Madhya Pradesh High Court
Maruti Sondhiya vs Union Of India on 28 May, 2024
Bench: Sheel Nagu, Amar Nath Kesharwani
1 W.P. No.28550 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU,
ACTING CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 28th OF MAY, 2024
WRIT PETITION No. 28550 of 2023
BETWEEN:-
MARUTI SONDHIYA S/O LATE SHRI
PARAMSUKH SONDHIYA, AGED ABOUT 47
YEARS, OCCUPATION: ADVOCATE, R/O
HOUSING BOARD COLONY, MAHARAJPUR,
POLICE STATION ADHARTAL, DISTRICT
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UDAY KUMAR - ADVOCATE)
AND
1. UNION OF INDIA THROUGH SPECIAL
SECRETARY, MINISTRY OF LAW AND
JUSTICE, DEPARTMENT OF JUSTICE
APPOINTMENT DIVISION, JAISALMER
HOUSE 26 MAN SINGH ROAD, NEW DELHI -
110011
2. HONBLE SUPREME COURT OF INDIA
THROUGH REGISTRAR GENERAL,
BHAGWANDAS ROAD, NEW DELHI -110001
3. HONBLE HIGH COURT OF MP, PRINCIPLE
SEAT AT JABALPUR THROUGH ITS
REGISTRAR GENERAL, HIGH COURT
COMPOUND, JABALPUR (MADHYA
PRADESH) 482001
4. STATE OF MADHYA PRADESH THROUGH
SECRETARY, GENERAL ADMINISTRATION
DEPARATMENT, MANTRALAYA, VALLABH
2 W.P. No.28550 of 2023
BHAWAN, BHOPAL (MADHYA PRADESH)
5. SHRI VINAY SARAF, ADDRESS IS NOT IN
THE KNOWLEDGE OF PETITIONER,
THEREFORE, THROUGH R/3 REGISTRAR
GENERAL OF MP HIGH COURT AT
JABALPUR (MADHYA PRADESH)
6. SHRI VIVEK JAIN, ADDRESS IS NOT IN THE
KNOWLEDGE OF PETITIONER,
THEREFORE, THROUGH R/3 REGISTRAR
GENERAL OF MP HIGH COURT AT
JABALPUR (MADHYA PRADESH)
7. SHRI RAJENDRA KUMAR VANI, ADDRESS
IS NOT IN THE KNOWLEDGE OF
PETITIONER, THEREFORE THROUGH R/3
REGISTRAR GENERAL OF MP HIGH
COURT AT JABALPUR (MADHYA
PRADESH)
8. SHRI PRAMOD KUAMR AGRAWAL
ADDRESS IS NOT IN THE KNOWLEDGE OF
PETITIONER, THEREFORE, THROUGH R/3
REGISTRAR GENERAL OF MP HIGH
COURT AT JABALPUR (MADHYA
PRADESH)
9. SHRI BINOD KUMAR DWIVEDI ADDRESS IS
NOT IN THE KNOWLEDGE OF PETITIONER,
THEREFORE THROUGH R/3 REGISTRAR
GENERAL OF MP HIGH COURT AT
JABALPUR (MADHYA PRADESH)
10. SHRI DEV NARAYAN MISHRA ADDRESS IS
NOT IN THE KNOWLEDGE OF
PETITIONER, THEREFORE, THROUGH R/3
REGISTRAR GENERAL OF MP HIGH
COURT AT JABALPUR (MADHYA
PRADESH)
11. SHRI GAJENDRA SINGH ADDRESS IS NOT
IN THE KNOWLEDGE OF PETITIONER,
THEREFORE, THROUGH R/3 REGISTRAR
GENERAL OF MP HIGH COURT AT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.4/STATE BY SHRI B.D. SINGH - DEPUTY ADVOCATE
GENERAL )
3 W.P. No.28550 of 2023
This petition coming on for admission this day, Hon'ble Shri
Justice Sheel Nagu, Acting Chief Justice passed the following:
ORDER
Present petition filed under Article 226 of the Constitution
of India challenges legality and validity of Notification dated
02.11.2023 (Annexure P/1) issued by the Department of Justice,
Ministry of Law & Justice, Government of India, whereby the
President of India invoking the power under Article 217(1) of the
Constitution of India appointed respondents No.5 to 11 as Judges of
the Madhya Pradesh High Court.
