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TMI Blog2008 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... ; restrain respondent No. 2 from functioning as a Judge of the Madras High Court. (b) Direct respondent No. 1 to produce all the records regarding the appointment/re-appointment of respondent No. 2 as Additional Judge and also as the permanent Judge; and (c) pass any other or further orders, as this Hon'ble Court may deem fit and proper. 2. The grievances center around the appointment of respondent No. 2 as a permanent Judge by the Union of India (Department of Justice, Ministry of Law and Justice). It is stated that required norms have not been followed while appointing him as a permanent Judge and such appointment is in violation of the law as declared by this Court in Supreme Court Advocates-on-Record Association & Ors. v. Union of India [1993 (4) SCC 441] and Special Reference No. 1 of 1998 [1998 (7) SCC 739]. The primary ground urged is that the opinion of the Chief Justice of India has to be formed collectively after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of opinion and no appointment can be made unless it is in conformity with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment in the Second Judges case requires the Chief Justice of a High Court to consult his two seniormost puisne Judges before recommending a name for appointment to the High Court. In forming his opinion in relation to such appointment, the Chief Justice of India is expected (SCC p. 702, para 478) "to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court...." The Chief Justice of India should, therefore, form his opinion in regard to a person to be recommended for appointment to a High Court in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his seniormost puisne Judges. They would in making their decision take into account the opinion of the Chief Justice of the High Court which "would be entitled to the greatest weight", the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court Bench "who are conversant with the affairs of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp;xx 41. We have heard with some dismay the dire apprehensions expressed by some of the counsel appearing before us. We do not share them. We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case and this opinion. xx xx xx 44 (8) The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India." 1993 (4) SCC 441 Supreme Court Advocates-on-Record Assn. v. Union of India "460. The question of primacy of the role of the Chief Justice of India has to be examined not merely with reference to the fact that an appointment is an executive act, or with reference only to the comparative constitutional status of the different consultees involved in the process, but with reference also to the constitutional purpose sought to be achieved by these provisions, and the manner in which that purpose can be best achieved. xx &emsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be it the Chief Justice of India or the Prime Minister. xx xx x 478(5). The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given, has primacy in the matter of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court, elaborate consultations as required for forming the opinion for appointment of an Additional Judge may not have considered necessary while considering the case for appointment as permanent Judge. Additionally, it is submitted that in Advocates-on-Records Association's case (supra) in paras 466, 467 and 468 this Court had observed that though some aspects in S.P. Gupta v. Union of India and Anr. [1981 (Supp) SCC 87] have the approval of the Larger Bench, yet the Executive itself has understood the correct procedure notwithstanding S.P. Gupta's case and there is no reason to depart from it when it is in consonance with the concept of the independence of the judiciary. Consequent to the judgment in Advocates-on-Record Association's case (supra) the memorandum of procedure was revised vide D.O. No. K-11017/9/93-US II dated 9-6-1994. Subsequently, on the basis of the opinion in Special Reference No. 1/1998 the revised procedure was prescribed by Reference No. K-110017/13/98-U.S II dated 30-6-1999. Paras 11, 12, 13, 14, 15, 16, 17, 18 and 19 pertain to appointment of permanent Judges. It is therefore submitted that there is no infirmity in the appointment of respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent Judge can be made without going through the procedure set out in Article 217, clause (1). Of course, an Additional Judge has a right to be considered for such reappointment or appointment, as the case may be, and the Central Government cannot be heard to say that the Additional Judge need not be considered. The Additional Judge cannot just be dropped without consideration. The name of the Additional Judge would have to go through the procedure of clause (1) of Article 217 and after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, the Central Government would have to decide whether or not to reappoint him as an Additional Judge or to appoint him as a permanent Judge. If the procedure for appointment of a Judge followed as a result of a practice memorandum issued by the Central Government is that the proposal for appointment of a Judge may ordinarily originate from the Chief Justice of the High Court and may then be sent to the Governor of the State and thereafter to the Chief Justice of India through the Justice Ministry for their respective opinions before a decision can be taken by the Central Government whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld it be reprehensible in the case of sitting Judge of a High Court. Moreover, leaving the investigation of complaints and doubts against a sitting Judge in the hands of an investigative agency under the control of a political Government would not be desirable because, apart from exposing the sitting Judge to unhealthy political pressures, it may not yield satisfactory result in all cases, because such an investigation would not have the benefit of the guidance of a mature and experienced person like the Chief Justice who has lived a whole lifetime in the courts and who is closely and intimately connected with lawyers and Judges in the court over which he presides. It would indeed be impossible for any one unfamiliar with the legal profession and the functioning of the courts to Judge the genuineness or veracity of the sources from which information might be obtained in regard to a sitting Judge. It must, therefore, necessarily be left to the Chief Justice of the High Court to give his opinion in regard to the suitability of an Additional Judge for further appointment on the basis of such information as he may gather by making his own inquiries. The Chief Justice of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by destroying the confidence of the public in the integrity and inviolability of administration of justice. Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against Judges in regard to their honesty and integrity and in recent times the tendency has grown to make such allegations against Judges because they have decided the case in a particular manner either against a dissatisfied litigant or contrary to the view held by a group or section of politicians or lawyers or members of the public. The Judge against whom such allegations are made is defenceless because, having regard to the peculiar nature of the office held by him, he cannot enter the arena of conflict and raise or join a public controversy. This pernicious tendency of attributing motives to Judges has to be curbed, if the judicial institution is to survive as an effective instrument for maintenance of the rule of law in the country and this can happen only if politicians, lawyers and members of the public accept the judgments rendered by the Judges as bona fide expressions of their views and do not impute motives to Judges for the judgments given by them, even though they be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not personally discussed by him with the Chief Justice of India at the meeting held on March 26, 1981. We are clearly of the view that the "full and identical facts" on which the decision of the Central Government was based were placed before the Chief Justice of India and there was full and effective consultation with him before the Central Government reached the decision that S.N. Kumar should not be continued as an Additional Judge. We may also point out that this decision of the Central Government was not based on any irrelevant considerations, since, as we have already pointed out earlier, lack of reputation for integrity is certainly a most relevant consideration in deciding whether a person should be appointed a Judge. 103. We may make it clear that in taking this view we do not for a moment wish to suggest that S.N. Kumar was lacking in integrity. That is not a matter into which we are called upon to enquire and nothing that is stated by us should be regarded as expression of any opinion on this question. We may observe in fairness to S.N. Kumar that the Chief Justice of India clearly stated it to be his opinion that the integrity of S.N. Kumar was unquestionable. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. Venkataramaiah, J (as the Hon'ble Judge then was) observed that a Judge appointed under Article 224(1) of the Constitution had a well founded expectation that he would be made permanent. The test which applied to the appointment of an Additional Judge under Article 217(1) would apply when an Additional Judge is to be appointed as a permanent Judge. 7. Before dealing with the case of respondent No. 2, the memorandum of procedure needs to be extracted so far as relevant. Paragraphs 11 to 18 and 20 read as follows : "11. The Chief Justice and Judges of High Courts are to be appointed by the President under Clause (1) of the Article 217 of the Constitution. The Judges of the Jammu and Kashmir High Court are to be appointed by the President under Section 95 of the Constitution of Jammu and Kashmir. Appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Minister) has nothing to add to the proposal and proceed accordingly. 15. The Union Minister of Law, Justice and Company Affairs would consider the recommendations in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would in consultation with the two senior most judges of the Supreme Court form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer. 15.1 After their consultation the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Minister of Law, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;xx xx 20. Additional Judges can be appointed by the President under Clause (1) of Article 224 of the Constitution. When the need for this arises, the State Government should first obtain the sanction of the Central Government for the creation of such additional posts. The correspondence relating to this should be in the normal official form. After the post is sanctioned the procedure to be followed for making the appointment will be the same as given in paragraph 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person being appointed as an Additional Judge." 8. So far as the scope of judicial review in such matters is concerned, it is extremely limited and is permitted to the extent indicated in para 482 of the Supreme Court Advocates-on-Record case (supra). 9. Essentially the decision in this case would depend upon the combined reading of paras 12 and 13. 10. It is to be noted that an Additional Judge cannot be said to be on probation for the purpose of appointment as a Permanent Judge. This position is clear from the fact that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case relatable to para 13. 11. As rightly submitted by learned counsel for the Union of India unless the circumstances or events arise subsequent to the appointment as an Additional Judge, which bear adversely on the mental and physical capacity, character and integrity or other matters the appointment as a permanent Judge has to be considered in the background of what has been stated in S.P. Gupta's case (supra). Though there is no right of automatic extension or appointment as a permanent Judge, the same has to be decided on the touchstone of fitness and suitability (physical, intellectual and moral). The weightage required to be given cannot be lost sight of. As Justice Pathak J, had succinctly put it 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 concept of plurality and the limited scope of judicial review because a number of constitutional functionaries are involved, are certainly important factors. But where the constitutional functiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointing him as a permanent Judge, same yardstick has to be followed while considering whether any extension is to be given to him as an Additional Judge. A person who is functioning as an Additional Judge cannot be considered in such circumstances for re-appointment as an Additional Judge. If the factors which render him unsuitable for appointment as a permanent Judge exist, it would not only be improper but also undesirable to continue him as an Additional Judge. 14. Coming to the factual scenario it appears that eight Additional Judges including respondent No. 2 were appointed on 3-4-2003 and respondent No. 2 was second in the order of seniority. On 1-4-2005 the term of the aforesaid Additional Judges was extended for a period of four months. On 27-7-2005, seven of the eight Additional Judges (except respondent No. 2) were appointed as permanent Judges and the term of respondent No. 2 was extended by one year w.e.f. 3-8-2005. Again on 3-8-2006 the term of respondent No. 2 was extended for a period of six months. The aforesaid scenario according to the petitioners shows that respondent No. 2 was found to be unsuitable to be appointed as a permanent Judge. It is emphasized th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chief Justice of the Madras High Court for appointing respondent No. 2 as a permanent Judge was accepted. The grievance of the petitioners as noted above is that collegium was not consulted. We have dealt with the legal position so far as this plea is concerned in detail above. Before the Chief Justice of India, at the time of accepting the recommendation for respondent No. 2 being made permanent, the details required to be furnished in terms of para 13 of the memorandum were there. There was also the recommendation of the then Chief Justice of Madras High Court who re-iterated the view of his predecessor in this regard. 16. The matter can be looked at from another angle. Supposing instead of accepting the recommendation for appointment as a permanent Judge, the Chief Justice of India would have extended the period of Additional Judgeship for two years which is maximum time permissible, there would not have been any requirement for taking the views of the collegium (as contended by the petitioners) and the result ultimately would have been the same i.e. respondent No. 2 would have continued as a Judge. It is to be noted that he is due to retire on 9-7-2009. As noted above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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