State Seeking Opinion From UOI On District Judges Appointment A 'Serious Assault' On Independence Of HC's Functioning: P&H High Court

The Punjab & Haryana High Court on Wednesday, directed Haryana to accept the recommendations of the High Court made on appointing 13 judicial officers as additional district and session judges and give necessary effect to it "within two weeks."

It also opined that the State government's move to seek a legal opinion from the Union Government in the matter "would amount to a serious assault on the independence of the functioning of the High Court."

A division bench of Justice G.S Sandhawalia and Justice Lapita Banerjee opined that, "for the State now to hold out that the it is not for this Court that what are the qualities the judicial officer should possess for promotion to the post of Additional District Judge and on account of representation filed by a person not even affected by the said issue, it would seek opinion from a third party namely the Union of India would amount to a serious assault on the independence of the functioning of the High Court which has been ordained with the selection process, which was sought to be done from the pool of three time the number of candidates called."

These observations were made while hearing the plea filed by the Haryana Civil judges (senior division) and CJMs who sought appointment to the district judiciary challenging the State's decision rejecting the High Court's recommendations for the promotion of 13 judicial officers. The judicial officers who were not recommended for promotion by the high court also filed a petition challenging the recommendations.

In an affidavit, Haryana Chief Secretary Sanjeev Kaushal submitted that they took legal opinion from the Union Law Ministry on the matter which said that the Haryana government would not be bound to accept the High Court's recommendations if the Haryana Superior Judicial Service Rules were amended unilaterally by the HC.

Kaushal said they had received an Advocate's letter namely Prem Pal, alleging that the High Court modified the eligibility criteria for appointments, without involving the State government. It was alleged that the High Court prescribed cut-off marks in viva voce as 50%, without consulting the State or even giving any public notice of the same.

The Union Law Ministry said that consultation with the State government for amending the Haryana Superior Judicial Service Rules is "mandatory" and in case of alleged non-consultation, the Haryana Government may even opt for a judicial review.

The High Court rejected the above submissions and referred to Chandramouleshwar Prasad v Patna High Court & Ors. [(1970) 2 SCR 666] opined, "the State Government was not within its right to take a different decision and overrule the recommendation of this Court on the basis of a meddlesome interloper namely Prem Pal, Advocate who was in no way connected remotely with the selection process."

Reliance was placed upon KH Siraj v. High Court of Kerala and others, [(2006) 6 SCC 395] where in reference was made as such to the power of the High Court to prescribe a minimum pass marks for the subordinate judiciary and it was held that the High Court was best judge in the matter and vested with the entire administration for the subordinate judiciary under Articles 233 to 235 for high traditions and standards to be maintained.

Selection Process Was De-Railed By State On Account Of Representation Filed By Third Private Party Element

The bench noted that the selection process was de-railed after the representation was filed by a third party, a District Court lawyer "who was pushing a certain set of candidates in his objection raised to the State and who had no locus-standi in the matter." 

The element of a third private party having been introduced by the State has done extreme violence to the selection process and de-railed the same and the justice delivery system in Haryana has been set back and badly impacted and continues to suffer on account of the fact that the State Government showed its proactivity in a case where it was not required, said the Court.

It further added that rather than permitting the officers who had been duly recommended, it has apparently sought to push the case of the non-meritorious candidates in spite of the fact that the rule provides otherwise.

Reliance was also placed on State of Haryana v. Inder Prakash Anand HCS and others, [(1976) 2 SCC 977], wherein four Judges Bench held that if the recommendation of the High Court was not to be binding on the State, the consequences would be unfortunate while dismissing the appeal filed by the State against the judgment of the Full Bench of this Court which had quashed the order retiring the officer from service against the recommendations of this Court.

Seeking Legal Opinion From Union Government On Matter Was Unjustified

The Court opined that seeking legal opinion "from the Union of India on the representation of Prem Pal (advocate who filed representation to challenge HC's recommendation) and having fallen back upon the same while not accepting the recommendations of the High Court and not consulting the High Court further and asking it to send the recommendations by holding that resolution of the High Court was not shared and is lacking consultation and apparently is violative of the observations as laid down by the Constitutional Bench."

Thus, we hold that the action of the State Government in seeking the legal opinion of a third party is not justified, added the bench.

State Inaction In Holding Back Recommendations Led To Pendency

While ruling that the State government was bound to follow HC's recommendation, the bench noted that inaction of the State in holding back of the recommendations has led to the pendency of cases before the Additional District Judges increasing from March 2023 to December 2023 in the State of Haryana.

"At present as per the figures pointed out by the counsel for the High Court 2,80,287 cases are pending before the Superior Judicial Courts in the State of Haryana. It has also brought to our notice that the pendency in the State of Punjab has gone down since the said State accepted the recommendations of the High Court and effectively had put the officers in place by April, 2023 which had led to the litigation being reduced," noted the Court

Moral & Constitutional Obligation Of State To Comply With HC's Recommendation

The bench further opined that for the efficient functioning of the system wherein in the State of Haryana at present 41 vacancies are there, "it is the moral/legal and constitutional obligation of the State to comply with the recommendations of the High Court" in view of the settled principles of law that the view of the High Court to adjudge its own officers is not liable to be interfered with except in extraordinary circumstances.

"It is the duty of the State Government to accept the recommendations and to ensure there is no erosion of public interest in the judicial system and it is for the High Court to step in and uphold the sanctity of the judiciary and ensure that the delivery system is not adversely affected and it would be failing in its duty if the encroachment upon the judicial system is allowed and the aberration is not corrected through the issuance of mandamus", added the bench.

In light of the above the Court directed the State to take positive action to accept the recommendation of the High Court made in February for the promotion of judges to within a period of two weeks from today.

While disposing of the plea, the bench also directed the State to pay Rs.50,000 cost to the candidates "for unnecessarily delaying the promotion and denying them their legitimate right to work on a higher post."

Citation: 2023 LiveLaw (PH) 286

Appearances

Gurminder Singh, Senior Advocate with  Harpriya Khaneka, Advocate for the petitioner (s) (in CWP-19775-2023).

Rajiv Atma Ram, Senior Advocate with Brijesh Khosla, Advocate for the petitioner (in CWP-22818-2023) and for the applicant (in CM-17255-CWP-2023 in CWP-19775-2023).

Sanjay Kaushal, Senior Advocate with Advocates Ojaswini Gagneja, Pawelpreet Kaur for the petitioner (in CWP-26217-2023).

 S.S. Narula, Advocate and Sidharth Grover, Advocate for the petitioner (in CWP-23804-2023).

Vikramjeet Banerjee, Additional Solicitor General of India with Advocates  Abhishek Singh, Siddhartha Sinha, Lokesh Sinhal, Sr. Addl. AG, Haryana, Shruti Jain Goyal, Sr. DAG Haryana and for the respondent-State.

Munisha Gandhi, Senior Advocate with Shubreet Kaur Saron, Advocate,

Manveen Narang,  Aakanksha Gupta, Advocate for respondent No.3 (High Court) (in CWP-19775-2023) and for respondent No.1 (in CWP Nos.22818, 23804 and 26217 of 2023

Title: Shikha and others v. State of Haryana and others

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