5 December 2022


High Court of Delhi

R. P. Luthra v. Union Of India & Anr.




Process of appointment of Judges by the Collegium system need not remain on hold

In facts of present case, writ petition filed by Petitioner was dismissed by Single Judge observing that, a High Court cannot declare Supreme Court’s judgment as per incuriam. Further, Constitution Bench of Supreme Court vide order dated 19th November, 2015 while reserving the order had stated that the process of appointment of Judges by the Collegium System need not remain on hold. Consequently, argument that no recommendation could have been made without finalizing of memorandum of procedure is not correct. A Division Bench of this Court in D. K. Sharma v. Union of India has also held that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Contention of Appellant that, Collegium should not have made the recommendation without finalizing Memorandum of Procedure for improvement of Collegium System of appointment of judges suggested by Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in W.P.(C) No.13/2015 titled Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors. is without any substance in light of order of Constitution Bench dated 19th November, 2015 in which while reserving the order, it was made clear that, process of appointment of Judges by the Collegium system need not remain on hold.

Further contention that, impugned recommendation is violative of Articles 14, 16, 19 and 21 of Constitution of India is equally untenable in light of the settled legal position that there is a basic difference between 'eligibility' and 'suitability'. As held in Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC 273, appointment of a Judge of the High Court/Supreme Court requires 'consultation' and fitness of a person to be appointed is evaluated in the consultation process. Thus, it is clear that, evaluation of worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. It is only in the cases of eligibility that, mechanism of judicial review can be invoked and not otherwise. Therefore, contention of Appellant with regard to judicial review of impugned recommendation of Collegium is rejected.

Names recommended by Supreme Court Collegium under impugned recommendation have already been accepted and they have been appointed as Judges of Supreme Court by President of India. Hence, Article 124(4) of Constitution is attracted and therefore, on that ground also the order under appeal dismissing writ petition warrants no interference.


D. K. Sharma v. Union of India, Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC 273

Tags : Collegium Appointment Validity

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