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G.RAJENDRAN versus UNION OF INDIA

High Court of Madras

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G.Rajendran v. Union of India - WRIT PETITION No.24849 OF 2005 [2005] RD-TN 573 (11 August 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:11/08/2005

CORAM

THE HONOURABLE MR.JUSTICE M.KARAPGAVINAYAGAM AND

THE HONOURABLE MR.JUSTICE T.V.MASILAMANI WRIT PETITION No.24849 OF 2005

G.Rajendran ... Petitioner -vs-

1.Union of India,

rep.by its Secretary,

Ministry of Law and Justice,

Sastri Bhavan,

New Delhi.

2.Union of India,

rep.by its Secretary,

Home Department,

New Delhi.

3.The State of Tamil Nadu,

rep.by its Chief Secretary,

Secretariat, Chennai-9.

4.Registrar General,

High Court of Madras,

High Court,

Madras  104.

5.Intelligent Bureau,

C.G.O.Complex,

Lodhi Road,

New Delhi.

6.Central Bureau of Investigation,

Loknayak Bhawan,

Khan Market,

New Delhi. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus.

For petitioner : Mr.G.Rajendran,

Party-in-Person.

For respondents 1 &2 : Mr.V.T.Gopalan,

Addl.Solicitor General,

assisted by Mr.P.Wilson. For respondent 3 : Mr.N.R.Chandran,

Advocate General,

assisted by

Mr.P.S.Jayakumar,

Addl.Govt.Pleader.

:O R D E R



M.KARPAGAVINAYAGAM,J.

G.Rajendran, party-in-person, claiming himself as the President of Madras High Court Practising Advocates' Association, has filed this Writ Petition under Article 226 of the Constitution of India, seeking for the prayer, as under :

"I therefore pray that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order, in the nature of writ, directing the Union of India, represented by Secretary, Ministry of Law and Justice, first respondent, and Union of India, represented by Secretary, Home Department, second respondent, to strictly follow the guidelines laid down by the Hon'ble Supreme Court in the case, namely, Supreme Court Advocate on record Association -vs- Union of India, reported in AIR 1994 SUPREME COURT 268 and also the suggestions mentioned in this Writ Petition, in the matter of appointment of Judges to the Hon'ble High Court from out of the lists so far sent to the Union of India, Ministry of Law and Justice, which are pending consideration."

2. The circumstances, which led to the filing of this Writ Petition as a pro bono publico, according to the party-in-person, are as follows :

"(a) Petitioner has been given to understand that recently a list of names of advocates were recommended for elevation as Judges of this High Court. He came to know from the newspaper reports and from the Members of the Bar that most of them are having political attachment and membership in political parties. When such politically attached advocates get elevated to the post of High Court Judges, there is every possibility of showing bias or favoritism. Therefore, C.B.I. or I.B. may be requested to investigate and report separately on the political affiliation or association of any advocate, who has been recommended for elevation, before deciding the matter. If it is found that the advocate belongs to political party, it may be decided that he shall not be appointed as a Judge of the High Court. In addition, yet another new deplorable malady has taken place that some of the advocates now recommended are very close relatives, classmates, former associates or convenient friends of the Hon'ble sitting and retired Judges of the Madras High Court. Thus, it is clear that nepotism has crept in. (b) If the higher Judiciary of the State is allowed to be occupied by the family members of the sitting and retired Judges and political personalities, there may be a phenomenon of anarchism in the modern time of judicial activism, equalism and independence. So, the advocates, who are close relatives and convenient friends of the sitting and retired Judges, are not to be appointed.

(c) He saw a news item in Tamil Daily "Thina Thanthi" on 28.01.2005 , giving the news that names of 12 new persons have been sent by the Chief Justice of the High Court, recommending for their appointment. He sent a representation to Law Minister on 30.11.2004 and a letter to Law Secretary and Home Secretary on 30.07.2005, objecting to the appointment of the persons, who are politically connected and closely related to Judges. Some of them are related to Judges and some of them are connected to political activities. But, there is no response. Hence, he has filed this Writ Petition, seeking for a mandamus."

