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Case Number

Matter No. 441 of 1983

Judges

Borooah, J.

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

This writ petition was filed by Shri Subir Chowdhury, a practising Advocate of the Judges Court at Alipore. The petition challenged the practice that Advocates practising in the District Courts of West Bengal — who, according to the petition, possess the requisite qualification under sub-clause (2) of Article 217 of the Constitution — are never considered for appointment as Judges of the High Court. The petitioner alleged violation of fundamental rights under Articles 14 and 19 of the Constitution and sought relief in the exercise of the High Court's constitutional writ jurisdiction.

The maintainability of the writ petition was questioned by Mr. D.P. Wadhwa for the Union of India and by the Advocate-General for the State of West Bengal. The petitioner clarified that he was not himself seeking appointment but was espousing the cause of Advocates practising in District Courts as a class. Several Bar associations and representative counsel supported the petition; the High Court Bar Association opposed it. The matter involved consideration of existing appointment practices and certain recommendations already made for appointments to the High Court.

Legal Issues Presented

Whether Advocates practising in the District Courts of West Bengal who possess the requisite constitutional qualifications under Article 217(2) are eligible and are being considered for appointment as Judges of the High Court.
Whether the writ petition brought by an individual Advocate (who is not himself an aspirant) espousing the cause of a class of Advocates in the District Courts is maintainable under the High Court's writ jurisdiction.
Whether an individual proposed for initial appointment as a Judge has a legal right to be considered (or to compel consideration) for appointment, and whether a writ of mandamus would lie in such circumstances.
Whether a pattern or practice of considering only Advocates from a particular class, religion, community or from the High Court Bar to the exclusion of District Court Advocates would amount to discrimination that can be challenged.

Arguments of the Parties

Petitioner and Supporting Bar Associations

Petitioner (Shri Subir Chowdhury): Brought the case on behalf of Advocates practising in District Courts as a class; not seeking personal appointment but challenging the exclusionary practice.
Mr. Balai Chandra Roy (City Court Bar Association): Submitted that under the Advocates Act there is only one class of Advocates and all should have the right to be considered for High Court appointment; the Chief Justice must seek the best available talent and consider District Court Advocates to widen the field; recommendations should be guided by objective considerations and the Chief Justice's duty is informed by Article 51A(i).
Mr. Biswanath Bajpayee (Calcutta Small Causes Court Bar Association) and Mr. Swadesh Bhusan Bhunia (Bar Council of West Bengal): Supported the contention that District Court Advocates should be considered and, in Mr. Bhunia's submission, sought quashing of pending recommendations on the ground that District Court lawyers were not considered.

Respondents and Opposing Parties

Dr. Debi Prosad Pal (High Court Bar Association): Argued a distinction between an “Advocate” eligible under Article 233(2) (for District Judge) and an “advocate of a High Court” under Articles 124(3)(b) and 217(2)(b); contended that “advocate of a High Court” should be construed literally as one actually practising in the High Court. Also submitted that even if District Court Advocates are eligible, an individual cannot insist that his case must be considered by the Court.
Mr. D.P. Wadhwa (Union of India): Challenged maintainability, argued that no particular Advocate has a constitutional right to demand consideration for appointment though he did not dispute eligibility of District Court Advocates. Emphasised that consideration by the Chief Justice is a mental process and need not be apparent on record.
Mr. P.K. Bose (on behalf of Union): Argued in writing that absence of prior appointments from District Court Bar does not prove non-consideration; that consideration by the Chief Justice is a mental process and must be presumed to have been performed.
Learned Advocate-General for the State of West Bengal: Challenged maintainability and submitted records (with the State) showing that no recommendations for High Court appointment had been made from any member of the Bar practising in any Subordinate Court of West Bengal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S.P. Gupta v. The President of India, AIR 1982 SC 149	- Lawyers have a special interest in preserving judicial independence and may be concerned where that independence is threatened. - A person proposed for initial appointment as a Judge has no right to be considered for appointment; accordingly a mandamus compelling consideration may not lie at the instance of an individual non-appointee.	The court relied on S.P. Gupta to hold that an individual aspirant cannot claim a right to be considered for initial appointment and that mandamus for reconsideration by an aggrieved individual would generally not lie. The court nevertheless accepted the principle that if an entire class is excluded in recommendations, those deprived can challenge discrimination.
Prof. Chandra Prakash Agarwal v. Chaturbhuj Das, AIR 1970 SC 1061	After the Advocates Act, 1961 (Sec.16), there are only two classes of Advocates (senior advocates and other advocates), and the distinction between the terms “an advocate” and “an advocate of a High Court” loses significance.	The court applied this principle to conclude that separate meanings cannot be attributed to the word “advocate” in different constitutional provisions and that Advocates practising in subordinate courts are not excluded from being “advocates” eligible under Article 217(2)(b).

