Supreme Court of India
Chirag Bhanu Singh vs High Court Of Himachal Pradesh on 6 September, 2024
Author: Hrishikesh Roy
Bench: Prashant Kumar Mishra, Hrishikesh Roy
2024 INSC 660
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 312 OF 2024
CHIRAG BHANU SINGH & ANR. ...PETITIONER(S)
VERSUS
HIGH COURT OF HIMACHAL PRADESH & ORS. …RESPONDENT(S)
JUDGMENT
Hrishikesh Roy, J.
1. Heard Mr. Arvind P. Datar, the learned Senior Counsel
appearing for the writ petitioners. The High Court of Himachal
Pradesh is represented by Dr. S. Muralidhar, the learned Senior
Counsel.
2. This writ petition under Article 32 of the Constitution of India
has been filed by the two seniormost District and Sessions
Judges serving in the State of Himachal Pradesh. The prayer in
the writ petition reads thus:
Signature Not Verified
Digitally signed by
NITIN TALREJA
“(a) Issue writ/writs including a writ in the nature of
Date: 2024.09.06
13:48:37 IST
Reason:
certiorari calling for the minutes of meeting of the
collegium of the Hon’ble High Court of Himachal
Pradesh whereby names of officers junior to thePage 1 of 22
present petitioners have been recommended for
elevation as Judges of the Hon’ble High Court ignoring
the directions of reconsideration given by the Hon’ble
Collegium of Hon’ble Supreme Court of India.
(b) Issue writ/writs, order or direction, writ being in
the nature of mandamus, directing the Respondent
No. 1 to consider the names of the Petitioners as
directed by the Hon’ble Collegium of the Hon’ble
Supreme Court of India vide Resolution dated
4.1.2024..”FACTS
3. The petitioners i.e. Chirag Bhanu Singh and Arvind Malhotra
were recommended by the then Collegium of the High Court on
6th December 2022 for elevation as judges of the Himachal
Pradesh High Court. On 12th July 2023, the Supreme Court
Collegium, however, deferred their consideration. Thereafter, on
4th January,2024, the Supreme Court Collegium in its wisdom
resolved that the proposal for the elevation of both be remitted
for reconsideration to the Chief Justice of the Himachal Pradesh
High Court. In the letter dated 16th January,2024, addressed by
the Minister for Law and Justice to the Chief Justice of the
Himachal Pradesh, in reference to the Supreme Court
Collegium Resolution dated 4th January,2024, a request was
made that fresh recommendations be sent for the two officers
Page 2 of 22
against the available service quota vacancies in the Himachal
Pradesh High Court.
4. The grievance of the writ petitioners is that the High Court
Collegium without first reconsidering the two petitioners in
terms of the Supreme Court Collegium Resolution dated 4th
January,2024 as communicated in the Law Minister’s letter
dated 16th January,2024 had recommended two other judicial
officers for elevation. The argument is that if the latter
recommended persons are considered for appointment ahead of
the two petitioners, it would amount to ignoring their seniority
and long-standing unblemished service.
5. On 13th May,2024, adverting to the contentions raised, this
Court issued notice only to the Registrar General of the
Himachal Pradesh High Court with the following order:
“1. Heard Mr. Arvind Datar, learned senior counsel
appearing for the petitioners.
2. The counsel would submit that the two petitioners
are the senior most judicial officers serving in the
State of Himachal Pradesh. Their names were
recommended for elevation to High Court Judgeship
in December, 2022. The Supreme Court Collegium on
12.07.2023 however resolved to defer consideration
for the two petitioners for the present with the
observation that it will be taken up by the Collegium
at an appropriate stage. The senior counsel then
submits that the persons who were recommended inPage 3 of 22
December, 2022 along with the petitioners have since
been appointed as Judges of the High Court on
28.07.2023.
3. The Supreme Court thereafter on 04.01.2024
resolved that the proposal for elevation of the two
petitioners be remitted to the Chief Justice of the
Himachal Pradesh High Court for fresh
recommendation by the High Court. This decision is
reflected in the communication dated 16.01.2024
addressed by the Minister for Law and Justice to the
Chief Justice of the Himachal Pradesh High Court
where request is made that fresh recommendations be
sent for the two officers i.e., Chirag Bhanu Singh and
Arvind Malhotra against the unfilled vacancies from
service quota in the Himachal Pradesh High Court.
