DALPATRAJ BHANDARI Vs. PRESIDENT OF INDIA

JUDGEMENT

(1.) This appeal under S. 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgement of the learned single Judge of this Court dated 25-1-1991 whereby the writ petition filed under Art. 226 of the Constitution by the petitioner-appellant has been dismissed.

(2.) The facts necessary to be noticed for the disposal of this appeal briefly stated are : that the petitioner-appellant is a practising Advocate in the High Court of Judicature for Rajasthan at Jodhpur. He was enrolled as an Advocate on 27-12-1965 under the Advocates Act, 1961. He being a practising Advocate is very much interested in the matter of appointment of Chief Justice and other Judges of High Court and Supreme Court of India. He has submitted that he fulfils the qualifica-tion for appointment as Chief Justice or Judge of the Supreme Court, or Chief Justice or Judge of the High Court as laid down by Arts. 124(3)(b) and 217(2)(b) of the Constitu-tion. According to him, these appointments are the property of the State and thousands of Advocates who are eligible to such appoint-ments are being denied these appointments without proper consideration. He has submit-ted that the respondents have not afforded an opportunity of consideration for appoint-ment to the post of Chief Justice/Judges of the Supreme Court or the Chief Justice/Judges of the High Court to such eligible Advocates and, therefore, this action on the part of the respondents was always arbitrary and based on adoption of method of pick and choose and, therefore, it is violative of the principles of natural justice. These appoint-ments have been made in flagrant violation of the provisions of the Constitution. He has contended that the Executive wing of the Government has no say in the matter but it is interfering in the matter of appointment to the post of Chief Justice/Judges of the Supreme Court or the Chief Justice/Judges of the High Court and, therefore, these appointments are invalid. He has further contended that for filling up these posts, no applications have been invited and appoint-ments have been made a close secret. Accord-ing to him, when from the posts of President of India, Vice President of India and Prime Minister of India to the post of a peon, persons are selected by applying provisions of Arts. 14 and 16 of the Constitution then why the procedure of pick and choose is applied for appointment to the posts of Chief Justice/Judges of the Supreme Court and Chief Justices and Judges of the High Courts. He has, therefore, claimed that all appointments, to the posts of Chief Justice/Judges of the Supreme Court and Chief Justice/Judges of the High Courts, made after the commence-ment of the Constitution of India are against the provisions of the Constitution of India, Law, Equity and good conscience as also are violative of Arts. 14 and 16 of the Consti-tution.

(3.) The petitioner has further submitted that he does not know how persons have been selected to the posts of Chief Justice/Judges of the High Courts and Chief Justice/Judges of the Supreme Court till today. He, however, concedes that the respondents have adopted the method of appointments to the posts of Chief Justice/Judges of the Supreme Court and Chief Justices/Judges of the High Court by adjudging the suitability of Advocates on the basis of case-laws etc. but this method has not come to his knowledge through respond-ents by way of replies but it has come to his notice through the judgements rendered by the Judges themselves. He has, therefore, doubt as to the worth of the persons who are appointed as Judges/Chief Justices of the Supreme Court and High Courts. According to him, these appointments are based on fraud on the Constitution. They are not only mala fide but they are also void, non est and illegal and are liable to be set aside. He has submitted that the uncertainty that results on account of lack of knowledge about appoint-ment procedure results in chaos amongst eligibles and, therefore, citizens are loosing faith in the appointment of High Court Judges because all eligibles are not given an opportunity of consideration. He has, there-fore, submitted that all appointments made after the commencement of the Constitution, are against basic concept of Constitution and thus they are liable to be set aside.