1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1519 OF 2010 V.P. Patil, Advocate ...Petitioner v/s Mr Justice J.N. Patel and others ...Respondents Party in person. Mr D.J. Khambata, Additional Solicitor General with Mr Nitin Jamdar for Respondent Nos.1 and 3. Mr D.J. Khambata, Additional Solicitor General with Mr A.S. Doctor and Mr J.S. Deo for Respondent No.2. Mr Ravi Kadam, Advocate General, Amicus Curie. CORAM : D.K. DESHMUKH AND A.R. JOSHI JJ. DATE : 9TH MARCH 2010. 2 ORAL JUDGMENT (PER D.K. DESHMUKH J.) :- 1] This is a petition filed by a practicing Advocate, seeking a writ of quo warranto for removal of respondent No.1, who is a sitting Judge of this Court. According to the petitioner, the respondent No.1 did not hold the qualification necessary for being appointed as Judge of this Court as laid down by Article 217 of the Constitution of India at the time of his appointment. The facts are not in dispute. The respondent No.1 was enrolled as an Advocate on 27th August 1974. He was appointed as a Judge of the Bombay City Civil Court on 20th April 1987. Thus, before his appointment as a Bombay City Civil Court Judge, he was Advocate for about 13 years. Then he was appointed as an Additional Judge of this Court on 11th March 1996 and as a Puisne Judge on 7th January 1997. According to the petitioner, in terms of Article 217 of the Constitution, in order to be eligible to be appointed as a Judge of this Court, the respondent No.1 should have completed 10 years as a Judge of 3 the Bombay City Civil Court, but when he was appointed as an Additional Judge of this Court, he had not completed 10 years of service as a Bombay City Civil Court Judge and therefore, he was not eligible to be appointed as a Judge of this Court. The petitioner therefore prays for a writ of quo warranto for his removal. 2] We have heard the petitioner in person. He submits that the respondent No.1 was appointed as a Judge of this Court in his capacity as Judicial Officer i.e. Judge of the Bombay City Civil Court and therefore, practice as an Advocate put in by the respondent No.1 before he was appointed as a Judge of the Bombay City Civil Court cannot be taken into consideration for his appointment as a Judge of the High Court. He relied on the judgment of the Supreme Court in the case of Shri Kumar Padma Prasad v/s Union of India and others, reported in (1992) 2 SCC 428 to contend that there are two sources for appointment of Judges of the High Court. The respondent No.1 was appointed from the source of 4 Judicial Officer and as he has not completed 10 years tenure as Judicial Officer, he was not eligible for being appointed as an Additional Judge of this Court. Therefore, according to him, the petitioner is entitled for a writ of quo warranto for removal of the respondent No.1. He also submits that because he is claiming a writ of quo warranto, there is no question of any latches being alleged against him. 3] The petitioner appearing in person submitted that the respondent No.1 has been appointed as a Judge of the High Court, as a Judicial Officer and therefore, as admittedly he has not completed 10 years period as a Judicial Officer, which is mandatory under Article 217(2)(a) of the Constitution of India, he was not eligible and qualified to be appointed as a Judge of the High Court. He further submitted that Article 217(2) prescribes a threshold limit and deals with the question as to who could be elevated as a High Court Judge. He submitted that when eligibility is put in 5 question, it falls within the scope of judicial review. 4] We have heard the Additional Solicitor General appearing for respondents. He submits that Article 217 of the Constitution of India permits appointment of High Court Judges from two sources viz. Persons holding judicial office and Advocates. He submits that Article 217 also permits appointment of persons who may have held judicial office and who might have practiced as lawyer as well. He submits that the two sources from which High Court Judges can be appointed are not water tight compartments. The learned counsel relies on the judgment of the Supreme Court in the case of Mahesh Chandra Gupta v/s Union of India and others, reported in (2009) 8 SCC 273in support of his contention that once the respondent No.1 completed 10 years of practice as an Advocate, he becomes eligible for being appointed as a Judge of the High Court and merely because he joins judicial service, it cannot be said that he looses the qualification that he had acquired. 6 5] The learned Additional Solicitor General heavily relied on the judgment of the Supreme Court in the case of Mahesh Chandra Gupta (supra) to submit that in view of that judgment, it cannot be said that the respondent No.1 was not qualified to be appointed as a Judge of the High Court. He submits that any person whose name is enrolled on the State Bar Council is regarded as an Advocate of the High Court and as the respondent No.1 admittedly was an Advocate of High Court for a period of 13 years, he was eligible to be appointed as a Judge of the High Court. He submitted that a person who has been enrolled as an Advocate and who has held the office of a Member of Court or a Tribunal, both of which exceeds 10 years, is eligible for elevation. He submitted that there is no force in the submission of the petitioner that since the respondent No.1 was holding judicial office when he was appointed as Judge of High Court, he should have been considered under Article 217(2)(a) of the Constitution of India. According to the leaned 7 counsel, the Constitution of India does not create any such quota, it merely prescribed the eligibility criteria. 6] We had appointed the learned Advocate General as amicus curie. We have heard the learned Advocate General. Relying on the judgment of the Supreme Court in the case of Dr K.G. Jalmi and anr. v/s The Speaker and others, reported in AIR 1993 SC 1873, he submitted that as the petitioner is seeking writ of quo warranto, there is no question of latches. He also submitted that because the petitioner is questioning the eligibility of a person to be appointed as Judge of this Court, it will not be appropriate for this Court to decline to hold enquiry on that aspect of the matter on the ground of latches. The learned Advocate General submitted that it is clear from the provisions of Article 217 that while considering a person for appointment as Judge of the High Court, judicial service rendered by the person as also practice of the person as an Advocate can be taken into 8 consideration. Relying on the judgment of the Supreme Court in the case of Kuldip Singh v/s Union of India, reported in AIR 2002 SC 2041 he submitted that though there are two sources from which appointment as Judge of the High Court can be made, there is no quota provided. 