4. Projecting the grievances of the petitioners, Mr.
Datar would submit that the Himachal Pradesh High
Court Collegium on 23.04.2024 has recommended the
names of two other Judicial Officers for elevation as
High Court Judges without first acting on the
recommendations of the Supreme Court Collegium
and the 16.01.2024 letter of the Law Minister, for
reconsideration of the two petitioners. Since both
petitioners are the senior most judicial officers, Mr.
Datar contends that if recently recommended judicial
officers are considered for elevation, it will cause
serious prejudice to the expectations of the petitioners
who have unblemished service record as Judicial
Officers.
5. Issue notice only to the Registrar General of the
Himachal Pradesh High Court so that appropriate
information can be obtained on whether the High
Court Collegium had reconsidered the cases of the two
petitioners, pursuant to the Supreme Court
Resolution dated 04.01.2024 and the Law Minister’s
Communication dated 16.01.2024.”
6. Following the above notice, a Report in sealed cover was filed by
the Registrar General of the Himachal Pradesh High Court. The
Page 4 of 22
Report was perused and was also furnished to the learnedCounsel for the writ Petitioners.
7. The Report of the Registrar General, reflected that the
Resolution of the Supreme Court Collegium (dated 4th January,
2024) was never received by the Chief Justice of the High Court.
It was further stated that the Chief Justice of the High Court
had written to the Chief Justice of India on 11th December 2023
seeking guidance on whether the Collegium of the Supreme
Court needed further inputs about the suitability of the two
officers for elevation as High Court judges. On 6th March 2024,
the Chief Justice of the High Court individually addressed a
letter to the Supreme Court Collegium on the suitability of the
petitioners. This is projected to be in full compliance of the
resolution dated 4th January, 2024 of the Supreme Court
Collegium. The report also notes that a representation was
made by one of the Petitioners to the Chief Justice of India
against non-consideration for elevation. This letter, it is alleged
was contemptuous.
8. When the present matter was next heard on 23rd July, 2024,
this Court called for the Supreme Court Resolution dated 4th
Page 5 of 22
January, 2024 as the parties wanted to be sure of the same, to
make further submissions. A copy of the Supreme Court
resolution was then produced before this Court and was allowed
to be perused by the respective counsel for the parties.
SUBMISSIONS
9.1. Mr. Datar, the learned Senior Counsel projected that the two
petitioners were direct recruits and the seniormost district
judges in the State of Himachal Pradesh. Over the last two
decades, both have had a blemish-free record and all their 17
ACRs have either been ‘Outstanding’ or ‘Excellent’. It was then
submitted that as the two seniormost judges, they have a
constitutional right for reconsideration of their names.
Referring to paragraph-10 of the Registrar General’s Report, the
senior counsel argues that the issue of elevation has to be
collectively considered by the High Court Collegium and not by
the Chief Justice acting alone. As regards the letter written by
one of the judicial officers to the Chief Justice of India, it was
submitted that it only highlights his judicial journey and the
anguish for not being considered for elevation despite 17 years
of exemplary service. According to Mr. Datar, the letter does not
Page 6 of 22
contain any insinuation against members of the Supreme Court
Collegium and is not contemptuous or disrespectful or in bad
taste as is alleged in the Report of the Registrar General.
9.2. On maintainability, it was submitted that the present writ
petition is limited to ‘lack of effective consultation’ and hence is
maintainable. Reliance has been placed on the decisions of this
Court in Mahesh Chandra Gupta v. Union of India1(for short
“Mahesh Chandra Gupta”), where it was held that the issues of
‘eligibility’ and ‘effective consultation’ would be within the realm
of judicial review. This was followed in M. Manohar Reddy v.
Union of India2 and reiterated recently in Anna Mathews v.
