ORDER
N.Y. Hanumanthappa, J
1. Though these petitions are listed for admission, with the consent of both sides and as desired by them, the same are heard on merits. Since the stand taken and the questions involved in both the writ petitions are almost identical, both the petitions are clubbed together and disposed of by this common order.
2. Writ Petition No. 12877 of 1997 was presented in the Registry on 20-6-1997 and came up for admission on 23-6-1997, whereas W.P.No.13175 of 1997 was presented on 2-6-1997 and after some office objections it was posted before the Court on 24-6-1997. On 23-6-1997, after hearing W.P.No. 12877/97 for a while, the same was adjourned to 25-6-1997 at the request of the petitioner, Mr. S. Tulasi Das, as he wanted to file an additional affidavit and cite some authorities in support of his case. The Writ Petition filed by Smt. Vasanthi was adjourned from 24-6-1997 to 25-6-1997. That is how these two writ petitions are taken together for hearing.
3. Petitioners in these two writ petitions, who are the practising advocates of this Bar, have fated these writ petitions seeking, (1) a direction in the nature of writ of Mandamus prohibiting Respondents 1 to 5 (in W.P. No.12877/97) from executing the Warrant of appointment of Respondent No.7 as an additional Judge of this Court and to (2) order a judicial enquiry into the various allegations levelled against Respondent No.7.
4. According to the petitioners, the appointment of 7th respondent is not proper one and unconstitutional for the reasons, that he is not possessing the requisite qualifications to be appointed as a Judge of a High Court. He was a Director of Kakatiya Cements Private Limited, which is run by his father-in-law. The residence of the father-in-law of the 7th respondent was raided by the Income Tax Authorities on the allegation that there was misappropriation of funds belonging to Kakatiya Cements Private Limited to the tune of 2 1/2 Crores. Though the 7th respondent is not competent to hold the office of a Judge of High Court, the 6th respondent (in W.P.No. 12877/97), who belongs to the same caste, managed to get his name recommended. While the Constitutional functionaries were considering the said recommendation, the petitioner, Tulasidas sent a telegram to them explaining these things. But, without taking into consideration the telegram sent by him and, without applying their mind as to whether the 7th respondent possesses the requisite qualifications and deserves to hold the post, they hurried in finalising the papers of recommendation and issuing of Warrant. When the notification for the election to the office of President of India has been issued, the President is not right in issuing the Warrant of appointment of 7th respondent. It is also contended by Mr. Tulasidas that though the writ petition was presented on 20-6-1997, somehow the Registry withheld the papers from posting it for admission and managed to see that the swearing in ceremony took place on 23-6-1997.
5. Smt. Vasanihi, petitioner in another writ petition, while adopting the arguments advanced by Sri Tulasidas, further contended that the appointment is not only in violation of Article 217 of the Constitution of India, but the concerned Constitutional functionaries have given a go-bye to all norms. Tt was the aspiration of the framers of the Constitution that every section of the Society be given due representation, to all sections of the people in the matter of appointment of Judges to the High Court and other Courts. There is inadequate or even almost denial of opportunity to the women and persons belonging to weaker sections of the society while making appointment to higher Judiciary. Further regional imbalance is writ large in this regard.
6. To support his contentions, Mr. Tulasidas placed reliance on the judgment of the Supreme Court in Kumara Padma Prasad v. Union of India, 1992 (1) Scale 581. He also tried to make use some of the
observations made by the Supreme Court in the case of Supreme Court Advocates-on-Record Association v. Union of India, . He contended that the appointment of 7th respondent is in violation of para 272 of the decision referred (supra). According to him that the aspirations of Dr. Ambedkar, the father of the Constitution of India as culled out in para 206 of the said Judgment have not been adhered to while making appointment.
“It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent which we find in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advise of the executive of the day. Similarly, it seems to me that to make every appointment which executive wishes to make subject to the concurrence of Legislature is also not a very suitable provision.”
He contended that if the antecedents of 7th respondent had been verified, the authorities would have been satisfied that name of 7th respondent is not desirable for consideration to appoint him as a Judge of this Court. Regarding maintainability of this writ petition he contended that as he filed the writ petition earlier to the swearing in ceremony, the writ is maintainable and, even otherwise, as his attack to the appointment is purely in the nature of public interest litigation, the same shall not be thrown out on technicalities. Thus arguing both the petitioners urged that their petitions be allowed.
