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Vishwanath Gopal Palshikar v/s Union of India (UOI) & Others

    Civil Writ Petition No. 3719 of 1999

    Decided On, 06 October 1999

    At, High Court of Rajasthan

    By, THE HONOURABLE CHIEF JUSTICE MR. SHIVARAJ V. PATIL & THE HONOURABLE MR. JUSTICE BHAGWATI PRASAD

   



Judgment Text

Shivaraj V. Patil, C.J.

Heard the petitioner party in person.

2. The petitioner is a Hon'ble Sitting Judge of this High Court. He has filed the writ petition and has prayed that this Court be pleased to-(a) call for the records from the respondent-Union of India pertaining to the appointment and transfer of the petitioner as a Judge of the High Court of Bombay to the Judge of the Rajasthan High Court and on perusal of the same; (b) quash the transfer order Annex. C by a writ of Certiorari or any other writ, order or direction being unconstitutional, illegal and arbitrary; (c) issue a writ of Mandamus or any other writ, order or direction directing the respondents to examine the policy of transfer and retransfer of all the transferred Judges transferred in the year 1994 without discrimination and malice; and (d) declare that the opinion given by the Supreme Court under Article 143 being unconstitutional, is not binding on the President of India; (e) declare that the additions made to Articles 124, 227 and 222 by the Judgment of the Supreme Court reported in Supreme Court Advocates-on-Record Association and another Vs. Union of India, as also the opinion given under Article 143 in October, 1998 as unconstitutional; (f) be ordained that all constitutional authorities shall continue to perform their constitutional functions in accordance with the Constitution of India as established by law ignoring the unconstitutional amendments made to it in the matter of appointments and transfer of Judges of the High Courts in India; (g) as an ad interim relief restrain the respondents during the pendency of the petition from making any retransfer on acceptance of representations at the instance of the collegium by appropriate ad interim writ, order or direction; and (h) grant any other relief, which this Hon'ble Court deems fit in the circumstances of the case.

3. Based on the averments made in the writ petition, he urged that the decisions of the Apex Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India, and in In Re: Appointment and Transfer of Judges, making additions to the Articles 124, 227 and 222 are per incuriam of the provisions of the Constitution and, as such, such additions made in the aforementioned judgment and the order made in the Special Reference Case may be declared as unconstitutional. He assailed the policy of transfer and retransfer of Judges from one High Court to the other as arbitrary in relation to some Judges and has sought for issuing of mandamus directing the respondents to examine the policy of transfer and retransfer of all the transferred Judges transferred in the year 1994 without discrimination and malice. According to him, unde

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r the circumstances, having regard to the nature of relief sought for and the averments made in the writ petition, the writ petition is maintainable.

4. He drew our attention to para 16.77 of the Constitutional Law of India, Fourth Edition by H.M. Seervai, which reads :

"In relation to persons, bodies or tribunals having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, these writs are issued to the same end; a writ of mandamus is appropriate to compel a Tribunal to exercise a jurisdiction vested in it by law which it refuses to exercise. Prohibition is appropriate to restrain a Tribunal which threatens to assume or assumes a jurisdiction not vested in it, so long as there is something in the proceedings left to prohibit. Certiorari is appropriate to quash the decisions of a Tribunal which has assumed a jurisdiction it does not possess or where the order contains an error of law apparent on the face of the record. Whereas mandamus is not restricted to persons charged with a judicial or quasi-judicial duty, prohibition and certiorari can issue only if the person, body or Tribunal is charged with judicial or quasi-judicial duties."

5. The petitioner submitted that the Hon'ble Supreme Court has assumed the jurisdiction not vested in it by the Constitution of India in adding the phrase 'the Chief Justice shall always be consulted' will mean consultation by the Chief Justice of India with four senior-most Judges of the Supreme Court of India which cumulative consultation and opinion shall be binding on the President irrespective of the language of Article 222. He urged that in the judgment of the Supreme Court aforementioned and also in the order of Special Reference, Hon'ble Supreme Court has amended the Constitution itself, which could not be done except in accordance with Article 368 of the Constitution of India. He referred to and read paras 292 and 533 contained in the decision of the Apex Court in S. C. Advocates-on-Record's case (supra). He submitted that two Hon'ble Judges of the Supreme Court have expressed their dissent in regard to such additions to the constitutional provisions. Hence, the writ petition is maintainable.

