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TMI Blog1994 (2) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... fers were likely to be influenced by extraneous considerations leading to arbitrariness resulting in erosion of the independence of judiciary. Another contention was that the decision by the nine-Judge Bench in the Judges' Case-II excludes the power of judicial review and is, therefore, in conflict with the decision of a larger Bench in His Holiness Kesavananda Bharati Sripadaqalavaru v. State of Kerala, [1973] (Supp.) S.C.R. 1. The Andhra Pradesh High Court rejected these contentions taking the view that such misapprehensions result from a misreading of the decision of the nine-Judge Bench in the Judges Case-II. Civil Appeal No. 140 of 1994 has been filed by special leave against that judgment. 3. When the aforesaid civil appeal came up for hearing, it was reported that a writ petition raising similar questions had been filed in the Allahabad High Court and, therefore, it was considered appropriate to withdraw that writ petition from the Allahabd High Court and to hear and decide the same along with the said civil appeal. Accordingly, that writ petition withdrawn from the Allahabad High Court is Transferred Case No. 1 of 1994 and is also decided along with the civil appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to portions of the decision in the Judges' Case-II to indicate that these matter are covered by that decision. Submissions of Ms. Indira Jaising were substantially to the same effect with the addition that some more guidelines for effectuating the transfer policy could be indicated herein to ensure uniformity in its working. The points raised in the transferred case from Allahabad are also covered by these submissions and do not require separate consideration. 8. Having given our anxious consideration to the matter, we are satisfied that the points raised in the civil appeal as well as the transferred case are adequately covered by the decision in the Judges' Case-II. It would be appropriate to advert particularly to some portions of that decision which are material for the present purpose, before dealing with the sub missions made. 9. The material portions of the majority opinion in Supreme Court Advocates-on-Record Association and Ors. v. Union of India, AIR1994SC268 , are as under: The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All-India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an all-India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive. There is nothing in Article 222 to require the consent of a Judge/Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Article 222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S.P. Gupta has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice. XXX XXX XXX (4) It may be desirable to transfer in advance the senior-most Judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice. In transfer of puisne Judges, parity in proportion of transferred Judges must be maintained between the High Courts, as far as possible. (5) The recommendations in the Report of the Arrears Committee (1989-90) mention certain factors to be kept in view while making transfers to avoid any hardship to the transferred Judges. These must be taken into account. (Para 479) JUSTICIAB1LITY Appointments and Transfers The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation with the named constitutional functionaries 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. (Paras 480 to 482) Pandian, J. In his separate concurring opinion has expressed his entire agreement on this point, as under: Transfer of Judges With regard to the interpretation of Article 222 regarding transfer of Judges from one High Court to another, I entirely agree with the reasoning and conclusion arrived at by learned brother, J.S. Verma, J. (Para 252) Conclusions Though I have given my reasons separately, as indicated even at the threshold of the judgment, I am in agreement with the conclusions of my learned brother, J.S. Verma, J. regarding the process of appointment of Judges, initiation of the proposal for appointments and the right of primacy to the opinion of Chief Justice of India in the matter of appointment of Judges, transfer of High Court, Judges/Chief Justices of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. The expression 'public interest' in the context of the Premature Retirement Rules was held to be an expression having the well settled meaning that it refers to the interests of public administration. (See Gian Singh Mann v. The High Court of Punjab and Haryana and Anr.: (1981)ILLJ153SC and Union of India v. Col. J.N. Sinha and Anr. (1970)IILLJ284SC ). 13. In our opinion, the guideline 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the constitutional validity of the transfer policy was judicially upheld in S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. [1982]2SCR365 . The conferment of that power by Article 222 and the proper manner of its exercise to exclude any arbitrariness has then been indicated in the Judges' Case-II, wherein the trust reposed by the President of the Constituent Assembly in the constitutional functionaries was recalled and adverted to. Dr. Rejendra Prasad had said: Many things which cannot be written in the Constitution are done by conventions. Let me hope that we shall show those capacities and develop those conventions. 16. It is for this reason, that detailed guidelines are not to be found in the Constitution and they have to emerge in the working of Article 222. It has been made known that after the Judges' Case-II, the Chief Justice of India constituted a Peer Committee comprising of the two seniormost puisne Judge of the Supreme Court and two Chief Justice of High Courts to make suggestions for transfers and the Chief Justice of India is to make his recommendations on that basis and in accordance with the broad guidelines indicated in the Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 chooses to resort to it himself in the available limited area of justiciability. 19. A useful passage from Craig's Administrative Law (Second Edition) is as under: The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof .... The traditional position has however now been modified by the decision in the G.C.H.Q. case. Their Lordships emphasised that the review ability of discretionary power should be dependent upon the subject-matter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory.... (at page 291) In Council of Civil Service Unions and Ors. v. Minister for t ..... 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