M. MANOHAR REDDY & ANR.versusUNION OF INDIA & ORS.

                     [2013] 1 S.C.R. 711


               M. MANOHAR REDDY & ANR.                              A
                                  v.
                  UNION OF INDIA & ORS.
            (Writ Petiton (Civil) No. 174 of 2012)
                     FEBRUARY 4, 2013
                                                                    B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

     Constitution of India, 1950:

      Art. 32 read with Art. 217 - Petition for a writ of quo       c
 warranto seeking to quash appointment of Judge of High
 Court - Consultation process leading to appointment alleged
 to have been vitiated for failure of consideration of a criminal
case pending against the incumbent - Held: 'Eligibility' of the
incumbent is not in issue - As regards 'lack of effective           D
consultation', a fact that is unknown to anyone cannot be ·said
to be not taken into consideration and the consultative
process cannot be faulted as incomplete for that reason - At
the time the incumbent was being considered for appointment
as a judge of High Court, he was unaware of any case being          E
pending in which he was named as an accused -It is not a
case of suppression of any material fact by the incumbent or
at his behest - From the record, it is evident that none of the
members of High Court or Supreme Court Co/legia was
aware of the fact - State Government and Central Government
were equally unaware of the fact - No case is made out for          F
issuing a writ of quo warranto quashing the appointment of
respondent No. 3 as the judge of High Court.

    Public Interest Litigation:
                                                                    G
     Writ petition filed in 2012 seeking to quash appointment
of a Judge of High Court made in 2000 - Held: Writ petition
is based on incorrect facts - It is not a sincere and honest
endeavour to correct something which the petitioners truly
                              711                                   H
    712      SUPREME COURT REPORTS              [2013) 1 S.C.R.


A perceive to be wrong but the real intent of this petition is to
  malign respondent No.3 - Writ petition is not only without
  merit but also wanting in bona fides.

         Respondent no. 3 was appointed as Judge of the
    High Court as per Notification dated 19.6.2000 and he
8
    took oath on 27.6.2000. Two advocates of the said High
    Court filed the instant writ petition seeking a writ in the
    nature of quo warranto quashing the appointment of
    respondent no. 3 as a Judge of the High Court and a writ
    of mandamus commanding the State Bar Council to
C   cancel his enrolment as an advocate. It was stated that
    the consultation process leading to appointment of
    respondent no. 3 was vitiated as both the High Court and
    the Supreme Court Collegia as well as the Central
    Government failed to consider that at the time of such
D   appointment a criminal trial was pending in which
    respondent no. 3 was an accused and a proclaimed
    offender and even at the time of his enrolment as an
    advocate he had concealed the factum of criminal
    proceedings in his application for enrolment. The
E   Attorney General submitted that the writ petition was not
    maintainable and the same was only a camouflage as the
    petitioners aimed at removal of the Judge who had been
    in office for over 12 years, which would be violative of the
    Constitutional scheme.
F
          Dismissing the writ petition, the Court
       HELD: 1.1. In Mahesh Chandra Gupta, this Court
  brought out the distinction between "eligibility" and
  "suitability" and pointed out that eligibility was based on
G objective facts and it was, therefore, liable to judicial
  review. But, suitability pertained to the realm of opinion
  and was, therefore, not amenable to any judicial review.
  The Court concluded that judicial review may be called
  for on two grounds, namely, (i) "lack of eligibility" and (ii)
H
      M. MANOHAR REDDY v. UNION OF INDIA               713

"lack of effective consultation". In the case in hand         A
admittedly, the eligibility of respondent No.3 is not an
issue. [para 13 and 15] [724-B, E-F; 726-F]

   Mahesh Chandra Gupta v. Union of India 2009 (10)
SCR 921= 2009 (8) SCC 273 - referred to.                      B

     1.2. As regards the 'lack of effective consultation',
owing to pendency of the criminal case against
respondent no. 3, the case related to an incident alleged
to have taken place at 8.30 P.M. on 13.2;1981 during an
agitation by a large number of University students, in        C
which a State Road Transport bus was damaged.
Respondent no. 3 was a student of the said University
at the relevant time. An FIR was lodged against unknown
persans and the accused were described as "University
Students". Subsequently, five student leaders were            D
identified and respondent no. 3 figured among them at
sl. No. 4. Case of accused-1 resulted in acquittal. Accused
2 to 5 were simply shown as absconders without
observing the required procedure. However, it was
shown as a long pending case and by order dated               E
31.1.2002 permission was granted to withdraw the case
and, accordingly, all the accused were discharged. From
the record, it cannot be said that respondent no. 3 was
even aware that in some record buried in the courts he
was named as an accused and he was required to appear         F
in the court in connection with that case. Apart fr<?m the
record of the case, from the resume of respondent no. 3,
it may be seen that before his appointment as a judge of
the High Court, he was the Additional Advocate General
of the State. If the case would have been within his          G
knowledge it is unimaginable that he would not have
attended to it and got it concluded one way or the other.
[para 5, 6, 28, 30 and 31] [719-8-D, E-F; 720-A-D-E; 733-
A, F-H]

    1.3. Besides in 1995, the respondent no. 3 was            H
    714     SUPREME COURT REPORTS              [2013] 1 S.C.R.

A selected and was issued an appointment letter for the
  post of the Judicial Member in the Income Tax Appellate
  Tribunal. The appointment letter was undoubtedly issued
  to him only after police verification and nothing was
  mentioned even at that stage about any criminal case
B pending against him. [para 37] [735-G-H; 736-A]

       1.4. It may also be noted that before filing the instant
  writ petition, the petitioners had made a representation,
  both before the Chief Justice of India and the Law
  Minister, asking for removal of respondent No. 3 as a
C judge of the High Court on the same allegations. The
  Chief Justice of India called for a report on the matter
  from the Chief Justice of the High Court and the latter
  made a detailed enquiry and came to the same
  conclusion as this Court has arrived at on an
D independent appraisal of the record of the case. [para 32]
  [734-A-D]

