1 wp8110.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 8110 OF 2010 Sanjay Ganesh Karmarkar ......Petitioner. Vs. High Court of Judicature at Bombay and Ors. ......Respondents Mr. Ashutosh Kumbhkoni with Mr. Ranvir Shekhawat and Mr. Shardul Singh for the Petitioner. Mr.Rajesh S. Datar for Respondent No.1. CORAM :- DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE :- 8 AUGUST 2011. P.C. :- This Writ Petition is companion to Writ Petition No. 8106 of 2010 in which judgment has been delivered today. No submissions on law have separately been urged in these proceedings under Article 226 of the Constitution. 2 wp8110.10.sxw ssm 2 In pursuance of an advertisement that was issued by the High Court of Judicature at Bombay on 28 July 2008, the Petitioner applied for recruitment as a District Judge in the Judicial Service of the State. The Petitioner appeared at the written examination, which was followed by an interview. The High Court prepared a list of candidates eligible for appointment under Rule 6(3)(a) and the Petitioner was placed third, in order of merit, in a list of 14 candidates. 3 In the attestation form that was filled up by the Petitioner, he had made a disclosure in response to the following query- “11. (a) Have you ever been arrested/ prosecuted/ kept under detention, or bound down/ fined/ convicted by a court of law for any offence or debarred/ disqualified by any Public Service Commission from appearing at its examinations/selections or debarred from taking any examination/ rusticated by any university or any other educational authority/ Institution?” 4 The Petitioner stated that he had been arrested and prosecuted by the Police Station, Ganesh Peth, Nagpur for offences punishable under Section 135 of the Bombay Police Act, 1951 and under Section 130(1)(d) of the Representation of the People Act, 1950, on the allegation that on 2 March 1996, he had been found persuading 3 wp8110.10.sxw ssm electors in a public place not to vote at a Lok Sabha Election. The Petitioner was discharged by the Judicial Magistrate, First Class (JMFC) at Nagpur on 5 January 2000. The order of the JMFC was as follows:- “The case is very old Summary State Case. There is no progress in the prosecution. All accused are absent. So, I stop proceedings under Section 258 of the Cr. P. C. Accused are discharged. Proceedings closed.” 5 From the material which was disclosed by the Petitioner in the attestation form, it also emerged that the Petitioner was prosecuted on a complaint under Section 138 of the Negotiable Instruments Act, 1881. The case of the Complainant was that he and thirty one other auto rickshaw drivers had engaged the Petitioner as an Advocate for filing a Writ Petition before the Nagpur Bench of this Court. An amount of `28,000/- was paid to the Petitioner towards his professional fees. Due to certain reasons, the Petitioner returned the brief to the Complainant when the Petition was pending. The Petitioner issued a cheque dated 26 June 2000 in the amount of `10,000/- towards refund of professional fees to the Complainant. 4 wp8110.10.sxw ssm The cheque was, however, returned upon presentation by the bankers on three occasions for insufficiency of funds. A complaint was filed on 4 September 2000. On 20 December 2005, the Complainant filed an application for permission to withdraw the complaint on the ground that, on that day, an amount of `10,000/- had been paid by the Petitioner and the matter had been amicably resolved. On this application, the Magistrate passed an order on 20 December 2005, granting permission to withdraw the complaint and the Petitioner was acquitted. 6 In the affidavit in reply, it has been stated that the Committee of Administrative Judges of this Court considered the matter on 23 August 2010 where it was observed that the Petitioner was under an obligation to refund the professional fees received by him in advance to the Complainant in the year 2000 itself. However, the complainant was required to file a complaint under Section 138 of the Negotiable Instruments Act and had to wait for justice for almost five years. The Petitioner issued a cheque knowing that he did not have sufficient funds and kept the auto rickshaw drivers away from the use and enjoyment of their own money for about five years. In these circumstances, though the complaint was withdrawn by the 5 wp8110.10.sxw ssm Complainant, the Committee of Administrative Judges opined that the antecedents of the Petitioner were such that he could not be considered suitable for the post of District Judge. 7 No submissions separately have been urged on behalf of the Petitioner and counsel for the Petitioner has relied upon what is urged in the companion Petition. 8 While dismissing the companion Petition, this Court has relied upon a Judgment of the Supreme Court in Delhi Administration Through its Chief Secretary and Ors. Vs. Sushil Kumar 1 . The Supreme Court observed there that even if a candidate had been discharged or acquitted in a prosecution for a criminal offence, what would be relevant is, the conduct or character of the candidate to be appointed to a service in the State. Similarly, in the subsequent decision in Union of India & Ors. Vs. Kali Dass Batish & Anr. 2 , a bench of three learned Judges of the Supreme Court reiterated the principle which was laid down in Sushil Kumar’s case and held that the mere inclusion of a candidate in the selection list would give him no right which could be enforced in a Petition under Article 226 of the 1 (1996) 11 SCC 605 2 2006 AIR SCW 227 6 wp8110.10.sxw ssm Constitution. 9 We are of the view, having heard counsel, that the reasons which weighed with the Administrative judges of the High Court in declining to recommend the name of the Petitioner for appointment of the post of a District Judge under Rule 6(4)(a) of the Maharashtra Judicial Service Rules 2008, are relevant and germane. The High Court as Recruiting Authority was entitled in law to consider the antecedents, conduct and character of the Petitioner. The mere passing of the written examination and the placement of the name of the Petitioner in the select list, based on the cumulative marks obtained in the written test and interview, would not give a vested right to appointment. The reasons, on the basis of which the name of the Petitioner has not been recommended for appointment to the post of a District Judge, are not extraneous but, on the contrary are based on a consideration which is relevant to the appointment of a person as District Judge in the Judicial Service in the State. Once the decision making process is found to be fair, the merits of the decision on the suitability of the Petitioner cannot be re-appreciated in exercise of the power of judicial review. 7 wp8110.10.sxw ssm 10 For the reasons, which have already indicated while dismissing the companion Petition and for the reasons indicated hereinabove, we do not find any merit in the Petition. The Petition is accordingly dismissed. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)