Petitioner: Mr. Anumesh Respondent: NGO Issues: 1. Writ of Quo-Warranto is maintainable or not? 2. Whether the appointment of Mr.

Anumesh as a permanent judge is constitutional or not? 3. Whether the high court of khand has its jurisdiction in the state of nadu or not? 4. Whether consultation of collegiums is necessary for appointment of a judge? Anumesh= where there is no allegation that the respondent was not qualified to hold the office , quo warranto will not lie on the , mere ground that the pleasure of the appointing authority ( e.g that of the governor , in the case of appointment of a chief minister) was exercised improperly. The principle has been applied to a case where chief minister carries on the administration at the request of the governor, even after losing confidence of the legislative assembly. Cf. jogendra v. state of assam AIR 1982 gau 47 ( Para 5-6 ,11-12) Nokulasana v.rishang AIR 1982 gau 47 (para 6).

Respondent -: the invalidity of the appointment may arise not only from want of qualification, but also from the violation of such legal condition or procedure for appointment as are mandatory and as a result of which the appointment becomes void. Or the aprooving authority not being competent.In short, quo warranto will not issue unless there is a clear

infringement of provisions having the force of law.or some provisions of the constituion itself. The priciple laid down in R v. Speyer has been followed in India. In the proceeding for a writ of Quo Warranto to test the validity of an appointment to a public office ,the applicant does not seek toenforce any right of his as such , nor does he complains of non performance of any duty towards him .What is Question is the right of non applicant to hold the office.Hence,it is not necessary in such a case that the applicant must have personal interest in the matter.

Article 217(2) in The Constitution Of India 1949

(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; 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 be 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 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
Articles 124 and 217 of the Constitution of India deal with the appointment of Supreme Court and High Court Judges respectively. Although the provisions are theoretically simple and clear, their practical implementation has been highly controversial. There has been an unfortunate power struggle on the question of supremacy or primacy in the matter of appointment of such Judges. The members of the Constituent Assembly who drafted the Constitution of India would have scarcely imagined that these simple provisions would have led to so much of acrimony and debate.

Appointment of Supreme Courrt and High Court Judges - two important cases:
The method of appointment of High Court Judges was considered in detail in what is popularly called the Second Judges case - Supreme Court Advocates-on-Record Association v Union of India AIR 1994 SC 268

Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta

vs. Union of India (AIR 1982 SC 149), the majority held that consultation does not mean concurrence and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance tilted in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less. After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash. In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only overruled S.P. Guptas case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of protecting the integrity and guarding the independence of the judiciary. For the same reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were are recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system. One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the cherished concept of independence. It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment. Reaction to this judicial assertion of power have not been uniform*. 3.6 In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the Collegium for the purpose of appointment of Judges to the Supreme Court.

What is writ of quo warranto?

It is a writ calling upon a person to show by what authority ha claims to an office,franchise or liberty.It is regarded as an appropriate and adequate remedy to dermine rights or title to a public office and to oust one who has unlawfully usurped or intruded into such office.The writ affords a judicial inquiry into such matters.However,quo warrantocannot be claimed as a matter of right in the sense that the court is not bound to grant the relief prayed for,but if the validity of an appointment or a claim to an office by a person is challenged by a applicant for a writ and the court is satisfied that the writ has been presentated by bona fide,is without improper delay,it has the right to investigate the matter and decide on the validity of the appointmnet. Originally, a writ of quo warranto was only avalible for use by the king of england to protect him against encroachemnet of the royal prerogative or of the rights,franchise or liberties of the crown.At a later period,a practice commenced for exhibition informations of quo warranto at the instance of private persons,but subject to certain statutory restraints.Technically,this writ is issued against an usurper of an office or against a person who is entitled to make an appointment to that office. In india,in an appropriate case,a High Court can issue a writ of quo warranto even though there is no prayer to that effect in the writ pettion.

Prayer: Petitioner wants to Quash