7] The debate before us is centered around the provisions of Article 217 of the Constitution of India. They read as under :- 217. Appointment and conditions of the office of a Judge of a High Court - (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal 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, and (shall hold office, in the case of an additional or acting Judge, as provided in 9 Article 224, and in any other case, until he attains the age of sixty two years); Provided that - (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall e vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (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) has for at least ten years held a judicial office in the territory of India; 10 or (b) has for at least ten years been an Advocate of a High Court or of two or more such courts in succession; Explanation  For the purposes of this clause - (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (aa)in computing the period during which a person has been an Advocate of a High Court, there shall e included any period during which the person has held judicial office or the office of a member of a Tribunal or any post, under the Union or a 11 State, requiring special knowledge of law after he became an Advocate; (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August 1947, within India as defined by the Government of India Act, 1935 or has been an Advocate of any High Court in any such area, as the case may be. Perusal of the provisions of Article 217(2) shows that a person becomes eligible to be appointed as a Judge of the High Court on completing 10 years as an Advocate. Perusal of explanation (aa) quoted above shows that in computing the period during which a person is an Advocate, the period during which he held judicial office can also be taken into 12 consideration. If that is done, it is clear that in the year 1996 when the respondent No.1 was appointed as Judge of the High Court, apart from 13 years of practice as an Advocate, he had also 7 years of judicial office to his credit. Thus, in terms of provisions of Article 217, he had 20 years of practice to his credit and therefore, he was fully qualified to be appointed as a Judge of the High Court under Article 217(2). Perusal of the judgment of the Supreme Court in the case of Mahesh Chandra Gupta shows that the Supreme Court has clearly held that so far as Article 217(2)(b) is concerned, what is relevant is only a right to practice and not actual practice. In our opinion, the observations of the Supreme Court in paragraphs 49 and 79 of this judgment are relevant, they read as under:- 49. In our view, Explanation (aa) appended to Article 217(2) is so appended so as to compute the period during which a person has been an Advocate, (sic by including) any period during which he has 13 held the office of a member of a Tribunal after he became an Advocate. As stated by the learned author, quoted above, if a person has been an Advocate for ten years before becoming a member of the Tribunal, Explanation (aa) would not be attracted because being an Advocate for ten years per se would constitute sufficient qualification for appointment as a Judge of the High Court. (emphasis supplied) 79. This argument advanced on behalf of the original petitioner is misconceived. The very purpose for enactment of Articles 217(2)(a) and 217(2)(b) is to provide for a mix of those from the Bar and those from service who have the past experience of working as judicial officers/officers in Tribunals. This was the object behind a policy decision taken in the Chief Justices Conference of 2002. The object of adding Explanation (aa) is to complement 14 Explanation (a appended to Article 21792) and, together, they have liberalized the source of recruitment for appointment to the High Court. Therefore, for eligibility purposes clause (aa) of the Explanation read with sub-clause (b) of clause (2) of Article 217 would apply to Members of ITAT, in the matter of computation of the prescribed period for an Advocate to be eligible for being appointed as a High Court Judge. This aspect of  eligibility has nothing to do with  suitability . Now, applying the law laid down by the Supreme Court to the facts of the present case, it is clear that the respondent No.1 became eligible to be appointed as Judge of the High Court on completing 10 years as an Advocate. Because he was appointed as a Judge of the Bombay City Civil Court, he will not loose the eligibility that he had earned on completion of 10 years as an Advocate. Though it is true that when the respondent No.1 was appointed 15 as a Judge of High Court he was holding judicial office, but it cannot be said that he was appointed as a Judge of the High Court from the quota fixed for service Judges because the Supreme Court in its judgment in the case of Kuldip Singh (supra) has clearly held that the Constitution of India does not provide for any specific quota. The Constitution of India provides that appointment to the office of High Court Judge can be made from two sources. It is clear to our mind that it cannot be said that the respondent No.1 was not eligible to be appointed as Judge of the High Court and therefore, there is no question of issuing a writ of quo warranto of his removal. So far as the aspects whether he was suitable to be appointed as a Judge of the High Court, whether there was an application of mind by the collegium to his practice as an Advocate are the questions which are not raised in the petition and therefore, there is no question of considering those aspects. In any case, in its judgment in the case of Mahesh Chandra Gupta (supra), the Supreme Court has held that the suitability of a person to be 16 appointed as a Judge of the High Court is not justisiable, the only aspect in which enquiry can be made is whether there was effective consultation before his appointment. That aspect is not raised in this petition. Taking overall view of the matter, in our opinion, the petition cannot be entertained. It is rejected. 8] Before parting with the judgment, we must express our gratitude towards Mr Ravi Kadam, Advocate General, appointed by us as amicus curie, for rendering excellent assistance to the Court. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE A.R. JOSHI )