T. Deen Dayal vs Union of India and others

Jagannadha Rao, J.—This order is being passed at the stage of admission.

The petitioner, (Party-in-person), has filed this writ petition for the issue of a writ of Quo Warranto restraining the 6th respondent (Justice K. Jayachandra Reddi), the 8th respondent (Justice Yogeshwar Dayal) from being Judges of the Supreme Court of India and also the 9th respondent (Justice Subhash Chaganlal Pratap) from being the Chief Justice of the High Court of Andhra Pradesh. A consequential direction has also been sought for the issue of a direction to appoint the 5th respondent (Justice Raghuvir former Chief Justice of Assam) and the 7th respondent (Justice G. Ramanujulu Naidu senior-most Judge of Andhra Pradesh High Court as Judges of the Supreme Court of India.

It is firstly contended that the 8th respondent should not have been appointed to the Supreme Court inasmuch as his tenure as Judge and Chief Justice of the Delhi High Court cannot be counted for purposes of Art. 124(3)(a) of the Constitution of India. It is stated that Delhi High Court being a High Court for the Union Territory of Delhi is not a High Court for a ''State'' as per Art. 214 and that the said High Court is also not a Court of record within Art, 215 -- and that if the tenure of the 8th respondent in the Delhi High Court is excluded, the tenure in Andhra Pradesh High Court falls short of the required period of five years and therefore the appointment to the Supreme Court is bad. Reference in this connection is made to the provisions of the Delhi High Court Act, 1966.

In our view, this contention is absolutely without substance. It will be noticed that Part V of the Constitution deals with the ''Union'', Part VI with ''The States'' and Part VIII with ''The Union Territories''. In Part V, dealing with the ''Union'', the position is that Chapter IV deals with the ''Union Judiciary in Part VI, again Chapter V deals with the ''High Courts in the States'' and; in Part VIII, Art.241 deals with the ''High Courts for Union Territories''. If this division is kept in mind, the point raised can be easily answered. So far the States are concerned, it is stated in Art. 214 that there ''shall be a High Court for each State''. So far as Union Territories are concerned, Art. 241 states, in sub-Cl.(1), that Parliament may by law constitute a High Court for a Union Territory or declare any Court in such territory to be a High Court for all or any of the purposes of the Constitution. Sub-Cl.(2) states that "the provisions of Chapter V of Part VI (dealing with High Courts for a State) shall apply, in relation to every High Court referred to in Cl. (1) as they apply in relation to a High Court referred to in Art. 214, subject to such modifications or exceptions as Parliament may by law provide." Under the Delhi High Court Act, 1966, Parliament has therefore constituted a High Court for the Union Territory of Delhi. Provisions of the Act give details as to the extent of its territorial jurisdiction.

Therefore, it is clear that there shall be a High Court for a State as stated in Art. 214 and again, it is provided in Art.241 that Parliament may by law constitute a High Court for a Union Territory. The question then is as to what are the qualifications for a Judge of a High Court to be appointed a Judge of the Supreme Court.

Under Cl. (3)(a) of Art. 124 of the Constitution, it is provided as follows:

"Art. 124(3)(a): A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-

(a) has been for atleast five years, a Judge of a High Court or of two or more such Courts in succession, or

(b) and (c)....."

Now, so far as Cl. (3)(a) of Art. 124 is concerned, it uses the words ''has been for atleast five years a Judge of a High Court'' and does not qualify that the High Court should be a High Court for a State. The provision is general and does not require that the tenure of five years or more should have been in a High Court for a State as distinct from a High Court for a Union Territory. The words ''a Judge of a High Court'' will include not only a Judge of a High Court for a State but also High Court for a Union Territory. Further, Explanation I to Art. 124(3) states that for the purpose of Cl.(3), the word ''High Court'' means a High Court which exercises (or which at any time before the commencement of this Constitution exercised) jurisdiction in any part of the territory of India. Again under Art. 377(14), a High Court means any Court which is deemed for the purposes of this Constitution to be a High Court for any State and includes -- (a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and (b) any other Court in the territory of India which may be declared by Parliament by law to be High Court for all or any of the purposes of this Constitution. By virtue of Art. 241(2) the provisions of Chapter V of Part VI as applicable to High Courts of a State apply to the Delhi High Court subject to the modifications or exceptions made in S. 4 of the Delhi High Court Act, 1966. Therefore the Delhi High Court is also a Court of record in view of Art.215 and there is nothing in S.4 of the Delhi High Court Act, 1966 which states that the said High Court is not to be a Court of Record.

