IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE J.CHELAMESWAR AND THE HON’BLE SRI JUSTICE D.APPA RAO Writ Petition No. 10061 of 2006 Between : K.Manjusree .. Petitioner And The State of AP represented by Chief Secretary, Saifabad, Hyderabad and another .. Respondents Writ Petition No. 10062 of 2006 Between : M.Laxman .. Petitioner And The State of AP represented by Chief Secretary, Secretariat, Saifabad, Hyderabad and another .. Respondents Dated : JUDGMENT : (per JC,J) These two writ petitions are filed with the prayer as follows : WP No.10061 of 2006 & WP No.10062 of 2006 “For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble Court may be pleased to issue an appropriate writ or order or direction, one in the nature of writ of mandamus, (i) declaring the action of the respondent No.2 in enforcing the resolution dated 30.11.2004 of the Administrative Committee, prescribing minimum qualifying marks criteria, is in contravention of Article 233, violative of Art. 14 & 16, ultra vires, void and inoperative. (ii) A direction may be issued to the respondent 2 to prepare a panel of names for the posts of District and Sessions Judge (Gr.II) pursuant to the notification dt. 29.5.2004 and make recommendations to the respondent-1, without giving effect to the resolution dated 30.11.2004; (iii) Costs be awarded to the petitioner, and pass such other order or orders appropriate in the circumstances of the case. The 1st respondent issued an advertisement dated 29.5.2004 in various newspapers inviting applications for appointment to the post of District and Sessions Judge Grade-II. According to the advertisement, ten posts are proposed to be filled up by Direct Recruitment. The advertisement also contained the details like the number of posts reserved for OC, BC, SC/ST, Woment etc. It was also indicated in the notification that the selection process contains a written examination and an interview. The petitioners in these two writ petitions applied in response to the above mentioned notification. The fact that both the petitioners satisfy the basic eligibility criteria prescribed in the notification is not in dispute. Both of them appeared for the written examination held on 30.1.2005 and both of them were also called for the interview and they appeared for the interview. What transpired thereafter according to the petitioners perception is described in paras 7, 8 and 9 of the affidavit filed in support of WP No.10061 of 2006, which read as under : “7. While the matter stood thus, after completion of written examination and oral interview and following the procedure, the Administrative Committee of the Hon’ble High Court have selected and prepared the list of following 10 candidates for the purpose of recommendation to the Respondent-1 for appointment to the post of District & Sessions Judge (Gr.II) on the basis of total marks obtained in Written Examination and Interview, by adopting the reservations. 1) Venkata Jyothirmayee 2) C.Sumalatha 3) K.Manjusree (petitioner) 4) A.Hari Haranatha Sarma 5) G.Anupama Chakravarthy 6) V.B.Nirmala Geethamba 7) M.Lakshman 8) BSV Prakash Kumar 9) MG Priyadarshani 10) N.Thukaramji A copy of the list of the candidates selected along with marks obtained by them is filed herewith as Annexure P-4. I submit that the Administrative Committee has followed the earlier (2001-02) practice in selecting the candidates. 8. I further understand that the above list was placed before the Hon’ble Full Court for the purpose of approval and recommendation. At that stage, the list was reviewed and re-drawn after referring to the Committee of Hon’ble Judges, by fixing minimum qualifying marks in the interview. In result, in fixing the minimum qualifying marks in the interview, the candidates, namely Venkata Jyothirmayee who has got highest marks of 81.6 (first rank), K.Manjusree (myself) who has got marks of 79.1 (third rank) under the open category. G.Anupama Chakravarthy (BC-A) with 59.6 marks highest in the group and M.Lakshman (BC- D) highest in the group with 67.2 marks and MG Priyadarshini (SC) with 56.4 marks were eliminated. Thus, 5 candidates out of 10 candidates, including myself, selected by the Administrative Committee on the basis of total marks in written test and interview were deleted from the list. 9. It is submitted that by prescribing minimum marks in the interview, second list (Annexure P-5) was prepared with 9 candidates and the same was recommended to the Respondent- 1 for appointment to the posts of District & Sessions Judge (Gr.II). The same is under consideration of Respondent-1 and appointment orders may be issued at any time to the candidates listed in Annexure P-6.” In the counter affidavit filed by the High Court sworn to by Sri P.Durga Prasad, Registrar General on 8.6.2006 at para 9 and 10 it is stated as follows : “9. With respect to the averments contained in paragraphs 7 and 8 of the affidavit, it is respectfully submitted that the selection process of the District and Sessions Judge Grade II is not yet complete. The petitioner has given the names of ten persons who are allegedly selected by the High Court in the first instance on the basis of the total marks obtained in the written examination and interview and also some