Karnataka High Court
Aravinda Kamath Puttur vs The Hon'Ble Chief Justice on 4 September, 2018
Equivalent citations: 2019 (1) AKR 66, (2019) 2 SERVLR 397, (2019) 2 KER LT 27, 2019 (1) KCCR SN 3 (KAR)
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :- R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.26652/2018 (GM-RES)
BETWEEN:
1. ARAVINDA KAMATH PUTTUR,
ADVOCATE,
AGED ABOUT 44 YEARS,
S/O. P.N. ANANTHA KAMATH (EX-BANKER)
AAKASHRAJ NILAYA,
53/18, 2ND MAIN, 2ND CROSS,
LALJINAGAR, LAKKASANDRA,
BANGALORE - 560 030.
2. V.L. JAGADISH
ADVOCATE,
AGED ABOUT 38 YEARS,
S/O. V.S. LINGAPPA (FARMER)
VEERARAJAPURA VILLAGE,
KIRAGAVALU HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT - 571 424.
3. PRASHANTH MURTHY .P
AGED 42 YEARS,
COMMON MAN,
S/O. GOPAL SWAMY,
#87, 4TH CROSS, TEACHERS COLONY,
KADRENHALLI CROSS,
BANGALORE - 560 070. ... PETITIONERS
(BY SRI MATHEWS JOSEPH NEDUMPARA, ADVOCATE FOR
SRI AMARESH M., ADVOCATE)
AND:
1. THE HON'BLE CHIEF JUSTICE,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
OPP. TO VIDHANA SOUDHA,
-: 2 :-
DR. AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR,
BENGALURU, KARNATAKA - 560 001.
2. THE HON'BLE CHIEF JUSTICE AND
MEMBERS OF THE COLLEGIUM,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDINGS,
OPP.TO VIDHANA SOUDHA,
DR. AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR,
BENGALURU, KARNATAKA - 560 001.
3. THE HON'BLE CHIEF JUSTICE OF INDIA,
SUPREME COURT OF INDIA,
TILAK MARG,
NEW DELHI - 110 001.
4. THE HON'BLE CHIEF JUSTICE OF INDIA AND
MEMBERS OF THE COLLEGIUM,
SUPREME COURT OF INDIA,
TILAK MARG,
NEW DELHI - 110 001.
5. THE UNION OF INDIA,
REPRESENTED BY THE SECRETARY IN
THE DEPARTMENT OF JUSTICE,
JAISALMER HOUSE,
26, MAN SINGH ROAD,
NEW DELHI - 110 011.
6. STATE OF KARNATAKA,
REPRESENTED BY THE CHIEF SECRETARY,
VIDHANA SOUDHA,
BENGALURU - 560 001.
7. KARNATAKA STATE BAR COUNCIL,
REPRESENTED BY THE SECRETARY,
OLD K.G.I.D. BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
8. SHRI MUKUL ROHATGI,
FORMER ATTORNEY GENERAL,
SUPREME COURT OF INDIA,
TILAK MARG,
NEW DELHI - 110 001.
-: 3 :-
9. SHRI RANJIT KUMAR,
FORMER SOLICITOR GENERAL OF INDIA,
SUPREME COURT OF INDIA,
TILAK MARG,
NEW DELHI - 110 001.
10. ADVOCATES ASSOCIATION BANGALORE
REPRESENTED BY ITS PRESIDENT,
SRI A.P. RANGANATH,
VAKALIGARA BUILDING,
CITY CIVIL COURT COMPOUND,
KEMPE GOWDA ROAD, GANDHI NAGAR,
BENGALURU, KARNATAKA - 560 009.
11. ADVOCATES ASSOCIATION BANGALORE
HIGH COURT UNIT,
REPRESENTED BY ITS VICE-PRESIDENT
SRI HALESHA R.G.
HIGH COURT OF KARNATAKA,
BENGALURU, KARNATAKA - 560 001.
12. ADVOCATES ASSOCIATION BANGALORE
CITY CIVIL COURT UNIT,
REPRESENTED BY ITS VICE-PRESIDENT,
SRI RAMESH .R,
CIVIL COURT COMPLEX,
BENGALURU, KARNATAKA - 560 001.