In S.P. Gupta Vs. President of India and Others, the Supreme Court analysed the various provisions of the Constitution and other connected laws and held that every High Court in India is an integral part of a single independent judiciary and Judges who hold the posts of Judges of High Courts belong to a single family, even though there may be a slight variation in two of the authorities who are required to be consulted at the time of appointment. It was further held that all the High Courts organically form integral parts of a single system although they are territorially defined and that no High Court can claim any superiority over the other, either on the basis of its situation or on the basis that it is a successor to a High Court which was functioning in a Province immediately before the commencement of the Constitution or on the basis of the extent of its territorial jurisdiction and that all the High Courts have the same status under the Constitution. The contention of the petitioner that the Delhi High Court is not a High Court for the purpose of Art. 124(3)(a) is absolutely without substance and is accordingly rejected.

The second contention is that the transfer of the 9th respondent from the Bombay High Court to the Andhra Pradesh High Court is bad. In this connection, it may be noted that Art. 222 of the Constitution of India provides that the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. The scope of this Article has been considered elaborately by the Supreme Court in S.P. Gupta Vs. President of India and Others, . In that case, it was held that the word ''Judge'' in Art. 222(1) includes ''Chief Justice''. There is in our view, nothing which prohibits the President from appointing a Judge of one High Court to be the Chief Justice of another High Court, provided the procedure for conclusion as stated in Art. 222(1) has been followed.

It was then faintly suggested that the 9th respondent was appointed to the Bombay High Court after the 7th respondent was appointed to the Andhra Pradesh High Court. Even assuming that the date of appointment in one High Court is relevant for the purpose of transfer to another High Court, the assumption on facts is not correct. The 9th respondent was appointed to the Bombay High Court on 19-9-1977 while the 7th respondent has been appointed to the Andhra Pradesh High Court on 10-11-1978. It was also suggested that the consultation procedure envisaged in Art. 222(1) has not been followed but in the absence of any pleading, such a contention cannot be permitted and further there is presumption that the constitutional procedure has been followed fully. The argument, to say the least, is a desperate one.

It was then argued that the 5th and 7th respondents should have been selected for appointment to the Supreme Court, that they belong to other Backward classes and that the appointment of the 6th respondent and 8th respondent, who do not belong to the said Backward Classes is bad. The petitioner states that he is not contending that there is any quota of reservation but that the matter arises under Art. 14 of the Constitution. At the outset the petitioner contended that there was discrimination against respondents 5 and 7 but when it was pointed out that he, as a third party, cannot raise such an issue in a writ petition for issue of a writ of Quo Warranto, the petitioner voluntarily gave up the relief he was claiming for respondents 5 and 7 but confined his arguments to a general issue of discrimination. We are of the view that there is no substance in this alternative argument either.

In The All Kerala Poor Aid Legal Association, Trivandrum and Others Vs. Chief Justice of Kerala, Ernakulam and Others, , Chettur Sankaran Nair, J. has, while holding that the principle of reservation does not apply to the office of a High Court Judge, observed that the office of a High Court Judge is neither a post nor can appointment thereto be treated as appointment under the service of the State. Judges of the High Court owe their appointment to the Constitution and hold a position of privilege under it. They are not Government servants in the ordinary signification of that expression. In fact, a High Court Judge has no employer and he occupies a high constitutional office which is coordinate with the executive and the legislature. Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, . In the matter of selection of Judges for appointment to the High Courts and the Supreme Court of India, the Chief Justices of the High Court and the Chief Justice of India occupy a unique position and the merits of the process of selection by them, is not open to judicial review under Art. 226 of the Constitution of India. In S.P. Gupta Vs. President of India and Others, it was observed:

"The test which must be applied for the purposes of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justices of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied....."

and again that the corrective

"cannot be provided by judicial intervention". The decision of the Chief Justice of India is not amenable to judicial review. In fact, Sankaran Nair, J. also referred to the following passage from Anand Kumar Vs. Kattail Bhaskaran and Ors, wherein the Supreme Court observed:

"The High Court should have thrown out the petition at the very threshold, as the matter complained of was one to be decided in the manner indicated in Art. 217(3) of the Constitution of India."

That is why, we are of the opinion that this writ petition is liable to be dismissed at the stage of admission.

For all the aforesaid reasons, this writ petition is dismissed at the stage of admission.

An oral application seeking leave to appeal to the Supreme Court has been made by the petitioner under Arts. 132(1) and 133 of the Constitution of India. We do not consider that the case involves any substantial question of law as to the interpretation of the Constitution or any other substantial question of law of general importance, which, in our opinion, should be decided by the Supreme Court. The oral application is accordingly rejected.

Petition dismissed.