{"id":69774,"date":"1994-02-07T00:00:00","date_gmt":"1994-02-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-ashok-reddy-vs-government-of-india-on-7-february-1994"},"modified":"2018-09-06T21:03:01","modified_gmt":"2018-09-06T15:33:01","slug":"k-ashok-reddy-vs-government-of-india-on-7-february-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-ashok-reddy-vs-government-of-india-on-7-february-1994","title":{"rendered":"K.Ashok Reddy vs Government Of India on 7 February, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K.Ashok Reddy vs Government Of India on 7 February, 1994<\/div>\n
Equivalent citations: 1994 AIR 1207, \t\t 1994 SCR (1) 662<\/div>\n
Author: J S Verma<\/div>\n
Bench: Verma, Jagdish Saran (J)<\/div>\n
           PETITIONER:\nK.ASHOK REDDY\n\n\tVs.\n\nRESPONDENT:\nGOVERNMENT OF INDIA\n\nDATE OF JUDGMENT07\/02\/1994\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nKULDIP SINGH (J)\nBHARUCHA S.P. (J)\n\nCITATION:\n 1994 AIR 1207\t\t  1994 SCR  (1) 662\n 1994 SCC  (2) 303\t  JT 1994 (1)\t401\n 1994 SCALE  (1)377\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nVERMA,\tJ.- These matters are a sequel to the decision by  a
\nnine-Judge Bench in Supreme Court Advocates-on-Record  Assn.
\nv.  Union of India’<\/a> (hereinafter called the  “Judges’  Case-
\nIT’),  and relate to the question of transfer of  Judges  of
\nthe  High  Courts under Article 222 of the  Constitution  of
\nIndia.\n<\/p>\n
2.   Civil  Appeal  No.\t 140 of 1994  by  special  leave  is
\nagainst\t the  judgment\tof the\tAndhra\tPradesh\t High  Court
\ndismissing a writ petition filed by the appellant, K.  Ashok
\nReddy.\t In  substance,\t the  relief  claimed  in  the\twrit
\npetition  was a declaration that Judges of the\tHigh  Courts
\nare  not liable to be transferred from one to  another\tHigh
\nCourt.\t It was contended that the transfers were likely  to
\nbe  influenced\tby  extraneous\tconsiderations\tleading\t  to
\narbitrariness  resulting in erosion of the  independence  of
\njudiciary.  Another contention was that the decision by\t the
\nnine-Judge Bench in the Judges’ Case-III excludes the  power
\nof  judicial review and is, therefore, in conflict with\t the
\ndecision  of a larger Bench in Kesavananda Bharati v.  State
\nof
\n1   (1993) 4 SCC 441
\n307<\/span>
\nKerala2.   The\tAndhra\tPradesh High  Court  rejected  these
\ncontentions  taking  the  view\tthat  such  misapprehensions
\nresult\tfrom a misreading of the decision of the  nine-Judge
\nBench in the Judges’ Case-III.\tCivil Appeal No. 140 of 1994
\nhas been filed by special leave against that judgment.\n<\/p>\n
3.   When the aforesaid civil appeal came up for hearing, it
\nwas reported that a writ petition raising similar  questions
\nhad  been filed in the Allahabad High Court and,  therefore,
\nit was considered appropriate to withdraw that writ petition
\nfrom  the  Allahabad High Court and to bear and\t decide\t the
\nsame  along with the said civil appeal.\t  Accordingly,\tthat
\nwrit  petition\twithdrawn from the Allahabad High  Court  is
\nTransferred  Case  No. 1 of 1994 and is also  decided  along
\nwith  the civil appeal.\t The reliefs claimed in\t Transferred
\nCase  No.  1  of 1994 relate essentially to  Judges  of\t the
\nAllahabad High Court and their transfer.\n<\/p>\n
4.   Notice was issued to the Central Government as well  as
\nthe Attorney General\t of India in both these matters.\n<\/p>\n
5.   We\t have  heard  the  appellant,  K.  Ashok  Reddy,   a
\npractising  Advocate from Andhra Pradesh.   The\t petitioner,
\nHarikesh  Singh\t in  Transferred Case No. 1  of\t 1994  is  a
\npractising Advocate from Allahabad.  In spite of  sufficient
\nprior notice of the date of hearing, Harikesh Singh chose to
\nremain\tabsent\tand  took no steps  for\t appearance  on\t his
\nbehalf.\t  We  have, therefore, examined his  case  with\t the
\nassistance  of\tthe  learned  counsel  appearing  in   these
\nmatters.   We  also heard the learned Attorney\tGeneral\t and
\nShri A.K. Ganguli on behalf of the Central Government and Ms
\nIndira\tJaising who appeared on behalf of the  Sub-Committee
\non Judicial Accountability.\n<\/p>\n
6.   The  appellant, K. Ashok Reddy submitted  that  Article
\n222  of\t the Constitution of India is in  substance  a\tdead
\nletter\tsince the power thereunder is incapable of  exercise
\nin  the absence of guidelines provided in  the\tConstitution
\nitself.\t  He also submitted that judicial review is a  basic
\nfeature of the Constitution as held in Kesavananda  Bharati2
\nby  a  larger Bench and, therefore, the holding by  a  nine-
\nJudge Bench in the Judges’ Case-HI excluding judicial review
\nin  the\t matter of transfers is not good  law.\t Shri  Reddy
\nexpressed  his\tconcern at the likely arbitrariness  in\t the
\ntransfer of High Court Judges emphasising the fact that\t his
\nconcern\t was about the proper implementation of that  policy
\nand  not of its effect on any individual High  Court  Judge.
