ORDER
1. W.P.SR. No. 130419 of 2003 has been filed questioning the appointment of the fifth respondent as a Judge of this Court on the ground that he did not possess the requisite qualifications of uprightness while conducting cases as an advocate.
2. The recommendation for appointment of the fifth respondent as a Judge of this Court has emanated from this Court and it went through several constitutional functionaries and ultimately, the collegium of the Supreme Court, consisting of the Honourable the Chief Justice of India and two immediate senior Honourable Judges, had approved the recommendation, But the Central Government raised some queries and again, the collegium of the Supreme Court, headed by the Honourable the Chief Justice of India, had reiterated the recommendation, which was accepted by the Central Government and forwarded to His Excellency the President of India for issuing orders of appointment. It is stated that His Excellency the President of India had returned the said proposals. Again, the collegium of the Supreme Court, headed by the Honourable the Chief Justice of India, has reiterated the same and the Central Government has accepted the same and forwarded it to His Excellency the President of India and the appointment orders have been issued and warrant is awaited.
3. The petitioners are advocates. They submit that in spite of the representation 16.7.2003 making serious allegations against the fifth respondent being made to His Excellency the President of India and the Honourable the Chief Justice of India, again, the name of the fifth respondent has been cleared and this ought not to have been cleared. They also state that even after the said appointment, a representation has been made on 31.10.2003 and it is of no avail and as such, this Court, in exercise of its power under Article 226 of the Constitution of India, should issue a Mandamus forbearing the respondents 1 to 4 from appointing or swearing-in the fifth respondent as a Judge of Madras High Court or any other High Court without holding an enquiry into the allegations made against him by the petitioners and others. Mr. Kannabiran, learned senior counsel, appeared for the petitioners and made his submissions.
4. The power of judicial review and the extent of justiciability has been explained authoritatively by a Constitution Bench of the Supreme Court consisting of 9 Judges in S.C. ADVOCATES-ON-RECORD ASSN. v. UNION OF INDIA , the Supreme Court ruled thus,
“480. 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 inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, 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.
481. 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 or 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.
482. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression 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 busybodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta (1981 Supp SCC 87) while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Krishna Swami 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 justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making.”
5. From the above, it is clear that the enumerated grounds of challenge for judicial review are (i) want of consultation with the named constitutional functionaries; (ii) lack of any condition of eligibility in the case of appointment; or (iii) of a transfer being made without the recommendation of the Honourable the Chief Justice India. The third ground is not relevant here. In so far as the first two aspects are concerned, as the Supreme Court has not only firstly approved the recommendation for appointment of the fifth respondent as a Judge of Madras High Court but also reiterated twice and as the said recommendation has finally culminated into the appointment, by the order of His Excellency the President of India, the matter is not justiciable in view of the law of the land laid down by the Supreme Court in the case of S.C. ADVOCATES-ON-RECORD ASSN. v. UNION OF INDIA (mentioned supra).
6. These petitions are thus dismissed.