13. ADVOCATES ASSOCIATION BANGALORE
MAYO HALL UNIT,
REPRESENTED BY ITS VICE-PRESIDENT
SRI HITESH JAIN,
MAYO HALL, M.G. ROAD,
BENGALURU, KARNATAKA - 560 001.
14. ADVOCATES ASSOCIATION BANGALORE
MAGISTRATE UNIT,
REPRESENTED BY ITS VICE-PRESIDENT,
SRI RAGHUNATH GOWDA,
MAGISTRATE COURT,
HUDSON CIRCLE, BENGALURU,
KARNATAKA - 560 001. ... RESPONDENTS
(BY SRI C. SHASHIKANTHA, ASG FOR R-5;
SRI A. SUBRAMANI, HCGP FOR R-6)
-: 4 :-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT
"EQUALITY BEFORE THE LAW OR THE EQUAL PROTECTION OF
THE LAWS" AS ENSHRINED IN ARTICLE 14 OF THE
CONSTITUTION OF INDIA TAKES WITHIN ITS AMBIT THE RIGHT
TO EQUAL OPPORTUNITIES IN ALL WALKS OF LIFE, INCLUDING
SELECTION AND APPOINTMENT TO THE CONSTITUTIONAL
OFFICE OF JUDGES OF THE HIGH COURT AND SUPREME COURT
AND ANY SYSTEM OF SELECTION AND APPOINTMENT OF
JUDGES, WHICH WOULD DENY EQUAL OPPORTUNITY TO ALL
THOSE WHO ARE ELIGIBLE AND DESERVING TO BE
CONSIDERED ALONG WITH OTHERS EQUALLY PLACED IS
UNCONSTITUTIONAL AND VOID AND THE COLLEGIUM SYSTEM
OF APPOINTMENT, IN SO FAR AS IT DENIES EQUAL
OPPORTUNITIES TO THE FIRST GENERATION LAWYERS, THE
SONS AND DAUGHTERS OF TAXI DRIVERS, FARMERS,
FISHERMEN, RICKSHAW PULLERS, DAILY WAGERS, TEACHERS
ET AL IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION;
AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Office has raised objections with regard to array of respondent Nos.1 to 4 in this writ petition as well as regarding the nature of writ petition filed by the petitioners herein.
2. Learned counsel, Sri Mathews Joseph Nedumpara, appearing for and on behalf of petitioners has submitted his reply to the office objections. -: 5 :-
3. While considering the office objections, I have heard learned counsel for petitioners, Sri Mathews Joseph Nedumpara at length on the prayers sought by the petitioners in this writ petition as the office objections concern arraigning of respondent Nos.1 to 4, who are high constitutional functionaries, as respondents in the writ petition.
4. According to the petitioners, this writ petition is filed in private interest and not in public interest. Petitioner Nos.1 and 2 are stated to be practicing advocates and claim to be eligible to be appointed as Judges of this Court or any other High Court. Petitioner No.3 is not an advocate, but has joined petitioner Nos.1 and 2 and they have sought the following reliefs:
"P R A Y E R WHEREFORE, the Petitioners most respectfully pray that this Hon'ble Court may be pleased to:
(a) Declare that "equality before the law or the equal protection of the laws" as enshrined in Article 14 of the Constitution of India takes within its ambit the right to equal opportunities in all walks of life, including selection and appointment to the Constitutional office of Judges of the High -: 6 :- Courts and Supreme Court and any system of selection and appointment of Judges, which would deny equal opportunity to all those who are eligible and deserving to be considered along with others equally placed is unconstitutional and void and the Collegium system of appointment, in so far as it denies equal opportunities to the first generation lawyers, the sons and daughters of taxi drivers, farmers, fishermen, rickshaw pullers, daily wagers, teachers et al, is violative of Article 14 of the Constitution;
(b) Without prejudice to prayer (a) above and in furtherance thereof, declare that the concept of equal opportunities in the matter of selection and appointment to the august office of the Chief Justice of India and Judges of the Supreme Court and Chief Justice and Judges of the High Courts and, in particular, the High Court of Karnataka, mandates advertisement/ notification of the vacancies in the august office of the Judges of the Supreme Court and High Courts, invite applications from those who are eligible and desirous to be appointed, invite recommendations and references from members of the Bar, Bar Associations, sitting and retired Judges, political parties and other stakeholders, scrutinize and shortlist candidates found eligible, invite objections, if any, from the public at large and then make the appointment, which alone will afford due -: 7 :- representation to the first generation lawyers, who are equally qualified and eligible as that of the kith and kin, nephews and juniors of sitting and former Judges of the Supreme Court and High Courts, so too of celebrated lawyers, Chief Ministers, Governors et al, and a few first generation lawyers who are all politically connected or are close to big industrial houses;
(c) Declare that failure in the filling up of vacancies in the august office of Judges of the High Court of Karnataka has not merely meant denial of opportunities to the first generation lawyers, the sons and daughters of taxi drivers, farmers, fishermen, rickshaw pullers, daily wagers, teachers et al, but has also denied right to access to justice; so too denial of speedy justice inasmuch as the 32 vacancies as against the total strength of 62 Judges as on today in the High Court of Karnataka has meant literal shutting down of the Honorable High Court; vide "Annexure-
A".
