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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, P.N. BHAGWATI, V.R. KRISHNA IYER, N.L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.
Union of India, Appellant
Versus
Sankalchand Himatlal Sheth and another, Respondents.
Civil Appeal No. 1486 of 1976,
D/- 26-8-1977 and 19-9-1977.
Advocates Appeared
Mr. S. V. Gupte, Att. Gen., Mr. R. P. Bhatt, Sr. Advocate (Mr. R. N. Sachthey and Miss A. Subhashini, Advocates with them), for Appellant; Mr. H. M. Seervai, Sr. Advocate (M/s. B. R. Agarwala and Janendra Lal, Advocates with him), for Respondent No. 1.
ARTICLE EMBODIED SOCIAL PHILOSOPHY OF CONSTITUTION
Constitution Act, 1963 - Prize Competitions Act - Sections 4 and 5 - Government of India Act, 1935 - Section 220 (2) - High Court Judges Act, 1954 - Section 2 (c) (iii) - Constitution of India,1950 – Article 222 - Order of transfer mitigated against public interest - Exercise of complete disciplinary jurisdiction - Whether one can still read into that article words which are not to be found in it - Whether an action for negligence lies against a barrister it was held that immunity of a barrister from an action for negligence at suit of his client in respect of his conduct and management of a cause in court was not based on absence of a contract between barrister and client but on public policy and long usage in that interests of administration of justice required that a barrister should be able to carry out his duties to court fearlessly and independently - Whether abolition of rule of immunity would probably be attended by such disadvantage to public interest as to make its retention clearly justifiable - Order of transfer and assumed charge of his office as a Judge of High Court but before doing so he filed a writ petition in High Court challenging constitutional validity of notification on following grounds - Order was passed without his consent such consent must be necessarily implied in Article 222 (1) of Constitution and therefore transfer of a Judge from one High Court to another High Court without his consent is unconstitutional - Order was passed in breach of assurance given on behalf of Government by then Law Minister who while moving Constitution Act, 1963 said in that so far as High Court Judges were concerned they should not be transferred excepting by consent having accepted judgeship of High Court on April on faith of law Ministers assurance Government was bound by that assurance on doctrine of promissory estoppels - Order of transfer mitigated against public interest - Power conferred by Article 222 (1) was conditioned by existence and requirement of public interest and since impugned transfer was not shown to have been made in public interest - Order was passed without effective consultation with Chief Justice of India - Consultation in Article 222 (1) means effective consultation and since precondition of Article 222 (1) that no transfer can be made without such consultation was not fulfilled order was bad and of no effect - Union of India was respondent 1 to petition while Chief Justice of India or his successor-in-office was imp leaded as respondent 2 - Union of India filed a counter-affidavit repudiating factual allegations made in his writ petition and disputing validity of his legal contentions - Chief Justice of India did not file any affidavit and beyond appearing through Addl. Solicitor General who also represented Union Government he took no part in proceedings – Held, In court considered judgment it could not be so utilized - It may well be that public interest in some cases does require and necessitate transfer of a Judge from one High Court to another but it is strange to think that a Judge could be compelled to vacate his office of Judge of a High Court to which he was initially appointed and assume office as a Judge of another High Court without his consent - If this view was possible to be taken in case of transfer it was all more reasonable to do so in case of appointment of a High Court Judge to be a Judge of SC - Articles dealing with appointments of Judges either to High Court or to SC do not in terms require consent of appointee yet nobody has suggested so far nor could anybody do so with any semblance of justification that a Judge of High Court can be appointed a Judge of SC without his consent - Public interest may require that he should be so appointed - But at same time public interest also demands con-interference with independence of judiciary by not forcing a Judge to vacate his office of a Judge of High Court to which he was appointed and to accept office of a Judge of the SC or High Court without his consent until and unless a special law or procedure has been made or prescribed guarding against any inroad on independence of judiciary - It is very obvious that public policy which renders protection of witnesses necessary for administration of justice must as a necessary consequence involve that which is a step towards and is part of administration of justice-namely preliminary examination of witnesses to find out what they can prove - It may be that to some extent it seems to impose a hardship but after all hardship is not to be compared with that which would arise if it were impossible to administer justice because people would be afraid to give their testimony – Court not concerned to examine in this case whether law in India in this regard is exactly same or not but court felt tempted to quote those passages to show that there may be necessity and justification on ground of public interest or policy for transfer of Judges from one High Court to another although it may be few and far between or even punitive in character but to do so without consent of Judge concerned will bring about devastating results and cause damage to tower of judiciary and erosion in its independence - If adequate safeguards are provided for to examine individual cases on merits by an impartial and independent body matter may be different - Learned Attorney General argued that to impose condition of consent in power of transfer engrafted in Article 222 is a denial of power itself - Court do not accept this submission to be quite correct - Order accordingly
Judgment
Y. V. CHANDRACHUD, J.:- This appeal by certificate involves the question as to the constitutionality of a notification issued by the President of India on May 27, 1976 which reads thus:
"In exercise of the powers conferred of Clause (1) of Art. 222 of the Constitution of India, the President after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sankalchand Himatlal Sheth, Judge of the High Court of Gujarat, as Judge of the High Court of Andhra Pradesh with effect from the date he assumes charge of his office."
