'No Illegality' In Consulting Union Law Ministry Before Rejecting HC's Recommendation For Judicial Officers Promotion: Haryana Govt To High Court

The Haryana government has defended its action of consulting with the Union Law Ministry in matter of appointment of Additional and District Sessions judges in the State.

Joint Secretary Rashmi Grover was responding to the petition filed against State's decision to reject High Court's recommendations for promotion of 13 judicial officers.

The officers affected by the decision had moved the High Court contending that the State government breached "Constitutional protocol" by involving the Union Law Ministry in matter of appointment of district judges.

However, in an affidavit filed on Monday, Grover said the State Government has "right to seek legal opinion from the legal experts".

Article 233 of the Constitution prescribes that appointment of district judges in any State shall be made by the Governor of the State in consultation with the jurisdictional High Court. No role is assigned to the Central government in this regard, the petitioner's counsel argued.

Haryana government said the legal opinion was sought after it received a letter from an Advocate alleging that the High Court modified the eligibility criteria for appointments, without involving the State government. Union Law Ministry said consultation with State government for amending the Haryana Superior Judicial Service Rules is "mandatory".

The affidavit added,

"...the Ministry of Law & Justice being an agency, independent of the State Government, to interpret legal and constitutional provisions, the Government solicited their opinion in the matter. After receipt of said legal opinion, the State Government vide letter dated 12 September 2023 (R1/10), conveyed to the Registrar General, Punjab& HaryanaHigh Court that the State Government has decided not to accept the recommendations of the Hon'ble High Court made vide letter dated 23 February 2023."

Grover submitted that since 2013-2021 the criteria followed for appointment by way of promotion to the post of Additional District & Session Judge was 50% minimum marks in aggregate to be secured in written test and viva voce. However, the Full Court in its meeting in November 2021 made it mandatory to secure 50% marks in written examination and viva-voce individually and separately.

"It is important to point out here that this criteria of 50% aggregate in written examination and viva-voce has been changed by Full Court vide its Resolution dated 30 November 2021 on their own without any consultation with the State Government. Further, this criteria was never conveyed to the candidates while calling them for written examination nor to the State Government nor any public notice was issued or put up on the website of the Honble High Court. Hence, the recommendations made on the basis of revised criteria have not been accepted by the State Government being in teeth of the statutory Rules of 2007 and the constitutional provisions of the Article 233 of the constitution of India," states the reply.

Reference was made to Apex Court's decision in Sivanandan CT and others v. High Court of Kerala wherein in it was held, "the [Kerala] High Court's decision to apply the minimum cut off marks for the viva-voce frustrates the substantive legitimate expectation of the candidates. The decision is arbitrary and violative ofArticle 14 of the Constitution of India."

Government said it has requested High Court's Registrar General to send revised recommendations by following "settled procedure".

"Thus, at this stage, the petitioners cannot claim any right to intervene in between the selection process. It is well settled law that a person on select list has no vested right to claim appointment," the reply adds.

The matter will be taken up on October 18.

Case Title: Shikha & others Vs. State of Haryana and others

Gurminder Singh, Senior Advocate with Harpriya Khaneka, Advocate for the petitioners.