other minute details of the marks obtained by the candidates. It is submitted that the High Court has not published the marks obtained by the candidates in the written test and in the oral interview and the said information is confidential in nature. In the verification portion of the affidavit, the petitioner has not stated as to the source of such confidential information to her except stating that the information given is true to the best of her knowledge. Since the source of information has not been disclosed by the petitioner, the said information cannot be relied upon by her. The act of the petitioner in producing such confidential information smacks of unfair practice adopted by her, which itself is sufficient to dismiss the writ petition and further warranting initiation of criminal action against the petitioner. This respondent reserves its right to initiate appropriate criminal action against the petitioner for such act. 10. With respect to the averments contained in para 9 of the affidavit, it is submitted that the selection process is not yet complete and so far there is no recommendation sent by the High Court to the Government for appointment of the candidates as District Judges, Grade II. Hence there is no merit in the contention of the petitioner.” Apart from the allegations and counter allegations extracted above, the fact remains that by the date of the hearing of the writ petitions, the High Court approved and recommended certain names for appointment as District and Sessions Judge Gr.II and the matter is pending in the government. In our view, it is not very relevant to examine as to the source or basis of information upon which the affidavits are sworn to by the petitioners. What is at issue is the legality of the procedure adopted by this Court in making recommendations for the appointment of the post of District and Sessions Gr.II. Declining to examine legal issues raised by a citizen in such a matter where this Court plays a role on the administrative side in the decision making process would neither enhance the prestige of the court nor its credibility. Those two factors in our view are the ultimate foundation of this institution and every attempt is to be made to protect the same and in our view the only way of protecting it is making the decision making process as transparent as possible. Under Article 233 of the Constitution, the appointments, postings, promotions of the District Judges in the State are required to be made by the Governor of the State in consultation with the High Court. The Governor of Andhra Pradesh made rules called `The Andhra Pradesh State Higher Judicial Service Rules’ in exercise of the powers conferred under Article 233 and the provision to Article 309 read with Article 313 of the Constitution of India. Under the said rules§, the service is constituted consisting of District and Sessions Judge, Gr.I and II and various other posts enumerated under Category II of Rule 1. District and Sessions Judges, 2nd Grade fall under the category II of the service, the appointment to which post is required to be made either by transfer from among the Senior Civil Judges in the State Judicial Service or by direct recruitment from the Bar. Under the proviso to sub-rule (2), 33 1/3% of the total number of posts shall be filled or reserved in favour of the direct recruits. While making such appointments in accordance with the above mentioned Higher Judicial Service Rules, by virtue of the mandate contained under Article 233, the State of Andhra Pradesh is obliged to consult the High Court and under sub-rule (2) of Article 233, only an Advocate recommended by the High Court shall be eligible to be appointed as a District Judge. Obviously, the High Court requires some objective criteria for making recommendations for appointment to the posts of District Judges Gr.II. In order to establish such criteria, the High Court evolved a procedure which is described in the counter affidavit filed by the Registrar General of this Court at para 3 as follows : “3……So far as the selection process to the post of District Judge, Grade II by direct recruitment is concerned, it is submitted that the Administrative Committee of the High Court prescribes the selection process and other incidental procedures relating thereto, which will be subject to approval by the Full Court of the High Court. The practice which is being followed for selecting the District Judges Grade II by direct recruitment is that a Committee of Hon’ble Judges of the High Court evaluates the performance of the candidates both in the written examination and oral interview, and the Full Court of the High Court recommends their names to the State Government for appointment as District Judges, Grade-II.” Thus the High Court decided to hold an oral examination and an interview for the purpose of making the recommendations for filling up of posts of District Judges Grade II is not in dispute. The crux of the dispute is whether the High Court is legally right in prescribing a minimum qualifying mark to be obtained in viva voce examination while recommending the names of the candidates for appointment to the post of District Judges Gr.II. That such a system of qualifying mark was prescribed