(d) Issue a writ in the nature of mandamus directing Respondent Nos.1 to 6 to cause notification of the vacancies in the august office of the Judge of the High Court of Karnataka and invite applications from those who are eligible and desirous to be appointed, invite recommendations and references from members of the Bar, Bar -: 8 :- Associations, sitting and retired Judges, political parties and other stakeholders, scrutinize and shortlist candidates found eligible, invite objections, if any, from the public at large and fill up the entire vacancies, both of Permanent and Additional Judges;
(e) Pass such further and other orders as the nature and circumstances of the case may warrant."
5. Succinctly stated, petitioners have sought a declaration that provision of Article 14 of the Constitution of India applies in the matter of selection and appointment of Judges of the High Courts and Supreme Court. That the appointment of Judges of the High Courts and Supreme Court must be through advertisement/notification of the vacancies in the august offices by inviting applications from eligible and desirous persons and on recommendations and references from the members of the Bar, Bar Associations, sitting and retired Judges, political parties and other stakeholders etc. Petitioners have also sought filling up of the vacancies in the office of the Judges of this Court by not denying opportunities to first generation lawyers and such other persons mentioned in the prayer column. Petitioners have also sought a -: 9 :- direction to respondent Nos.1 to 6 to cause notification of the vacancies in the august office of the Judges of the High Court of Karnataka and invite applications from eligible persons and thereafter to fill-up the vacancies.
6. As already noted, this writ petition is not filed in public interest, but in private interest and in fact, learned counsel for the petitioners has expressly stated that petitioner Nos.1 and 2 are eligible to be considered as Judges of this Court. But petitioner No.3 is stated to be a common man and though his qualifications are not mentioned in the writ petition, he is not an advocate. In the circumstances, petitioner No.3 cannot be a person aggrieved so as to claim the reliefs as extracted above in private interest. Hence, office objection regarding petitioner No.3 is sustained. On that short ground alone, writ petition of petitioner No.3 is dismissed by placing reliance on the judgment of Hon'ble Supreme Court in the case of Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and others [AIR 1976 SC 578].
7. In the aforesaid decision, it has been held that before a person can invoke a relief by way of a writ of -: 10 :- certiorari as a petitioner, he should be an "aggrieved person" and in a case of defect of jurisdiction, such a petitioner will not be entitled to a writ of certiorari as a matter of course. If he does not fulfill that character, and is a "stranger", the Court will, in its discretion, deny him the extraordinary remedy, save in very special circumstances. That the expression "aggrieved person"
denotes an elastic, and to an extent, an elusive concept.
However, some general tests have been devised to ascertain as to whether an applicant is eligible for this category so as to have the necessary locus standi or standing to invoke certiorari jurisdiction. One would be held to be "aggrieved" by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled to in order to make one "a person aggrieved". The Hon'ble Supreme Court has categorized three categories of persons in the context of locus standi and at paragraph Nos.36 and 37 has opined as under:
"36. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant -: 11 :- may ordinarily fall in any of these categories; (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force or habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
37. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly -: 12 :- in a centrifugal direction. All persons in this outer- zone may not be "persons aggrieved".