       1.5. Therefore, this Court holds that at the time
  respondent No.3 was being considered for appointment
E as a judge of the High Court, he was unaware of any
  case being pending in which he was named as an
  accused and it is quite wrong to refer to him as "an
  absconder and a proclaimed offender" in the case. This
  finding leads to another and that is, it is not a case of
F suppression of any material fact by respondent No.3 or
  at his behest. [para 33] [734-F-H]

       1.6. Further, from the record relating to the
  appointment of respondent No. 3 as a judge of the High
  Court, it is evident that none of the members of the High
G Court or the Supreme Court Collegia was aware of the
  fact. The State Government was equally unaware of the
  fact and so was the Central Government as is evident
  from the resume prepared by the Law illinistry as also the
  IB Report. [para 36] [735-E-F]
H
      M. MANOHAR REDDY v. UNION OF INDIA                ·   715

     1.7. A fact that is unknown to anyone cannot be said         A
to be not taken into consideration and the consultative
process cannot be faulted as incomplete for that reason.
To fault the consultative process for not taking into
account a fact that was not known at that time would put
an impossible burden on the Constitutional authorities            B
engaged in the consultative process and would
introduce a dangerous element of uncertainty in the
appointments. [para 39] [736-C-D}

    1.8. Therefore, this Court is clearly of the view that
no case is made out for issuing a writ of quo warranto            C
quashing the appointment of respondent No. 3 as the
judge of High Court. [para 411 [736-H}

      1.9. The instant writ petition professed to have been
filed in public interest is, but a ruse to malign respondent      D
No.3. The writ petition owes its origin to a news report
published in a Telugu daily newspaper on 27.12.2011.
The report is based on incorrect facts and is full of
statements and innuendos that might easily constitute
the offence of defamation leave alone contempt of court.          E
It, therefore, appears that this writ petition is not a sincere
and honest endeavour to correct something which the
petitioners truly perceive to be wrong but the real intent
of this petition is to malign respondent No.3. It is indeed
very important to uphold the "institutional integrity" of the     F
court system as pointed out in the eve judgment* but it
is equally important to protect the court from uncalled for
attacks and the individual judges from unjust infliction of
injuries. The writ petition is not only without merit but also
wanting in bona fides. [para 44-46} [737-E-F; 738-A-DJ
                                                                  G
      *Centre for PIL and Another v. Union of India and
·'Another 2011 (4) SCR 445 = 2011 (4) SCC 1 - referred to.

     Supreme Court Advocates-on-Record Association vs.
                                                                  H
    716      SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A Union of India 1993 (2) Suppl. SCR 659 = 1993 (4) SCC 441;
  Special Reference No. 1 of 1998 1998 (2) Suppl.
   SCR 400 = 1998 (7) SCC 739; Shri Kumar Padma Prasad
  v. Union of India 1992 (2) SCR 109 = 1992 (2) SCC 428,
  Shanti Bhushan v. Union of India 2008 (17) SCR 791 2009     =
s (1) sec 657 - cited
                           Case Law Reference:

          1993 (2) Suppl. SCR 659         cited            para 7

          1998 (2) Suppl. SCR 400         cited            para 7
c
          1992 (2) SCR 109                cited            para 9
          2008 (17) SCR 791               cited            para 9
          2009 (10) SCR 921               referred to      para 9
D
          2011 (4) SCR 445                referred to      para 16

        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
    174 of 2012.

E         Under Article 32 of the Constitution of India.

        Shanti Bhusan, Gopal Sankaranarayan, Senthil
    Jagadeesan, Karthik Seth for the Petitioners.

          G.E. Vahanvati AG, Vipin Kumar Jai for the Respondents.
F
          The Judgment of the Court was delivered by

        AFTAB ALAM, J. 1. The two petitioners, who are
  advocates of the High Court.of Andhra Pradesh, have filed this
  petition under Article 32 of the Constitution of India, purportedly
G in public interest. This writ petition seeks a writ in the nature of
  quo warranto, quashing the appointment of respondent No.3 as
  a judge of the High Court of Andhra Pradesh and a writ in the
  nature of mandamus commanding the Bar Council of Andhra
  Pradesh to cancel his enrolment as an advocate. The quashing
H of the appointment of respondent No.3 as a judge of the High
       M. MANOHAR REDDY v. UNION OF INDIA                    717
                [AFTAB ALAM, J.]
Court is sought on the ground that the consultation process         A
leading to his appointment was vitiated as both the High Court
and the Supreme Court Collegia as well as the Central
Government failed to consider two essential facts; one, at the
time of his appointment, a criminal trial was pending in which
respondent No.3 was not only an accused but a proclaimed            B
offender and the other that even at the time of his enrolment
as an advocate he had concealed the criminal proceedings
and in the relevant ·column of the application for enrolment with
the Bar Council, he falsely stated that there was no pending
proceeding against him.                                             c·
     2. In order to put the petitioners' challenge to the
appointment of respondent No.3 as a judge of the High Court
in the proper perspective, it will be useful to give here a brief
outline of the relevant facts.
                                                                    D
     3. The name of respondent No.3 was recommended for
appointment as a judge of the Andhra Pradesh High Court on
November 14, 1998 by the Chief Justice of the High Court with
the other two Collegium members agreeing with the
recommendation. The recommendation made by the High                 E
Court was received in the Supreme Court on February 15,
1999. At that time the age of respondent No.3 was 41 years
and six months and he had completed over 15 years of legal
practice. In the resume prepared by the Ministry of Law and
Justice that came to be put up before the Supreme Court             F
Collegium, respondent No.3 was described as under:

    "Shri N.V. Ramana, Advocate:

    BIO-DATA
                                                                    G
          He was enrolled as an· Advocate on February 10,
    1983. He has practiced in the High Court of Andhra'
    Pradesh, Central and Andhra Pradesh Administrative
    Tribunals and the Supreme Court of India in Civil, Criminal,
    Constitutional, Labour, Service and Election matters. He        H
    718       SUPREME COURT REPORTS                 (2013] 1 S.C.R.