is not in dispute. At para 6 of the affidavit filed by the Registrar General, it is stated as follows : “6………. It is in this perspective that the High Court thought it fit to stipulate minimum qualifying marks not only for the written test but also for oral interview….” Further it is stated at para 4 of the affidavit in this context as follows : “4……….Further, the Administrative Committee of the High Court by its Resolution dated 30.11.2004 has decided to follow the procedure evolved for the recruitment to the post of District Judge Grade II by direct recruitment in the year 2002, whereunder minimum qualifying marks of 50%, 40% and 35% were prescribed for OCs, BCs and SCs/STs respectively in the written test as well as in the oral interview. Candidates who were qualified in the written test by getting qualifying marks of 50%, 40% and 35% for OC, BC and SC/ST respectively were called for interview…..” It is this decision of the High Court on its administrative side which is the bone of contention in these two writ petitions. Petitioners challenge such a decision of the High Court in prescribing a minimum qualifying mark on three grounds: 1) that the notification calling for the applications did not disclose the existence of such a rule prescribing the minimum qualifying mark and therefore there is a violation of the principles of natural justice; 2) that such a decision must exist as on the date of the notification, but cannot be taken subsequent to the notification and be made applicable to the selection process and (3) Lastly, such a decision must be taken by the entire body of the Judges of the High Court (popularly referred to as Full Court), but not by a Committee of the Judges. To examine the three submissions made by the petitioners, the following undisputed facts must be kept in mind. The notification calling for applications in the instant case was issued on 29.5.2004. The Resolution of the Administrative Committee to follow the procedure evolved for recruitment to the posts of District Judges Gr.II in the year 2002 for the selection process in question in these two writ petitions was taken on 30.11.2004. Such a decision of the Administrative Committee was not admittedly placed before the Full Court for its approval. The Full Court while considering the decision of the Administrative Committee to recommend ten names of the successful candidates who appeared in the selection process incidentally took note of the existence of the Resolution of the Administrative Committee dated 30.11.2004 and did not disapprove the same. We must state here that this question of lack of approval by the Full Court is not pleaded in the affidavit originally filed in support of the writ petition. Therefore, there was no categoric statement by the High Court in the counter affidavit in that behalf. However, in the reply affidavit at para 6 filed by the petitioners, the petitioners raise a doubt whether such a Resolution was approved by the Full Court or not. Therefore, we called for the concerned records of the Court and examined the factual position in the interest of transparency and justice and found the factual position as indicated above. It is in the above mentioned factual background, various legal issues raised in these writ petitions are required to be examined. The first submission of the petitioners is that the petitioners, for that matter, none of the candidates did have notice of the existence of such resolution as is in question. We must state here, as a matter of fact, the notification did not mention the requirement of any candidates securing the minimum qualifying mark either in the written examination or in the oral examination for being considered for recommendation by the High Court. All that the notification specifies is that “a written examination followed by interview will be held for selection to the above posts.” Interestingly, the petitioners do not have any grievance about the prescription of a minimum qualifying mark in the written examination, understandably because the petitioners secured the minimum qualifying marks in the written examination. The legality of the prescription of minimum qualifying mark either for a written examination or for a viva voce must depend on a neutral norm, but not on the grievance of the petitioners. According to the learned counsel for the petitioner, it is not the prescription per se of the minimum qualifying mark either in the written or oral examinations that is illegal, but the lack of notice of such a prescription to the candidates, which makes such prescription illegal. In support of the submission, the learned counsel relied upon the following judgments of the Supreme Court. Harla v. The State of Rajasthan [1] The Supreme Court was dealing of a convict under Jaipur Opium Act. He was prosecuted and punished under the above mentioned Act which was passed by the erstwhile ruler of Jaipur State. There was another law of the Jaipur State called Jaipur Laws Act, 1923. Section 3(b) of the said Act states that all the existing or future laws are required to be published in the Official Gazette. As a matter of fact, the Supreme Court found that the Opium Act was not so published in the Official Gazette. It is in this context the Supreme Court held at para 8 as follows : “8. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.” The question was once again considered in D.B.Raju v. H.J.Kantharaj[2]. The election to the Legislative Council of Karnataka from the Chitradurga Constituency Local Authorities Constituency was in dispute. The concerned Zilla Parishad in exercise of the statutory power under the provisions of Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 nominated certain members to be included in the voters list for the above election. The question before the Supreme Court was whether such a nomination was made within the time prescribed under the law or not. The electoral roll was required to reflect the names of all the electors including the nominated electors. Nominations were made in the last minute in the said case. Consequentially, the electoral roll was to be corrected including the names of the nominated members. It is in this context, the Supreme Court framed the question at para 11 which is as follows : “11. ……….as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner’s office which fact was kept confidential in spite of repeated demands for information.” Repelling the submission that there was no statutory requirement of displaying the electoral roll and therefore the electoral roll takes effect from the time it is prepared, the Supreme Court held at para 13 as follows : “13. …… But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the officer without any information or knowledge to persons who are interested in finding out its final shape. The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observations which support the respondents’ point of view. It was stated thus : (SCC p. 672, para 15) “There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the `conscientious good man’ seeking to abide by the law or from the standpoint of Justice Holmes’s `Unconscientious bad man’ seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.” It was further observed that unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a minister, a Secretary to the government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation….” Thereafter the Supreme Court went on to consider the principle laid down in Harla’s case (supra) and in State of Maharasthra v. Mayer Hans George[3] and finally came to the conclusion “having regard to the nature and purpose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable.” We are therefore of the view that the principle laid down in Harla’s case (supra) need not necessarily be applicable to all situations. Essentially, the decision in Harla’s case (supra) and the decisions of the Supreme Court which followed the same referred to the law whether parliamentary or subordinate which effect the rights and obligations of the citizens. It is in this context, the Supreme Court observed in D.B.Raju’s case (supra) that the nature and purpose of such law that is to be kept in mind in applying the principle laid down in Harla’s case and the other decisions of the Supreme Court which followed Harla’s case. The learned counsel for the petitioner also relied upon State of Bihar v. Madan Mohan Singh[4]. The case related to the selection of Additional District Judges. In accordance with the relevant law, 129 candidates were called for interview and 32 of them were selected and appointed. The question before the Supreme Court was whether the future vacancies could be filled up from amongst the remaining candidates who were called for the interview. The Supreme Court took note of the fact that the advertisement calling for applications to fill up the posts did not make any specific mention that the future vacancies are also to be filled up from amongst the candidates who appeared for the selection process. The Supreme Court therefore held at para 7 as follows : “7. … particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because the said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.” From the above extract, we are of the humble opinion that the Supreme Court in the above mentioned case did not lay down the principle that the non mention of the fact that future vacancies other than the notified would also be filled up from out of the candidates to participate in the selection process that would render the process, but, it is the deprivation of the opportunity to those candidates who would become eligible by the date of the occurring of the future vacancy that vitiates the process adopted in the said case. In our opinion, this decision has no relevance to the issue on hand. The principles of law that can be culled out from the series of decisions commencing from Harla’s case to D.B.Raju’s case (supra); (i) That a law made by the State effecting either the life, liberty or property of a citizen (subject) is required to be made known by some known form of publication. In other words, the subjects must have some reasonable access to information regarding the laws which effect their lives, liberty and property. The line of decisions referred to above apply the same principle either to a law made by a Parliamentary body or a subordinate legislation. Though the form of publication contemplated by these decisions is not a rigid one and may vary