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Consultation would mean `concurrence’ wherefor the primacy has been shifted to the Collegium

The Constitution Bench of  Supreme Court in Supreme Court Advocates- on-Record Association (supra) and in the Presidential Reference, Special Reference No.1 of 1998  laid down the law that consultation would mean `concurrence’ wherefor the primacy has been shifted to the Collegium which provision in turn being applicable to the case of appointment of a Chairman of a State Commission in terms of Section 16 of the Act, save and except for the difference that recommendation, instead and in place of the Collegium, would be that of the Chief Justice alone. We have no doubt in our mind that he is bound to take into consideration all facts relevant therefor and must eschew irrelevant facts.

As suitability of a person, in view of S.P. Gupta case, depends upon several factors which are necessary to be considered for re-appointment and or making Additional Judge a permanent one, there does not exist any reason whatsoever why the same shall not be considered to be a relevant factor for recommending the name of a person who would hold such a high office. It has not been denied or disputed that for one reason or the other the Chief Justice of the High Court did not have the occasion to go through the said file. The Original record maintained by the High Court as also by the Central Government had been placed before the High Court as also before us.

The superior courts must take into consideration as to what is good for the judiciary as an institution and not for the judge himself. An act of balancing between public interest and private interest must be made. Thus, institution as also public interest must be uppermost in the mind of the court. When such factors are to be taken into consideration, the court may not insist upon a proof. It would not delve deep into the allegations. The court must bear in mind the limitations in arriving at a finding in regard to lack of integrity against the person concerned. As has been noticed in S.P. Gupta (supra), the test which must be applied for the purpose of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment is satisfied about the integrity of the person under consideration and, thus, if he does not enjoy good reputation, it would not be possible for the Chief Justice of the High Court to say that he is satisfied about the integrity of such person and in such an event he would be justified in not recommending him for appointment and in fact it would be his duty not to recommend his name.

A Division Bench of this Court of which one of us (Dr. Justice Mukundakam Sharma) was a member in Shanti Bhushan and Another v. Union of India and Another  referring to S.P. Gupta (supra), Supreme Court Advocates-on-Record Association (supra) and other decisions, noticed:

“9.Pathak, J (as the Hon’ble Judge then was) had expressed similar opinion by observing that in following the procedure of Article 217(1) while appointing an Additional Judge as a Permanent Judge there would be reduced emphasis with which the consideration would be exercised though the process involves the consideration of all the concomitant elements and factors which entered into the process of consultation at the time of appointment earlier as an additional Judge. The position was succinctly stated by observing that there is a presumption that a person found suitable for appointment as an Additional Judge continues to be suitable for appointment as a Permanent Judge, except when circumstances or events arise which bear adversely on the mental and physical capacity, character and integrity or other matters rendering it unwise to appoint him as a permanent Judge. There must be relevant and pertinent material to sufficiently convince a reasonable mind that the person is no longer suitable to fill the high office of a Judge and has forfeited his right to be considered for appointment.”