W. Broome, J.
1. This is an application under Article 226 of the Constitution for the issue of a writ of mandamus to direct the State of Uttar Pradesh to appoint the petitioner to the U. P. Civil (Judicial) Service. He appeared at the competitive examination that was held in August, 1958, for recruitment to this service and was then interviewed by the U. P. Public Service Commission; and as a result he was placed fifth in order of merit when the results were declared.
Nevertheless the petitioner was not called to appear for the medical test, and he found that a number of persons who had been placed below him in the declared examination result, were being appointed as Munsifs after passing the medical test. Thereafter he sought interviews with the Minister of Justice and the Chief Minister of the State and claims that he was informed by them that the Government was not prepared to appoint him as a Munsif because of his connections with the Rash-triya Swayam Sewak Sangh and the Jan Singh.
Admittedly he was convicted in 1949, and sentenced to three months' imprisonment for offering Satyagraha in connection with the ban on the R. S. S., and again in 1953 he was sentenced to 21 days' imprisonment for breach of an order directing him to leave Deihi in connection with the Satyagraha carried on for the "Save Kashmir Movement"; but his contention is that these activities on his part in no way disqualify him for appointment to the post of Munsif.
He made a representation to the Government for reconsideration of his case but was informed by a letter dated 17-10-1959, that the representation had been rejected. He maintains that the refusal on the part of the Government to appoint him as a Munsif constitutes a breach of the guarantees incorporated in Articles 14 and 16 of the Constitution, and therefore asks for a writ of mandamus in his favour.
2. The State in reply has taken up a some-what equivocal attitude. It is denied that the non-selection of the petitioner was based on his political views, affiliations or activities; but there is no clear denial of the specific allegations put forward by the petitioner to the effect that the Minister of Justice and the Chief Minister had told him that this was why he had been disqualified. The stand taken by the State seems to be that all kinds of factors were taken into account when deciding whether the petitioner should be selected or not, but that this material cannot be disclosed as "in the interest of the candidates themselves it has to be kept confidential."
3. The recruitment of Munsifs is regulated by the Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951, framed by the Governor of Uttar Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution, These rules provide that recruitment shall be made on a result of a competitive examination conducted by the U. P. Public Service Commission and prescribe certain qualifications of nationality, domicile, age, academic attainments etc., which must be possessed by a candidate before he can be accepted. The qualification with which we are concerned in the case of the petitioner is that of good character, the relevant rule about which runs as follows :-
"14. CHARACTER -- The character of a candidate must be such as to fit him, in the opinion of the Governor, for the service. He must produce certificates of good character from Principal of the College in which he was last educated, and from two responsible persons of status (not relations) who are well acquainted with him in private life, and are unconnected with his University, College or School Me."
When the candidates have appeared for the competitive examination, the Public Service Commission prepares a list "in order of their proficiency as disclosed by the aggregate marks finally awarded"; and then appointment is made by the Governor in accordance with Rule 21, which runs :-
"21 (1) Subject to the provisions of Rule 20 (which provides for the passing of a physical fitness test) the Governor shall on receipt of the list prepared by the Commission consult the High Court and shall, after taking into consideration the views of the High Court, select candidates for appointment from amongst those who stand highest in order of merit in such list, provided that he is satisfied that they are duly qualified in other respects."
The discretion exercisable by the Governor in such matters is further elucidated in Rule 32, which runs as follows:-
"32 (1). Nothing in these rules shall be construed to limit or abridge the power of the Governor to deal, in consultation with the Court, with the case of any person governed by these rules in such manner as may appear to him to be just and equit-able;
Provided that, where any of the foregoing rules is applicable to the case of any person, the case shall not be dealt with in a manner less favourable to him than that provided by that rule.
(2) When in his opinion it appears necessary to do so the Governor may make any appointment to the service in relaxation of these rules and in case of any appointment which is not in strict accordance with the rules the Governor shall be deemed to have made the appointment in relaxation of the rules".
4. From a perusal of these rules it is at once apparent that the petitioner cannot be granted the full relief claimed by Kirn in bis petition, namely a writ of mandamus directing the State of Uttar Pra-desh to appoint him as a Munsif. He has not yet passed the physical fitness test prescribed by Rule 20; nor has the High Court been consulted about his appointment, as required by Rule 21. And even if it is held by this Court that the petitioner's disqualification on the ground of unfitness of character cannot be sustained because the Governor has exercised his discretion under Rule 14 in an improper or mala fide manner the most that the petitioner can ask for is an order directing the Governor to reconsider his fitness for appointment in the light ot this Court's observations.
