HC: Justice Patel’s appointment right

In the petition advocate and former sessions judge V P Patil had contended that article 217 (2) lays down eligibility for appointment of HC judges and their appointment can be done from either the lower judiciary or the bar. Article 217 (2)(a) provides that a lower court judge should have completed 10 years of service as a judge to be eligible for elevation to the HC. Justice Patel was appointed City Civil Court judge on April 20,1987. Patil’s petition stated that as Justice Patel was appointed from the lower judiciary his case falls under Article 217 (2) (a) and he was not eligible for appointment.

Additional Solicitor General Darius Khambata,appearing for the Union government,Justice Patel and the High Court justified the appointment on grounds that though Justice Patel held judicial office for 8 years,10 months and 19 days,the deficiency can be made good from his earlier practice. Patel was a practising lawyer for 13 years before he took up judicial office. Hence a person who has been advocate prior to judicial appointment or who practices as a lawyer after holding judicial office can also be eligible,Khambata said.

Kadam,the amicus curie in the case,supported the arguments and said eligibility and suitability of a candidate for appointment are separate and distinct. He said eligibility can be matter of judicial review while suitability is out of bounds for judicial review with exceptions.