Supreme Court of India3 where it was held that judicial review is
restricted to ‘eligibility’ and not ‘suitability’ or ‘content of
consultation’. It was also submitted that the consideration by
the Collegium collectively is an in-built check against the
likelihood of arbitrariness or bias.
9.3. On the other hand, Dr. S. Muralidhar, Learned Senior Counsel
appearing for the High Court of Himachal Pradesh argued that
1
(2009) 8 SCC 273
2
(2013) 3 SCC 99
3
(2023) 5 SCC 661
Page 7 of 22
the present writ petition is not maintainable. The prayer for
reconsideration is, in effect, a request for judicial review over
the ‘suitability’ of the candidates. To highlight the limited scope
of judicial review, reliance has been placed on the decisions of
this Court in Supreme Court Advocates-on-Record Assn. v. Union
of India4 (for short “Second Judges case”), Mahesh Chandra
Gupta(supra)5, M. Manohar Reddy v. Union of India6, Registrar
General, Madras High Court v. R. Gandhi7, Common Cause v.
Union of India8 and Anna Mathews v. Supreme Court of India9
9.4. As regards the Chief Justice of the High Court individually
taking a decision and addressing the letter to the Chief Justice
of India, it was argued by Dr. Muralidhar that the resolution of
the Supreme Court Collegium(4.01.2024) did not specify that
the reconsideration of the petitioners’ names was to be in
consultation with the other members of the High Court
Collegium. Therefore, the High Court Chief Justice according
4
(1993) 4 SCC 441(Para 482)
5
Para 39-41, 43-44 and 71,74
6
(2013) 3 SCC 99(Para 17-20)
7 (2014) 11 SCC 547(Para 25-26)
8 (2018) 12 SCC 377(Para 17)
9
(2023) 5 SCC 661(Para 10)
Page 8 of 22
to the learned counsel, could have made the reconsideration all
by himself.
ISSUES
10. Going by the above submissions, the following questions arise
for our consideration:
A) Whether the writ petition is maintainable?
B) Whether elevation for judgeship in the High Court has to be
considered collectively by the High Court Collegium or whether
the Chief Justice acting individually can reconsider the same?
Issue A
11. At the outset, it is apposite to address the issue of
maintainability of the writ petition and the limited scope of
judicial review in such matters. This aspect was addressed by a
nine-judge bench of this Court in Supreme Court Advocates-on-
Record Association. v. Union of India10 (for short “Second Judges
case”). It was observed therein that the scope of judicial review
in appointment of judges is limited as it introduces the ‘judicial
10
(1993) 4 SCC 441
Page 9 of 22
element’ in the process and further judicial review is not
warranted apart from some exceptions such as want of
consultation amongst the named constitutional functionaries.
In this regard, the following passage from the Second Judges
case(supra) bears consideration:
“482. This is also in accord with the public interest of
excluding these appointments and transfers from
litigative debate, to avoid any erosion in the credibility
of the decisions, and to ensure a free and frank
expression of honest opinion by all the constitutional
functionaries, which is essential for effective
consultation and for taking the right decision. The
growing tendency of needless intrusion by strangers
and busybodies in the functioning of the judiciary
under the garb of public interest litigation, in spite of
the caution in S.P. Gupta [1981 Supp SCC 87 : (1982)
2 SCR 365] while expanding the concept of locus
standi, was adverted to recently by a Constitution
Bench in Krishna Swami v. Union of India [(1992) 4
SCC 605] . It is, therefore, necessary to spell out
clearly the limited scope of judicial review in such
matters, to avoid similar situations in future. Except
on the ground of want of consultation with the
named constitutional functionaries or lack of any
condition of eligibility in the case of an appointment,
or of a transfer being made without the
recommendation of the Chief Justice of India, these
matters are not justiciable on any other ground,
including that of bias, which in any case is excluded
by the element of plurality in the process of decision-
making.”