A         has specialized in Constitutional, Criminal, Service and
          Inter-State River laws. He has handled about 800 cases
          during the last three years. He has functioned as Panel
          Counsel for Andhra Bank, Vysa Bank, United India
          Insurance Co. and Food Corporation of India. He has also
B         functioned as Additional Standing Counsel for Central
          Government and Standing Counsel for Railways in the
          Central Administrative Tribunal at Hyderabad. At present
          he is functioning as Additional Advocate General of Andhra
          Pradesh. His professional income during the last three
c         years was as tabulated below:
                           Gross Income           Taxable Income

          1996-97          7,87,210               2,21,200
          1997-98          10,31,465              3,68,950
D         1998-99          38,95,973              16,94,928"
          And the Intelligence Bureau report about him stated as
          under:
          "l.B. REPORT:
E
                He enjoys good personal/professional image.
          Nothing adverse against his character, reputation and
          integrity has come to notice, so far. He has also not come
          to notice for links with any political party/communal
F         organization.

                None of his relatives is either serving or has served
          earlier as judge in any High Court or Supreme Court."

G        4. Following the consultative process between the different
    constitutional functionaries, a notification was issued on June
    19, 2000 appointing respondent No.3 as a judge of the Andhra
    Pradesh High Court and respondent No.3 took the oath and
    assumed the office as a judge of the Andhra Pradesh High
H
       M. MANOHAR REDDY v. UNION OF INDIA                 719
                [AFTAB ALAM, J.]
Court on June 27, 2000. Since then he is continuously working   A
in that capacity.
      5. It now comes to light that all through the period when
 the recommendation was made for his appointment as a judge
 and the notification was issued and he assumed the office as 8
 a judge, a criminal case was pending in which respondent No.3
 was an accused. It is, therefore, necessary to look into the
 criminal case and its proceedings. The criminal case in
 question dates back to the year 1981 when respondent No.3
 was a student of Nagarjuna University. The students of the
 University, it appears, complained of inadequate public C
 transport facilities for commuting from their homes to the
 University as only a few buses plying between Guntur and
Vijayawada stopped at the University. They demanded that
 more buses should stop at the University. As is not uncommon
with the youth in this country, some of the students of the D
 University· took to agitation in connection with the demand and
 at about 8.30 p.m. on February 13, 1981, a group of about 30
 students put road blocks on the GNT road, opposite Nagarjuna
 University, causing stoppage of all vehicles on the road. At
 about 9.15 p.m., a bus of the State Transport Corporation, on · E
its way from Guntur to Vijayawada, arrived there when there
was already a heavy jam and pulled up at the road flank. In such
situations, unfortunately a State bus is the softest and the most
vulnerable target. In this case also the State bus became the
target of the agitating students' ire. The driver of the bus was F
pulled down and the door to the driver's seat was damaged.
Some miscreants pelted stones on the bus and smashed its
windscreen and glass windows with iron rods. One of the
passengers also received some injuries. By this time a police
party also came to the spot. At this stage, an attempt was made G
to set fire to the bus by throwing a burning oil cloth tied to a
rod inside the bus. But, a policeman put out the burning cloth
and the bus was saved from any further damage. Shortly
thereafter the police dispersed the agitating students and
restored normalcy. On the same day at 11.00 p.m. the driver H
   720      SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A of the bus lodged a first information report in connection with
  the incident at Mangalagiri Police Station where it was
  registered as Crime No. 55 of 1981 under Sections 147, 342,
  427 and 324 of the Penal Code. The FIR was against unknown
  persons and the accused were described as "Nagarjuna
B University students".
         6. The police after investigation drew up a charge sheet
  dated October 10, 1983 and on October 19, 1983 submitted
  it in the court of the Munsif Magistrate, Mangalagiri where it was
  registered as C.C. No.229/1983. From the charge sheet it
C appears that in their statements recorded under Section 161
  of the Code of Criminal Procedure, the Driver and the
  Conductor of the bus (apart from some other witnesses)
  identified and named five persons as the student- leaders who
  were leading the agitation on February 13, 1981. The charge
D sheet, accordingly, cited five persons as accused and
  respondent No.3 figured among them at serial No. 4. All the
  accused were shown as absconders. The charge sheet,
  however, does not disclose what steps were taken by the
  investigating officer to secure the presence of the accused.
E There is no mention that the investigating officer ever tried to
  obtain from the court warrants of arrest or processes under
  Sections 82 and 83 of the Code of Criminal Procedure for
  apprehending the accused. They were simply shown as
  absconders without observing the procedure sanctioned by law
F before an accused can be called an absconder.
       7. The fact of the matter, however, is that this Crime Case
  No.229/83 (later re-numbered as CC No.75/87 and then CC
  No.167/91) was undeniably pending at the time of appointment
  of respondent No.3 as a judge of the High Court and it is
G contended on behalf of the petitioners that the failure to take
  into account the pendency of the criminal case while his name
  was recommended by the High Court Collegium and approval
  and consent was accorded by the Supreme Court Colllegium
  and the Central Government for his appointment as a judge of
H the High Court deeply flawed the participatory consultative
         M. MANOHAR REDDY v. UNION OF INDIA                   721
                  [AFTAB ALAM, J.]
  process as envisaged in Article 217(1) of the Constitution and     A
  as developed by the decisions of this Court in Supreme Court
  Advocates-on-Record Association 1 and later on in Special
  Reference No. 12 of 1998-. It is submitted the appointment of
  the respondent resulting from a consultation process that failed
  to take into account an important and relevant fact was
                                       ~
                                                                     B
  completely illegal and was, therefore, liable to be quashed by
  a writ of quo warranto. The respondent had no right to hold the
  office of a High Court judge and this Court must step in to
  correct the grave error committed by his appointment.