\nAccording  to him, the Judges’ Case-III should be  clarified
\nto prevent any arbitrariness.\n<\/p>\n
7.   The   learned  Attorney  General  submitted  that\t the
\nmisapprehensions  of  Shri  Reddy are  unfounded  since\t the
\nJudges’\t Case-III  has\tdealt with these  aspects  and\talso
\nindicated the guidelines to exclude any arbitrariness in the
\ntransfer  of  Judges.\tThe learned  Attorney  General\talso
\nsubmitted  that the Judges’ Case-HI does not  conflict\twith
\nthe decision in Kesavananda Bharati2 inasmuch as it does not
\nexclude\t judicial review but merely emphasises\tthe  limited
\narea  thereof  in view of the nature of that  exercise,\t the
\ndiscretion  being  vested  in  the  highest   constitutional
\nfunctionaries.\tShri
\n2 (1973) 4 SCC 225 : 1973 Supp SCR 1
\n308<\/span>
\nGanguli\t on behalf of the Central Government made  the\tsame
\nsubmission with reference to portions of the decision in the
\nJudges’ Case-III to indicate that these matters are  covered
\nby  that  decision.  Submissions of Ms Indira  Jaising\twere
\nsubstantially to the same effect with the addition that some
\nmore  guidelines for effectuating the transfer policy  could
\nbe  indicated  herein to ensure uniformity in  its  working.
\nThe points raised in the transferred case from Allahabad are
\nalso  covered  by  these  submissions  and  do\tnot  require
\nseparate consideration.\n<\/p>\n
8.   Having  given our anxious consideration to the  matter,
\nwe are satisfied that the points raised in the civil  appeal
\nas  well as the transferred case are adequately\t covered  by
\nthe   decision\tin  the\t Judges’  Case-III.   It  would\t  be
\nappropriate to advert particularly to some portions of\tthat
\ndecision  which are material for the present purpose  before
\ndealing with the submissions made.\n<\/p>\n
9.   The  material  portions  of  the  majority\t opinion  in
\nSupreme\t Court Advocates-on-Record Assn. v. Union of  India’<\/a>
\nare as under: (SCC pp. 699701; 706-08)
\n\t      “The  rule  of  law  envisages  the  area\t  of
\n\t      discretion  to be the minimum, requiring\tonly
\n\t      the   application\t of  known   principles\t  or
\n\t      guidelines to ensure non-arbitrariness, but to
\n\t      that limited extent, discretion is a pragmatic
\n\t      need.    Conferring   discretion\t upon\thigh
\n\t      functionaries    and,    whenever\t   feasible,
\n\t      introducing   the\t element  of  plurality\t  by
\n\t      requiring\t a collective decision, are  further
\n\t      checks  against  arbitrariness.  This  is\t how
\n\t      idealism\tand  pragmatism are  reconciled\t and
\n\t      integrated,  to make the system workable in  a
\n\t      satisfactory manner. …\n<\/p>\n
\t      The norms developed in actual practice,  which
\n\t      have  crystallized  into conventions  in\tthis
\n\t      behalf,  as  visualised in the speech  of\t the
\n\t      President\t of  the Constituent  Assembly,\t are
\n\t      mentioned later.\n<\/p>\n
\t      (Paras 468 and 469) Transfers
\n\t      Every power vested in a public authority is to
\n\t      subserve a public purpose, and must invariably
\n\t      be exercised to promote public interest.\tThis
\n\t      guideline is inherent in every such provision,
\n\t      and  so  also in Article 222.   The  provision
\n\t      requiring\t exercise  of  this  power  by\t the
\n\t      President\t only  after consultation  with\t the
\n\t      Chief Justice of India, and the absence of the
\n\t      requirement  of  consultation with  any  other
\n\t      functionary,  is\tclearly\t indicative  of\t the
\n\t      determinative nature, not mere primacy, of the
\n\t      Chief  Justice  of  India’s  opinion  in\tthis
\n\t      matter.\tThe entire gamut in respect  of\t the
\n\t      transfer\tof  Judges is covered  by  Union  of
\n\t      India v. Sankalchand Himatlal Sheth<\/a> 3 and S.P.