[emphasis supplied]
Page 10 of 22
12. Thereafter in Special Reference No. 1 of 1998, Re11 (for short
“Third Judges case”), it was noted as under:
“32. Judicial review in the case of an appointment or a
recommended appointment, to the Supreme Court or a
High Court is, therefore, available if the recommendation
concerned is not a decision of the Chief Justice of India
and his seniormost colleagues, which is constitutionally
requisite. They number four in the case of a
recommendation for appointment to the Supreme Court
and two in the case of a recommendation for
appointment to a High Court. Judicial review is also
available if, in making the decision, the views of the
seniormost Supreme Court Judge who comes from the
High Court of the proposed appointee to the Supreme
Court have not been taken into account. Similarly, if in
connection with an appointment or a recommended
appointment to a High Court, the views of the Chief
Justice and senior Judges of the High Court, as
aforestated, and of Supreme Court Judges
knowledgeable about that High Court have not been
sought or considered by the Chief Justice of India and
his two seniormost puisne Judges, judicial review is
available. Judicial review is also available when the
appointee is found to lack eligibility.”
13. Subsequently, a two-judge bench speaking through S.H.
Kapadia J laid down important principles in Mahesh Chandra
Gupta(supra). This Court distinguished between ‘eligibility’ and
‘suitability’ and noted that Article 217(1) of the Constitution of
India pertains to the ‘suitability’ of an individual, whereas
Article 217(2) concerns the ‘eligibility’ of a person to become a
11
(1998) 7 SCC 739
Page 11 of 22
Judge. While ‘eligibility’ is an objective criterion, ‘suitability’ is
a subjective one. The bench further observed that decisions
regarding who should be elevated, which primarily involve
considerations of “suitability,” are not subject to judicial review.
It held as under:
“44. At this stage, we may highlight the fact that there
is a vital difference between judicial review and merit
review. Consultation, as stated above, forms part of
the procedure to test the fitness of a person to be
appointed a High Court Judge under Article 217(1).
Once there is consultation, the content of that
consultation is beyond the scope of judicial review,
though lack of effective consultation could fall within
the scope of judicial review. This is the basic ratio of
the judgment of the Constitutional Bench of this
Court in Supreme Court Advocates-on-Record
Assn. [(1993) 4 SCC 441] and Special Reference No. 1
of 1998, Re [(1998) 7 SCC 739].”
14. The above view where the Court distinguished between
‘eligibility’ and ‘suitability’ has been consistently followed12 in
subsequent decisions of this Court including in the recent
12
Manohar Reddy and Anr. v. Union of India(2013) 3 SCC 99, Registrar
General, Madras High Court v. R. Gandhi (2014) 11 SCC 547, Common Cause
v. Union of India (2018) 12 SCC 377
Page 12 of 22
decision in Anna Mathews v Supreme Court of India13 where it
was noted as under:
“10. We are clearly of the opinion that this Court,
while exercising power of judicial review cannot issue
a writ of certiorari quashing the recommendation, or
mandamus calling upon the Collegium of the
Supreme Court to reconsider its decision, as this
would be contrary to the ratio and dictum of the
earlier decisions of this Court referred to above, which
are binding on us. To do so would violate the law as
declared, as it would amount to evaluating and
substituting the decision of the Collegium, with
individual or personal opinion on the suitability and
merits of the person.”
15. The following position emerges as a result of the above:
i) ‘Lack of effective consultation’ and ‘eligibility’ falls within the
scope of judicial review.
ii) ‘Suitability’ is non-justiciable and resultingly, the ‘content of
consultation’ falls beyond the scope of judicial review.
16. The above legal position clearly suggests that the absence of
consultation amongst the members of the Collegium would be
within the limited purview of judicial review. Proceeding on
this understanding, this Court had issued notice to the
13
(2023) 5 SCC 661
Page 13 of 22
Registrar General to ascertain whether the High Court
Collegium adhered to the procedural requirement of an ‘effective
consultation’ for the reconsideration exercise. The Chief Justice
of the High Court, it was submitted had never received the
Resolution of the Supreme Court Collegium. It was therefore
argued that perusing the Resolution of the Supreme Court was
essential for the respective counsel to make their submissions.
As earlier noted, a copy of the resolution(dated 4th January
2024) was produced in Court and the same was allowed to be
perused by the respective counsel for the parties.