         8. It needs to be noted here that the learned Attorney C
   General was requested to address the Court on the question
   of maintainability of this writ petition that seeks a writ, quashing
   the appointment of a judge of the High Court. The Attorney
   General submitted that the writ petition was not maintainable
   and was liable to be dismissed summarily. He submitted that D
   the prayer for a writ of quo warranto quashing the appointment
   of respondent No.3 was only a camouflage and what the
   petitioners really aimed at was the removal of the judge who
   had been in office for over twelve years. The removal of a judge
   in office, the Attorney maintained, was an issue directly related E
   to the independence of judiciary that is fundamental to the
   Constitutional scheme. The Attorney pointed out that in order
   to make the judiciary independent and to make it possible for
 . the judges to discharge their duties without fear or favour the
   Constitution firmly secured the tenure of a judge and granted F
   that a judge of any of the superior courts could only be removed
   from office on the basis of an impeachment motion passed by
   the Parliament as provided under Article 124(4) (in the case
   of a judge of the Supreme Court) and Article 217 read with
  Article 124(4) (in the case of a judge of the High Court). The G
   Constitution did not recognize any other mode for the removal
, of a judge. Any deviation from the Constitutional process in the
   garb of quashing the appointment by a writ ol quo warranto
 1.   (1993) 4 sec 441.
 2.   (1998) 1 sec 739.                                              H
    722       SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A would be violative of the scheme of the Constitution and
  deleterious for the independence of the judiciary. He further
  submitted that if the petitioners thought that the appointment of
  respondent No.3 as a judge of the Andhra Pradesh High Court
  was wrong and there were grounds for his removal from the
B office, they could always bring the matter to the notice of the
  Parliament which alone was the Constitutional forum competent
  to remove a judge of the High Court from his office from any
  misbehaviour committed either before or after his appointment
  as a judge. He added that in case the Parliament declined to
c take any action for the removal of the judge on the petitioner's
  complaint the Court was powerless in the matter and the
  removal of the judge could not be brought about by the device
  of quashing his appointment. He went so far as to say that in
  entertaining this writ petition on merits the Court would be
D overstepping its Constitutional limits.
        9. Mr. Shanti Bhushan, learned senior advocate appearing
  for the petitioners, on the other hand, submitted that writ petition
  raised the issue of inviolability and credibility of appointment
  to the high office of the High Court judge. He further submitted
E that the Court must not be seen as protecting someone wrongly
  appointed as a judge of the High Court for, the people's faith
  and trust and confidence in the courts and the judges presiding
  over the courts was as much necessary to support the
  independence of judiciary as the guarantees under the
F Constitution and the laws. Mr. Shanti Bhushan further submitted
  that in the past also similar issues came before the Court and
  the Court never declined to examine the merits of the case and
  passed appropriate orders. In support of the submission, he
  relied upon the decisions of this Court in (i) Shri Kumar Padma
G Prasad v. Union of lndia 3, (ii) Shanti Bhushan v. Union of
  lndia4 and (iii) Mahesh Chandra Gupta v. Union of lndia 5•

    3.   (1992) 2 sec 428.
    4. c2009) 1 sec 657.
H   5.. (2009) a sec 273.
           M. MANOHAR REDDY v. UNION OF INDIA                       723
                    [AFTAB ALAM, J.]
           10. The second case cited by Mr. Shanti Bhushan is one          A
     which he himself had filed as public interest litigation, assailing
     the extension granted to respondent No.2 in that case as an
     Additional Judge of the Madras High Court. He relied upon
     paragraph 25 of the judgment in that case but, we fail to see
     anything in that decision that may serve as an authority on the       B
     question of maintainability of a writ petition for quashing the
     appointment of a judge after many years of his assuming the
     office.                                                        ·

         11. However, the first and the third case relied upon by Mr.      C
     Shanti Bhushan deserve consideration.
          12. In Shri Kumar Padma Prasad, the Court dealt with a
    writ petition that was filed originally before the Gauhati High
    Court but was later transferred and brought to this Court. The
    writ petition was filed at the stage where though the warrant had      D
    been issued under the hand and seal of the President of India,
    appointing one of the respondents in that case, namely, K.N.
    Srivastava as a judge of the Gauhati High Court, he was still
    to make and subscribe the oath/affirmation under Article 219
    of the Constitution. This means that he had not entered upon           E
    the office of the judge and the writ petition was filed before the
    matter had reached the stage of Article 217 as the person
    whose appointment was under challenge was yet to assume
    the office of the judge. In that case this Court indeed stepped
    in to interfere and to stop the appointment from materializing.        F
    This Court found and held that on the date of issue of the
    warrant by the President of India K.N. Srivastava was not
    qualified to be appointed as a judge of the High Court. It,
    accordingly, quashed his appointment as a judge of the
    Gauhati High Court and directed the Union of India and the             G
    other concerned respondents not to administer the oath or
    affirmation under Article 219 of the Constitution to K.N.
    Srivastava. K.N. Srivastava was similarly restrained from
    making and subscribing the oath or affirmation in terms of
    Article 219 of the Constitution of India. It is, thus, to be noted     H

'   . .
    724      SUPREME COURT REPORTS                     [2013] 1 S.C.R.

A that the Court intervened in the matter before the person
  concerned had assumed the office of the judge on the ground
  that he was not qualified to be appointed as a judge or, in other
  words, was not eligible to be appointed as a judge.

B         1~-1. The concepts of "eligibility" and "suitability" were later
    examined by this Court in the decision in Mahesh Chandra
    Gupta (to which one of us Aftab Alam, J. was also a Member).
    In Mahesh Chandra Gupta, challenge was made to the
    appointment of a judge of the Allahabad High Court after the
    incumbent had assumed his office. In the writ petition, as it was
C   originally filed, the appointment was questioned only on the
    ground that the incumbent did not possess the basic eligibility
    for being appointed as a judge of the High Court. Later on, the
    appointment was also challenged on grounds of suitability and
    want of effective consultation process by taking additional pleas
D   in supplementary affidavits. Kapadia, J. (as His Lordship then
    was), speaking for the Court brought out the distinction between
    "eligibility" and "suitability" and pointed out that eligibility was
    based on objective facts and it was, therefore, liable to judicial
    review. But, suitability pertained to the realm of opinion and
E   was, therefore, not amenable to any judicial review. The Court
    also examined the class of cases relating to appointment of
    High Court judges that might fall under judicial scrutiny and
    concluded that judicial review may be called for on two grounds
    namely, (i) "lack of eligibility" and (ii) "lack of effective
F   consultation". In paragraphs 39, 43 and 44 of the judgment the
    Court said:
                "39. At this stage, we may state that, there is a basic
          difference between "eligibility" and "suitability". The
          process of judging the fitness of a person to be appointed
G         as a High Court Judge falls in the realm of suitability.
          Similarly, the process of consultation falls in the realm of
          suitability. On the other hand, eligibility at the threshold
          stage comes under Article 217(2)(b). This dichotomy
          between suitability and eligibility finds place in Article
H
     M. MANOHAR REDDY v. UNION OF INDIA                       725
              [AFTAB ALAM, J.]
    217(1) in juxtaposition to Article 217(2). The word               A
    "consultation" finds place in Article 217(1) whereas the
    word "qualify" finds place in Article 217(2).

