By Adv. R. S. Agrawal 

 

 

THROUGH the judgement of the case – Advocate Uday Kumar v. Union Ministry of Law and Justice, Registrar General, Supreme Court of India and others, delivered on May 28,2024, Acting Chief Justice Sheel Nagu and Justice Amar Nath (Keshawani), at the High Court of Madhya Pradesh, Jabalpur, have, while, upholding appointment of seven new judges of the High Court, made it amply clear that as the office of High Court Judge is a Constitutional office, which is filled up only and solely by 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 vive voce, the procedure being followed cannot be found fault with, “the High Court has stated further. According to the HC, it appears that petitioner is labouring under misconception that the office of a HC Judge is akin to a civil post under the executive. This is far from reality as the office of a HC Judge is a Constitutional office. A bare reading of the Article 217(2)(b) of the Constitution relating to the Appointment and conditions of the office of a Judge of a High Court reveals that minimum requisite criteria for an advocate to be elevated as a HC Judge is that of practice as an advocate for a period of at last of 10 years.

 

This does not imply that all advocates who have practiced in the HC for at least 10 years or more are to be necessarily considered by the collegium of the HC and as well as of the Supreme Court. The concept of collegiums is not found in the Constitution, but came to be recognised as principal selecting body for appointment of a HC Judge by Judge-made law in the series of Supreme Court Judgments in S P Gupta v. Union of India and Another- 1981 Supp. SCC 87, Supreme Court AoRA and Others v. Union of India –(1993)4 SCC 441; Special Reference No. 1 of1998, RE:,(1998)7SCC 739, and SC AoRA and Another v. Union of India(2016) 5 SCC 1. Relevant extracts from the decision in the case- SC AoRA and Others v. Union of India-(1993) 4 SCC 441 have been quoted here for ready reference: “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 hall marks of the most important personal qualifications required are moral vigour, ethical firmness and imperviousness to corrupting or venal influences, humility or lack of affiliations, judicial temperament, zeal and capacity to work.

 

In Texas Law Review, (Vol.44) 1966 at pages1068 and 1071, through the following passages emphasis has been placed on 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.” “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 other services. 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.” Through this petition validity and legality of the Notification issued on November 2, 2023, by the Department of Justice of the union Law and Justice Ministry by which appointments of 7 Judges at the High Court of Madhya Pradesh by the President of India was made, were challenged. The names of these judges are M/s Vinay Saraf, Vivek Jain, Rajendra Kumar Vani, Pramod Kumar Agrawal, Binod Kumar Dwivedi, Dev Narayan Mishra and Gajendra Singh. The Collegium owes its 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. As regards the second ground, it appears that the 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 the HC Judge is a Constitutional office, which is filled up only and solely by the procedure prescribed in the Constitution and not elsewhere. In another ground, the petitioner has contended that in appointment of HC Judge, adequate and proper representation of all categories –SC/ST, OBC or EWS has not been made.

 

In this regard, it has been 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 the Supreme Court. The ground 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, while the Constitution does not prescribe 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 provision. In conclusion, as the Madhya Pradesh HC has no manner of doubt that the relief sought by the petitioner cannot be granted and, therefore, the HC dismissed the writ petition against appointment of the new seven judges.