Court's Reasoning and Analysis

The court proceeded by first addressing maintainability. It accepted that the petitioner was not seeking personal relief but was espousing the cause of a class (Advocates practising in District Courts), which rendered the matter justiciable in the High Court's writ jurisdiction. The court noted authorities indicating that lawyers, as officers of the court, have a legitimate concern in matters affecting the judiciary (citing S.P. Gupta).

On the question whether the word “advocate” in Article 217 should be limited to those practising in the High Court, the court relied upon the Advocates Act, 1961 (Section 16) and the Supreme Court's decision in Prof. Chandra Prakash Agarwal to conclude that after the Advocates Act there are only two classes of Advocates and the word “advocate” should not be given separate, distinct meanings across different constitutional provisions. Thus, District Court Advocates who satisfy Article 217(2) qualifications are not excluded from eligibility solely because they do not practise in the High Court.

The court then addressed the doctrine that an individual proposed for initial appointment has no enforceable right to be considered and that a mandamus would generally not lie, as established in S.P. Gupta. However, the court distinguished a class-based grievance: if recommendations had, as a matter of practice, considered only advocates of a particular class (for example, those practising exclusively in the High Court) to the exclusion of District Court Advocates, that could amount to discrimination and could be challenged by the deprived class.

Factually, the petition averred — and the Chief Justice of India and the Acting Chief Justice did not controvert — that District Court Advocates had never been considered for appointment to the High Court. The Acting Chief Justice declined to produce records; the Advocate-General for the State produced State records that, according to the State, showed no recommendations having been made from subordinate bar advocates. On this basis the court took it as accepted that, to date, no Advocate practising in any District Court of West Bengal had been considered for appointment to this High Court.

The court expressed a policy and administrative concern: the Chief Justice, as a constitutional functionary tasked with initiating recommendation, must ensure the best available person is recommended. To avoid arbitrariness and to broaden the field for proper selection, the Chief Justice should formally consider whether District Court Advocates are suitable and should make provision in the records or recommendations reflecting such consideration. The court cited practical reasons (differences in fees, likelihood of acceptance) and the Law Commission report on the difficulties in securing willing elevation from senior Bar members as additional context supporting consideration of the District Bar.

Holding and Implications

Holding: The court declared that Advocates practising in the District Courts are eligible for appointment as Judges of the High Court and directed that in making future recommendations the Chief Justice of the High Court should also consider whether there are Advocates practising in the District Courts who are suitable to be recommended for appointment as Judges of the High Court.

Implications and immediate consequences:

The Chief Justice is required, when making future recommendations, to consider District Court Advocates alongside other eligible candidates; the manner (modalities) of such consideration may be worked out by the Chief Justice in consultation with senior colleagues or by inviting suggestions from District Judges or the Chief Judge of the City Civil Court.
The court declined to quash the existing recommendation(s) already made by the former Chief Justice; it left to the President of India (Central Government) to decide whether to act on existing recommendations, seek fresh recommendations, or fill vacancies from other States in accordance with Government policy.
All interim orders in the matter were vacated and there was no order as to costs.

Note on precedent: The opinion directs future administrative practice in the High Court of Calcutta and relies on earlier Supreme Court authority, but the text of the opinion itself does not state that it is laying down a universally binding principle beyond the present case and does not purport to overrule or depart from cited Supreme Court decisions.

Disposition

The Rule was disposed of with the declaratory direction described above. Interim orders were vacated and there was no order as to costs.

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Subir Chowdhury v. Union Of India And Others

This writ petition filed by Shri Subir Chowdhury, a practising Advocate of the Judges Court at Alipore raises a question of some Constitutional Importance affecting the selection and appointment of Judges in the High Court. The petitioner's grievance is that the Advocates practising in the District Courts of West Bengal and who possess the requisite qualification as stipulated in sub-clause (2) of Article 217 of the Constitution to be appointed as High Court Judges are never considered for such appointment and as such the fundamental rights guaranteed to such Advocates under Arts. 14 and 19 of the Constitution have been violated.

2. At the very inception the question of maintainability of this Writ Petition has to be gone into as this question has been mooted by Mr. D.P Wadhwa appearing on behalf of the Union of India and by the learned Advocate-General appearing on behalf of the State of West Bengal.