3. We have heard Mr.G.Rajendran, party-in-person. He argued at length, on the basis of the guidelines laid down by the Supreme Court in AIR 1994 SUPREME COURT 268 (SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA). Pointing out various paragraphs, he submitted that in view of the guidelines given by the Supreme Court relating to the undesirability of the political influence and nepotism, which should be discouraged, suitable directions may be issued by this Court to respondents 1 and 2, to follow those guidelines, given by the Supreme Court. He would further point out that before deciding the appointments, the authorities concerned may consult the Presidents of various Advocates' Associations, Senior Advocates and also the public, by giving suitable advertisements, mentioning the names of the persons, proposed to be appointed as Judges.

4. We have also heard Mr.V.T.Gopalan, learned Additional Solicitor General, appearing for the Union of India; and Mr.N.R.Chandran, learned Advocate General, appearing for the State.

5. We have carefully considered the submissions made by the counsel for the parties.

6. At the outset, it shall be stated that the prayer in this Writ Petition is not only innocuous, but also preposterous. Before dealing with the said strange prayer, it would be worthwhile to express our anguish over the averments made by the petitioner, who is a practising advocate and claiming himself to be the President of Madras High Court Practising Advocates' Association, to the extent of casting aspersions on the persons, whose names were allegedly sent with the recommendation, by the Hon'ble Chief Justice, as contained in the Tamil Newspaper "Thina Thanthi", dated 28.01.2005.

7. The petitioner, without any material whatsoever, would state that some of the advocates, now recommended, are very close relatives, classmates and convenient friends of the sitting and retired Judges of this Court.

8. It is quite unfortunate to state that some of the persons, whose names are found in the list of advocates and recommended for elevation, belong to political parties and, therefore, they should not be allowed to get elevated.

9. We are at a loss to understand as to how this sort of allegation, casting general aspersions on the members of the Bar without placing any material, could be made. The petitioner, as party-in-person, should have shown responsibility, while approaching this Court, in order to convince this Bench that his prayer is genuine and he has come with clean hands and clean mind.

10. A perusal of the affidavit, filed in this Writ Petition, would indicate that there is a general allegation, casting aspersions on all the persons, whose names are mentioned in the list, which has been sent for consideration.

11. As laid down in 2004 (3) SUPREME COURT CASES 363 (DR.B.SINGH v. UNION OF INDIA AND OTHERS), the Court has to be satisfied about : ( a) the credentials of the applicant, (b) the prima facie correctness or nature of information given by him, and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The Court has to strike a balance between two conflicting interests : (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and ( ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions.

12. It is not the ipse dixit of any individual to say as to whether the recommended person is fit for appointment, by making wild allegations, which has become common these days, and has resulted in delaying appointment of Judges, though a large number of vacancies exist in different High Courts.

13. The high-sounding words used in the petition by the petitioner about the desirability of a transparent judicial system cannot, in our view, turn a misconceived petition filed with oblique motives to be treated as a public interest litigation.

14. The peculiarity in the prayer, sought for by the petitioner, is that the advocates, who are politically connected and closely acquainted with the Judges, are about to be appointed and the same should be stopped.

15. The procedure for appointment of a Judge is provided in Article 217 of the Constitution. The process is an elaborate one. Where a particular person is to be appointed as a Judge, the modalities and procedures, to be adopted, have been elaborately dealt with in SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA, reported in AIR 1994 SUPREME COURT 268 and in PRESIDENTIAL REFERENCE,reported in AIR 1999 SUPREME COURT 1.

16. Article 217 (1) of the Constitution of India, which is relevant, reads thus :

"Appointment and conditions of the Office of a Judge of a High Court : (i) 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..."

17. The Constitutional functionaries, like the Judges of the High Court, who are required to be involved in the selection process in terms of Article 217 of the Constitution are, the President of India, the Chief Justice of India, the Governor of the State and the Chief Justice of High Court.

