEDENT], the Court held that the High Court could have quashed the orders but the High Court was not sitting in appeal over the decision of the Board of Revenue. Once the orders complained of are quashed, the matter should have been left at large without any further direction leaving the Revenue Authorities free to take any steps.
37. The scope of power of judicial review has also been examined in a judgment reported as [PRECEDENT], the Supreme Court held as under: 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.
75. In [PRECEDENT], Lord [ENTITY] said:
Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. In the same case Lord [ENTITY] commented on the purpose of the remedy by way of judicial review under [ACT] in the following terms:
http: www.judis.nic.in This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160). In [PRECEDENT], Sir [ENTITY], M.R. commented:
An application for judicial review is not an appeal. In [PRECEDENT], Lord [ENTITY] said: Judicial review is a protection and not a weapon. It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In [PRECEDENT], Re, Lord [ENTITY] observed that:
Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
76. In [PRECEDENT], Lord [ENTITY], M.R. referred to the judicial review jurisdiction as being supervisory or longstop jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.
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77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. Committed a breach of the rules of natural justice,
4. Reached a decision which no reasonable tribunal would have reached or,
5. Abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in [PRECEDENT], Lord [ENTITY] refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention.
38. The Supreme Court in a judgment reported as [PRECEDENT] has held that in the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. The Court held as under: http: www.judis.nic.in 17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain, vide [PRECEDENT]; and S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring judgment of [ENTITY], J.).
19. Under our [ACT], the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the [ACT] will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the [ACT] and each organ of the State-the legislature, the executive and the judiciary-must have respect for the other and must not encroach into each other's domains.
21.The theory of separation of powers first propounded by the French thinker [ENTITY] (in his book The Spirit of Laws) broadly holds the field in India too. In Chapter XI of his book The Spirit of Laws [ENTITY] writes:
When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the http: www.judis.nic.in subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. (Emphasis supplied) We fully agree with the view expressed above. [ENTITY]'s warning in the passage above quoted is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for overreach and encroachment into the domain of the other two organs.
39. A Full Bench of this Court in [PRECEDENT] examined the question as to whether in exercise of power of judicial review the Court can refer the matter to a Court chosen expert or whether the Court itself can act as Court of appeal and make a different view than what has been finalised as the model answer key by the Examining Body.
The Bench held as under: 32. In respect of the second question, this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.
40. In view of the law laid down in above said judgments, there is no doubt that in exercise of power of judicial review under [SECTION] of the [ACT], this Court only examines the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. We find that the decision of the State Government holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged.
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41. Even if the High Court finds that the decision of the State Government is suffering from some illegality, the jurisdiction of the High Court in a writ petition under [SECTION] of the [ACT] is to remit the matter to the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own. The Supreme Court in a judgment reported as [PRECEDENT] was examining a question: as to whether there could be a direction to appoint a candidate, who sought appointment on compassionate ground. The Supreme Court held as under: 16. With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India v. Asha Ramchhandra Ambekar (1994) 2 SCC
718. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision- making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under [SECTION] of the [ACT] can be of no guidance on the scope of [SECTION].
42. Again while considering the question of compassionate appointment in a judgment reported as [PRECEDENT], the Supreme Court held that there could not be any direction for appointment or promotion.
http: www.judis.nic.in The relevant para of the said decision is extracted as under: 37. Even on second ground, the submission of the Bank is well-founded. As noted earlier, the learned Single Judge issued direction to the Bank to appoint the writ petitioner, widow of the deceased employee within one month. As per settled law, a writ of mandamus can be issued directing the authority to consider the case of the petitioner for an appointment or promotion as the case may be but no direction can be given to appoint or promote a person.
43. Similar view has been expressed in a judgment reported as [PRECEDENT] represented by its Registrar) wherein while dealing with the scope of Writ of Mandamus in the matter of appointment/recruitment, the Supreme Court held, thus: 25. Ordinarily, in a case where the person appointed is found ineligible, this Court after setting aside such appointment, directs for consideration of cases of such of the candidates, who have been found eligible. It is only in exceptional cases that this Court issues mandamus for appointment. The case in hand is not one of those cases where the High Court ought to have issued mandamus for appointment of [ENTITY] as Lecturer in MCA. Hence, we are of the opinion that the High Court rightly held [ENTITY] ineligible and quashed his appointment. However, it erred in issuing mandamus for appointment of [ENTITY]. Accordingly, we uphold the impugned order ([ENTITY] v. Gulbarga University, Writ Appeal No. 3216 of 2004, order dated 19-11-2009/24-11-2009 (KAR) of the High Court whereby it had set aside the appointment of the appellant herein and direct that the case of the writ petitioner [ENTITY] and all other candidates be considered in accordance with law. However, we make it clear that the selection already made shall be taken to its logical conclusion.
44. Therefore, the High Court could not issue any direction for appointment of a candidate from the date the other candidates were appointed as such is not the http: www.judis.nic.in jurisdiction vested in the High Court under [SECTION] of the [ACT].
45. In view of the above, we find that the judgment of this Court in [ENTITY]'s case (supra) does not lay down the correct law as the High Court has substituted its decision regarding suitability of a candidate and also issued a direction to appoint the petitioner, therefore, the entire judgment does not lay down correct law and is thus, overruled. The question Nos. 2 and 3 are answered accordingly.
QUESTION No. 6:
(6) Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide?
8. Even recently, the three judges Bench of the Hon'ble Supreme Court of India, in the case of [PRECEDENT] held as follows, "15. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under [SECTION] of [ACT], the law declared by this Court in [ENTITY] (supra), specially in paragraphs 34 and 35 completely concludes the issue. Even after the disclosure is made by a candidate, the employer would be well within his http: www.judis.nic.in rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.
17. We must observe at this stage that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature of the respondent was in any way actuated by mala fides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss [CASE NUMBER] preferred by the respondent. No costs."
9. The Apex Court held that even if disclosure is made in the affidavit, regarding the registration of a Criminal case, it is well within the rights of the appointing authority to consider the antecedents and the suitability of the candidate. While so, the appointing authority can certainly take into account the object for which he has undertaken such level of verification against the candidate and also the acquittal on the ground of benefit of doubt.
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10. This being the findings of the Honourable Supreme Court of India, the decision taken by the respondents in respect of the writ petitioner is in consonance with the legal principles settled by the Apex Courts and there is no infirmity as such.
11. Accordingly, the present writ petition is devoid of merits and dismissed. No costs. Consequently, connected miscellaneous petition is closed.
25.03.2019 Index : Yes Internet : Yes Speaking Order kmm/ssb To
The [ENTITY] c/o.The Additional Director General of Police/Inspector General of Prisons Egmore, Chennai 600 008.
http: www.judis.nic.in [ENTITY], J.
kmm/ssb 25.03.2019 http: www.judis.nic.in