Back
2009(5) Supreme 572
SUPREME COURT OF INDIA
S.H. Kapadia and Aftab Alam, JJ.
Mahesh Chandra Gupta — Petitioner
versus
Union of India & Ors. — Respondents
Transferred Case (C) No. 6 of 2009
Decided on : 06-07-2009
(b) Constitution of India – Article 217 (1) and (2) – Sub-section (1) deals with eligibility which is an objective factor and hence liable for judicial review – Suitability on the other hand stands excluded from judicial review – There is a vital difference between judicial review and merit review, once there is consultation, the content of that consultation is beyond the scope of judicial review – However lack of effective consultation could fall within the scope of judicial review. (Para 11)
(1998) 7 SCC 739; (1993)4 SCC 441 – Relied upon.
AIR 1970 SC 1061 – Referred to.
(c) Constitution of India – Article 217(1) and (2)(b) r/w Explanation (aa) – The word “standing” connotes the years in which a person is entitled to practice and not the actual years put in by a person in practice – The concept of “actual practice” will fall in the category of suitability under Article 217(1) whereas the concept of right to practice or entitlement to practice will fall in the category of eligibility under Article 217(2)(b). (Para 16)
AIR 1964 SC 855 – Relied upon.
(d) Constitution of India – Article 217(2)(b) r/w Advocates Act, 1961 – “An advocate of a High Court” refers to person’s right to practice and not actual practice – Any person whose name is enrolled on the State Bar Council would be regarded as “an advocate of the High Court”. (Para 23)
AIR 1968 SC 888 – Relied upon.
(e) Indian Bar Councils Act, 1926 – Section 8 –r/w Letters Patent, cl. 7 – Even a Barrister from United Kingdom was entitled to get himself enrolled as an advocate of a High Court, because otherwise, he had no right to practice in the High Court. (Para 26)
AIR 1933 Allahabad 417 – Referred to.
(f) Constitution of India – Article 217(2)(b) – The distinction, if any, between the words “an advocate” in Article 233(2) and the words “an advocate of a High Court” in Article 217(2)(b) has no significance in any event after the coming into force of the Advocates Act, 1961 – Section 16 of the Act recognizes only two classes of persons entitled to practice, namely, senior advocates and other advocates.” (Para 28)
AIR 1968 SC 888 – Relied upon.
(g) Constitution of India – Article 217(1) and (2) – “Eligibility” is a matter of fact whereas “suitability” is a matter of opinion – In cases involving lack of “eligibility” as also “lack of effective consultation” writ of quo warranto would certainly lie – However no writ would lie on the content of consultation. (Paras 30 and 31)
(h) Constitution of India – Article 217(2)(a) and (b) – The very purpose for enactment of these provisions is to provide for a mix of those from the Bar and those from Service who has the past experience of working as judicial officers/officers in Tribunals. (Para 33)
(1993)4 SCC 441; (1998) 7 SCC 739 – Relied upon.
(i) Constitution of India – Article 217 – Institutional decision-making process needs to be insulated from opinionated views based on misinformation – “Trust” in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court. (Para 36)
Facts of the case :
1. The President of India by a Warrant dated 6.8.2008 under her hand and seal appointed Dr. Satish Chandra, Respondent no. 3 herein as Additional Judge of Allahabad High Court.
2. The question for consideration is: whether appointment of Respondent no. 3 as Additional Judge of Allahabad High Court was an infraction of Article 217(2) and Article 217(1) of the Constitution of India? Was he qualified for appointment as a Judge - if so - has the mandatory process of consultation under the Constitution stood followed?
Finding of the Court :
Respondent no. 3 stood qualified for appointment as a Judge of the Allahabad High Court.
JUDGMENT
S.H. Kapadia, J.—
1. The President of India by a Warrant dated 6.8.2008 under her hand and seal appointed Dr. Satish Chandra, Respondent no. 3 herein as Additional Judge of Allahabad High Court.
2. The question for consideration is: whether appointment of Respondent no. 3 as Additional Judge of Allahabad High Court was an infraction of Article 217(2) and Article 217(1) of the Constitution of India? Was he qualified for appointment as a Judge - if so - has the mandatory process of consultation under the Constitution stood followed?
Background Facts:
3. Shri Mahesh Chandra Gupta (Respondent no. 1 in S.L.P.(C) No. 25859/08), a practicing advocate, filed a Writ Petition under Article 226 of the Constitution before the Allahabad High Court on 18.8.2008 challenging the appointment of Respondent no. 3 herein as an Additional Judge of the Allahabad High Court on the ground that he was not eligible for such an appointment. The Original Petitioner prayed for issuance of quo warranto directing Respondent no. 3 as a Judge of Allahabad High Court to show the authority of his Office and to justify the constitutionality of his appointment as a Judge of Allahabad High Court. According to the original petitioner, Respondent no. 3 herein lacked basic eligibility qualification; that Respondent no. 3 had not practiced as an advocate for at least ten years in the Allahabad High Court and that Respondent no. 3 did not hold Judicial Office of a judicial service subordinate to Allahabad High Court. In the original petition, the challenge was only on the ground of lack of eligibility but not on suitability and/or want of effective consultation process, which grounds were taken later on by supplementary affidavits.
4. On 10.9.2008 an Order was passed by the Division Bench of the Allahabad High Court directing production of Record of the Proceedings before the High Court Collegium pertaining to the recommendations made by the High Court Collegium in regard to appointment of Respondent no. 3 as Additional Judge of Allahabad High Court. In compliance, on 12.9.2008 the requisite record was produced for perusal by the Division Bench of the High Court in a sealed cover. The record inter alia contained the letter of recommendation made by the High Court Collegium together with the enclosure/annexures thereto. The letter of recommendation of the High Court Collegium was read by the Division Bench and since the said letter referred to the Report of the Sub-committee of three Judges of the High Court, the Division Bench of the High Court required that the Report of the Sub-Committee be shown to them on the date fixed.
5. On 17.9.2008, the impugned order was passed by the Division Bench of the Allahabad High Court in following relevant terms:
“The collegium proceedings were produced before us on 12.09.2008 in a sealed cover in open Court. The said record was returned within a few minutes of its being produced before us.
However, a perusal of the recommendation made by the collegium indicated that the recommendation on the persons proposed to be elevated from the source ‘service’ (including the third respondent) was made by the collegium on the recommendation of a Committee of three Hon’ble Judges of this Court constituted specially for the purpose. The report of the said committee was specifically referred to in the letter of recommendation sent by Hon’ble the Chief Justice, and endorsed by the other two members of the collegium. However that report did not appear to have been sent to the other Constitutional functionaries along with the recommendation of the collegium, nor that report was part of the record which was produced before us. Accordingly on 12.09.2008, we had orally required the High Court to produce the said report before us in a sealed cover, with an understanding that at this stage the said report would not form part of the official record of this case nor it would be made public. Sri S.P. Gupta, Senior Advocate assisted by Sri Amit Sthal
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