2. Learned counsel for petitioner is heard on the question of
admission so also final disposal.
3. The aforesaid challenge is based on the following grounds:
(i) Despite the petitioner being eligible under Article 217
(2)(b) of the Constitution of India for having completed 10
years of practice in the High Court has not been considered
for appointment as Judge of the High Court.
(ii) No advertisement was issued prior to appointments made of
respondents No.5 to 11.
(iii) None of the SC/ST, OBC or EWS candidates were
considered thereby denying adequate representation of all
these categories on the Bench.
(iv) There is over representation of the forward class not only
among members of the collegium but also among
appointments made of respondents No.5 to 11.
4. For ready reference and convenience, relevant Article 217
(2) (b) of the Constitution of India is reproduced below :
"217. Appointment and conditions of
the office of a Judge of a High Court.-
(1) xxx xxx xxx
(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) xxx xxx xxx
(b) has for at least ten years been an
advocate of a High Court or of two or
more such courts in succession;"
5. A bare reading of the aforesaid provision reveals that
minimum requisite eligibility criteria for an advocate to be elevated
as a High Court Judge is that of practice as an advocate for a period
at least of 10 years.
5.1 The aforesaid does not imply that all advocates who have
practiced in the High Court for at least 10 years or more are to be
necessarily considered by the collegium of the High Court and as
well as of the Supreme Court.
5.2 The concept of collegiums is not found in the Constitution,
but came to be recognized as principal selecting body for
appointment of a High Court Judge by Judge-made law in series of
judgments of Apex Court in S.P. Gupta Vs. Union of India and
another, 1981 (Supp) SCC 87; Supreme Court Advocates-on-
Record Association and others Vs. Union of India, (1993) 4 SCC
441; Special Reference No.1 of 1998, RE:, (1998) 7 SCC 739; and
Supreme Court Advocates-on-Record Association and another
v. Union of India, (2016) 5 SCC 1. Relevant extracts of decision
in Supreme Court Advocates-on-Record Association and others
Vs. Union of India, (1993) 4 SCC 441 are reproduced below for
ready reference and convenience:
"175. It is beyond controversy that merit selection is the
dominant method for judicial selection and the candidates
to be selected must possess high integrity, honesty, skill,
high order of emotional stability, firmness, serenity, legal
soundness, ability and endurance. Besides the above, the
hallmarks of the most important personal qualifications
required are moral vigour, ethical firmness and
imperviousness to corrupting or venal influences, humility
and lack of affiliations, judicial temperament, zeal and
capacity to work. In Texas Law Review, (Vol. 44) 1966 at
pp. 1068 and 1071, the following passages are found
emphasising the desirable qualities of the Judges:
"It is easy to understand why the active
Judges deem noble inner qualities highly
desirable. It is also natural that they should
give the highest ratings to good repute.
'Good name in man or woman ... is the
immediate jewel' of their souls, Shakespeare
said, 'and Judges share with you and me a
taste for such treasures'. As for good health,
is there anyone who does not prize it?
Nobility and virtue, good name and well-
being -- these are never out of place. In a
man who wields the power and enjoys the
standing of a judge, they are more than
welcome. No one seeking judicial office
would boast that he lacked any of them, and
no appointing authority would look for men
without them."
While qualities of the mind were not named as
frequent, as qualities of the heart and spirit, intellectual
power was not entirely neglected. In the judges' own
words, 'a capacity for abstract thought', 'imagination',
'learning', 'a retentive memory', 'quick thinking',
'intellectual curiosity', and 'ability to analyze and
articulate' deserve attention."
183. One should not lose sight of the important fact
that appointment to the judicial office cannot be equated
with the appointment to the executive or other services.
In a recent judgment in All India Judges'
Association v. Union of India [(1993) 4 SCC 288, 295-
97 : JT (1993) 4 SC 618] rendered by a three-Judge
Bench presided over by M.N. Venkatachaliah, C.J. and
consisting of A.M. Ahmadi and P.B. Sawant, JJ., the
following observations are made : (SCC pp. 295 e-h,
296 a and c-d, 297 b, paras 7 and 9)
"The judicial service is not service in the
sense of 'employment'. The judges are not
employees. As members of the judiciary,
they exercise the sovereign judicial power of
the State. They are holders of public offices
in the same way as the members of the
Council of Ministers and the members of the
legislature. When it is said that in a
democracy such as ours, the executive, the
legislature and the judiciary constitute the
three pillars of the State, what is intended to
be conveyed is that the three essential
functions of the State are entrusted to the
three organs of the State and each one of
them in turn represents the authority of the
State. However, those who exercise the State
power are the ministers, the legislators and
the judges, and not the members of the their
staff who implement or assist in
implementing their decisions. The Council
of Ministers or the political executive is
different from the secretarial staff or the
administrative executive which carries out
the decisions of the political executive.