3. At the time of praying for a Rule Nisi as well as in the course of hearing of the Writ Petition Shri Chowdhury made it clear that he was not an aspirant for the post of a High Court Judge but he was espousing the cause of the Advocates who practise in the District Courts of West Bengal. No particular Advocate can come before this Court and say that he has a constitutional or legal right to be considered for appointment as a High Court Judge. On the other hand, if an Advocate practising in a District Court raises a question on behalf of the District Courts' Advocates as a class that although some of them may possess the requisite constitutional qualification for being appointed as a High Court Judge, appointments to the High Court from the Bar have till now been the sole monopoly of the Advocates practising in this High Court, the question can certainly be gone into by this High Court in the exercise of its powers under the Constitutional Writ Jurisdiction.

4. In the case of S.P Gupta v. The President of India reported in AIR 1982 SC 149 Mr. Justice P.N Bhagwati made the following observations (at p. 195):

“The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justice and it can hardly be disputed that without their help, it would be well nigh impossible for the Court to administer justice. They are really and truly officers of the Court in which they daily sit and practice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority, they would naturally be concerned about it, because they are equal partners with the Judges in the administration of Justice.”

5. Mr. Chowdhury was supported by Mr. Balai Chandra Roy appearing on behalf of the City Court Bar Association. Mr. Biswanath Bajpayee on behalf of the Calcutta Small Causes Court Bar Association and Mr. Swadesh Bhusan Bhunia on behalf of the Bar Council of West Bengal. Mr. Roy contended that under the Advocates Act there is only one class of Advocates and all of them have a right to be considered for appointment as High Court Judges. It was further submitted that the constitutional obligation of the Chief Justice of the High Court was to find out the best available talent and by considering the cases of the lawyers practising in the subordinate Courts, the Chief Justice would have a wider field to cover and there is always a possibility of better selections being made. Mr. Roy further submitted that the act of recommending the names by the Chief Justice cannot be a matter entirely for his subjective satisfaction and the Chief Justice must be guided by objective considerations to select the best available talent: this was a fundamental duty under Article 51A(i) of the Constitution.

6. Mr. Swadesh Bhusan Bhunia supported the arguments of Mr. Roy and further contended that inasmuch as in making the pending recommendations which are awaiting the final orders of the President of India the case of the District Court's lawyers was not considered, the entire recommendations should be quashed.

7. Dr. Debi Prosad Pal appearing on behalf of the High Court Bar Association has opposed the Rule. His first submission is that there has to be a distinction between an “Advocate” who is eligible to be appointed as a District Judge under Art. 233(2) of the Constitution and an “Advocate” who is qualified to be appointed as a Judge of the Supreme Court or the High Court in accordance with the provisions of Arts. 124(3)(b) and 217(2)(b) respectively. Dr. Pal's contention is that an Advocate of a High Court appearing in the last two Articles has to be construed literally to mean an Advocate actually practising in the High Court. Dr. Pal's second submission is that even assuming that an Advocate practising in the District Court Bar is qualified to be a Judge of the High Court, he has no right to come before this Court and say that his case must be considered.

8. Mr. Wadhwa apart from challenging the maintainability of the writ petition submitted that no particular Advocate has any constitutional or legal right to demand that he should be considered for appointment as a Judge of the High Court. Mr. Wadhwa, however, did not dispute the eligibility of Advocates practising in the District Courts to be considered for appointment as High Court Judges. Mr. Wadhwa's arguments were quite brief but he quoted extensively from certain observations made by the different learned Judges in the case of S.P Gupta (AIR 1982 SC 149) (supra). Mr. P.K Bose in his reply on behalf of the Union of India contended in writing:

“Mere fact that no Judge of the Calcutta High Court has yet been appointed from the District Court Bar does not raise any irresistible conclusion that no name of Advocates from the District Court Bar was ever considered by the Hon'ble the Chief Justice of the Calcutta High Court. Consideration by the Hon'ble the Chief Justice is a mental process and need not be apparent on the records. It is to be presumed that the Hon'ble the Chief Justice of the Calcutta High Court knew constitutional provisions and his duties relating to the appointment of the Judges of this Court and he did his duties.”