After delineating the tests between "a person aggrieved" and a "stranger" and discussing the tests to identify those petitioners who are "persons aggrieved" and those who are "strangers", the Hon'ble Supreme Court has in categorical terms held that busybodies or meddlesome interlopers have to be thrown out at the threshold when they seek to file petitions in the garb of seeking justice in public interest.
8. Though the aforesaid observations have been made in the context of persons seeking relief in the form of writ of certiorari, those observations are equally applicable when a writ of mandamus or declaratory reliefs are sought, as in the instant case. Applying the aforesaid tests, it is held that petitioner No.3 herein is only a busybody or a meddlesome interloper who has no interest whatsoever in the subject matter of this writ petition and has possibly lent his name to this writ petition only to grab some publicity without having any stakes whatsoever in the matter. Therefore, writ petition of respondent No.3 has to be dismissed on the ground of said petitioner lacking -: 13 :- locus standi in filing this writ petition by applying the aforesaid dictum. Accordingly, it is dismissed vis-à-vis petitioner No.3.
9. As far as petitioner Nos.1 and 2 are concerned, they are stated to be practicing advocates, who also claim to be eligible to be considered to the Office of Judge of this Court or any other High Court. Be that as it may, having regard to the prayers sought by petitioner Nos.1 and 2, it is noted at the outset that these prayers are prima facie inconsistent with the recent dictum of the Hon'ble Supreme Court in the case of Supreme Court Advocates-on-Record Association vs. Union of India [(2016) 5 SCC 1] (Supreme Court Advocates-on-Record Association) also known as NJAC case, but also to the judgments of the Hon'ble Supreme Court in the Second and Third Judges case. Therefore, this writ petition would have to be dismissed on that score.
10. Be that as it may, learned counsel for petitioners insisted on making submissions and has made certain submissions regarding the aforesaid verdicts of the Hon'ble Supreme Court. Hence, the same are being -: 14 :- considered. Learned counsel for the petitioners drew my attention to the fact that the dictum of the Hon'ble Supreme Court in NJAC case cannot be considered to be a precedent having force of law under Article 141 of the Constitution so as to be binding on other Courts in India. He submitted, in fact, the said matter could not have been maintained by filing a writ petition before the Hon'ble Supreme Court. The Hon'ble Court could not have entertained such a challenge in the said writ petition. Therefore, the judgment rendered in the said case cannot be considered to be law of the land. According to learned counsel for petitioner Nos.1 and 2, the principle of res judicata cannot be applied to this writ petition so as to be dismissed on that ground. He further contended that the said judgment in NJAC case is per incuriam and therefore, for that reason also is not good law and therefore, not a binding precedent.
11. Learned counsel for the petitioners also drew my attention to the dicta of the Hon'ble Supreme Court in the Second and Third Judges case, Supreme Court Advocates-on-Record Association vs. Union of India [(1993) 4 SCC 441] (Nine Judge Bench) and Special -: 15 :- Reference No.1 of 1993, In re. [(1998)7 SCC 739] (Nine Judge Bench) respectively to contend that there cannot be judicial law making and that the provisions of the Constitution in the matter of appointment of Judges to the High Courts and Hon'ble Supreme Court could not have been re-written by the Hon'ble Supreme Court. He contended, in the circumstances, the aforesaid dicta of the Hon'ble Supreme Court not being law of the land under Article 141 of the Constitution cannot operate as binding precedent and hence, they cannot be relied upon, particularly having regard to the specific prayers sought by the petitioners in this writ petition.
12. Further, learned counsel for the petitioners contended that the judgment of the Hon'ble Supreme Court in the NJAC case has been rendered without issuing notice to the general public and without petitioners herein being heard. Therefore, the said judgment is not binding on the petitioners and neither does it operate as res judicata so as to disentitle consideration of this writ petition on merits.
-: 16 :-
13. I have given my anxious consideration to the submissions made by learned counsel for the petitioners. As already noted, the writ petition is heard at length even while considering the office objections raised by the Registry of this Court as they appear to be intertwined with the merits of the writ petition.