           43. One more aspect needs to be highlighted.
    "Eligibility" is an objective factor. Who could be elevated       8
    is specifically answered by Article 217(2). When
    "eligibility" is put in question, it could fall within the
    scope of judicial review. However, the question as to
    who should be elevated, which essentially involves the
    aspect of "suitability'', stands excluded from the purview of     C
    judicial review.

          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         D
    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            E
    Constitutional Bench of this Court in Supreme Court
    Advocates-on-Record Assn. and Special Reference No.
    1of1998.

                                              (emphasis added)
                                                                      F
    14. In paragraphs 71 and 74 of the judgment again the
Court observed as under:

    Justiciability of appointments under Article 217(1)

           71. In the present case, we are concerned with the         G
    mechanism for giving effect to the constitutional justification
    for judicial review. As stated above, "eligibility" is a matter
    of fact whereas "suitability'' is a matter of opinion. In cases
    involving lack of "eligibility" writ of quo warranto would
    certainly lie. One reason being that "eligibility" is not a       H
    726       SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A         matter of subjectivity. However, "suitability" or "fitness" of
          a person to be appointed a High Court Judge: his
          character, his integrity, his competence and the like are
          matters of opinion.

                 74. It is important to note that each constitutional
B
          functionary involved in the participatory consultative
          process is given the task of discharging a participatory
          constitutional function; there is no question of hierarchy
          between these constitutional functionaries. Ultimately, the
          object of reading such participatory consultative process
c         into the constitutional scheme is to limit judicial review
          restricting it to specified areas by introducing a judicial
          process in making of appointment(s) to the higher
          judiciary. These are the norms, apart from modalities, laid
          down in Supreme Court Advocates-on-Record Assn. and
D         also in the judgment in Special Reference No. 1 of 1998,
          Re. Consequently, judicial review lies only in two
          cases, namely, "lack of eligibility" and "lack of
          effective consultation". It will not lie on the content
          of consultation.
E
                                                   (emphasis added)

         1l5. In view of the decision in Mahesh Chandra Gupta, the
    question arises whether or not the case in hand falls in any of
F   the two categories that are open to judicial review. Admittedly,
    the eligibility of respondent No.3 is not an issue. Then, can the
    case be said to raise the issue of "lack of effective consultation".

       16. Mr. Shanti Bhushan strongly argued that the
  consultation that led to the appointment of respondent No.3 as
G the judge of the Andhra Pradesh High Court was completely
  deficient for not taking into consideration that he was accused
  in a pending criminal case and as a result, the appointment of
  respondent No.3 was wholly vitiated and it was fit to be quashed
  by this Court. In support of the submission Mr. Shanti Bhushan
H
        M. MANOHAR REDDY v. UNION OF INDIA                   727
                 [AFTAB ALAM, J.]
heavily relied upon the decision of this Court in Centre for PIL     A
and Another v. Union of India and Another (commonly called
as the eve case). Mr. Shanti Bhushan submitted that in that
case this Court had made institutional integrity as part of
eligibility criteria and had, thus, highly raised the standards of
qualification for appointment to a public office.                    B

      17. In the CVC case a three judge Bench of this Court held
that the recommendation for appointment of Shri P.J. Thomas
 as the Central Vigilance Commissioner was non-est in law and,
 consequently, quashed his appointment to that post. The C
 recommendation for appointment of Shri P.J. Thomas was
 made, by a majority of 2:1, by a committee consisting of (i) the
 Prime Minister, (ii) the Minister of Home Affairs and (iii) The
 Leader of Opposition in the House of the People (referred to
 in the judgment as the High-Powered Committee or the HPC).
 The Court held that the recommendation was non-est because D
 the HPC had failed to take into consideration the pendency of
 case No. 6 of 2003 (relating to the import of Palmolein oil by
 the Kerala Government), in which the Government of Kerala had
 accorded sanction for the prosecution of Shri P.J. Thomas
 (among others) for committing offences punishable under E
 Section 120-B of the Penal Code read with Sections 13 (i) (d)
 of the Prevention of Corruption Act and had based its
recommendation entirely on the blanket clearance given to Shri
 P.J. Thomas by the CVC (then in office) and the fact that during
the pendency of the criminal case Shri P.J. Thomas was F
 appointed as Chief Secretary of Kerala, then as the Secretary
 of Parliamentary Affairs and subsequently as the Secretary,
Telecom.

    18. At the first glance the CVC case appears to have G
some parallels with the case in hand and in order to apply the
decision in the eve case to the present case Mr. Shanti
Bhushan extensively cited from the judgment the passages'
where this Court identified the CVC as an institution and an
s.   c2011 > 4 sec 1.                                                H
    728     SUPREME COURT REPORTS                   [2013) 1 S.C.R.


A "integrity institution", stressed the imperative to uphold and
  preserve the integrity of that institution and observed that the
  recommendation for appointment as CVC should be not only
  with reference to the candidate but the overarching
  consideration should be the institutional integrity of the office.
B (See paragraphs 34-37, 42, 43, 47, 59 and 89 of the
  judgment).

        19. We have given the most careful consideration to the
  CVC decision and the submissions made by Mr. Shanti
C Bhushan on the basis of that decision, all the time bearing in
  mind that the Court must not overlook or condone something
  that may have the effect of lowering down the people's faith or
  trust in the judges or in courts. But we find that though there are
  some superficial similarity between the CVC case and the case
  in hand, the two cases are quite different in their core issues
D and we find it impossible to justly apply the CVC decision to
  the facts of the case in hand.