Learned counsel for the petitioner has tried to show that this Court's power would extend to issuing an order for outright appointment (subject of course to the passing of a medical test), and in this connection has cited the case of Mahboob Sheriff and Sons v. Mysore State Transport Authority, AIR 1960 SC 321. That is a case however which is clearly distinguishable from the present one.
In that case the authority concerned had omitted to comply with a clear provision in the relevant rules, which imposed a duty on the authority renewing a permit to specify a period of not less than three years for such renewal; and the Court, holding that renewal had in any case to be allowed, issued a direction requiring the authority to renew the permit for the said minimum period.
In the present case, on the other hand, there was no failure on the part of the Governor to comply with any explicit limitation imposed by the rules when forming his opinion under Rule 14 and there is thus no analogy between this Case and the one relied on. I am satisfied, therefore, that the petitioner can at the utmost claim that the Governor be directed to reconsider his case.
5. It has now to be seen whether the petitioner is entitled even to this limited relief; but before going any further it will be as well to clarify the position as regards the facts. The petitioner's case is that he has been disqualified merely on account of his previous political activities, while the State in reply has denied this and claims that the opinion arrived at regarding his unfitness for the service way based on a number of other facts which however, have not been disclosed.
Some attempt was made by learned counsel for the State to suggest that the political activities ot the petitioner were excluded from consideration when the petitioner's case was being considered under Rule 14; but this does not seem to be the correct position as disclosed bv the pleadings. Paragraph 11 of the counter-affidavit no doubt says that the petitioner's views, affiliations, convictions and political activities were not the cau.se of his not being selected; but it has nowhere been clearly asserted in this affidavit that these matters were excluded from consideration and were not at all taken into account.
Moreover, the petitioner's allegation that he was informed both by the Minister of Justice and by the Chief Minister of the State that he was not being appointed because of his activities in connection with the R. S. S. and the Jan Sangh has nowhere been specifically denied. All that the counter-affidavit (sworn by a Joint Secretary to Government) states is that it is not possible for the Ministers to remember what took place at the interviews with, the petitioner; but it is not disclosed whether inquiries were made from the Ministers as to whether they actually remembered the facts relevant to this particular case; nor has any affidavit been filed by the Ministers themselves to swear that they have no recollection of what they told the petitioner. In the circumstances I cannot but conclude that the political activities of the petitioner were also taken into account by the Governor, along with the other undisclosed matters, when the opinion regarding his unfitness was arrived at under Rule 14.
6. Learned counsel for the petitioner has asserted that the political affiliations of his client constituted the sole ground on which he was held to be unfit for appointment. It is argued that when the Governor's opinion regarding the petitioner's unfitness is challenged as an infringement of the fundamental right guaranteed by Article 16, the Government is bound to disclose the reasons on whichi that opinion was arrived at; and it is suggested that I if no such disclosure is made, it is open to the Court to draw the inference that those other matters referred to in para 11 of the counter-affidavit are in fact non-existent
I certainly feel that the excuse offered for nondisclosure in the present case, viz. that it is in the interest of the candidates themselves, savours of hypocrisy; but at the same time it seems to me that, whatever be the reason for this reticence, the Government is within its rights in refusing to make any disclosure of the confidential material in its possession. It must be borne in mind that this is not a case where a writ of certiorari has been asked for; the only writ that can issue is a writ of mandamus and no question of sending for the record arises.
As for the contention that the Government must disclose its reasons for arriving at its decision when that decision, is challenged as an infringement of a fundamental right, I content myself with observing that learned counsel for the petitioner has been unable to point to a single instance among the innumerable reported cases dealing with such infringements, in which such a proposition has been advanced and upheld.
7. The position in the present case as regards the facts, therefore, is that the opinion under Rule 14 regarding the petitioner's unfitness for the judicial service has been arrived at after considering (a) the political activities of the petitioner as a member of the R. S. S. and the Jan Sangh and (b) certain other matters which the Government is not prepared to disclose and cannot be forced to disclose.
8. The question now arises as to how far the petitioner can challenge the subjective satisfaction of the Governor in arriving at his opinion under Rule 14, In such matters the petitioner may either show that the opinion was based on no material whatsoever or that it was mala fide or that irrelevant matters were taken into consideration by the authority concerned. The first line of attack is not open to the petitioner in the present case, for even if it be held that political activities could not be validly treated as a basis for the Governor's opinion, there still remain the other matters which the Government took into consideration, the nature of which has not been disclosed in these proceedings. Nor do I think that there is any scope for arguing that the opinion arrived at by the Governor in this case was mala fide.
