Judgment:

Dr. Arijit Pasayat, J.

1. Judges, like Caesars wife, should be above suspicion is the focal point in this petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution) filed by Mr. Shanti Bhushan, a senior lawyer of eminence and former Law Minister and Ms. Kamini Jaiswal, an Advocate. The writ petition is stated to have been filed in public interest litigation seeking appropriate declaration and issuance of a writ of quo warranto or any other writ or direction quashing the appointment of respondent No.2 as a Judge of the Madras High Court. The prayers read as follows:

(a) 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 Honble 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 the final opinion of the Chief Justice of India formed in the aforesaid manner. In the oral arguments and the written submissions, reference has been made to various paragraphs of the aforesaid judgments and the memorandum dated 30th June, 1999 issued by the Minister of Law, Justice and Company Affairs, Union of India, laying down procedure to be followed in connection with the appointment and transfer of Judges of High Courts. It is submitted that while forming the opinion, the Chief Justice of India has to consult two senior-most Judges and some other Judges of the Supreme Court who are conversant with the affairs of the High Court concerned. The latter category includes the serving Supreme Court Judges who were either puisne Judges or Chief Justice of the concerned High Court though the concerned High Court may not be their parent High Court and they may have been transferred to the said High Court. It is, therefore, submitted that the appointment of respondent No.2 as a permanent Judge as notified on 2.2.2007 has no sanctity in law. He was sworn as a permanent Judge on 3.2.2007.

3. Thefollowing paragraphs in the judgments referred to above have been relied upon.

1998 (7) SCC 739 (Special Reference No.1 of 1998)

"12. The majority view in the Second Judges case (1993 (4) SCC 441) is that in the matter of appointments to the Supreme Court and the High Courts, the opinion of the Chief Justice of India has primacy. The opinion of the Chief Justice of India is "reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation". It is to be formed "after taking into account the view of some other Judges who are traditionally associated with this function". The opinion of the Chief Justice of India "so given has primacy in the matter of all appointments". For an appointment to be made, it has to be "in conformity with the final opinion of the Chief Justice of India formed in the manner indicated". It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon.

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29. The majority judgment