(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioner herein, lawyer by profession, is seeking declaration to the effect that the current system/procedure of not sending an intimation of non-appointment and non-disclosure of the reasons for non-appointment to the candidate whose name is recommended for the judgeship in higher judiciary is violative of Articles 14, 19 and 21 of the Constitution. The petitioner has also prayed to exercise the power of judicial review and examine the decision of the respondents herein on the proposal initiated by Hon'ble Chief Justice of Gujarat High Court for his appointment to the post of High Court Judge for verifying as to whether the decision of the respondents is in accordance with the provisions of Article 217 of the Constitution and the law laid down by the Hon'ble Apex Court on this subject and the petitioner has further prayed to quash the decision if it is not in accordance with the constitutional scheme or based on irrelevant material or based on no evidence or extraneous consideration. The petitioner has further prayed to declare that the suitability of the candidate recommended for judgeship in the higher judiciary is also subject to the power of the judicial review if the subjective opinion formed by the constitutional authorities involved in the decision making process is based on no evidence or extraneous consideration.
The short facts as per the petitioner are that the petitioner in the month of March 2009 was invited by the then Hon'ble Chief Justice to ascertain the wishes of the petitioner if he was desirous to accept the judgeship of the High Court. The petitioner thereafter, had consented and he was asked to fill up the form by the Hon'ble Chief Justice. As per the information available with the petitioner, a list of 8 persons were prepared and thereafter, a proposal to elevate those persons as High Court judges was forwarded to all constitutional authorities probably in the first or second week of May 2009. The petitioner has no further information as to what happened to the proposal thereafter. However, in February 2011, three candidates whose names were believed to be forwarded for appointment alongwith the name of the petitioner have been appointed as High Court judges. Three other candidates whose names were proposed for elevation to the post of High Court Judges subsequent to the proposal of the petitioner were also appointed as High Court Judges. Therefore, it appears to the petitioner that the name of the petitioner has been dropped or omitted for appointment to the post of High Court judge on some irrelevant or some misleading material not germane to the suitability of the petitioner to become a judge and therefore, by the present petition, the petitioner has raised various challenges and has preferred the present petition for the reliefs referred to hereinabove.
We have heard Mr.M.J.Thakore, learned counsel with Mr.Singhi for the petitioner.
Mr.Thakore, learned counsel for the petitioner at the outset submitted that the prayer (C) made by the petitioner for the declaration that the suitability of the candidate recommended for judgeship in the higher judiciary is also subject to judicial review, as such, may not be entertained by this Court since the Apex Court has observed in its decision in the case of Mahesh Chandra Gupta Vs. Union of India and others reported at (2009) 8 SCC 273 and more particularly at paragraph 43 that the suitability of a candidate stands excluded from the purview of the judicial review. However, he submitted that the petitioner may press for such relief before the Apex Court as and when such occasion arises.
But Mr.Thakore submitted that in the very decision of the Apex Court in the case of Mahesh Chandra Gupta (supra), the Apex Court at para 43 has observed that when "eligibility" is put in question, it could fall within the scope of judicial review and further as per his submission if procedural aspect of consultation is not followed by the concerned constitutional authorities, the same can also be a valid ground for judicial review. He submitted that the petitioner by this petition contends that the requirement of consultation be taken in judicial review and the petitioner further prays that transparency in the procedure is required to be maintained inasmuch as the information should be made available to the Court about the manner in which procedure has been followed and such information must also be made available to the candidate concerned. Mr.Thakore submitted that the consultation as envisaged is as per the view taken by the Apex Court in the case of S.P.Gupta Vs. President of India reported at AIR 1982 SC 149 and in his submission, as observed by the Apex Court in the above referred decision, unless record is produced before this Court, this Court also would not be in a position to know that effective consultation has been made by the constitutional authorities who have a role to play. He submitted that therefore, it would be a fit case where this Court may issue process to the respondents and may direct the respondents to produce the record of the matter and such record should also be made available to the petitioner so as to satisfy the Court that proper procedure of consultation has not been followed. He therefore submitted that the appropriate orders may be passed. Mr.Thakore for supporting his contention has relied upon the decision of the Apex Court reported in AIR 1999 SC 1 (In Re:Presidential Reference) and in the case of S.C. Advocates on Record Association V. Union of India reported in AIR 1994 SC 268 and decision in the case of Mahesh Chandra Gupta (supra).