6. The petitioner was transferred to this High Court of Rajasthan on 14-2-1994 and the writ petition was filed on 16-9-1999. He explained about the delay saying that he knew about the transfer policy in the year 1994 and when number of Judges were transferred pursuant to the said policy, he kept quite. But, when recently, some Judges were retransferred, who were similarly placed to him and his representation was rejected on 30-8-1999 without assigning any reason, he has filed the writ petition on 16-9-1999 and, as such, there was no delay. In short and substance, the petitioner contends that there has been arbitrary exercise of power in transfer and retransfer of Hon'ble Judges of High Courts.

7. We have given our anxious and serious consideration to the contentions raised by the petitioner.

8. The controversies raised in the writ petition have to be essentially examined in the light of the law already laid down by the Hon'ble Supreme Court, as we are bound by the judgments of the Apex Court in terms of Article 141 of the Constitution of India.

9. The issues regarding transfer of Judges and the scope of judicial review were considered by the Apex Court in the earlier judgments. In Supreme Court Advocates-on-Record Association and another Vs. Union of India, the Hon'ble Supreme Court at paras 423, 494, 496, 531 and 532 has stated thus :

"423. So far as the interpretation of Article 222 of the Constitution regarding transfer of a Judge from one High Court to another, we entirely agree with the reasoning and the conclusions reached by Verma, J. We reiterate that the power vested under Article 222 can only be exercised in "public interest". It is only the Chief Justice of India who can examine the circumstances in a given case and reach a conclusion as to whether it is in public interest to transfer or retransfer a Judge from one Court to another. Concept of "public interest" when read in Article 222 makes it obligatory that the views of the Chief Justice of India are accepted by the Executive. We also agree with Verma. J. that a transfer made in public interest on the recommendation of the Chief Justice of India is not justiciable."

494. Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Article 222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of India's opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, and S.P. Gupta Vs. President of India and Others, . It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Article 222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same.

496. The power of transfer can be exercised only in 'public interest' i.e. for promoting better administration of Justice throughout the country. After adoption of transfer policy, and with the clear provision for transfer in Article 222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not.

531. Transfer of Judges from one High Court to another is almost the judiciary's internal affairs. The role of the Chief Justice of India in that regard is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter. Here the word consultation would shrink in a mini form. Should the Executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary. For instance take the case of a recommendation made by a Chief Justice of the High Court to which the Chief Justice of India is in disagreement, and the Executive preferring the view of the Chief Justice of the High Court makes the appointment and which Judge is recommended to be transferred by the Chief Justice of India to another High Court. In the first place, preferring the opinion of the Chief Justice of the High Court over and above that of the Chief Justice of India erodes the primacy of the Chief Justice of India based on his status, rank and precedence constitutionally noticed, and in the second place, recommendation of transfer of that Judge to another High Court, makes the proposal suspect. This obviously is a breeding ground of indiscipline. So the role of the Chief Justice of India in the matter of appointment of Judges of the High Court and their transferability are connected matters which cannot be divorced on the mere fact of the possibility of their separate happening. The role of the Chief Justice of India in this twin subject has to be viewed from the selfsame angle, i.e. to subserve the independence "of judiciary in the interest of the Indian people.

532. Thus on the question of primacy I conclude to say that the role of the Chief Justice of India in the matter of appointments of the Judges of the Supreme Court is unique, singular and primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and neither he nor the Executive can push through an appointment in derogation of the wishes of the other. S.P. Gupta Vs. President of India and Others, to that extent need be and is hereby explained away restoring the primacy of the Chief Justice. The roles of the Chief Justice of India and Chief Justice of the High Court in the matter of appointments of Judges of the High Court, is relative to this extent that should the Chief Justice of India be in disagreement with the proposal, the Executive cannot prefer the views of the Chief Justice of the High Court in making the appointment over and above those of the Chief Justice of India. In the matters of transfers of Judges from one High Court to another, the role of the Chief Justice of India is primal in nature and the Executive has a minimal, if not, no say in the matter, for consultation envisaged under Article 222 of the Constitution is used in a shrunk form and more as a courtesy, the subject being one relating to the in-working of the judiciary."

10. In the case of K. Ashok Reddy Vs. The Government of India, the Apex Court in paragraphs 11 and 13 has held thus :--

"11. It is therefore, clear that exercise of power of transfer under Article 222 of the Constitution is to subserve a public purpose and to promote 'public interest' for better administration of Justice throughout the country, which is the inherent guideline implicit in Article 222 as held in the Judges' Case II. The expression 'public interest' has a legal connotation well known and properly understood and so also the requirement of promoting better administration of justice throughout the country, which is the guideline held to be implicit in Article 222 of the Constitution.