        20. In the CVC case the HPC was not unaware of Shri
  P.J. Thomas being an accused in a pending case for offences
£ punishable under Sections 120-B of the Penal Code read with
  Section 13(1 )(d) of the Prevention of Corruption Act. The
  recommendation that the HPC made in exercise of the statutory
  power under the proviso to Section 4 of the Central Vigilance
  Commission Act, 2003 was in a sense in defiance of the
F pending trial before the criminal court. The genesis and the
  developments taking place in the criminal case are discus~ed
  in paragraph 8 to 21 of the judgment in the eve case from
  which it appears that the institution of the case was preceded
  by the report of the Comptroller and Auditor General, followed
G by the report by the Public Undertaking Committee of the
  Kerala Assembly. On the basis of the reports, at least two writ
  petitions were filed (unsuccessfully} seeking direction of the
  High Court for institution of a criminal case. The criminal case
  was finally filed after the new government came to power in the
  State following the election on May 20, 1996. Even after the
H
            M. MANOHAR REDDY v. UNION OF INDIA                     729
                     [AFTAB ALAM, J.]

  institution of the case the matter had repeatedly gone to the            A
  High Court and traveled up to this Court. The Government of
  Kerala had made repeated requests to the Central Government
  in the Department of Personnel and Training for grant of
  sanction for prosecution of Shri P.J. Thomas. The matter had
  gone to the Central Vigilance Commission and there were its              B
  recommendations on record for initiation of disciplinary
  proceedings against Shri P.J. Thomas. In paragraph 44 of the
  judgment, the Court pointed out that between 2000 and 2004
/
  there were at least six noting of the DoPT suggesting that
· penalty proceedings may be initiated against Shri P.J. Thomas.           c
          21. In short, the fact about the pendency of the criminal
     case and Shri P.J. Thomas being one of the accused in the
     case was writ large all over the record before the HPC. The
     fact was not only within the personal knowledge of each of the
     three members of the HPC but it was in public domain. Hence,          D
     the recommendation of the HPC was not in ignorance of the
     criminal case. The recommendation was for appointment of Shri
     P.J. Thomas as the Central Vigilance Commissioner
     notwithstanding his being an accused in the criminal case
     and the HPC appeared not to see the criminal case as any              E
     impediment in the way of his appointment as the Chief Vigilance
     Commissioner.

         22. Let us now examine how far the facts of the present
     case bear similarity to the eve case.                                 F

           23. In the writ petition and in course of hearing of the case
      respondent No.3 has been repeatedly called, a little loosely and
      rather uncharitably, an "absconder" and a "proclaimed offender"
      in a case of robbery and burning down of a bus. It is seen
      above that the criminal case in question had no element of           G
      robbery or bus burning. We may now examine how far it is
    · correct to call respondent No.3 as an "l:lbsconder" and a
      "proclaimed offender''.

          24. It is noted above that the charge sheet was filed in the     H
   730       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A court of the Munsif Magistrate, Mangalagiri on October 19,
  1983. On October 25, the Magistrate directed for issuance of ·
  summonses, fixing November 25, 1983 as the date for hearing.
  The summonses, issued in pursuance of the order, are on file
  marked as paper nos. 25 to 30, but they bear no endorsement
B about service. At the reverse of summonses to accused 3 and
  4, it is mentioned that they were studying in B.L., First Year,
  Nagarjuna University. On November 25, 1983, the accused
  were not present in court. Their absence was recorded in the
  order-sheet and fresh summonses were directed to be issued,
c fixing December 23, 1983 as the date of hearing. Whether or
  not summonses were issued in pursuance of the order is not
  known because those summonses are not on the record. On
  December 23, 1983, the accused were again not present and
  summonses were again directed to be issued, fixing January
D 25, 1984 for hearing. On January 25, 1984, the accused were
  once again not present and fresh summonses were issued
  fixing February 15, 1984 for hearing. The summonses are on
  the file marked as paper Nos. 31 to 36. The case was then
  listed on a number of dates but the accused did not appear.
  Finally on November 27, 1985, accused 1 appeared in court
E but accused 2 to 5 were still not present. On January 9, 1987,
  the court ordered to separate the case of accused 2 to 5 and
  proceeded with the trial of accused 1. On June 2, 1987,
  statement of accused 1 was recorded under Section 251 of the
  Code of Criminal Procedure. On March 1, 1988, the statements
F of PW1 and PW2, namely, S. Satyanarayanaraju and P. Peda
  Sivaiah (being the driver and conductor of the bus in question)
  were recorded. It is significant to note that neither the driver nor
  the conductor of the bus (PW1 and PW2 respectively), named
  or identified the accused who had attacked the bus. The driver
G said that around 50 or 60 students had charged at them in a
  group. The conductor said that when the driver stopped the bus,
  the students came shouting and blocked the bus. He became
  afraid and ran away with the cash bag. The prosecution did not
  examine any more witnesses and on May 12, 1988, accused
H 1 was examined under Section 313 of the Code of Criminal
       M. MANOHAR REDDY v. UNION OF INDIA                       731
                [AFTAB ALAM, J.]
  Procedure. Finally by judgment and order dated July 4, 1988,         A
. the trial court found accused 1 not guilty of the offences alleged
  against him and acquitted him of the charges. While acquitting
  him, the trial judge noted that the prosecution witnesses were
  not able to identify the accused. It was also noted that as per
  the FIR the incident occurred at night and the bus was attacked      B
  by more than 50 persons and there was no material with
  regard to the identity of the culprits who attacked the bus and
  caused damage. It was noted that the FIR does not mention
  the names of the persons who participated in the offence. It
  was also noted that in his deposition before the trial court PW2     c
  (the bus conductor) denied having identified the accused in his
  statement under Section 161 of the Code of Criminal
  Procedure.