17. The aforesaid re-consideration resolution was requisitioned
only for factual determination as to whether ‘effective
consultation’ was made, in terms of the resolution of the SC
Collegium. This scrutiny has nothing to do with the ‘merits’ or
the ‘suitability’ of the officers in question but to verify whether
‘effective consultation’ was made. Such scrutiny is permissible
within the limited scope of judicial review as discussed before.
Therefore, the present writ petition for this limited scrutiny is
found to be maintainable.
Page 14 of 22
Issue B
18. The second issue that falls for our consideration is whether
elevation for judgeship in the High Court has to be considered
collectively by the Collegium of the High Court or whether the
Chief Justice acting individually can reconsider the same. The
process of judicial appointments to a superior court is not the
prerogative of a single individual. Instead, it is a collaborative
and participatory process involving all Collegium members. The
underlying principle is that the process of appointment of
judges must reflect the collective wisdom that draws from
diverse perspectives. Such a process ensures that principles of
transparency and accountability are maintained.
19. Mr. Datar, the learned Senior Counsel earnestly submitted that
the Chief Justice of a High Court individually cannot reconsider
a recommendation. To appreciate the legal basis for such a
contention, we may refer to the following judgments discussed
below.
20. This Court in the Second Judges case(supra) noted as under:
“468. The rule of law envisages the area of discretion
to be the minimum, requiring only the application of
known principles or guidelines to ensure non-
Page 15 of 22
arbitrariness, but to that limited extent, discretion is
a pragmatic need. Conferring discretion upon high
functionaries and, whenever feasible, introducing
the element of plurality by requiring a collective
decision, are further checks against arbitrariness.
This is how idealism and pragmatism are reconciled
and integrated, to make the system workable in a
satisfactory manner.”
21. Again, in the Third Judges case(supra), it was observed that “the
element of plurality of judges in formation of the opinion of the
Chief Justice of India, effective consultation in writing and
prevailing norms to regulate the area of discretion are sufficient
checks against arbitrariness.”
22. Mr. Datar placed reliance on the following passage from the
decision in Mahesh Chandra(supra) to buttress his submission:
“73. The concept of plurality of Judges in the
formation of the opinion of the Chief Justice of India
is one of inbuilt checks against the likelihood of
arbitrariness or bias. At this stage, we reiterate that
“lack of eligibility” as also “lack of effective
consultation” would certainly fall in the realm of
judicial review. However, when we are earmarking a
joint venture process as a participatory consultative
process, the primary aim of which is to reach an
agreed decision, one cannot term the Supreme Court
Collegium as superior to High Court Collegium. The
Supreme Court Collegium does not sit in appeal over
the recommendation of the High Court Collegium.
Each Collegium constitutes a participant in the
participatory consultative process. The concept of
primacy and plurality is in effect primacy of the
opinion of the Chief Justice of India formed
collectively. The discharge of the assigned role by eachPage 16 of 22
functionary helps to transcend the concept of primacy
between them.”
23. What was emphasized above is that collaborative deliberations
bring in transparency in the process, as decisions are
deliberated, debated, and recorded. This contributes to public
trust in the judiciary, as it demonstrates that appointments are
being made based on thorough consideration.
24. Tracing the departure in the process of appointment of judges
pre and post-1990 after the emergence of the Collegium system,
a legal Scholar14 notes that the Second Judges case(supra)
effectively ended the ‘primacy’ or the ‘preponderating voice’ of
the Chief Justice over senior colleagues. Contrasting the
observations of the Law Commission, in its 80th Report in
197915 with the current system, the author observes that while
the Commission recommended that a Chief Justice of a High
Court should consult his two seniormost colleagues before
recommending names to the government for judicial
14
Abhinav Chandrachud, ‘The Fictional Concurrence of the Chief Justice’ in Supreme
Whispers, Conversations with Judges of the Supreme Court 1980-1989 (OUP 2018)
162-166
15
Law Commission of India, ‘The Method of Appointment of Judges’ (80th Report,
August 1979) Available at
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/20
22/08/20220805100-2.pdf,
Page 17 of 22
appointments, it did not mandate that these recommendations
be unanimous or binding. However, the collegium system
introduced through the Second Judges case(supra),
institutionalized the practice of consulting senior colleagues,
making it binding on the chief justice.
