Constitution Doesn't Prescribe Reservation, Written Tests For HC Judge Appointment; Collegium Is Judge-Made Law But Binding: MP High Court

In a recent development, the Madhya Pradesh High Court has observed that though the collegium system owes it's existence to "Judge-made law", it is binding on every court, executive and the legislature as per Article 141 of the Constitution.

The Division Bench of Acting Chief Justice Sheel Nagu and Justice Amar Nath (Kesharwani) thus dismissed the plea moved by a lawyer to quash the appointments made to the office of High Court judges last November. The court refused to entertain the writ by reasoning that the grounds taken were insufficient and contrary to constitutional provisions.

It emphasised that the post of a High Court judge cannot be compared to that of an executive civil post. The post of High Court judge is a constitutional office and the appointments are made by solely adhering to the procedure prescribed in the constitution, the court added.

“…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…”, the court reasoned why there is no requirement of issuing advertisements or conducting selection tests in such matters.

The Constitution does not prescribe any representation or proportionate representation for all categories in appointments, and hence, the argument put forth by the petitioner-advocate about the excess of forward class representation wouldn't hold ground, the court held. Similarly, the Constitution and the judge-made law are silent about SC/ST, OBC or EWS reservations in appointments.

“…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 Apex Court…”, the court added.

Background

In this writ petition, the advocate challenged the legality and validity of the notification from November 2023, issued by the Ministry of Law & Justice, appointing Justices Vinay Saraf, Vivek Jain, Rajendra Kumar Vani, Pramod Kumar Agrawal, Binod Kumar Dwivedi, Dev Narayan Mishra and Gajendra Singh as the judges of MP High Court.

The petitioner challenged the said notification issued under Article 217(1) of the Constitution based on the following grounds: i) petitioner has not been considered for appointment, though eligible under Article 217(2)(b) by the completion of 10 years' practise at the High Court, ii) No advertisement issued before the said appointments were made, iii) No SC/ST, OBC or EWS candidate was considered for the appointment, and iv) over-representation of forward class in collegium as well as the appointments made.

Further Observations

“…The concept of collegiums is not found in the Constitution, but came to be recognized as principal selecting body for appointment of a High Court Judge by Judge-made law in series of judgments of Apex Court…”, the bench sitting at Jabalpur clarified by relying on the extracts from Supreme Court Advocates-on-Record Association & Ors. v. Union of India (1993).

The court noted that Article 217(1) only denotes minimum eligibility criteria for appointment as a High Court Judge.

“…The aforesaid does not imply that all advocates who have practised in the High Court for at least 10 years or more are to be necessarily considered by the collegium of the High Court and as well as of the Supreme Court.” the court stated the obvious inference.

Hence, for the lack of sufficient grounds, the court dismissed the advocate's plea challenging the appointment of judges.

Counsel for Petitioner: Adv. Uday Kumar

Counsel for Respondent State: Deputy Advocate General B.D. Singh

Citation: 2024 LiveLaw (MP) 91

Case Title: Maruti Sondhiya v. Union Of India Through Special Secretary, Ministry Of Law And Justice & Ors.

Case No: Writ Petition No. 28550 of 2023

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