13. In our opinion, the guidelines of 'public interest', i.e.. "for promoting better administration of justice throughout the country" is sufficient guideline for proper exercise of the power and to ensure exclusion of the possibility of any arbitrariness in the exercise of power of transfer under Article 222 in accordance with the commendation of the Chief Justice of India as indicated in the Supreme Court Advocates-on-Record Association and another Vs. Union of India, and its application to individual cases is a question of fact in each case. Laying down exhaustive guidelines in this behalf is neither expedient nor pragmatic. It has also been indicated in the Judges' Case-II that "suitable norms, including those indicated. ..... must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases. The application of the broad guidelines to individual cases according to norms evolved in practice has to be left to the discretion of the Chief Justice of India which is to be exercised in consultation with his colleagues whose opinion is required to be taken for this purpose. The factors which may be relevant for promoting better administration of Justice throughout the country to subserve the public interest contemplated by such transfers would depend on the myriad situations which might have to be met. Some such relevant factors would be shifting of a Judge from one High Court to another for improving the functioning of either High Court; avoiding embarrassment to the Judge on account of close relations practising ordinarily in the same High Court or any Court subordinate thereto; the likelihood of embarrassment to the Judge on account of any litigation or property interest in the same State; if the Judge, for any reason, has become controversial so that his continuance in the same High Court is not conducive to his interest or to the image of the judiciary or to the proper functioning of that High Court, or any other similar situation. The transfer of any Judge with his consent can, of course, be always made. The factors indicated are not an exhaustive list of all the relevant factors in this behalf and are merely illustrative."

11. The Hon'ble Supreme Court dealing with the question of transfer in the Presidential Reference No. 1 of 1998 In Re: Appointment and Transfer of Judges, has stated thus :--

"33. What emerges from the aforesaid is this: Before recommending the transferor a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India must consult a plurality of Judges. He must take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may have significance in the case and at least one other senior Chief Justice of a High Court or any other person whose views he considers relevant. The then Chief Justice of India had constituted, as was noted in Ashok Reddy's case, a Peer Committee of the two senior-most puisne Judges of the Supreme Court and two Chief Justices of High Courts to advise him in the matter of transfers of High Court Judges; That Committee is no longer in position.

34. It is to our mind imperative, given the gravity involved in transferring High Courts Judges, that the Chief Justice of India should obtain the views of the Chief Justice of the High Court from which the proposed transfer is to be effected as also the Chief Justice of the High Court to which the transfer is to be effected. This is in accord with the majority judgment in the second Judges case which postulates consultation with the Chief Justice of another High Court. The Chief Justice of India should also take into account the views of one or more Supreme Court Judges who are in a position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place. These views should be expressed in writing and should be considered by the Chief Justice of India and the four senior-most puisne Judges of the Supreme Court. These views and those of each of the four senior-most puisne Judges should be conveyed to the Government of India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner aforesaid, it is not decisive and does not bind the Government of India.

35. Wide based decision-making such as this eliminates the possibility of bias or arbitrariness. By reason of such elimination the remedy of judicial review can legitimately be confined to a case where the transfer has been made or recommended without obtaining views and reaching the decision in the manner aforestated."

12. As to the scope of judicial review, in the matter of transfer, the Apex Court in Supreme Court Advocates-on-Record Association and another Vs. Union of India, has held :

"502. The primacy of the Judiciary in the matter of appointments and its determinative nature in transfers introduces the Judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness.

503. These guidelines in the form of norms are not to be construed as conferring any justiclable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer of their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary.

504. 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 busy-bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta Vs. President of India and Others, while expanding the concept of locus standi, was adverted to recently by a Constitution Bench In Krishna Swami Vs. Union of India and another, 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 fuctipnaries 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."

