2013 (2) TMI 130 - SC - Indian Laws

Appointment challenge dismissed, judiciary integrity upheld in quo warranto writ petition.

The Court dismissed the writ petition seeking a writ of quo warranto to quash the appointment of respondent No. 3 as a judge of the Andhra Pradesh High ... Challenging appointment of judge of the High Court of Andhra Pradesh - pendency of the criminal case against him - writ of mandamus commanding the Bar Council of Andhra Pradesh to cancel his enrolment as an advocate - two petitioners are advocates of the High Court of Andhra Pradesh - Held that:- A perusal of the court record shows that during the entire period, service of summonses in the ordinary course were not effected on the four accused persons. Although a proclamation under Section 82 and 83 of the Code of Criminal Procedure was ordered to be issued, the record does not show any publication having been made. However, the record does show that service was sought to be effected by beat of drum only on accused 3. There is nothing on the record to show that any attempt, let alone any serious attempt, was made to serve the summons or the non-bailable warrants on any of the accused persons. The purpose in adverting to the proceedings of the criminal case in detail is not to point out the irregularities in the proceeding. Anyone even with a passing acquaintance with the Code of Criminal Procedure can see that gross irregularities were committed practically at every step in the proceeding. Referring to the proceedings to judge whether respondent No. 3 could be said to have any knowledge of the case in which he was cited as accused 4. From the record of the case as discussed it very difficult to hold that respondent No. 3 was even aware that in some record buried in the courts at Mangalagiri he was named as an accused and he was required to appear in the court in connection with that case. Apart from the record of the case, there are external circumstances that strengthen this view. From the resume of respondent No. 3, it may be seen that before his appointment as a judge of the High Court, he was the Additional Advocate General of Andhra Pradesh. If the case would have been within his knowledge it is unimaginable that he would not have attended to it and got it concluded one way or the other. Here it may also be noted that before filing this writ petition before this Court the petitioners had made a representation, both before the Chief Justice of India and the Law Minister, asking for the removal of respondent No. 3 as a judge of the Andhra Pradesh High Court on the same allegations. The representation that came to the office of the Chief Justice of India received full consideration and the Chief Justice of India called for a report on the matter from the Chief Justice of the Andhra Pradesh High Court & made a detailed enquiry and submitted his report stated that it does appear that Justice XXX was unaware of the pendency of the criminal case against him and he deserves to be believed when he says so. Thus no hesitation in holding that at the time respondent No.3 was being considered for appointment as a judge of the High Court, he was unaware of any case being pending in which he was named as an accused and it is quite wrong to refer to him as “an absconder and a proclaimed offender” in the case. This finding leads to another and that is, it is not a case of suppression of any material fact by respondent No.3 or at his behest. No case is made out for issuing a writ of quo warranto quashing the appointment of respondent No. 3 as the judge of Andhra Pradesh High Court. The writ petition owes its origin to a news report published in a Telugu daily newspaper called ‘Sakshi’ on December 27, 2011 based on incorrect facts and is full of statements and innuendos that might easily constitute the offence of defamation leave alone contempt of court. After the news broke out, the petitioners seem to have collected the record of the criminal case and filed this writ petition on that basis it, therefore, appears to that this writ petition is not a sincere and honest endeavour to correct something which the petitioners truly perceive to be wrong but the real intent of this petition is to malign respondent No.3. Issues Involved:1. Maintainability of the writ petition seeking a writ of quo warranto.2. Alleged suppression of material facts by respondent No. 3.3. Validity of the consultation process for the appointment of respondent No. 3.4. Impact of the pending criminal case on the appointment of respondent No. 3.5. Allegations of malafide intent behind filing the writ petition.Detailed Analysis:1. Maintainability of the Writ Petition:The petitioners filed a writ petition under Article 32 of the Constitution, seeking a writ of quo warranto to quash the appointment of respondent No. 3 as a judge of the Andhra Pradesh High Court and a writ of mandamus to cancel his enrolment as an advocate. The Attorney General argued that the writ petition was not maintainable, asserting that the removal of a judge could only be achieved through an impeachment motion passed by Parliament as per Articles 124(4) and 217 of the Constitution. The Court emphasized that judicial review is permissible only on grounds of 'lack of eligibility' or 'lack of effective consultation,' as established in the Mahesh Chandra Gupta case.2. Alleged Suppression of Material Facts:The petitioners contended that respondent No. 3 had concealed the fact of a pending criminal case during his enrolment as an advocate and his appointment as a judge. The Court examined the criminal case records and concluded that respondent No. 3 was unaware of the pending case, as there was no evidence of summons being served or any serious attempt to secure his presence in court. The Court found no deliberate suppression of material facts by respondent No. 3.3. Validity of the Consultation Process:The Court evaluated whether the consultation process for appointing respondent No. 3 was flawed due to the non-consideration of the pending criminal case. It was noted that none of the members of the High Court or Supreme Court Collegia, nor the State or Central Government, were aware of the pending case. The Court held that the consultative process could not be faulted for not considering an unknown fact, as it would impose an impossible burden on the Constitutional Authorities and introduce uncertainty in judicial appointments.4. Impact of the Pending Criminal Case:The petitioners argued that the appointment of respondent No. 3 was vitiated due to the pending criminal case. The Court distinguished this case from the CVC case, where the High-Powered Committee was aware of the pending criminal case against the appointee. In contrast, the pending case against respondent No. 3 was not known to anyone involved in the consultative process. The Court concluded that the unknown pending case did not vitiate the consultation process or the appointment of respondent No. 3.5. Allegations of Malafide Intent:The Court observed that the writ petition appeared to be a ruse to malign respondent No. 3, originating from a news report based on incorrect facts. The petitioners, being competent and experienced counsel, should have objectively examined the criminal case records and reached the same conclusion as the Court. The Court found the writ petition lacking in bona fides and aimed at unjustly inflicting injury on respondent No. 3.Conclusion:The Court dismissed the writ petition, finding it without merit and lacking in bona fides. The petitioners were ordered to pay costs of Rs. 50,000 each, to be deposited in a fund for the welfare of the employees of the Andhra Pradesh High Court within four weeks. The Court emphasized the importance of protecting the judiciary from uncalled-for attacks while upholding institutional integrity.