14. Before answering the contentions of learned counsel for the petitioners, it would be useful to refer to the relevant provisions of the Constitution having a bearing on the matter.
15. Sub-clause (2) of Article 217 of the Constitution states that a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and has for at least ten years held a judicial office in the territory of India; or has for at least ten years been an advocate of a High Court or of two or more such Courts in succession. The explanation is regarding computation of the period referred to above. Sub-clause (1) of Article 217 states, 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, -: 17 :- 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. The proviso is not relevant for the purposes of this case. Similarly, sub-clause (3) of Article 124 of the Constitution states that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and has been at least five years a Judge of a High Court or of two or more such Courts in succession; or has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion of the President, a distinguished jurist. Explanation-I deals with the meaning of expression "High Court". Explanation-II deals with the computation of the period referred to above. Sub-clause (2) of Article 124 states, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the -: 18 :- purpose and shall hold office until he attains the age of sixty-five years. The proviso thereto is not relevant for the purposes of this case.
16. The controversy with regard to the appointment of Judges of High Court and Supreme Court, their transfer and other related questions arose for the first time before a seven Judge Bench of the Hon'ble Supreme Court of India in the case of S.P.Gupta and others vs. Union of India and others [AIR 1982 SC 149] (S.P.Gupta). In the said case, the question regarding locus standi of the petitioners to file those petitions was considered at length and it was held that writ petitions were maintainable as it was a litigation affecting the judiciary and lawyers had interest and locus standi to file the petitions on the strength of the above reason and those writ petitions were considered on merits. The Hon'ble Supreme Court, by a majority held that in the matter of appointment of Judges, the Executive and not the Chief Justice of India had a primacy. All Judges of the Bench agreed that consultation with constitutional functionaries must be meaningful and result oriented and that the proposal for appointment of a Judge could -: 19 :- emanate from any of the constitutional functionaries. It was also unanimously agreed that none of the constitutional functionaries can exercise veto. On the question whether the opinion of the Chief Justice of India enjoyed primacy over the other constitutional functionaries, by a majority of 4:3, it was held that primacy should not be given to the opinion of the Chief Justice of India, while the minority view was in favour of the primacy with the Chief Justice of India.
17. The said decision was reconsidered in the Second Judges case, wherein the Hon'ble Supreme Court brought in the concept of participatory consultative process by overruling the dictum in S.P.Gupta on the question of primacy of the role of Chief Justice of India in the matter of inter alia, appointment of Judges to the High Courts and the Supreme Court. The conclusions in the said case having a bearing herein are extracted as under:
"(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively -: 20 :- with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.
(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary "symbolised by the view of the Chief Justice of India", and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been -: 21 :- consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.
(6) Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office.
(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court judges/Chief Justices.
x x x (12) The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated.
x x x (14) The majority opinion in S.P. Gupta, insofar as it takes the contrary view relating to primacy of the role 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 to us 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 by us."
-: 22 :-
The Supreme Court in the said case held, the process of appointment of Judges to the Supreme Court and High Courts is an integrated participatory consultative process for selecting the best and most suitable persons available for appointment. That all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. The Supreme Court, in the said case, enunciated several principles with regard to the manner of initiation of the proposal for appointment and process of appointment of Judges of the High Court and Supreme Court. The majority opinion in S.P.Gupta's case insofar as it took a contrary view relating to the primacy of the opinion of the Chief Justice of Supreme Court of India in matters of appointments and transfers of Judges and the justiciability of these matters as well as in relation to Judge-strength was overruled.
17. The controversy once again figured before the Hon'ble Supreme Court in what is popularly known as the Third Judges case reported in Special Reference No. 1 of 1998, In Re. [(1998) 7 SCC 739]. In the said opinion, -: 23 :- the Hon'ble Supreme Court varied the extent of consultation by stating that there should be a plurality of Judges in the decision of the Chief Justice of India and that the sole or individual opinion of the Chief Justice of India does not constitute consultation within the meaning of Articles 217(2) and 222(1) of the Constitution. In the circumstances, consultation through the Collegium or body of Judges was integrated into the system of appointment of Judges. The final summary of relevant conclusions read as under:
"(1) The expression "consultation with the Chief justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said Articles.
x x x (3) The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made -: 24 :- in consultation with two seniormost puisne Judges of the Supreme Court.