7. Learned Advocate General supported the appointment of 7th respondent as an Additional Judge of this Court. According to him, appointment of a Judge is not justiciable in the Court. According to him that the grounds of attack by the petitioners to the above appointment are quite remote, irrelevant, vague and not supported by the required material. He submitted that the appointment and transfer is not left to the arbitrariness of any one of the functionaries. It is a collective process emanating from the Hon’ble Chief Justice of the High Court in consultation with the other two senior Judges of the same Court, then it will be sent to the Governor of the State who after going through the papers will make recommendation to the Hon’ble the Chief Justice of India who will again have an opportunity to go through the entire material and then take a decision for appointment then places all the material before the President of India, for approval and issuing of Warrant. Learned Advocate General submitted that the 7th Respondent possess the requisite qualifications. The challenge to appointment of a High Court Judge before the Court is no longer available in view of the decision of the Supreme Court rendered in S.C. Advocates on Record v. Union of India, (supra). He lastly contended that these two writ petitions have not only become infructuous in view of the oath administered on 23-6-1997 at 10-30 am, but they are also misconceived and mischievous.
8. Mr. Adinarayana Rao, learned advocate appearing for the Central Government, while supporting the arguments of the learned Advocate General, further contended that in view of Article 56(1)(c) of the Constitution of India, the contention that the warrant should not have been issued by the President of India since elections to the office of President of India arc in progress, has no substance. He urged that both on merits and on the question of maintainability, the petitioners have no legs to stand. As such both the petitions shall be dismissed.
9. In the light of the rival contentions, now this Court has to examine the relevant provisions of the Constitution which deal with the appointment, qualification and other relevant aspects regarding the appointment of a High Court Judge. Article 217(1) of the Constitution of India deals with appointment of High Court Judges. Article 217(1) reads “Every Judge of a High Court shall be appointed by the President by Warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the
State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224 and in any other case, until he attains the age of sixty two years. Article 217(2) deals with the qualifications to be appointed as a Judge of the High Court, which reads as follows :
“Article 217(2) : A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and –
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court… or of two or more such Courts in succession.”
10. The above mandatory requirements are to be complied with before issuing warrant of appointment and once warrant is issued, the oath will be administered as detailed in Schedule III, which is as follows :
“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) do swear in the name of God/ solemnly affirm that I will bear true allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws.”
11. The case of appointment of additional or acting Judges of a High Court also the procedure to be followed is almost similar. Article 56(1) of the Constitution of India speaks about the term of office of the President, which reads “The President shall hold office for a term of five years from the date on which he enters upon his office.” Article 56(1)(c) further reads “The President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon is office.
12. In order to avoid some controversy as to the question of primacy of the Chief Justice in the matter of appointment and transfer and justiciability or otherwise of such appointment and transfer of High Court Judges the Supreme Court gave an authoritative pronouncement on the scope of judicial review in the matter of appointment of Judge for the High Court and the Supreme Court in the case of S.C. Advocates on-Record case is as follows:
“Insofar as appointment to the High Court is concerned, the same is governed by Article 217(1). We have reproduced the text of this Article earlier. The appointment has to be made by the President by Warrant under his hand and seal. But it must be preceded by ‘consultation’ with the Chief Justice of India, the Chief Justice of the State and the Governor of the State. Consultation with these three functionaries is a condition precedent and a sine qua non to appointment. It is common knowledge that the proposal ordinarily emnages from the Chief Justice of the High Court who forwards it to the Chief Minister. The Chief Minister scrutinises the proposal and if he needs any clarification he must interact with the Chief Justice. If he or the Governor has any suggestion to make or names to propose they may do so and forward the same to the Chief Justice who may examine the suggestions and send his response. The Chief Minister must then forward the proposal, with the comments of the Chief Justice, if any, in consultation with the Governor to the Minister of Law and Justice in the Central Government. The Minister of Law ad Justice would then consult the Chief Justice of India and the Prime Minister and then forward the papers with the advice to the President who will thereupon issue the Warrant of appointment. On a plain reading of Article 217(1) it becomes clear that the President is empowered to make the appointment ‘after’ consultation with the three constitutional functionaries. The Article does not give any indication of any hierarchy among the three consultees. These
