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It is humbly submitted before the Honble Supreme Court that the appointment of the appellant as a Permanent Judge of High

Court is violative of the appropriate procedure for the same because the Chief Justice of Dia has not consulted the collegium of judges before issuing his recommendation to the Government. The freedom of judges has a close relationship with judicial appointment because the appointment system has a direct bearing on the impartiality, integrity and independence of judges1. Therefore, the decision taken in matter of appointment has to be formed by Chief Justice, in consultation with a collegium of Judges. Collegium consists of the two senior most Judges of the Supreme Court, the Chief Justice of the High Court concerned and two seniormost judges of the same High Court2. As far as the appointment of an Additional Judge is concerned the procedure is the same. It has been laid down by the Supreme Court that an Additional Judge and a Permanent Judge of the High Court have the same status and powers; they discharge their functions in a similar manner and are deemed to be Judges of the High Court under Articles 216 (constitution of the High Court), 217-28 (mode of appointment and removal), 219 (oath), 221(salary), 222 (liability to transfer), 223 (appointment as acting CJ).3 It is clear on a plain reading of Article 217 clause (1) that when an Additional Judge is to be appointed, the procedure set out in that article is to be followed. Clause (1) of Article 217 provides that Every Judge of a High Court shall be appointed after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. The expression Every Judge must on a plain natural construction include not only a permanent Judge but also an Additional Judge. It is significant to note that whenever the Constitution makers intended to make a reference to a permanent Judge, they did so in clear and explicit terms as in clause (2) of Article 224. Moreover, there is inherent evidence in Article 217 clause (1) itself which shows that the expression Every Judge is intended to take in an Additional Judge as well. Clause (1) of Article 217 says that: Every Judge ... shall hold office, in the case of an Additional Judge ... as provided in Article 224 ..., which clearly suggests that the case of an Additional Judge is covered by the opening words Every Judge.

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Shimon Shetreet, Judges on Trial, pp. 46. In Re Presidential Reference, (1998) 7 SCC 739. 3 SP Gupta v UOI, (1981) Supp SCC 87 (per BHAGWATI, FAZAL ALI, GUPTA, TULZARPURKAR, DESAI, PATHAK, VENKATRAMIAH, JJ.).

Now, when the term of an Additional Judge expires he ceases to be a Judge and therefore, if he is to continue as a Judge, he must be either reappointed as an Additional Judge or appointed as a permanent Judge. In either case, clause (1) of Article 217 would operate and no reappointment as an Additional Judge or appointment as a permanent Judge can be made without going through the procedure set out in Article 217 clause (1). The name of the Additional Judge would have to go through the procedure of clause (1) of Article 217 and after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, the Central Government would have to decide whether or not to reappoint him as an Additional Judge or to appoint him as a permanent Judge. From the fact that a person has been deemed duly qualified and the procedure has been followed correctly for him to become an Additional Judge, it cannot be said that he should be deemed to have been appointed a permanent Judge on the expiry of his specified term.4 And if there is failure to comply with such procedure, then it is in violation of constitutional scheme and the constitutional purpose for which these provisions were enacted.5 In the case of Supreme Court Advocates-on Record Association v. UOI6, it has been held by Honble Supreme Court that, ... A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual hut to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process... The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions and, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted. The Chief Justice does not have absolute discretionary power or primacy in matter of appointment and hence, such appointment should be made after having consensus and taking in account all the views of judges in collegiums, so that no question of primacy is raised. In the case of Supreme Court Advocates-on Record Association v. UOI7, the Honble Supreme Court held that,

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SP Gupta v UOI, ibid. paras 631, 755, 1057 SP Gupta v UOI, ibid. para 39-40 6 Supreme Court Advocates-on Record Association v. Union of India, (1993) 4 SCC 441 (para. 15) 7 Ibid., para 40,41

....giving absolute discretion or the power of void to the Chief Justice of India as an individual in the matter of appointments was not considered desirable... The indication is, that in the choice of a candidate suitable for appointment that was done merely to indicate that absolute discretion was not given to any one, not even to the Chief Justice of India as individual, much less to the executive. The primary aim must he to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion... The primacy is not given to Chief Justice alone, in matter of appointment of judges as to keep a check against the likelihood of arbitrariness or biasness. In case of Supreme Court Advocates-on Record Association v. Union of India8, this court has held that, The primacy of the judiciary in the matter of appointments is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. Furthermore, in the case of In Re Presidential Reference, the Supreme Court had set the conditions in which the appointment of a Judge would come under the purview of judicial review. These are: 1. If, in making the decision as regards the appointment of a High Court Judge, the views of the Chief Justice and the senior judges of the High Court concerned, and of the Supreme Court judges having knowledge of that High Court, have not been sought or considered by the Chief Justice of India and his two seniormost colleagues; 2. If the appointee lacks eligibility. In this case the CJI did not consult the collegiums for extension of appointment of Additional Judge to Permanent Judge. Thus, the appointment of the appellant as a Permanent Judge in the High Court of Nadu is invalid and the writ of quo warranto as issued by the High Court of Khand against him is consequentially valid.

Supra., Para 74

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