Courts will normally presume that a discretion vested in a Government functionary has been exercised fairly, and this presumption is stronger still when the discretion is vested in the highest executive authority of all, the Governor of the State. As pointed out by the Supreme Court in the case of Matajog Dobcy v. H. C. Bhari, (S) AIR 1936 SC 44:-
"Abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official."
9. We are thus left with the third line of attack, namely that the opinion was arrived at by the Governor after taking into account irrelevant considerations. The argument advanced on behalf of the petitioner is that his political affiliations and activities had no relevance whatsoever to the question of his character, and consequently an opinion as to his character which was formed on Considering such matters must be held to be completely vitiated even though it may have been partly based on other additional considerations which may have been relevant.
In this connection reliance is placed on the case of Shibban Lal Saksena v. State of Uttar Pra-desh, AIR 1954 SC 179, in which it was held that where a detention order under the Preventive Detention Act, 1950 was based on two grounds, one of which was admitted by the Government to bo unsubstantiated or non-existent, the order could not be held to be valid merely because of the existence of the other ground that still remained.
The present case presents an analogous situation: the Governor's opinion about the petitioner's fitness of character under Rule 14 has been arrived at on a consideration of two grounds, (a) his political activities and (b) certain other undisclosed matters; and on the principle enunciated in the ruling just referred to, if political activities are held to be a non-existent or irrelevant ground, then despite the other undisclosed grounds, the opinion is vitiated as a whole, for it is impossible for anyone to say to what extent the irrelevant consideration operated on the mind of the Governor.
10. The crucial point to be decided therefore is whether the political activities of a candidate for the U. P. Civil (Judicial) Service are a relevant factor to be taken into consideration by the Governor when deciding under Rule 14 whether the character of the candidate is "such as to fit him for the service". It can be argued that in a democratic state political views and opinions (and even political activities, if not subversive and associated with crimes of violence) should not normally lead to disqualification in the matter of recruitment to public services, since every citizen is not Only entitled but expected to participate in the political life of the State.
But in the case of a candidate for a judicial post Certain special considerations arise. It is important to note that the opinion which the Governor has to form under Rule 14 is whether the character of the candidate is such as to fit him for the, service; and it is obvious that activities which might not be considered a blemish on the character of an ordinary citizen might nevertheless be sufficient basis for holding that the candidate was not a fit person to be allowed to perform the functions of a judi-cial officer.
The Satyagraha agitations of 1949 and 1953 were a challenge to the lawful authority of the Government and an attempt to bring pressure to bear on the Government by resorting to coercive tactics unsanctioned by normal democratic procedure; and it may be argued with some justification that a person who is prepared to participate in activities of that kind will not have the cool detachment, freedom from bias and respect for the law that is expected of a judicial officer.
As laid down in the case of Banarsi Das v. State of Uttar Pradesh, (S) AIR 1956 SC 520, it is open to the authority recruiting persons for Government service to refuse to appoint candidates who have shown themselves not to be amenable to proper discipline or who appear to lack a sense ot responsibility; and in the case of appointment to the judicial service the requirements must naturally be even more stringent than for other kinds of posts.
11. Learned counsel for the petitioner has tried to cloud the issue by drawing attention to tha fact that for Satyagraha and other similar anti-Government activities in connection with the Con-greys movement have not been considered a disqualification for appointment even to the highest judicial posts; but I presume he is referring to the pre-1947 agitation against alien rule, which obviously cannot be considered in the same light as anti-Government activities indulged in after the attainment of Independence.
I must emphasize that no attempt has been made to show that any person with a past history of participation in political agitation has ever been appointed as a Munsif under the U. P. Civil Service (Judicial Branch) Rules; and there is nothing in the material placed before me to suggest that any overt discrimination has been practised in the case of the petitioner, as Compared with other candidates similarly placed.
12. The conclusion I have reached is that the petitioner's participation in the Satyagraha movements sponsored by the R. S. S. and the Jan Sangh in 1949 and 1953 was a matter that could legitimately be considered by the Governor when deciding under Rule 14 whether his character was such as to fit him for the service; and that consequently it cannot be said that the opinion arrived at by the Governor regarding his unfitness was vitiated by reason of its being based on irrelevant considerations. It follows that the petition must fail.
This Court is not concerned with the precise weight that might have been or ought to have been attached by the Governor to the material in question, for the Court cannot substitute its own opinion for that of the authority on whom the discretion to form the opinion has been conferred. am satisfied that the Governor's opinion was bona fide, that it was based on relevant considerations and that no irrelevant matter was taken into account and that being the case, his opinion must be accepted and it is not open to this Court to examine the correctness or otherwise of his decision on the merits.
13. The petition is accordingly dismissed with costs.