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Cannot Equate Judicial Office With Ordinary State Services: Karnataka HC Junks Plea For Recruitment Of Judges By Advertisements [Read Order]

Apoorva Mandhani
18 Oct 2018 6:22 AM GMT
Cannot Equate Judicial Office With Ordinary State Services: Karnataka HC Junks Plea For Recruitment Of Judges By Advertisements [Read Order]
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The Karnataka High Court recently dismissed a petition for doing away with the collegium system of appointments and recruiting to the judiciary through public advertisements/notifications.

In doing so, Justice BV Nagarathna emphasised on the fact that the judicial office is a constitutional position and cannot be equated with ordinary state services in matters of appointment.

“…the Office of a Judge of the High Court or Supreme Court is a constitutional position or Office and not a post in the service of the State. Having regard to the scheme of the Constitution and Constitutional Jurisprudence…the Office of a Judge of Superior Judiciary (High Court and Supreme Court) is not a post to be filled by recruitment or by way of promotion as is the practice visa-a-vis a service under the State,” he explained.

The court was hearing a petition filed by two Advocates—Aravinda Kamath Puttur and VL Jagadish, and one Prashanth Murthy, who identified himself as “common man”. They had essentially demanded that appointment of Judges of the high courts and Supreme Court be made by inviting applications through advertisement/notification.

The petitioners had also suggested that references be taken from members of the Bar, Bar Associations, sitting and retired Judges, political parties and other stakeholders. They had further alleged denial of opportunities to first generation lawyers.

The court, at the outset, noted that the petition has been filed in private interest and not in public interest, noting that counsel representing the petitioners, Advocate Mathews J. Nedumpara had expressly stated that the two petitioner-Advocates are eligible to be considered for appointment as judges of the court.

It also dismissed the “common man’s” petition, highlighting the fact that he had no locus standi to approach the court in the matter as he wasn’t eligible for appointment as a judge anyway. It in fact asserted that he was a “busybody or a meddlesome interloper who has no interest whatsoever in the subject matter of this writ petition and has possibly lent his name to this writ petition only to grab some publicity without having any stakes whatsoever in the matter”.

It then opined that the reliefs sought by the petitioners do not stand in view of the decisions in the Second Judges case and the Third Judges case, both of which had highlighted the primacy of the judiciary in appointment and transfer of judges. The collegium system of appointments had also evolved following the law laid down in the Third Judges case. The position stood reiterated in the National Judicial Appointments Commission case.

Referring to the Apex Court’s observations in the three cases, the court asserted, “…the above prayers sought by the petitioners herein are blatantly opposed to the law laid down by the Hon’ble Supreme Court with regard to the manner of appointment of Judges to High Courts and Supreme Court and as to what has been reasoned by the Hon’ble Supreme Court in the dicta referred to above. 

When the Constitution has prescribed a particular mode of appointment of Judges to the High Courts as well as Hon’ble Supreme Court, which have been considered and a system of appointment has been integrated into the provisions of the Constitution by the Hon’ble Supreme Court, which has been further emphasized in the NJAC case, petitioners cannot seek a different method of appointment of Judges to be adopted to High Courts as well as the Supreme Court. The aforesaid prayers sought by the petitioners being in absolute contradiction to the law as it exists presently have to be rejected having regard to the aforesaid dicta of the Hon’ble Supreme Court.”

The court therefore dismissed the plea, while also expressing its anguish over the nature of the petition, observing that the petition is “ingenious, misconceived and possibly filed to attract publicity and with a reckless intention to re-open what is a closed chapter on the aspect of appointment of Judges to High Courts and Supreme Court”.

Read the Order here

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