'No Judicial Review Over Collegium Decision' : Supreme Court Says In District Judges' Plea Seeking Consideration For Elevation

If decision is taken by the collegium, there is no judicial review with regards to that, the Supreme Court on Monday orally observed in a petition filed by 7 District Judges of Uttar Pradesh seeking directions for reconsideration of their elevation to the Allahabad High Court by Supreme Court collegium.

The bench of Justices AM Khanwilkar and CT Ravikumar also adjourned the writ petition for March 28, 2022.

Details Of The Petition

The petitioners had cleared the written exam for Direct Higher Judicial Service in pursuance of the advertisement for 38 vacancies for Additional District and Sessions Judge for the year 1998-2000. However the determination of 38 vacancies of Higher Judicial Service was challenged by promotee judicial officers. The appointment of the petitioners thus got embroiled in a litigation, which was finally settled by the Top Court on September 13, 2010. The petitioners were appointed in December 2011 and January 2012 with retrospective effect from January 4, 2007 by the Allahabad High Court.

The petitioners were in the list of District Judges whose names were recommended for elevation to the High Court of Allahabad by the Collegium of the High Court but their name was not considered by the Supreme Court in the Collegium held on August 14, 2020.

Petitioners had further stated that probably their names were not considered on the ground that they had not completed a period of 10 years of holding judicial office whereas the name of another District Judge(Respondent no.3) who was of the same batch and had joined the service along with them was recommended for his elevation.

The petitioners argued that their seniority was not computed with effect from January 4, 2007, and thus, an error has been committed.

"The case of Respondent No. 3 is on equal footings with the Petitioners in respect of date of appointment in UPHJS 2000, but despite this, the period of 10 years of holding of judicial office has been computed with effect from 04/01/2007 in the case of Respondent No 3, whose name has been recommended for elevation to the Hon'ble High Court of Allahabad but the period of 10 years of holding of judicial office as provided under Article 217(2)(a) of Constitution of India has not been computed with effect from January 4, 2007 for the purpose of considering the matter of petitioners and 2 others mentioned herein above for the elevation to Hon'ble High Court. Thus the petitioners have not been treated equally with Respondent No 3 despite the fact that petitioners and respondent 3 are equally placed," the plea stated.

Courtroom Exchange

When the matter was called for hearing, Justice AM Khanwilkar the presiding judge of the bench asked Senior Advocate MN Rao appearing for the petitioner as to whether Judicial Review is available against the decision.

"2 things we have to point out. Is Judicial Review available against this decision? The Constitution Bench has said that no judicial review. Not only 1 but 2 judgements of constitution bench have held that no judicial review. Collegium decision is itself a judicial process. You haven't made the state the party where you want to be appointed as judge. Mr Rao, you are asking for time. We say there is nothing to be considered in the petition. Why should time be given?" remarked Justice AM Khanwilkar.

Responding to the remarks posed by the bench, Senior Advocate MN Rao at this juncture sought time to file his reply with regards to the queries posed by the bench.

"There are 2 decisions on prospective seniority. The High Court collegium has recommended the name but the Supreme Court collegium has not taken it into consideration. I will make my submission. Please give me some time," submitted the Senior Counsel.

"If a decision is taken by the collegium, there is no judicial review with regards to that. There should be some legal basis. You should understand from the experience as to how the name is processed," remarked Justice AM Khanwilkar.

Accordingly the bench while adjourning the matter for March 28, 2022 in their order said,

"Mr Rao, submits that he may be given some time to answer the queries raised by the court. List this matter on March 28, 2022."

Pursuant to the bench deferring the matter for March 28, 2022, Justice AM Khanwilkar further added, "It will come on Monday. There is nothing to be argued. You should look at the Constitution Bench judgment. We're giving you time. We'll hear from you on Monday."

Senior Advocate AN Nadkarni appeared for Secretary General, Supreme Court.

In the affidavit submitted by the Union before the Top Court, it was stated that Union of India has a limited part in the process involving recommendation of names for elevation as High Court judges.

"The Judges of High Courts are appointed as per the Constitutional provisions laid down in Article 217 and Article 224 and procedure laid down in Memorandum of Procedure ("MoP») prépared in 1998 pursuant to the constitutional bench judgment of this Hon'ble Court in Supreme Court Advocates-On-Record: Association v. Union of India, 1993 (4) SCC 441 read with In Re: Presidential Reference (1998) 7 SCC 739. As per the MoP, the initiation of proposal for appointment of High Court Judges vests with Chief Justices of respective High Courts. Respondent No 2 considers only those persons who are recommended by High Court/ Supreme Court Collegiums. It is submitted that Respondent No.2 on its own does not recommend the name of any Advocate or Judicial Officer for appointment as a Judge of High Court," the affidavit stated.

The petition was filed through Advocate Aruna Gupta.

Case Title: Pramod Kumar and Others v. Secretary General of Hon'ble Supreme Court and Others| WP(C) 1011/2020

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