(1) This petition is filed for the issue of a writ in the nature of quo warrant against the first respondent, calling upon him to furnish information under what authority he holds the Public office of a Judge of the High Court of Judicature at Madras, after calling for the records from the second and third respondents.
(2) The first respondent was appointed as a permanent Judge of this High Court on 8th July 1966 and he assumed office on the same date. He was enrolled as an advocate of this Court on 11-12-1939. It is stated that he elected to practise in the subordinate courts at Chingleput till December 1960, when he was appointed as Public Prosecutor, Madras High Court. He was appointed Advocate General in 1964, which office he held till his appointment as a High Court Judge. According to the petitioner on the date of his appointment as High Court Judge, the first respondent had only five years and 7 months practiced in the High Court. The facts stated may be taken as correct, for the purpose of this petition. The appointment is challenged on the ground that the first respondent does not satisfy the qualification of being an advocate of a High court for at least ten years before the date of his appointment. The validity of the appointment is also attacked on the ground that the appointment was not made in accordance with the letter and spirit of the Constitution, and that the State Government committed fraud on the Constitution by conferring on the first respondent a preferment.
(3) The relevant portion of Article 217 of the Constitution of India may be extracted:--
'1. Every Judge of a High Court shall be appointed by the president by warrant under his hand and seal after consultation with he Chief Justice of India, the Governor of the State, and, in the case of appointment of a judge other than the Chief Justice, the Chief Justice of the High Court,...... (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and (a)...........(b) has for at least ten years been an Advocate of a High Court or of two or more such Courts in succession.'
The contention of Mr. Vasantha Pai, the learned counsel for the petitioner, is that the words 'has for at least ten years been an advocate of a High Court' could only be construed to mean that he was actually practising before a High Court for ten years. Reliance was placed on Article 233 of the Constitution in support of this contention. Article 233 relates to the appointment of District Judges and provides that a person shall only be eligible to be appointed as a District Judge, if he has been for not less than seven years an advocate or a pleader. It was contended that, while an advocate or pleader of seven years is qualified to be appointed as a District Judge, Article 217 required that a person 'has for at least ten years been an advocate of a High Court'. The words 'Advocate of a High Court' in contra-distinction to the word 'advocate' simpliciter used in Art. 233 are relied on, to substantiate the contention that an advocate of a High Court could only mean an advocate practicing in the High Court.
(4) The Government of India Act 1935, Section 220(3) provided that a person shall not be qualified for appointment as a Judge of a High Court unless he had for at least ten years been appeared of any High Court. The provision relating to the appointment of a District Judge found in Section 254 was that the person should have been for not less than five years of barrister, a member of the Faculty of Advocates in Scotland, or a pleader. Thus, while section 220 clause (3)(d) would mention the words 'a pleader of any High Court ' Section 254 mentioned only a pleader' without the words 'of any High Court.'
(5) Clause 9 of the Letters Patent empowered the High Court to enroll Advocates, Vakeels and Attorneys. The Legal Practitioners Act, 1879 provided for the entry of Advocates and Vakils. Section 4 provided that every person entered as an advocate or vakil on the roll of any High Court under the Letters Patent shall be entitled to practice in all the subordinate Courts. Provision was also made for the High Court making rules for prescribing the qualifications, admission and certificates of proper persons to be pleaders of subordinate Court. Under the Legal Practitioners Act, there were two Classes (1) Advocates and Vakils on the roll of a High Court under the Letters Patent, and (2) pleaders who were entitled to practice in the subordinate Courts. The Indian Bar Councils Act 1926, provided for admission and enrollment of advocates. Section 8(1) provided that no person shall be entitled as of right to practice in any High Court, unless his name was entered in the roll of the advocates of the High Court maintained under the Act. Section 8(2) empowered the High Court to prepare and maintain a roll of advocates of the High Court in which shall be entered the names of (a) all persons who were, as advocates, vakils or pleaders, entitled as of right to practice in the High Court immediately before the date on which the Act came into force, and (b) all other persons who have been admitted to be advocates of the High Court under the Act, Thus, the section contemplated a roll consisting of persons who were advocates, vakils and pleaders entitled as of right to practice in the High Court, and persons who were admitted to be advocates of the High Court under the Act. Certain requirements as to payment of stamp duty was also provided in the case of advocates, vakils and pleaders, who were entitled as of right to practice. In the context of the provisions of the Letters Patent, the Legal Practitioners Act and the Indian Bar Councils Act, if the words in Article 217 and Article 233 are examined, it will be clear that for qualifying to be a Judge, one must be a person for at least ten years' standing as an advocate of a High Court which would mean an advocate as of right to practise in the High Court whereas Article 233 would also include a person who is an advocate or pleader not so entitled as of right to practise in the High Court. The Government of India Act, 1935, instead of the word 'advocate' used the word 'pleader'. There is nothing in the Constitution of India or the Government of India Act, 1935, from which it can be inferred that a condition that person must be practicing in the High Court itself, has been superimposed. Whether such a provision is desirable or not, we are not concerned. But I do not find any justification for classifying the advocates who are entitled as of right to practise in the High Court into two categories of persons not actually practicing in the High Court and persons not actually practicing in the High Court for the purpose of Article 217 of the Constitution, I an, therefore, unable to accept the contention of the petitioner.
(6) The petitioner has alleged that the State Government did not act in terms of the Constitution, and were influenced by extraneous reasons and irrelevant considerations, and that they committed fraud on the Constitution. The appointment of a High Court Judge is by the president after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. The State Government are, therefore, not directly concerned with the appointment. It is unnecessary to go into the question whether the State Government were actuated by extraneous and irrelevant considerations, as it if futile for the petitioner to contend that the President, the Chief Justice of India and the Chief Justice of the High Court were directly or indirectly influenced by the State Government in the appointment. In this view, it is unnecessary to consider the allegation against the State Government.
(7) There are no merits in this petition and it is therefore dismissed.
(8) Mr. Vasantha Pai learned counsel for the petitioner prays that a certificate to appeal to the Supreme Court under Article 132(1) of the Constitution may be granted in view of the importance of the question. He relied on a decision of the Supreme Court in Election Commission, India v. Venkatrao : 4SCR1144 , in support of his contention that a certificate can be issued by a single Judge of this Court. The mater involves the interpretation of an Article of the Constitution. But I am not inclined to grant a certificate as the petitioner has got a remedy by way of an appeal to a Bench of this Court. The petition is dismissed.
(9) Petition dismissed.