One cannot lose sight of the important aspect or rather distinguishing feature in the present petition that the petitioner herein is an advocate whose name is stated to have been forwarded by the then Hon'ble Chief Justice for appointment as High Court Judge. But it is not a matter where the appointment has already been made of a person and said appointment of such person is challenged by way of judicial review. In the case of Mahesh Chandra Gupta (supra), the facts therein was that the appointment of an additional judge of Allahabad High Court was challenged and the Apex Court made the observations for the scope of judicial review. Whereas in the present case, it is not a matter where the petitioner is seeking to challenge the appointment of any person as High Court Judge but the petitioner whose proposal was initiated by the then Chief Justice of the High Court is seeking the judicial review or is seeking to challenge the action for dropping his name or for non-recommendation of his name by the constitutional authorities for appointment as High Court Judge. It is hardly required to be stated that the rights of a person who has filled up the form for consideration of his name to the post would be different than the one who is already appointed for the post in question. Such person will have no right to be appointed for such post. One might contend that he has a right to be considered for the post. Such has happened in the present case inasmuch as as stated by the petitioner himself in the petition, his name was proposed for appointment to the post by then Chief Justice of the High Court. Therefore, to that extent, the petitioner may not have any grievance.
The next aspect which is being agitated by the petitioner is the suitability for the post and while assailing the said aspect, he incidentally contends non-effective consultation by the constitutional authorities and further contends the principles of transparency to be maintained in such process of elevation for the post of High Court judge.
As recorded by us hereinabove and rather conceded by the learned counsel for the petitioner that aspect of suitability is outside the purview of the judicial review as per the decision of the Apex Court in the case of Mahesh Chandra Gupta (supra). We may state that as such it was a case where the appointment of a person as additional judge was under challenge whereas, in the present case, the appointment is not under challenge and therefore, the principles or the observations made by the Apex Court may not be of any help to the petitioner. But even if the observations made by the Apex Court in the decision of Mahesh Chandra Gupta (supra) is considered for the sake of examination of the contention of the petitioner, then also at paragraphs 41, 42, 43 and 44, it was observed thus -
"41.
The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of "consultation". Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu's Commentary on the Constitution of India, Sixth Edition, p.
234). Once this dichotomy is kept in mind, then, it 25 becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like.
42.Hence, Article 217(1) and Article 217(2) operate in different spheres. Article 217(1) answers the question as to who "should be elevated" whereas Article 217(2) deals with the question as to who "could be elevated". Enrolment of an advocate under the 1961 Act comes in the category of who "could be elevated" whereas the number of years of actual practice put in by a person, which is a significant factor, comes in the category as to who "should be elevated".
43. One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of "suitability", stands excluded from the purview of judicial review.
44. At this stage, we may highlight the fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge under Article 217(1). Once there is consultation, the content of that consultation is beyond the scope of judicial review, though lack of effective consultation could fall within the scope of judicial review.
This is the basic ratio of the judgment of the Constitutional Bench of this Court in the case of Supreme Court Advocates-on-Record Association (supra) and Special Reference No. 1 of 1998"
(Emphasis supplied) The above referred observations of the Apex Court show that who should be elevated falls under Article 217(1) of the Constitution and it essentially involves the aspect of "suitability" and the same is outside the scope of judicial review. Further, it has also been observed that the consultation forms a part of the procedure to test the fitness of a person to be appointed as a High Court Judge under Article 217 (1) and once there is a consultation, the contents of the consultation is beyond the scope of judicial review. It is true that in the very decision it has been observed that lack of effective consultation could fall within the scope of judicial review. Under the circumstances, the contents of the consultation is beyond the scope of judicial review. What is sought to be challenged by the present petitioner in the present petition is the contents of consultation which is beyond the scope of judicial review. Such can be gathered from the statements made in the petition which are reproduced for ready reference as under:
Facts of the case:
"6.9.....The petitioner got opportunity to appear before the bench consisting of Hon'ble Chief Justice in number of cases. During his Lordship's tenure as Chief Justice of Gujarat High Court he came to know about the other academic achievements of the petitioner and his contribution in the field of law."