(4) The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-
appointment of a Judge recommended for appointment.
(5) The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the High Court concerned does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
(6) "Strong cogent reasons" do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.
(7) The views of the Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.
(8) The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.
(9) Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as -: 25 :- aforestated, are not binding upon the Government of India."
18. Recently, the Parliament enacted the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, which is a subject matter of another decision by Five Hon'ble Judges of the Supreme Court popularly referred to as NJAC case. In the said decision, by a majority of 4:1, the Hon'ble Supreme Court rejected the prayer for reconsideration by way of a fresh scrutiny, the dicta in the Second and Third Judges cases by reference to a Larger Bench. In fact, in NJAC case, learned Attorney General for India contended that the conclusions drawn in the Second and Third Judges cases needed reconsideration and therefore, the matter be referred to a Larger Bench. The said contention was repelled by the Hon'ble Supreme Court by observing that such a contention could not be canvassed on behalf of the Union of India as in the Third Judges case, the Union of India had consciously accepted as binding the judgment rendered in the Second Judges case. But on the insistence of the learned Attorney General, it was suggested by the Bench of the Hon'ble Supreme Court that the -: 26 :- determination by the Hon'ble Court in the Second Judges case would not prejudice the claim of Union of India, if the Union could establish that the "basic structure" of the Constitution, namely, the "independence of the judiciary"
would not stand compromised by the Constitution (99th Amendment) Act. It was further observed that if the learned Attorney General was successful in persuading the Hon'ble Court that the Judgment in the Second Judges case did not prima facie lay down the correct legal/constitutional position, the matter would have to be examined by a Constitution Bench, with the strength of nine or more Judges, only if, the Court would additionally uphold the challenge to the impugned constitutional amendment, and strike down the same, failing which the new regime would replace the erstwhile system. The Hon'ble Supreme Court declared that the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 as unconstitutional and void. The Hon'ble Supreme Court declared that the system of appointment of Judges to the Supreme Court and High Courts and transfer of High Court Judges as existing prior to the Constitution (99th Amendment) Act, -: 27 :- 2014 called the Collegium system, to be operative. It is in light of the aforesaid dicta of the Hon'ble Supreme Court, the prayers sought by the petitioners herein and contentions of their learned counsel are being considered, lest it be viewed or contended that this Court refused to consider petitioners' contentions.
19. At the outset, it is necessary to observe that the appointment of a Judge of High Court or the Hon'ble Supreme Court is by invitation. It is popularly called as an elevation. It is, having regard to the constitutional provisions referred to above. This is because, the Office of a Judge of the High Court or Supreme Court is a constitutional position or Office and not a post in the service of the State. Having regard to the scheme of the Constitution and Constitutional Jurisprudence, it is only where the posts are earmarked as services under a State in the matter of filling up of such posts, the system of recruitment or by way of promotion, as the case may be, arises depending upon the particular rules of recruitment or promotion, as the case may be, being applicable to a particular post. Thus, as far as the appointment to the post of a Judge of High Court or the Supreme Court is -: 28 :- concerned, one has to be guided by the provisions of the Constitution, the constitutional conventions and the verdicts of the Hon'ble Supreme Court, which have been integrated into the said constitutional provisions.
20. In the instant case, petitioner Nos.1 and 2 who claim to be eligible and deserving to be appointed as Judges of this Court or Judges of any other High Court have sought for a declaration that Article 14 of the Constitution applies in the matter of selection and appointment of Judges of the High Courts and Supreme Court. The said contention is noticed only to be rejected. As already observed, appointment to the Office of a Judge of a High Court or Supreme Court is not a recruitment or a promotion, but filling up of the said Office by invitation on the basis of merit, competency and standing in the legal profession as an advocate at the Bar or as a District Judge in the case of a High Court Judge and on the basis of experience, ability, competency and reputation of a Judge of a High Court or a member of the Bar or of a person who is considered to be an eminent Jurist in the case of appointment of a Supreme Court Judge. The Chief Justice of India and the Chief Justice of the High Court are, in the -: 29 :- words of Hon'ble Verma J., (as he then was) in the Second Judges case, "best equipped to know and assess the worth of a candidate, and his suitability for appointment as a superior judge."