18. As referred to in SUPREME COURT ADVOCATES-ON- RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA, reported in AIR 1994 SUPREME COURT 2 68, in the case of appointment of a Judge to the High Court, the proposal emanates from the Chief Justice of the High Court and that proposal is considered by the Chief Minister of the State and duly processed through the Governor and forwarded to the Chief Justice of India through the Ministry of Law and Justice. Thereafter, the Ministry of Law, with the recommendation of the Chief Justice of India, forwards the proposal to the Prime Minister, who, then, approves and advises the President to issue a formal warrant.

19. Paragraphs 224, 225 and 504 of the judgment in SUPREME COURT ADVOCATES- ON- RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA, reported in AIR 1994 SUPREME COURT 268, would clearly indicate that there are norms fixed for selecting the persons, to be appointed as Judges of the High Court. While recommending a candidate for the higher State Judiciary, the Chief Justice of the High Court has the advantage of proximity in evaluating the caliber and legal ability of the candidate. However, the Chief Justice of India, before whom the opinion of the Chief Justice of the High Court as well of the State Government is placed with all the relevant materials concerning the proposal, is in a better position either to accept the recommendation or reject it for strong and cogent reasons to be recorded. The merit of a candidate with regard to his/her professional attainments, legal soundness, ability, skill etc. can be evaluated only by the Chief Justice of the High Court in the matter and, ultimately, to be approved by the Chief Justice of India. However, since the Judiciary does not have sufficient machinery of its own to check the antecedents and background of the candidate, Chief Justice of the High Court and the Chief Justice of India may not be in a position to express any opinion about the character and antecedents of the candidate. But, the Government, with its powerful machinery, can check the antecedents and background of the candidate and give its opinion on that aspect.

20. When a recommendation of the Chief Justice of a High Court comes to the Chief Justice of India with all particulars, including the background of such candidate, the Chief Justice of India will be in a better position, on examination of all the materials placed before him, to evaluate the fitness of the candidate. Therefore, in all circumstances, the opinion of the Chief Justice of India is entitled to have the right of primacy in the matter of selection of Judges to the High Courts.

21. In matters relating to the appointment of Judges to the High Court, the Chief Justice of India is expected to take into account the view of his colleagues in the Supreme Court, who are likely to be conversant with the affairs of the High Court concerned. The Chief Justice of India may also ascertain the view of one or more Senior Judges of the High Court, whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The Chief Justice of India, for the formation of his opinion, has to adopt a course, which would enable him to discharge his duty objectively to select the best available persons as Judges of the High Courts. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

22. When there is already inbuilt check procedure contemplated under Article 217 and also the guidelines given by the Supreme Court in PRESIDENTIAL REFERENCE, reported in AIR 1999 SUPREME COURT 1, the approach of the petitioner, that too as party-in-person, seeking for a direction from this Court to respondents 1 and 2 to follow the guidelines by way of judicial review, is totally misconceived.

23. In this context, it would be worthwhile to refer to the observations regarding the judicial review made by the Supreme Court in PRESIDENTIAL REFERENCE,reported in AIR 1999 SUPREME COURT 1, which are as follows :

"Judicial review in the case of an appointment, or a recommended appointment, to the Supreme Court or a High Court is, therefore available if the recommendation concerned is not a decision of the Chief Justice of India and his senior-most colleagues, which is constitutionally requisite. They number four in the case of a recommendation for appointment to the Supreme Court and two in the case of a recommendation for appointment to a High Court. Judicial review is also available if, in making the decision, the views of the senior-most Supreme Court Judge, who comes from the High Court of the proposed appointee to the Supreme Court, have not been taken into account. Similarly, if, in connection with an appointment, or a recommended appointment, to a High Court, the views of the Chief Justice and senior Judges of the High court, as aforestated, and of Supreme Court Judges knowledge about that High Court have not been sought or considered by the Chief Justice of India and his two senior-most puisne Judges, judicial review is available. Judicial review is also available, when the appointee is found to lack eligibility."