9. The learned Advocate-General appearing for the State of W.B has also contended that what passes through the mind of a particular Chief Justice at the time the question of making recommendations from the members of the Bar arises is within the mind of the Chief Justice and cannot possibly be known to others. The learned Advocate-General, however, produced before me the records relating to the appointments to the High Court which were available with the State Government and submitted after going through the records that till today no recommendations have been made for appointment to the High Court from any member of the Bar practising in any Subordinate Court of West Bengal.

10. After the coming into force of the Advocates Act 1961 there are only two classes of Advocates viz., Senior Advocates and other Advocates (vide S. 16(1) of the said Act). Therefore, separate meanings cannot be attributed to the word “Advocate” under Art. 233(2) of the Constitution on the one hand and Art. 124(3)(b) and Art. 217(2)(b) on the other. The Supreme Court has also made this position clear in the case of Prof. Chandra Prakash Agarwal v. Chaturbhuj Das reported in AIR 1970 SC 1061 where it has been observed at p. 1064):

“It is true that in this clause the word “advocate” is used without the qualifying words “of a High Court”. It is difficult, however, to see how the fact that the word, “advocate” only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression “advocate of any High Court” in Article 217, or that expression must mean an advocate who has had the necessary number of years' practice in the High Court itself. The distinction, if any, between the words, “an advocate” in Article 233(2) and the words, “an advocate of a High Court” in Article 217(2)(b) has no significance in any event after the coming into force of the Advocates Act, 1961, as by virtue of Sec. 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.”

11. The next and the most crucial question that requires consideration in this case is whether a particular Advocate, whether he be an Advocate of the High Court or a Subordinate Court has the right to come before this Court and pray for an appropriate Writ demanding that his case should be considered for appointment as a Judge of this High Court? The answer is obviously “no”. The Supreme Court in the case of S.P Gupta v. The President of India observed (AIR 1982 SC 149):

“No person, who is proposed for initial appointment as a Judge would be entitled to complain against the decision of the Central Government not to appoint him, because he would have no right to be considered for appointment as a Judge.”

12. The Court further observed:

“Further, the minimum Qualifications for appointment as a Judge (prescribed in sub-art. (2) of Art. 217) would be possessed by numerous advocates and by a fair number of service Judges but even so, the special machinery for making appointments is indicated in Art. 217(1), obviously designed to recruit persons of great ability, high character and unquestioned integrity to the Bench. All these factors go to show that at the stage of initial recruitment under Art. 217(1), no one has a right to be appointed a Judge of the High Court nor the right to be considered for such appointment and, therefore, it does appear that a writ of mandamus at the instance of an aggrieved person would not lie. But at the same time I am quite sure whether simply because a mandamus directing the President to reconsider the case of a non-appointee may not lie it would be correct to say that in the case of non-appointment at the stage of initial recruitment the mandate of consultation becomes otiose, superficial or inconsequential, or that a positive breach thereof may not provide any relief whatever to the aggrieved person but since that question does not arise in the instant case I would rather leave it open for decision in an appropriate case and proceed on the basis that a mandamus for reconsideration of his case would not lie as the aggrieved person does not have the right to be considered.”

13. But if, for instance, in making recommendations for appointments to the High Court only Advocates belonging to a particular class, religion or community are considered to the exclusion of others, the Advocates of the deprived class, religion or community can certainly ventilate their grievances and contend that they are being discriminated against and their cases should be considered.

14. The averment made in the Writ Petition that cases of Advocates practising in the District Courts have never been considered for appointment to the High Court, has not been controverted by either the Hon'ble the Chief Justice of India or the Acting Chief Justice of this Court. Through the Secretary of the learned Acting Chief Justice I asked for the records relating to the appointment of Judges of this Court but the learned Acting Chief Justice declined to make the said records available to me. As such I can take it to be an accepted Position that till today no Advocate practising in any District Court of West Bengal has been considered for appointment to the post of a Judge of this Hon'ble Court.

15. A scrutiny of the appointments made to the Bench of this High Court since independence will also reveal that not a single Advocate practising in the lower Court has been elevated to the Bench of this Court. As such, it is certainly open to the Writ petitioner to urge that the advocates of the District Courts are being discriminated against in the matter of appointment to the High Court and their cases should be considered when recommendations would be made in the future.

16. It was urged both by Mr. P.K Bose and the learned Advocate-General that whether a particular Chief Justice considered the cases of any particular Advocate, whether he be of the High Court or of the lower Court cannot be ascertained as the consideration might have taken place in the mind of the Chief Justice. The Chief Justice of a High Court is one of the constitutional functionaries involved in the appointment of a High Court Judge. A Chief Justice after all is a human being who might be subjected to extraneous influences and in order to rule out any possibility of arbitrariness, there should be some formal expression of the consideration in the records available and in the recommendations sent up to the President of India.