21. Petitioners have also sought advertisement of the notification of vacancies and invitation of applications from eligible persons. They have also sought that anybody who is eligible and deserving to be appointed could be recommended by the members of the Bar Association, sitting and retired Judges, political parties and other stakeholders etc., and the names thus received could be short listed and objections received from the general public and thereafter, be appointed as Judges of this Court or of any other High Courts. Such a course of action is not contemplated either under the Constitution of India or in any of the decisions of the Hon'ble Supreme Court touching upon the subject. As already observed, the Office of a Judge of Superior Judiciary (High Court and Supreme Court) is not a post to be filled by recruitment or by way of promotion as is the practice vis-à-vis a service under the State. The said Offices are filled by invitation extended to able and competent men and women based on merit -: 30 :- irrespective of their class, caste, religion, place of birth or their family background or the professions their parents pursued or pursue. What is of utmost importance is the reputation the candidates to be appointed as Judges command and their ability inter alia, to uphold independence of the Judiciary and be committed to the cause of Justice, which are the quintessence of the duties of a Judge at whatever level he/she may be discharging such duties. This is succinctly reflected in the Oath of Office that is administered to a Judge of a High Court or Supreme Court. It would not be out of place, but apposite to quote from the opinion of Venkataramiah J., in S.P.Gupta at paragraph No.1051 as under, although the said decision is overruled on the aspect of primacy of the role of Chief Justice of India in the matter of appointments to the office of Judges of High Courts and Supreme Court:
"1051. It is important to bear in mind that the independence of the judiciary is one of the central values on which our Constitution is based. No other constitutional agency is shielded as are the superior courts in our country with so many built-in safeguards. The judges can, if they choose to, be guided by the doctrine of conscience only while discharging their duties. They are not expected to -: 31 :- be under any kind of external pressure. They are circumscribed by 'expectations of neutrality and impartiality' and by the traditions of the legal profession which is always keeping a watchful eye on every action of a Judge. In all countries where the rule of law prevails and the power to adjudicate upon disputes between a man and a man, a man and the State, a State and a State, and a State and the Centre, is entrusted to a judicial body, it is natural that such body should be assigned a status free from capricious or whimsical interference from outside and the judges who constitute it should be granted a security of tenure that lifts them above the fear of acting against their conscience."
22. Thus, the above prayers sought by the petitioners herein are blatantly opposed to the law laid down by the Hon'ble Supreme Court with regard to the manner of appointment of Judges to High Courts and Supreme Court and as to what has been reasoned by the Hon'ble Supreme Court in the dicta referred to above. When the Constitution has prescribed a particular mode of appointment of Judges to the High Courts as well as Hon'ble Supreme Court, which have been considered and a system of appointment has been integrated into the provisions of the Constitution by the Hon'ble Supreme Court, which has been further emphasized in the NJAC -: 32 :- case, petitioners cannot seek a different method of appointment of Judges to be adopted to High Courts as well as the Supreme Court. The aforesaid prayers sought by the petitioners being in absolute contradiction to the law as it exists presently have to be rejected having regard to the aforesaid dicta of the Hon'ble Supreme Court.