Similarly, the legislators are different from
the legislative staff. So also the judges from
the judicial staff. The parity is between the
political executive, the legislators and the
judges and not between the judges and the
administrative executive. In some
democracies like the USA, members of some
State judiciaries are elected as much as the
members of the legislature and the heads of
the State. The judges, at whatever level they
may be, represent the State and its authority
unlike the administrative executive or the
members of other services. The members of
the other services, therefore, cannot be
placed on a par with the members of the
judiciary, either constitutionally or
functionally.
***
... It is high time that all concerned
appreciated that for the reasons pointed out
above there cannot be any link between the
service conditions of the judges and those of
the members of the other services. ... As
pointed out earlier, the parity in status is no
longer between the judiciary and the
administrative executive but between the
judiciary and the political executive. Under
the Constitution, the judiciary is above the
administrative executive and any attempt to
place it on a par with the administrative
executive has to be discouraged."
(emphasis supplied)
195. When an argument was advanced in Gupta
case to the effect that where there is difference of
opinion amongst the constitutional functionaries
required to be consulted, the opinion of the CJI should
have primacy, since he is the head of the Indian
Judiciary and paterfamilias of the judicial fraternity,
Bhagwati, J. rejected that contention posing a query, as
to the principle on which primacy can be given to the
opinion of one constitutional functionary, when clause
(1) of Article 217 places all the three constitutional
functionaries on the same pedestal so far as the process
of consultation is concerned. The learned Judge by way
of an answer to the above query has placed the opinion
of the CJI on a par with the opinion of the other
constitutional functionaries. The above answer, in our
view, ignores or overlooks the very fact that the judicial
service is not the service in the sense of employment,
and is distinct from other services and that "the
members of the other services... cannot be placed on a
par with the members of the judiciary, either
constitutionally or functionally"."
5.3 Thus, the collegium ows it's existence and legal sanctity to
Judge-made law which under Article 141 of the Constitution is the
law of the land and is binding not only on every court but also the
executive and the legislature.
5.4 As regards the second ground of challenge [para 3(ii) above],
it appears that petitioner is labouring under misconception that the
office of a High Court Judge is akin to a civil post under the
executive. This is far from reality as the office of High Court Judge
is a Constitutional office, which is filled up only and solely by the
procedure prescribed in the Constitution and not elsewhere. No
statute or statutory rule or executive instruction can supplant or for
that matter supplement the procedure prescribed in the Constitution
for appointment of High Court Judge. Accordingly, since the
Constitution does not prescribe issuance of any advertisement or
conduction of any selection by way of written test or viva voce, the
procedure being followed presently cannot be found fault with.
5.5 In ground No.3(iii) the petitioner contends that in
appointment of High Court Judge, adequate and proper
representation of all categories i.e. SC/ST, OBC or EWS has not
been made. In this regard, it is seen that neither the Constitution nor
the Judge-made law as aforesaid prescribe for any reservation or
adequate/proportionate representation of all categories in the
process of appointment. Thus, providing for any such reservation or
adequate/proportionate representation of all categories, would not
only be dehors to the Constitutional provision but also the Judge-
made law vide aforesaid decisions of Apex Court. Thus, this ground
of petitioner also does not hold any water.
5.6 The ground contained in para 3(iv) is that the collegium at the
High Court as well as Supreme Court level has a very large
representation of forward class (unreserved category), of Judges. As
already held above, the Constitution not prescribing for any
reservation or adequate or proportionate representation of all
categories, any such attempt to accede to the prayer of petitioner
would amount to violating the constitutional provisions.
6. In the conspectus of above discussion, this Court has no
manner of doubt that the relief sought by petitioner cannot be
granted and, therefore, the petition is dismissed in limine.
(SHEEL NAGU) (AMAR NATH (KESHARWANI))
ACTING CHIEF JUSTICE JUDGE
DV
