Sangita Dhingra Sehgal JUDGMENT
G. Rohini, C.J.
1. The unsuccessful petitioner in W.P.(C) No. 4229/2016, who is a practicing advocate, is the appellant before us.
2. The said writ petition was filed challenging the recommendation of four names by the Supreme Court Collegium in May, 2016 and certain other reliefs including a declaration that the judgments passed by the Supreme Court from time to time with regard to mechanism of appointment of judges are unconstitutional.
3. The writ petition was dismissed by the learned Single Judge by order dated 13.05.2016 observing:-
"Consequently, this court is of the opinion that a High Court cannot declare Supreme Court's judgment as per incuriam.
Further, the Constitution Bench of the Supreme Court vide order dated 19th November, 2015 while reserving the order had stated that the process of appointment of Judges by the Collegium System need not remain on hold. Consequently, the argument that no recommendation could have been made without finalizing of memorandum of procedure is not correct.
A Division Bench of this Court in D.K. Sharma (supra) has also held that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.
Consequently, present writ petition and applications being bereft of merits are dismissed.''
4. Assailing the said order, it is contended by the appellant/writ petitioner, who appeared in person that the order under appeal is erroneous and liable to be set aside not only on the ground that the same is contrary to the facts and law but also on the ground that the same had been passed without affording adequate opportunity to the petitioner to argue the matter.
5. Referring to the fact that the name of a practicing Advocate has been recommended by the Collegium by the impugned recommendation, it is also contended that the said recommendation, without considering the candidature of the appellant/petitioner who is a practicing lawyer and eligible for being considered for appointment as a Judge of the Supreme Court or High Court as well as the other similarly placed lawyers, is in violation of the fundamental rights guaranteed under Articles 14, 16, 19 and 21 of the Constitution of India.
6. It is also vehemently contended by the appellant that the conclusion of the learned Single Judge, on the basis of the judgment of the Division Bench dated 08.04.2011 in W.P.(C) No. 2231/2011 titled D.K. Sharma Vs. Union of India & Ors., that the question of suitability or merits of a candidate cannot be made a subject matter of judicial review in a writ proceedings, is erroneous. According to the appellant, the recommendation of the Collegium being an administrative act is open to judicial review under Article 226 of the Constitution of India. In support of the said submission, the petitioner relied upon Centre for PIL & Anr. Vs. Union of India & Anr. MANU/SC/0179/2011 : AIR 2011 SC 1267.
7. We have also heard Sh.Sanjay Jain, the learned ASG who appeared for the respondent No. 1/Union of India.
8. The first contention of the appellant that the Collegium should not have made the recommendation without finalizing the Memorandum of Procedure for improvement of the Collegium System of appointment of judges suggested by the Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in W.P.(C) No. 13/2015 titled Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors. is without any substance in the light of the order of the Constitution Bench dated 19.11.2015 in which while reserving the order, it was made clear that the process of appointment of Judges by the Collegium system need not remain on hold.
9. The further contention that the impugned recommendation is violative of Articles 14, 16, 19 and 21 of the Constitution of India on the ground that the candidature of the petitioner who is also eligible to be appointed as a Judge was not considered by the Collegium is equally untenable and liable to be rejected in the light of the settled legal position that there is a basic difference between 'eligibility' and 'suitability'. As held in Mahesh Chandra Gupta Vs. Union of India MANU/SC/1156/2009 : (2009) 8 SCC 273, the appointment of a Judge of the High Court/Supreme Court requires 'consultation' and fitness of a person to be appointed is evaluated in the consultation process. Thus, it is clear that the evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. It was also made clear in the said decision that it is only in the cases of eligibility that the mechanism of judicial review can be invoked and not otherwise. Therefore, the contention of the appellant with regard to judicial review of the impugned recommendation of the Collegium is also liable to be rejected.
10. It may also be added that the names recommended by the Supreme Court Collegium under the impugned recommendation have already been accepted and they have been appointed as the Judges of the Supreme Court by the President of India. Hence, Article 124(4) is attracted and therefore, on that ground also the order under appeal dismissing the writ petition warrants no interference.
11. The contention with regard to the binding nature of the law declared by the Supreme Court under Article 141 of the Constitution of India needs no consideration since prayer (C) and (D) in the writ petition have not been pressed by the appellant.
12. The appeal is devoid of merit and accordingly the same shall stand dismissed.
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