24. In view of the above observations, it is clear that this Court can entertain the Writ Petition, inasmuch as the scope of judicial review is limited, only on two grounds: (i) want of consultation with the named Constitutional functionaries, and (ii) lack of any condition of eligibility in the case of appointment. That means, there cannot be a judicial review on any other ground.

25. It is not the case of the petitioner that any one of these circumstances has arisen in this case.

26. As pointed out by the learned Advocate General, recommendations have been sent and they are yet to receive the attention of the Chief Justice of India and to go through the process, that is contemplated in terms of the Constitution and the judgement of the Apex Court.

27. It is also not the case of the petitioner that the persons, whose names are stated to be recommended for appointment, lack eligibility, as prescribed in Article 217 (2) of the Constitution. On the other hand, it is the contention of the petitioner, as party-in-person, that even though the persons, whose names mentioned in the list which was sent, are eligible and capable, they should not be appointed, since they happen to be the relatives of the Judges or closely connected with the political activities.

28. This submission reflects lack of understanding of the provisions, contained in Article 217 of the Constitution. Though suitability is a different matter, it can be decided by the Constitutional functionaries, as per the judgment of the Apex Court, in the cases of SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA, reported in AIR 1994 SUPREME COURT 268 and the PRESIDENTIAL REFERENCE, reported in AIR 1999 SUPREME COURT 1. It is clearly held in those decisions that it is for these Constitutional functionaries to decide as to whether the person, whose name has been recommended, is suitable or not for being appointed to the High Court. No person outside the group of Constitutional functionaries referred to into the relevant Articles of the Constitution and in the judgment of the Supreme Court in the cases referred to supra can claim any right to impose his or her opinion on the suitability on those, who are charged with the responsibility of considering the suitability of the candidate.

29. It is clear beyond any doubt that no one has a right to seek judicial review of the appointment process even before the matter has reached the stage, where the Hon'ble Chief Justice of India and the other Hon'ble Judges of the Apex Court are required to consider the names of the persons recommended for appointment. The recommendations made by the Chief Justice of India, after due consultation with his colleagues and the Chief Justice of the High Court, is to have primacy in the matter of final selection and appointment of Judges of the High Court.

30. As held by the Apex Court, merit alone has to be the predominant consideration in judging as to whether a person is the best and the most suitable for appointment as a Judge of the High Court, irrespective of his caste, creed, colour, religion and political affiliations.

31. Therefore, we are not inclined to give any direction or suggestion to any of the authorities, as suggested by the party-in-person. On the other hand, we deem it appropriate to suggest the petitioner, who is a practising advocate in this Court, to concentrate more on practice in the High Court, instead of filing this sort of vexatious petitions and wasting the Court's time. In the light of what is stated above, it is not possible for us to entertain this Writ Petition.

32. In the result, we dismiss this Writ Petition, at the admission stage itself. No costs. Consequently, the connected W.P.M.P.No.2720 9 of 2005 is also dismissed.

Index : Yes

Internet : Yes

dixit

To

1.The Secretary,

Union of India,

Ministry of Law and Justice,

Sastri Bhavan,

New Delhi.

2.The Secretary,

Union of India,

Home Department,

New Delhi.

3.The Chief Secretary,

State of Tamil Nadu,

Secretariat, Chennai-9.

4.The Registrar General,

High Court of Madras,

High Court,

Madras  104.

5.Intelligent Bureau,

C.G.O.Complex,

Lodhi Road,

New Delhi.

6.Central Bureau of Investigation,

Loknayak Bhawan,

Khan Market,

New Delhi.

WRIT PETITION No.24849 OF 2005

M.K.V.,J. & T.V.M.,J.

(Order of the Court was made by M.KARPAGAVINAYAGAM,J.) After pronouncement of the order, leave to appeal is sought for by the petitioner.

2. Since all the points raised in this petition have already been covered in the Second Judges' decision of the Apex Court in SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION AND ANOTHER v. UNION OF INDIA, reported in AIR 1994 SUPREME COURT 268, leave to appeal is rejected. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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