W.P. (C) Nos. 148 & 147 of 2023 Page 5 of 9
against any arbitrariness or bias, as well as any erosion
of the independence of the judiciary.
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 while expanding the
concept of locus standi, was adverted to recently by a
Constitution Bench in Krishna Swami v. Union of India. 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.”
6. Following the ratio, in Mahesh Chandra Gupta (supra), it has been
held that:
“77. As stated above, in the present case, the matter has
arisen from the writ of quo warranto and not from the writ
of certiorari. The biodata of Respondent 3 was placed
before the Collegiums. Whether Respondent 3 was
“suitable” to be appointed a High Court Judge or whether
he satisfied the fitness test as enumerated hereinabove
is beyond justiciability as far as the present proceedings
are concerned. We have decided this matter strictly on
the basis of the constitutional scheme in the matter of
appointments of High Court Judges as laid down in
Supreme Court Advocates-on-Record Assn. and in
Special Reference No. 1 of 1998, Re. Essentially, having
worked as a member of the Tribunal for 11 years,
Respondent 3 satisfies the “eligibility qualification” in
Article 217(2)(b) read with Explanation (aa).”