13. Again, the Apex Court in the case of K. Ashok Reddy Vs. The Government of India, has stated thus :--

"18. Supreme Court Advocates-on-Record Association and another Vs. Union of India, does not exclude judicial review but merely limits the area of justiciability to the constitutional requirement of recommendation of the Chief Justice of India for exercise of the power under Article 222 by the President of India. The power under Article 222 of the Constitution is to be exercised by the highest constitutional functionaries in the country in the manner indicated which provides several inbuilt checks against the likelihood of arbitrariness or bias. In S.P. Gupta Vs. President of India and Others, even though the concept of locus standi for challenging the transfer policy was liberalised and the standing to sue in public interest litigation has been considerably widened, yet the validity of individual transfers was examined only at the instance of the transferred Judge and not at the instance of anyone else. The need for restricting the standing to sue in such a matter to the affected Judge alone has been reiterated in the Judges' Case-II. It is, therefore, made clear that the transfer of a High Court Judge is justiciable only on the ground indicated in the Judges' Case-II and only at the instance of the transferred Judge himself and not anyone else. This emphasis is necessary to prevent any transferred Judge being exposed to any litigation involving him except when he choose to resort to it himself in the available limited area of Justiciability.

22. It is for this reason that the reduced area of justiciability has been indicated in the Judges' Case-II. When it was said in the Supreme Court Advocates-on-Record Association and another Vs. Union of India, that the ground of bias also is not available for challenging a transfer, it was to emphasise that the decision made by the collective exercise of several Judges at the apex level on objective criterion on which the recommendation of the Chief Justice of India is based, is an inbuilt check against arbitrariness and bias indicating absence of need for judicial review on those grounds. This is how the area of justiciability is reduced in the sphere of Judicial review of transfer of Judges."

14. In the order made in the Presidential Reference No. 1 of 1998 In Re: Appointment and Transfer of Judges, the Hon'ble Supreme Court in paragraph 41(2) has clearly stated that "the transfer of puisne Judges is judicially re-viewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior most puisne Judges of the Supreme Court and /or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained."

15. The maintainability of the writ petition is to be examined, in the light of the law laid down by the Supreme Court in the aforementioned cases, as focussed in the paragraphs of the judgments extracted above, for the immediate purpose relating to order of transfer and retransfer.

16. In Supreme Court Advocates-on-Record Association and another Vs. Union of India, the Apex Court has clearly stated that the scope of judicial review in the matter of transfer is very limited and has held that the judicial review can be only on the ground that the transfer was made without the recommendation of the Hon'ble Chief Justice of India and that order of transfer is 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.

17. In the case of K. Ashok Reddy Vs. The Government of India, the Apex Court has again stated referring to the Judges Case-II that the area of justlciability is reduced in the sphere of judicial review of transfer of Judges.

18. The Hon'ble Supreme Court in the aforementioned Presidential Reference has expressed that 'the remedy of Judicial review can legitimately be confined to a case where the transfer has been made or recommended without obtaining views and reaching the decision in the manner aforesaid'. As already noticed above in paragraph 41(2) of the order made in the aforementioned Presidential Reference, it is held that "the transfer of puisne Judge is judicially reviewable only on the ground that the recommendation that has been made by the Chief Justice of India, has not been made in consultation with four senior most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained."

19. We are unable to agree with the submission of the petitioner that the writ petition is maintainable, in the light of the opinion expressed by the learned author H. M. Seervai in Constitutional Law of India Fourth Edition and taking note of the dissenting views expressed by two Hon'ble Judges of the Supreme Court in paragraphs 292 and 533 of the judgment in S. C. Advocates on Record's case (supra), ultimately the majority view expressed in the judgments of the Apex Court is binding on us under Article 141 of the Constitution of India.

20. It is not the case of the petitioner that his transfer was made without the recommendation of the Hon'ble Chief Justice of India, as required. The scope of judicial review in the matter of transfer is limited and confined only to, want of recommendation by the Hon'ble Chief Justice of India in the manner stated in the aforementioned decisions of the Supreme Court. This ground is neither raised in the writ petition nor urged in the submissions by the petitioner.

21. Hence, it is not possible for this Court exercising powers under Article 226 of the Constitution of India to widen or expand the scope of Judicial review beyond the limit prescribed by the Hon'ble Supreme Court in the aforementioned cases. We again state that the law declared by the Hon'ble Supreme Court in the aforementioned cases is binding on us under Article 141 of the Constitution of India. Hence, this writ petition is not maintainable.

22. The petitioner has given written submissions in support of the various points raised by him. In the view we have taken, it is neither desirable nor necessary for us to deal with other contentions raised by the petitioner, on their merits.

23. Thus, for the reasons stated above, we have no choice, but to dismiss the writ petition, as not maintainable. Accordingly, it is dismissed as such.
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