Constitution Does Not Prohibit Appointment Of Lawyer Practising In Supreme Court As Judge Of High Courts : Supreme Court

The petitioner, an advocate, Mr. Ashok Pandey, apprised the Bench that names of four advocates practicing in the Supreme Court have been recommended in the list of recommendations from Allahabad High Court. He added that in the last few years six such persons have been appointed by the High Court. It was indicated that the same is in blatant violation of Article 217(2) of the Constitution.

Upon hearing the petitioner, the Bench recorded in its order -

“..on a bare reading of the petition, it is meritless and a complete waste of judicial time. The reading sought to be put to Article 217 would amount to the saying that the Supreme Court is not one of the courts from which judges can be appointed to the High Courts…There is nothing in the Constitution which provides a prohibition for a lawyer practicing in the Supreme Court to be appointed as a judge of the High Courts. In fact every lawyer is enrolled at the Bar Council of a particular State.”

Considering the nature of the matter, the fact that the petitioner is an advocate and is supposed to be well versed in law, the Bench dismissed the plea with cost, which was directed to be deposited within 4 weeks with the Mediation Centre.

Mr. Pandey argued that the appointment and recommendation of Supreme Court lawyers as judges of High Court is in clear violation of Article 217(2), which sets out the eligibility as under -

“(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) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.”

Mr. Pandey submitted that ‘such Courts in succession’ in Article 217(2) suggested High Court and does not include the Supreme Court. He contended -

“The Chief Justice (High Courts) can consider the names of those lawyers who are appearing before him.”

Justice Kaul reckoned, “So your view is that if somebody is practicing in say, Rajasthan High Court and over a period of time comes to the Supreme Court, they should never be recommended to be appointed as a judge of the Rajasthan High Court.”

Mr. Pandey responded that Chief Justices of High Courts can only recommend lawyers practicing before them for appointment of judges of the respective High Courts.

While making submissions, Mr. Pandey mentioned that the Supreme Court had also recognised that the quality of lawyers of the Supreme Court Bar Association is higher than the State Bar Councils. Perplexed, Justice Kaul asked the petitioner-in-person to show the statement of the Apex Court where such a claim has been made.

“Please show me the statement where it says the quality of lawyers in SCBA are better than High Court”

Mr. Pandey referred to the letters released by the President of SCBA, Mr. Vikas Singh, making out a case for appointment of lawyers practicing in the Supreme Court as judges of different High Courts.

“There is a report…The press release of Vikas Singh.”

Justice Kaul clarified, “The press release of Vikas Singh is not the press release of the Supreme Court.” He emphasised that the Supreme Court has not given imprimatur to such statements. However, he stated that the Apex Court acknowledges the larger principle that in suitable cases Advocates practicing in the Supreme Court can be considered for appointment as judges of High Courts.

Mr. Pandey had also argued that, considering the fact that his plea deals with interpretation of Article 217(2) of the Constitution, it ought to have been placed before a Constitution Bench. Addressing the issue, the Division Bench, noted that a matter does not automatically get listed before a Constitution Bench.

Case Title: Ashok Pandey v. Union of India And Ors. WP(C) No. 823/2022

Citation : 2023 LiveLaw (SC) 5

For Petitioner(s) Mr. Ashok Pandey, in-person

Headnotes

Constitution of India, 1950; Article 217 - Appointment and conditions of the office of a Judge of a High Court - method of recommendation envisages that Collegium of the High Court consisting Chief Justice and two senior most judges recommends names; Government provides inputs; IB report is obtained; Supreme Court Collegium of three senior most judges takes a call

Constitution of India, 1950; Article 217(2) - the Supreme Court refused to accept the interpretation that a person who may have been enrolled with a State Bar Council and subsequently shifted practice in the Supreme Court is ineligible to be appointed as High Court judges - because at the end of the day every lawyer is enrolled with the Bar Council of a particular State.

Constitution of India, 1950 - the Constitution does not prohibit lawyers practicing in the Supreme Court to be appointed as a Judge of the High Court - in fact, the Supreme Court has given imprimatur to the principle that in suitable cases Advocates practicing in the Supreme Court can be considered for appointment to the High Court.