     25. Let us now see the case relating to the other four
 accused, including accused 4, that is respondent No.3.                D

      26. It is noted above that on November 27, 1985 accused
 1 alone appeared before the court. On March 5, 1986 the court
 ordered for issuance of non-bailable warrants against accused
 2 to accused 5. The warrants are not on record and it is not E
 known whether any warrants were in fact issued in pursuance
 of the order. On January 9, 1987 the court ordered to separate
the case of accused 2 to accused 5. After the case was
separated, the record pertaining to accused 2 to accused 5
was registered as CC No. 75/87 and was later renumbered F
as CC No. 167/91. From the order sheet it appears that from
May 1987 to August 1991, the court passed orders on about
twenty four dates directing for issuance of non-bailable
warrants of arrest against the accused but no compliance is
noted against any order, excepting the one passed on August .G
30, 1991. However, no warrants, even of that date, are on the
file. Mechanical orders continued to be passed in the same
fashion till April 2000 and then suddenly on May 8, 2000 the
order was passed for issuance of non-bailable warrants and
processes under Sections 82 & 83 of Code of Criminal
                                                                       H
    732     SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A   Procedure against the accused, fixing July 18, 2000 as the next
    date in the case. The compliance of the order is noted on May
    11, 2000 on the order sheet. From the record it, however,
    appears that process under Secti0ns 82 & 83 was issued on
    May 11, 2000 only against accused 3, P.R. Muruthy son of P.B.
B   Subbarao. Thereafter, the case was listed on several dates,
    awaiting execution of warrants and proclamation. On June 20,
    2001 the court took steps for recording evidence in absence
    of the accused under Section 299 of the Code of Criminal
    Procedure and then, after the case was listed on three different
c   dates, on November 5, 2011, the examination-in-chief of the
    bus driver (PW1) was recorded under Section 299 of the Code
    of Criminal Procedure. On the same date, the examination-in-
    chief of the bus conductor (PW2) was recorded. In their
    depositions neither PW1 nor PW2 (the bus driver and the bus
    conductor) named anyone as accused and both of them said
D   that they did not know the leaders of the group of students that
    had attacked the bus. Again on the same day, that is November
    5, 2011, the Assistant Public Prosecutor made an application
    to the effect that the other witnesses mentioned in the charge-
    sheet were passengers in the bus and their whereabouts are
E   not known in view of the passage of time. Accordingly, it was
    prayed that the evidence of the prosecution may be closed.

         27. Thereafter, the Magistrate submitted the record to the
    Sessions Judge, Guntur with the request to issue proceedings
F   to treat the case as long pending case. The Sessions Judge
    on December 26, 2011 gave permission to the trial judge to
    declare the case being CC No. 167/1991 as a long pending
    case.

         28. However, soon thereafter on January 31, 2002, the
G   Assistant Public Prosecutor moved an application under
    Section 321 of the Code of Criminal Procedure, seeking
    permission to withdraw the case in the interest of justice. A
    reference was made in the application to GO Rt No. 1961,
    dated December 11, 2001 whereby the Government had
H
        M. MANOHAR REDDY v. UNION OF INDIA                        733
                 [AFTAB ALAM, J.]
 · decided to withd_raw the prosecution against the accused              A
· .·persons. On a consideration of the materials on record, by an
   order dated January 31, 2002, the trial judge granted
   permission to the prosecution to withdraw the case and,
   accordingly, all the accused were discharged.
                                                                         B
      29. A perusal of the court record shows that during the
 entire period, service of summonses in the ordinary course
 were not effected on the four accused persons. Although a
 proclamation under Section 82 and 83 of the Code of Criminal
 Procedure was ordered to be issued, the record does not show C
 any publication having been made. However, the record does
 show that service was sought to be effected by beat of drum
 only on accused 3. There is nothing on the record to show that
 any attempt, let alone any serious attempt, was made to serve
 the summons or the non-bailable warrants on any of the
 accused persons.                                               D
      30. The purpose in adverting to the proceedings of the
 criminal case in detail is not to point out the irregularities in the
 proceeding. Anyone even with a passing acquaintance with the
 Code of Criminal Procedure can see that gross irregularities            E
 were committed practically at every step in the proceeding. We
 have referred to the proceedings to judge whether respondent
 No. 3 could be said to have any knowledge of the case in which
 he was cited as accused 4. From the record of the case which
 we have discussed in detail above, we find it very difficult to         F
 hold that respondent No. 3 was even aware that in some record
 buried in the courts at Mangalagiri he was named as an
 accused and he was required to appear in the court in
 connection with that case.
      31. Apart from the record of the case, there are external G
 circumstances that strengthen this view. From the resume of
 respondent No. 3, as noted at the beginning of the judgment, it
 may be seen that before his appointment as a judge of the High
 Court, he was the Additional Advocate General of Andhra
 Pradesh. If the case would have been within his knowledge it H
    734      SUPREME COURT REPORTS                 [2013] 1 S.C.R. ~.


A is unimaginable that he would not have attended to it and got
  it concluded one way or the other.
       32. Here it may also be noted that before filing this writ
  petition before this Court the petitioners had made a
  representation, both before the Chief Justice of India and the
8
  Law Minister, asking for the removal of respondent No. 3 as a
  judge of the Andhra Pradesh High Court on the same
  allegations. The representation that came to the office of the
  Chief Justice of India received full consideration and the Chief
C Justice of India called for a report on the matter from the Chief
  Justice of the Andhra Pradesh High Court vide his letter dated
  January 18, 2012. The Chief Justice, Andhra Pradesh High
  Court made a detailed enquiry and submitted his report dated
   February 7, 2012. In his report the Chief Justice, Andhra
   Pradesh High Court came to the same conclusion as we have
D arrh1ed at on an independent appraisal of the record of the
  case. In paragraphs 29 and 32 of the report, the Chief Justice
  stated as under:
          "29. It does appear that Justice XXX was unaware of the
E         pendency of the criminal case. I say this from the record
          of the case, which speaks for itself, and the contents of
          which need not be repeated. I also say this for another
          reason.
          32. In my opinion Justice XXX was truly unaware of the
F         criminal case against him and he deserves to be believed
          when he says so."
       33. In light of the discussion made above, we have no
  hesitation in holding that at the time respondent No.3 was being
G considered for appointment as a judge of the High Court, he
  was unaware of any case being pending in which he was named
  as an accused and it is quite wrong to refer to him as "an
  absconder and a proclaimed offender" in the case. This finding
  leads to another and that is, it is not a case of suppression of
H any material fact by respondent No.3 or at his behest. Here we
       M. MANOHAR REDDY v. UNION OF INDIA                     735
                [AFTAB ALAM, J.]
. wish to make it clear that had it been a case of deliberate and    A
  conscious suppression of material fact by respondent No.3 the
  position would have been entirely different. But that is not the
  case here.
      34. Now we propose to examine whether apart from
                                                                     8
 respondent No. 3, anyone else, who could be in the position to
 bring the fact to the knowledge of the High Court Collegium or
 the State Government or the Supreme Court Collegium or the
 Central Government, was aware of the pendency of the case.