23. Of course, learned counsel for the petitioners contended that the judgments of the Hon'ble Supreme Court, particularly in NJAC case is not law within the meaning of Article 141 of the Constitution and therefore, the same cannot be relied upon by this Court so as to thwart the prayers sought by the petitioners. It is further contended that the Hon'ble Supreme Court could not have entertained the said writ petition as the issues raised in the said writ petition were not justiciable. The aforesaid contentions have to be out rightly rejected for the following reasons. Firstly, the judgment of the Hon'ble Supreme Court in NJAC case has been delivered as a challenge was made to the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 and the vires of the constitutional amendment and the Parliamentary Legislation were -: 33 :- assailed by the Supreme Court Advocates-on-Record Association. The validity of the same had to be considered by the Hon'ble Supreme Court and hence, the writ petition was entertained by the Supreme Court as the matter was justiciable. The decision of the Hon'ble Supreme Court in NJAC case has laid down the law by striking down the constitutional amendment and the Parliamentary Legislation being unconstitutional and void and declaring that the system of appointment of Judges and of Supreme Court and High Courts and transfer of High Court Judges as it existed prior to the constitutional amendment and Parliamentary Legislation i.e., through the Collegium system was operative. The law declared by the Hon'ble Supreme Court in NJAC case is a binding precedent within the meaning of Article 141 of the Constitution and to be followed by all Courts in the Country. This is particularly so, in the absence of there being any argument advanced in support of the contention that the said decision is per incuriam and therefore, not a binding precedent. Even otherwise, this Court would not permit any such argument to be advanced in the absence of there being any reason to do so. The binding precedents, which are authoritative -: 34 :- in nature and are meant to be applied, should not be ignored on application of the doctrine of per incuriam or sub silentio without assigning specific reasons therefor vide State of Punjab vs. Devans Modern Breweries Ltd. [(2004) 11 SCC 26].
24. The further argument of learned counsel for the petitioners that this writ petition cannot be rejected on the ground of res judicata, as the petitioners herein were not parties to the judgment of the Hon'ble Supreme Court in NJAC case is wholly misconceived argument. It is unnecessary to elaborate on the principles of res judicata herein, but it is emphasized that a decision of the Hon'ble Supreme Court on the validity of a constitutional amendment and the vires of a Parliamentary Legislation is binding on all Courts in India by virtue of Article 141 of the Constitution and the doctrine of stare decisis applies in the matter of applicability of all decisions of the Hon'ble Supreme Court on all other Courts in India. Judicial discipline to abide by declaration of law by the Supreme Court cannot be forsaken under any pretext by any authority or Court, be it even the highest Court in the State, oblivious to Article 141 of the Constitution vide -: 35 :- State of Orissa vs. Dhaniram Luhar [(2004) 5 SCC 568]. Further, where the decision rendered by the Hon'ble Supreme Court had concluded the controversy, it is not permissible for any party or any Tribunal or Court, including the High Court to re-open the issue and to record a contrary finding vide U.P. State Road Transport Corporation vs. State of U.P. [(2005) 1 SCC 444]. In the circumstances, the aforesaid contentions of learned counsel for petitioners is wholly devoid of any merit and is rejected.
25. But learned counsel for the petitioners vehemently submitted that the judgments of the Hon'ble Supreme Court in Second and Third Judges cases cannot be considered to be binding precedent. That question cannot be considered at this point of time as the judgments in the aforementioned cases have been considered in extenso in NJAC case. Further, the Hon'ble Supreme Court entertained the challenge in NJAC case and has decided the matter and the decision of the Hon'ble Supreme Court is having regard to the ratio of the decisions in the Second and Third Judges cases, which have been held to be good law and followed. Moreover, -: 36 :- the dicta in the Second and Third Judges cases were by Larger Benches and the same have been held to be in operation by a Five Judge Bench in NJAC case. Thus, the contentions raised by the petitioners are lacking in merit for the aforesaid reasons.
26. No other contention was raised by learned counsel appearing for the petitioners.
27. As I find no merit in the writ petition, the same is dismissed.
28. Before parting with this case, I express with a sense of anguish, petitioner Nos.1 and 2 who are practicing advocates have initiated this writ petition. It is unfortunate that petitioner Nos.1 and 2 who contend that they are eligible and seek to be considered for elevation have filed such a petition. The filing of this writ petition is ingenious, misconceived and possibly filed to attract publicity and with a reckless intention to re-open what is a closed chapter on the aspect of appointment of Judges to High Courts and Supreme Court. I say no more and I refrain from imposing costs.
-: 37 :-
29. In view of dismissal of the writ petition, office objections do not survive for further consideration. The consideration of this writ petition and its dismissal shall not be construed as giving any finding on the objection regarding arraigning of respondent Nos.1 to 4 herein as respondents in the writ petition.
Sd/-
JUDGE S*