6.10 It can be presumed that before inviting the petitioner the Hon'ble Court made an inquiry about the character, integrity of the petitioner and all other relevant aspects having bearing on the appointment. It can also be presumed that after being satisfied with the aforesaid inquiry and considering the competence of the petitioner as lawyer, the family background, character and personal traits of the petitioner, the Hon'ble Chief Justice thought it proper to recommend the name of the petitioner for High Court judgeship."
"6.11.....Thus, it appears that the name of the petitioner has been dropped or omitted for the appointment to the post of High Court Judge on some irrelevant ground or on some misleading material not germane to the suitability of the petitioner to become a judge."
"6.14.....The consideration of material received from the persons other than the Constitutional authorities contemplated under Article 217 would mean that extraneous considerations are taken into account and that an objective decision is not taken in the matter."
Grounds of Challenge:
"7.8.
Since the petitioner is eligible and suitable on all counts for appointment to the post of High Court Judge, the decision of the respondents deserves to be judicially reviewed to examine whether the opinion as to the suitability of the petitioner formed by the constitutional authorities is based on no evidence or irrelevant material or extraneous considerations."
"7.12.....Only integrity, character and certain personal trains are not capable of being examined on objective material. The income of the candidate, his experience in different branches of law, his additional qualification and other contribution in the field of law, the yeas of practice, his family background etc., are capable of being evaluated on objective material relevant for the inquiry."
7.14....Therefore, once the Governor of the State approves the recommendation made by the Chief Justice of the High Court, the Central Government cannot meddle with the opinion of the Governor and give an opinion contrary to the opinion of the Governor. In short, the Constitution does not contemplate inquiry twice; once at the hands of the State executive and another at the hands of the Central executive on the same material. In the appointment of a High Court judge the opinion of the Governor is final and binding to the Central Government."
"...Ultimately after long and anxious considerations, the petitioner took this decision to challenge the whole system of appointment to the higher judiciary as it is arbitrary and violative of the fundamental rights of the person whose name is recommended for the judgeship. The current procedure for appointment is non-transparent and is replete with external influences not relevant for the appointment and hence it is against the public interest also..."
The aforesaid averments made by the petitioner in the petition clearly go to show that the petitioner is seeking to invoke power of this Court for judicial review on the aspect of suitability which is considered as outside the scope of judicial review as per the decision of the Apex Court in Mahesh Chandra Gupta (supra).
However, while assailing the aspect of suitability, the petitioner contends that since as observed by the Apex Court in the above referred decision of Mahesh Chandra Gupta (supra) lack of effective consultation could be the scope of judicial review, the petitioner has contended that requirement of consultation could be said as not followed in the present case and therefore, the petitioner seeks to invoke the powers of this Court for judicial review on the ground of lack of effective consultation. As recorded earlier, the attempt on the part of Mr.Thakore was to contend that the consultation as observed by the Apex Court in the case of S.P. Gupta (supra) was the consultation in writing, the meeting of mind, exchange of material, etc. and in his submission, such can be gathered only when the record is produced before this Court and the same is made available to the petitioner.
We may state that after considering the above referred decision in the case of S.P. Gupta (supra), the constitutional bench of the Apex Court has already made observations on the aspect of the mode and manner of consultation in the case of S.C. Advocates on Record Association V. Union of India reported in AIR 1994 SC 268. Further, the Apex Court after having considered the above referred decision in the case of Mahesh Chandra Gupta (supra) at paragraphs, 71, 73 and 74 has observed as under-
"71.
"The overarching constitutional justification for judicial review, the vindication of the rule of law, remains constant, but mechanism for giving effect to that justification vary".
...Mark Elliott "Judicial review must ultimately be justified by constitutional principle."