17. The Constitution of India has fully safeguarded the independence of the Judges of the High Court by guaranteeing complete safety of their tenure and laying down rigid procedures for their removal. The independence of the Judiciary has also been sought to be safeguarded by the procedure laid down for the appointment of Judges. Under Art. 217(1) of the Constitution a Judge of the High Court is appointed by the President of India after consultation with the 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. Although there is no bar to any of the three Constitutional functionaries in recommending the name of a particular Advocate for appointment to the post of a High Court Judge, however by convention the procedure for the appointment of a High Court Judge is initiated by the Chief Justice of a High Court who sends his recommendation to the Governor of the State who in turn forwards the same to the Chief Justice of India to be placed before the President of India or in other words the Central Government for final appointment.

18. A very important duty is therefore, cast on the Chief Justice of the High Court who has to ensure that the best available person with good legal acumen and of unimpeachable integrity and without any political or religious bias is recommended by him for appointment. In looking for such a person the wider the field, the better is the chance of a proper selection. There is yet another reason why it may be necessary to look beyond the boundaries of the High Court in making recommendations from the Bar. A High Court Judge's take-home pay varies between 200 to 300 Gms. depending on whether or not he contributes to the provident fund. Any good lawyer who can be considered to be suitable for elevation to the Bench can earn this amount in less than a week. So the Chief Justice's invitation to join the Bench is often declined and as a result lawyers who do not command a good practice have to be recommended. The rate of fees of the Advocates practising in the District Courts is not as high as that of those practising in the High Court and as such more suitable persons may be available from the District Bar to join the Bench.

19. The Law Commission of India in its 58th Report on Structure and Jurisdiction of the Higher Judiciary published in January 1974, in paragraph 10.15 of Chapter 10 has made the following observations:

“After the Second World War the cost of living has been steadily increasing, until we have reached a stage when it can be said without any exaggeration that Judges, who draw a salary of Rupees 3,500/- are finding it difficult to live a life with ordinary amenities much less a life of comfort and ease. On the other hand, after the Second World War, the professional gains at the Bar have increased by leaps and bounds. The inevitable result of this anomalous situation has been that senior members of the Bar have lost faith in the validity of the principle which governed the ethics of the Bar in the past, and which compelled them as a matter of duty to the profession to accept an invitation of the Chief Justice to join the Bench. In the past, if the Chief Justice of the High Court sent for a member of the Bar and offered him an invitation to be his colleague, it was thought to be a matter of duty to the nation to say ‘yes’ and never to decline the offer. Decline in the faith of this professional principle has now led to this unfortunate and distressing result that the Chief Justice of every High Court has the experience of getting a ‘no’ to his request from several members of the Bar. This is a circumstance the relevance of which cannot be ignored in considering the present problem.”

20. If a Munsif can become a High Court Judge. I fail to understand why a District Court lawyer, who possesses the requisite qualification cannot be elevated to the Bench of the High Court. In this context I may also mention that Advocates who have passed the Attorneyship Examination are also eminently suited to become Judges of the High Court. It is unfortunate that in the history of India only one Solicitor had been appointed as a High Court Judge and he is now an eminent Judge of the Supreme Court of India.

21. I, therefore, dispose of this Rule with a declaration that Advocates practising in the District Courts are eligible for appointment as High Court Judges and in making future recommendations the Chief Justice of the High Court should also consider whether there are Advocates practising in the District Courts who are suitable to be recommended for appointment as Judges of the High Court. The modalities for such consideration may be worked out by the Chief Justice in consultation with his senior colleagues or suggestions can be invited from the different District Judges or the Chief Judge of the City Civil Court.

22. Although Mr. Swadesh Bhusan Bhunia has asked me to quash the recommendation which has already been made by the former Chief Justice I do not think I can do so. It is up to the President of India, viz., the Central Government to decide whether appointments to the existing vacancies of this High Court will be filled up on the basis of the recommendations already made or fresh recommendations will be sought from the Chief Justice or the vacancies will be filled up by appointments from other States in conformity with the recent policy of the Government of India that one-third of the complement of the High Court Judges will be from outside the State.

23. All interim orders are vacated.

24. There will be no order as to costs.

Order accordingly.

Subir Chowdhury v. Union Of India And Others

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner and Supporting Bar Associations

Respondents and Opposing Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Subir Chowdhury v. Union Of India And Others

Comments