By a foot-note, Justice Sheth was "requested to take charge of his duties in the Andhra Pradesh High Court within four weeks from the date of issue" of the notification. The notification was issued by the Government of India in its Ministry of Law, Justice and Company Affairs, Department of Justice.
2. Mr. Sheth complied with the order of transfer and assumed charge of his office as a Judge of the Andhra Pradesh High Court but before doing so, he filed a writ petition, 911 of 1976, in the Gujarat High Court challenging the constitutional validity of the notification on the following grounds:
(i) The order was passed without his consent: such consent must be necessarily implied in Art. 222 (1) of the Constitution and therefore the transfer of a Judge from one High Court to another High Court without his consent is unconstitutional;
(ii) The order was passed in breach of the assurance given on behalf of the Government of India by the then Law Minister Shri A. K. Sen who, while moving the Constitution (15th Amendment) Act, 1963 said in the Lok Sabha that "so far as High Court Judges were concerned, they should not be transferred excepting by consent." Mr. Sheth having accepted judgeship of the Gujarat High Court on April 23, 1969 on the faith of the law Ministers assurance, the Government of India was bound by that assurance on the doctrine of promissory estoppel;
(iii) The order of transfer mitigated against public interest. The power conferred by Art. 222 (1) was conditioned by the existence and requirement of public interest, and since the impugned transfer was not shown to have been made in public interest, it was ultra vires: and
(iv) The order was passed without effective consultation with the Chief Justice of India. Consultation in Art. 222 (1) means "effective consultation" and since the precondition of Art. 222 (1) that no transfer can be made without such consultation was not fulfilled, the order was bad and of no effect.
3. The Union of India was respondent 1 to the petition while Shri A. N. Ray, Chief Justice of India, or his successor-in-office was impleaded as respondent 2. The Union of India filed a counter-affidavit repudiating the factual allegations made by Mr. Sheth in his writ petition and disputing the validity of his legal contentions. The Chief Justice of India did not file any affidavit and beyond appearing through the Addl. Solicitor General, who also represented the Union Government, he took no part in the proceedings.
4. The writ petition was heard by a special Bench of three Judges, Justices J. B. Mehta, A. D. Desai and D. A. Desai. They unanimously rejected the challenge to the order of transfer on the ground of promissory estoppel. As regards the first ground J. B. Mehta and D. A. Desai JJ. held that the order was not void for want of Mr. Sheths consent to his transfer. A. D. Desai J., however, took the view that the Judge of a High Court cannot be transferred without his consent. The third and fourth grounds were treated together by the learned Judges as two facets of the same contention and they held, unanimously, that there was no effective consultation with the Chief Justice of India. They arrived at this conclusion by different processes of reasoning into which it is unnecessary to go at this stage. J. B. Mehta J. voided the order of transfer on the ground that Mr. Sheth was "never consulted or informed of even the proposal of transfer as per the minimum re
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