...Jowett In the present case, we are concerned with the mechanism for giving effect to the Constitutional justification for judicial review. As stated above, "eligibility" is a matter of fact whereas "suitability" is a matter of opinion. In cases involving lack of "eligibility" writ of quo warranto would certainly lie. One reason being that "eligibility" is not a matter of subjectivity. However, "suitability" or "fitness" of a person to be appointed a High Court Judge: his character, his integrity, his competence and the like are matters of opinion.
73. The concept of plurality of Judges in the formation of the opinion of the CJI is one of inbuilt checks against the likelihood of arbitrariness or bias. At this stage, we reiterate that `lack of eligibility" as also "lack of effective consultation" would certainly fall in the realm of judicial review. However, when we are earmarking a joint venture process as a participatory consultative process, the primary aim of which is to reach an agreed decision, one cannot term the Supreme Court Collegium as superior to High Court Collegium. The Supreme Court Collegium does not sit in appeal over the recommendation of the High Court Collegium. Each Collegium constitutes a participant in the participatory consultative process. The concept of primacy and plurality is in effect primacy of the opinion of the Chief Justice of India formed collectively. The discharge of the assigned role by each functionary helps to transcend the concept of primacy between them.
74. It is important to note that each constitutional functionary involved in the participatory consultative process is given the task of discharging a participatory constitutional function, there is no question of hierarchy between these constitutional functionaries. Ultimately, the object of reading such participatory consultative process into the Constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointment(s) to the higher judiciary.
These are the norms, apart from modalities, laid down in the case of Supreme Court Advocates-on-Record Association (supra) and also in the judgment in Re. Special Reference No. 1 of 1998 (supra). Consequently, judicial review lies only in two cases, namely, "lack of eligibility" and "lack of effective consultation". It will not lie on the content of consultation."
(Emphasis supplied) The contention raised by the learned counsel for the petitioner is that whether there was meeting of mind, the matter was only between the authority who had to play role in the consultation process or not could be said as falling within under the scope of judicial review, which in our view would fall under "content of consultation" and as observed by the Apex Court in the above referred decision, the judicial review not lie on the "content of consultation".
The aforesaid is coupled with the circumstance in the present case that the petitioner has not made a single statement in the petition about the failure to have the consultation of the constitutional authorities at any level in his case but has rather made statement in the petition the relevant of which for ready reference reads as under:
"6.12....Thus, it appears that the name of the petitioner has been dropped or omitted for the appointment to the post of High Court judge on some irrelevant ground or on some misleading material not germane to the suitability of the petitioner to become a judge."
7.8....the decision of the respondents deserves to be judicially reviewed to examine whether the opinion as to the suitability of the petitioner formed by the constitutional authorities is based on no evidence or irrelevant material or extraneous considerations."
7.9....It therefore defies common and logic as to why the collective decision of the constitutional authorities under article 217 cannot be tested on the same principles.
7.10....Merely because a few judges are involved in the procedure for appointment by itself, does not infuse a judicial element in the procedure.
11.....The current procedure for appointment is non-transparent and is replete with external influences not relevant for the appointment and hence it is against the public interest also."
The aforesaid statements/contents of the petition show that the petitioner proceeds on the basis of consultation having taken place and his name having been dropped, but since the name has been dropped, the petitioner has projected "no effective consultation". There is not a single statement in the petition about failure to consult the requisite constitutional authorities nor there is any statement to the effect that the consultation so made could not be said to be effective consultation by a particular constitutional authority.
Hence, if the attempt is to reopen the "content of consultation" which is beyond the scope of judicial review as observed by the Apex Court in the case of Mahesh Chandra Gupta (supra).
The attempt to maintain transparency in the procedure to be followed and right of the candidate to know about the procedure and the communication in writing to him about dropping of his name in our view, can be countenanced and entertained only if "contents of consultation" and "suitability of the candidate" both are made subject to judicial review. As specifically observed by the Apex Court in its decision in Mahesh Chandra Gupta (supra), the aspect of "suitability" and "contents of consultation" under Article 217 of the Constitution are not subjected to judicial review. Under the circumstances, the attempt cannot be countenanced.
In view of the aforesaid, the petition deserves to be dismissed. Hence, dismissed accordingly.
(JAYANT PATEL, J.) (R.M.
CHHAYA, J.) *bjoy Top