three functionaries arc those who arc consulted, they have a consultative role to play in the appointment of a High Court Judge but the ultimate power of appointment rests in the President who must act in accordance with Article 74(1) of the Constitution,, The power conferred on the President is not an absolute or arbitrary power but the same is checked, circumscribed and conditioned by the requirement of prior consultation with the three constitutional functionaries. The consultation must be complete, purposive and meaningful and cannot be treated as a mere idle formality. If the consultation is found to be mere empty formality without effective exchange of views, the appointment would be vitiated and the whole exercise may ultimately turn out to be loves labour lost. Each of the three constitutional functionaries holds a high constitutional position and it is difficult to see how, in the absence of express words, it can be said that there is a hierarchy envisaged by the said provision. It must be remembered that the Chief Justice of the High Court must be attributed intimate knowledge regarding the quality of legal acumen of the members of the Bar chosen by him for appointment, since he has the opportunity to watch the performance of members of the Bar at close quarters, he is best suited to assess the worth of the candidate relating to his legal knowledge, acumen and similar other qualities, including his willingness to work hard and his temperment to discharge judicial functions. From the point of view great weight must be attached to the opinion of the Chief Justice of the High Court. On other matters, such as, the antecedents of the individual, his political affiliations, if any, his other interests in life, his associations, etc., the executive atone may provide the information. Similarly, the executive would be able to collect information regarding the honesty and integrity of the individual and certain other related matters which may have a bearing on his appointment. Thus the opinion of the executive in this area would be equally important. From both these opinions would emerge the personality of the candidate proposed for appointment. The Chief Justice of India being ‘pater familias’ of the judiciary of India would have the advantage of the views of both these consultees and, where necessary, he may also be able to interact with the Chief Justice of the High Court as well as colleagues on the Supreme Court Bench from that Court, if any, before formulating his view finally in the matter. His view, thus, formulated would certainly be entitled to greater weight since he had the benefit flittering the views of the other two consultees on the question of suitability on the proposed candidates, but can it mean that his view will totally eclipse the view of the other forbidding the executive to evaluate it before formulating its advice to be tendered to the President? We will leave this as a poser for the present and proceed to consider the process of appointment under Article 124(2) of the Constitution.
We have extracted Article 124(2) earlier, clause (1) of that Article provides for the constitution of a Supreme Court of India consisting of a Chief Justice of India and not more than 25 other Judges. Clause (2) provides that every Judge of the Supreme Court shall be appointed by the President by Warrant under his hand and seal. The mode of appointment is the same as in the case of a High Court Judge i.e., by warrant under his hand and seal. But, here again the exercise of power is controlled, checked and circumscribed by the need for prior consultation with such of the Judges of the Supreme Court and of the High Court in the States as President may deem necessary. Reference to the expression “such of the Judges” must include the Chief Justice of India in the case of the former and the Chief Justice of the High Courts in the case of the latter. If such a construction is not placed, it would lead to the absurd situation of the Chief Justices of various High Courts being excluded from the zone of consultation. The Chief Justice of India would, in any
case, have to be consulted by virtue of the proviso to that clause because it mandates that in the case of appointment of a Judge or other than the Chief Justice, the Chief Justice of India, “shall always” be consulted. It is, therefore, obvious that while the proviso obligates consultation with the Chief Justice of India, the text of clause (2) stretches out the zone of consultees and leaves it to the President to consult one or more amongst that broad band of consultees. But consult he must before he makes the appointment in actual practice whenever a permanent vacancy is expected to arises in the Supreme Court, the Chief Justice of India will intimate that fact to the Minister of Law and Justice and simultaneously forward his recommendation to fill up the vacancy likely to arise or which has already arisen. On receipt of the recommendation the same may be immediately accepted in which case the President may be requested to make the appointment or there may be consultation with one or more of the Judges from among those falling with the zone of consultation under Article 124(2) of the Constitution. If after such consultation, the Minister considers it desirable to bring any matter emerging from such consultation to the notice of the Chief Justice of India or to suggest the claim of any other person not recommended by the latter, he may convey his views/suggestions to the Chief Justice of India. On obtaining the view of the Chief Justice of India finally, the Minister is expected to appraise the Prime Minister and with his concurrence advise the President of the selection. The President will act on that advise and issue the warrant of appointment. This practice which is hitherto followed reveals that the Central Government understanding of Article 124(2) is that it is not incumbent on the Government to consult any Judge of the Supreme Court or the High Court including any Chief Justice of the High Court if consultation with the Chief Justice of India is considered sufficient and no further consultation is deemed necessary. If primacy is to be accorded to the views of the Chief Justice of India, the views of the other consultees would become redundant and will at best serve the purpose of persuading the Chief Justice of India to change his views but if he does not the views of the other consultees will be rendered nugatory. Is this the constitutional intendment?”
