CJ’s word on postings not binding: SC

As regards the appointment of HC judges, the Bench said that the consultation by the CJI for the purpose should be made with two senior-most judges of the apex court besides the CJ of the HC from where the transfer is to be made and the CJ of the HC where the transferee judge has to go.

"The sole individual opinion of the CJI does not constitute consultation and hence the recommendation by the CJI without complying with the norms and requirements of the consultation processare not binding on the Union Government," the Bench headed by Justice S P Bharucha said in its 43-page verdict on the nine-point Presidential reference on the issue.

The reference made on July 23 this year under Article 143(1) of the Constitution raised nine questions of law in regard to the consultation process to be followed by the CJI while making recommendations for appointment and transfer as laid down in an earlier decision by a Constitution Bench in the case of the Supreme Court Advocates on Record Association (SCORA) in 1993.

The Bench, which included Justice M K Mukherjee, Justice S B Mazmudar, Justice Sujatha V Manohar, Justice G T Nanavati, Justice S Saghir Ahmad, Justice K Venkataswami, Justice B N Kirpal and Justice G B Pattanaik, also answered all the nine questions raised in the reference.

The verdict, which has vindicated the stand of the government on the issue, paves the way for early filling up of seven vacancies in the Supreme Court and nearly 150 vacancies in various high courtsbesides transfer of HC judges.

The appointments and transfers of judges had come to a standstill when the government, a few months ago, declined to clear the names recommended by former CJI M M Punchhi alleging that the consultation process had not been followed as laid down in the 1993 judgement in the SCORA case.

Widening the scope of consultation process, the ruling said in regard to appointment of judges to the Supreme Court, the CJI should consult "a collegium of four seniormost judges of the supreme court" and made it clear that even if "two judges give adverse opinion, the CJI should not send the recommendation to the government."

However, giving primacy to the CJI’s opinion the Constitution Bench said, "the collegium should make the decision in consensus and unless the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be made."

The Bench held that the transfers of High Court judges were subject to judicial review but the same right could only be exercisedby the aggrieved judge in a limited manner and none else.

The transfer of a high court judge was justiciable only on the ground that proper consultation process was not followed but the ground of bias was not available to the aggrieved judge to challenge his transfer, the Bench said.

"When it was said that the ground of bias was not available for challenging a transfer, it was to emphasise that the decision by the collective exercise of several judges at the highest level on objective criteria, on which the recommendation of the CJI was based, was an inbuilt check against arbitrariness and bias," it said.

However, the Bench said in case any judge challenged his transfer in a court other than the Supreme Court, the same should exercise the option of requesting the apex court to take over the matter to avoid embarrassment.

"If any court other than the Supreme Court was called upon to decide a matter relating to the transfer of a high court judge, it should promptly consider the option of requesting theSupreme Court to withdraw to itself the case for decision to avoid any embarrassment," it said.

Verdict upholds Govt stand: BJP

NEW DELHI: BJP today welcomed the Supreme Court judgement on the appointment of judges saying it had upheld the government stand on the issue. Party vice-president K L Sharma said the apex court’s judgement that the judges should be appointed through the process of consultation was welcome. “It has vindicated the government’s stand in this regard,” he added.

Asked whether the opinion given by the nine-judge Constitution Bench on the Presidential Reference would expedite filling of large number of vacancies in the High Courts and the Supreme Court, the AG said, “naturally”.