25. With the above judgments holding the field, it is difficult to
accept the contention of the learned Senior Counsel, Dr.
Muralidhar who argued that the Chief Justice of the High Court
can individually reconsider a candidate based on how
Resolutions are worded. To substantiate this argument, various
Supreme Court Resolutions were placed before us to show that
there is a difference in language and in the present case, it was
specifically addressed to the Chief Justice of the High Court. It
was contended that this wide power of the Collegium to direct
reconsideration individually by the Chief Justice may not be
curtailed. We are disinclined to accept this view as it is well-
settled that the Supreme Court Collegium does not sit in appeal
over the High Court Collegium16. It is a participatory process
16
Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273
Page 18 of 22
where each of the Constitutional functionaries have a role to
play. In our opinion, the language therein by itself cannot be
understood as permitting the Chief Justice of the High Court to
act on his own, in matters of recommendation or even
reconsideration, for elevation to the High Court bench. The
recommendation by the Supreme Court Collegium for
reconsideration, is not expected to be addressed individually to
all the members of the High Court Collegium. Such
communications are naturally addressed to the Chief Justice of
the concerned High Court but as noted earlier, the letter
addressed to the Chief Justice will not enable the Chief Justice
to act without participation by the other two Collegium
members.
26. In this case, the Court is not concerned with the aspects of
‘suitability’ of the petitioners for elevation as judges of the High
Court or even the ‘content of consultation’. Our scrutiny is
limited to whether the reconsideration of the proposal for the
elevation of the two petitioners, was jointly made by the
Collegium members of the High Court, following the Supreme
Court Resolution dated 4th January 2024.
Page 19 of 22
27. This Court is mindful of the limited scope of interference in such
matters. But this appears to be a case where there was no
collective consultation amongst the three Constitutional
functionaries of the High Court i.e. the Chief Justice and the
two senior-most companion judges. The absence of the element
of plurality, in the process of reconsideration as directed by the
Supreme Court Collegium, is clearly discernible.
28. At this juncture, we must also address the submissions on the
letter written by one of the petitioners, as referenced in the
Report of the Registrar General and argued before this Court. It
was contended that the letter contained contemptuous remarks
directed at the Supreme Court Collegium. We have perused
the letter. It is definitely an expression of hurt by the judicial
officer, but will not bring the letter into the contemptuous
category.
29. Before parting, it needs to be stated that there is also a need to
protect certain sensitive information in matters involving
appointment of judges. While transparency is necessary to
ensure fairness and accountability, it must be carefully
balanced with the need to maintain confidentiality. Disclosing
Page 20 of 22
sensitive information would compromise not only the privacy of
the individual but also the integrity of the process.
30. In the case before us, the procedure adopted in the matter of
reconsideration of the two petitioners is found to be inconsistent
with the law laid down in the Second Judges (supra) and the
Third Judges case(supra). There was no collective consultation
and deliberations by the members of the High Court Collegium.
The decision of the Chief Justice of the High Court, on the
suitability of the two petitioners as conveyed in his letter dated
6th March 2024, appears to be an individual decision. The same
therefore stand vitiated both procedurally and substantially.
31. The final finding from the above is as follows:-
(i) The writ petition is maintainable as it questions the lack of
effective consultation;
(ii) The Chief Justice of a High Court cannot individually
reconsider a recommendation and it can only be done by
the High Court Collegium acting collectively.
32. In light of the above, the High Court Collegium should now
reconsider the names of Mr. Chirag Bhanu Singh and Mr.
Arvind Malhotra for elevation as Judges of the High Court,
Page 21 of 22
following the Supreme Court Collegium decision dated 4th
January,2024 and the Law Minister’s letter dated 16th
January,2024. It is ordered accordingly.
33. The matter stands allowed in above terms.
….…….…………………………J.
[HRISHIKESH ROY]
….………………………………..J
[PRASHANT KUMAR MISHRA]
NEW DELHI
SEPTEMBER 6, 2024
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