13. Regarding Justiciability in the matter of appointment and transfer of Judges and the scope of Judicial Review the Supreme Court took the following view:
“The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another in built check against the likelihood of arbitrariness or bias, even sub-consciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness.
These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer of their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any
arbitrariness or bias, as well as any erosion of the independence of the judiciary.
This is also in accord with the public interest of excluding these appointments and transfers from legislative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank discretion of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta while expanding the concept of locus standi was adverted to recently by a Constitution Bench in Raj Kanwar, Advocates v. Union of India . It is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justifiable on any other grounds, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.”
14. The majority opinion given in the Supreme Court Advocates-on-Record case (supra) in the matter of appointment and transfer of High Court and Supreme Court Judges (though we are not concerned at present with the transfer) if summed up, reads as follows:
“In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one.
Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. The majority opinion in S.P, Gupta v. Union of India, insofar as it takes the contrary view relating to primacy of the rote of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein.
It has further been clarified that in the matter of appointment of Judges the President is to act in accordance with the advice of the Council of Ministers as provided in Article 74(1) and the advice of Council of Ministers is to be given in accordance with Articles 124(2) and 217(1) as construed by the Supreme Court. In this sphere Article 74(1) is circumscribed by the requirements of Articles 124(2) and 217(1) and all of them have to be read together.
15. Thus, the appointment of Judges of a High Court is left to the wisdom of all these functionaries and the decision of the Chief Justice of India will have primacy and determinative effect.
16. Reliance is placed by Sri Tulasidas on earlier decision of the Supreme Court in Kumara Padma Prasad case (supra) to attack the appointment of seventh respondent as an Additional Judge of this Court. On facts, the same has no application for the reason that, that was a case where the petitioner, Kumara Padma Prasad, was working in Law and Judicial Department and his name was recommended to be appointed as a High Court Judge of Gowhati. It was found that the services rendered by him in Law and Judicial Department cannot be equated to the services rendered by ‘Judicial Officers’ so as to make him qualified under Article 217(1)(b) of the Constitution of India. In the said case, their Lordships also observed the scope when to interfere in the matter of appointment of High Court Judges in the following words :
“We make it clear that ordinarily the domain in such matters lies wholly with the constitutional authorities mentioned in Article 217 of the Constitution, but in exceptional circumstances like the present, where the incumbent considered for appointment as a Judge of a High Court docs not fulfil the qualification as laid down expressly under the provisions of the Constitution itself, it becomes our bounden duty to see that no person ineligible or unqualified is appointed to a high constitutional and august office of a Judge of a High Court.”
17. The facts narrated by the petitioners in both the petitions do not make out an exceptional case. The reasons given by the petitioners to challenge the warrant of appointment are not sufficient to accept. Except alleging that seventh respondent does not possess the requisite qualifications, no material is placed on record to believe the same. It is not shown how the seventh respondent is not qualified and suitable to be appointed as a Judge of High Court when it is not disputed that earlier he was holding the office of Government Pleader in the High Court of Andhra Pradesh and later appointed as Additional Advocate General which post he held till his elevation to this Court. If the 7th Respondent was not qualified, the Government would not have chosen to appoint a wrong person to defend its cases before the High Court. As far as the other allegations, namely, his connection or involvement in some business activities etc., are concerned, they are vague and have no relevancy. Propriety in issuing warrant of appointment does not deserve to be suspected in view of Article 56(1)(c) of the Constitution of India, The endeavour of Smt. Vasanthi that issuing of warrant of appointment by President of India is not in conformity with the election code relating to the election of President and Vice President, in our view, has no relevance or substance.
18. Since we arc disagreeing with the petitioners on the question of justiciability of appointment of a Judge of High Court, we do not propose to say anything on the maintainability of the writ petitions. Regarding the other ground urged by Smt. Vasanthi that while making appointment for the post of High Court Judge, though other persons who are more capable were available from other sections their names were not considered and the name of 7th respondent was alone considered, we hold that the same is again not within our jurisdiction. Fulfilment of avowed object of the Constitution, that equal representation to all the sections of the society and doing gender justice in the matter of appointment of Judges of the High Courts and Supreme Court are again left to the wisdom of the Constitutional functionaries.
19. In our view, there is no merit in the contentions raised by the petitioners in both the writ petitions. Hence, both the writ petitions are dismissed.