      35. Mr. Shanti Bhushan submitted that the State Police C
 had submitted the charge-sheet against respondent No. 3 and
 hence, the State Government must be deemed to be aware of
 'he fact. The submission plainly overlooks that the State
 Government is not a monolith and it does not function as a
 single person. The State Government functions in different D
 departments manned by different people and simply because
 a charge-sheet was submitted by the State Police no conscious
 knowledge of the fact can be attributed to the State
 Government.
                                                                     E
      36. We have carefully gone through the record relating to
 the appointment of respondent No. 3 as a judge of the Andhra
 Pradesh High Court. From the record it is evident that none of
 the members of the High Court or the Supreme Court Collegia
 was aware of the fact. The State Government was equally
 unaware of the fact and so was the Central Government as is         F
 evident from the resume prepared by the Law Ministry as also
 the 18 Report.

     37. This is not all. In 1993, respondent No. 3 was a
candidate for the post of the Member of the Income Tax               G
Appellate Tribunal and in that connection he was interviewed
by a Selection Committee headed by a sitting judge of the
Supreme Court. He was selected for appointment and was
issued an appointment letter dated September 8, 1995 as
judicial member in the ITAT. The appointment letter was              H
    736     SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A undoubtedly issued to him only after police verification and·
  nothing was mentioned even at that stage about any criminal
  case pending against him. He did not accept the appointment
  is another matter altogether.
        38. From all the attending circumstances, it is clear beyond
8
    doubt that not only respondent No. 3 himself but practically no
    one was aware of the pendency of the case in which he was
    named as an accused.

       39. The question, therefore, arises can a fact that is
C unknown to anyone be said to be not taken into consideration
  and can the consultative process faulted as incomplete for that
  reason. To our mind, the answer can only be in the negative.
  To fault the consultative process for not taking into account a
  fact that was not known at that time would put an impossible
D burden on the Constitutional Authorities engaged in the
  con1:1ultative process and would introduce a dangerous element
  of uncertainty in the appointments.
        40. In case it comes to light that some material facts were
E withheld by the person under consideration or suppressed at
  his behest then that may be a case of fraud that would vitiate
  the consultative process and consequently the appointment
  resulting from it. Bu.t in case there was no suppression and the
  fact comes to light a long time after the person appointed has
  assumed the office of a judge and if the Members of the two
F Houses of the Parliament consider the discovered fact
  sufficiently serious to constitute misbehaviour and to warrant his
  removal, then he may still be removed from office by taking
  recourse to the provisions of Article 124(4) or Article 217 read
  with Article 124(4) as the case may be. In case, however, the
G fact was unknown and there was no suppression of that fact, a
  writ of quo warranto would certainly not lie on the plea that the
  consultative process was faulty.
       41. In light of the discussion made above, we are clearly
H of the view that no case is made out for issuing a writ of quo
        M. MANOHAR REDDY v. UNION OF INDIA                        737
                 [AFTAB ALAM, J.]
 warranto quashing the appointment of respondent No. 3 as the             A
· judge of Andhra Pradesh High Court.

      42. The legal issue raised by Mr. Shanti Bhushan is
 answered but this matter cannot be given a proper closure
 unless we also say that this writ petition professed to have been        8
 filed in public interest is, in our view, but a ruse to malign
 respondent No.3.

      43. In his report to the Chief Justice of India the Chief
 Justice, Andhra Pradesh High Court has made the following
 comment:                                                                 C

      "27. The incident occurred almost 30 years ago. The case
      against Justice Ramana was withdrawn almost 10 years
      ago. That it should be raked up now is a little inexplicable.
      The case does not seem to have been sensational in any              D
      manner whatsoever so that someone would be following
      it up. Therefore, it is a little odd that it should have suddenly
    · surfaced now. It is possible that there is some reason
      behind digging up this case, but I am unable to fathom the
      motive."
                                                                          E
       44. What the Chief Justice said, in a highly restrained
 manner, about the representation addressed to the Chief
 Justice of India, applies more to this writ petition. The writ
 petition owes its origin to a news report published in a Telugu
 daily newspaper called 'Sakshi' on December 27, 2011. A                  F
 translated copy of the report is enclosed as Annexure P-11 to
 the writ petition. The report is based on incorrect facts and is
 full of statements and innuendos that might easily constitute the
 offence of defamation leave alone contempt of court. After the
 news broke out, the petitioners seem to have collected the               G
 record of the criminal case and filed this writ petition on that
 basis. The writ petition is drafted with some skill and it presents
 the facts of the criminal case in a rather twisted way in an
 attempt to portray respondent No.3 in bad light. The way the
 writ petition is drafted shows that the petitioners are competent        H
    738      SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A and experienced counsel. Had they examined the records of
  the criminal case objectively and honestly, there was no reason
  for them not to come to the same conclusion as arrived at in
  this judgment or as appearing from the report of the Chief
  Justice, Andhra Pradesh High Court. It, therefore, appears to
B us that this writ petition is not a sincere and honest endeavour
  to correct something which the petitioners truly perceive to be
  wrong but the real intent of this petition is to malign respondent
  No.3.
       45. It is indeed very important to uphold the "institutional
C integrity'' of the court system as pointed out in the eve judgment
  and as strongly advocated by Mr. Shanti Bhushan, but it is
  equally important to protect the court from uncalled for attacks
  and the individual judges from unjust infliction of injuries.
D       46. In light of the discussions made above, we find this writ
  petition not only without merit but also wanting in bona tides. It
  is, accordingly, dismissed with costs of Rs.50,000/- payable by
  each of the two petitioners. The cost amount must be deposited
  in a fund for the welfare of the employees of the Andhra
E Pradesh High Court within four weeks from today.

    R.P.                                  Writ Petition Dismissed.