JUDGMENT :

J.B. Mehta, J.

The petitioner who was a Judge of this Court challenges in this petition the order of his transfer dated May 27, 1976 at Annexure "A". The short facts which have given rise to this petition are as under.

2. The petitioner was enrolled as an advocate of the Bombay High Court on January 28, 1946. He practised at Bombay since his enrolment until April 30, 1960 and on the formation of the Gujarat State, he shifted his legal practice to this High Court where he practised till April 22, 1969. On April 23, 1969 he was appointed a Judge of the Gujarat High Court for a period of two years and was appointed a permanent puisne Judge on August 5, 1970. The petitioner' would retire on completion of the age of 62 years on January 5, 1981 and so, a period of about four years and six months was left for him to retire from service.

3. The petitioner has been transferred by the impugned order to the Andhra Pradesh High Court without obtaining his consent, without consulting him and against his will. As fifteen other Judges were also transferred, the petitioner believed that they also were so transferred without their consent and without any prior consultation with them.

4. The petitioner's case was that on a true interpretation of Article 222(1) of the constitution as per the true history and setting and context of that provision, this power could not be exercised without the consent of the concerned Judge as this was a constitutionally guaranteed tenure for the purpose of securing the independence of the Judges. The petitioner had relied upon promissory estoppel based on the speech of the then Law Minister, Mr. A.K. Sen, in 1963 while speaking on the Fifteenth Amendment of the constitution where this principle and convention had been in terms accepted by the Government of India, and on the faith of it the petitioner and other Judges having accepted judgeship, there was clearly a promissory estoppel and so also, the transfer order was challenged as illegal and void. The petitioner pointed out the various personal and public injuries which would result because of such a transfer without the consent of the Judge concerned and pointed out that such compulsory transfers on a large scale were likely to undermine public confidence in the administration of justice because a Judge, as per the oath of office, had to decide without fear or favour between the state and the individual litigant. That is why this practice of not transferring judges without their consent to another state had been uniformly followed all these years. The petitioner further relied on the fact that these large scale transfers suffered from want of application of mind because these injuries to the individual and to the public ought to have been taken into account and as such orders were likely to demoralise the higher judiciary. It was further the case of the petitioner that the sixteen Judges had been transferred not for the purpose of improving the administration of justice but on account of the independence, objectivity and fearlessness shown by them while discharging their judicial functions and the instances of these transferred Judges had been pointed out including the petitioner himself who had given decisions against the Government in important cases. It was, therefore, contended that the petitioner's transfer was penal in character.

5. The petitioner also contended that the constitutional requirement of presidential consultation with the Chief Justice of India was a substantial requirement and not a formal or empty requirement. The Chief Justice had a duty to point out the public and personal injuries which would have been occasioned by such transfers with their consequent effect on the administration of justice, independence of judiciary and rule of law. The petitioner being not aware of the fact of any such effective consultation and whether such personal and public injuries were brought to the notice of the president of India by the learned Chief Ju