\n\t      Gupta  v.\t Union of India4.  It  was  held  by
\n\t      majority\tin both the decisions that there  is
\n\t      no  requirement of prior consent of the  Judge
\n\t      before  his transfer under Article 222.\tThis
\n\t      power
\n\t      3 (1977) 4 SCC 193 : 1977 SCC (L&S) 435 : (197\n<\/p>\n
\t      8) 1 SCR 423
\n\t      4\t    1981 Supp SCC 87 :(1982) 2 SCR 365
\n\t      309<\/span>
\nhas  been  so exercised since then, and\t transfer  of  Chief
\nJustices  has been the ordinary rule.  It is unnecessary  to
\nrepeat the same. (Para 470)
\nThe  power  of\ttransfer can be exercised  only\t in  ‘public
\ninterest’  i.e.\t for  promoting\t better\t administration\t  of
\njustice\t throughout  the  country.  After  adoption  of\t the
\ntransfer  policy, and with the clear provision for  transfer
\nin  Article  222,  any\ttransfer  in  accordance  with\t the
\nrecommendation\tof  the\t Chief Justice of  India  cannot  be
\ntreated\t as  punitive or an erosion in the  independence  of
\njudiciary.  Such Judges as may be transferred hereafter will
\nhave been, for the most part, initially appointed after\t the
\ntransfer  policy was adopted and judicially upheld  by\tthis
\nCourt.\t There\twill be no reason for any of  them  to\teven
\nthink  that  his transfer is punitive, when it\tis  made  in
\naccordance  with the recommendation of the Chief Justice  of
\nIndia.\tIn his case, transfer was an obvious incident of his
\ntenure.\t This applies equally to all Judges appointed  after
\nthe adoption of the transfer policy, irrespective of whether
\nthey gave an undertaking to go on transfer or not.
\nThe  Constituent  Assembly Debates indicate  that  the\tHigh
\nCourt judges were intended to constitute an all-India Cadre.
\nThis  position cannot now be doubted after adoption  of\t the
\npolicy\tof  appointing Chief Justices from outside  and\t the
\nmaintenance  of an all-India seniority based on the date  of
\ninitial appointment, treating all High Courts as equal.\t  If
\nthe  transfer of a Judge on appointment as Chief Justice  is
\nnot punitive, there is no occasion to treat the transfer  of
\nany other Judge as punitive.\n<\/p>\n
There is nothing in Article 222 to require the consent of  a
\nJudge\/Chief  Justice  for  his first or\t even  a  subsequent
\ntransfer.   Since his consent is not read as  a\t requirement
\nfor  the  first transfer there is no reason to\trequire\t his
\nconsent\t for any subsequent transfer, according to the\tsame
\nprovision.   The  power\t under\tArticle\t 222  is   available
\nthroughout  the tenure of a High Court Judge\/Chief  Justice,
\nand  it is not exhausted after the first transfer  is  made.
\nThe  contrary  view  in\t S.P. Gupta4 has  no  basis  in\t the
\nConstitution.\tIt  is reasonable to assume that  the  Chief
\nJustice\t of India will recommend a subsequent transfer\tonly
\nin  public interest, for promoting better administration  of
\njustice\t throughout  the country, or at the request  of\t the
\nconcerned  Judge.   As indicated, at least  now,  after\t the
\nlapse  of  more\t than a decade since the  decision  in\tS.P.
\nGupta4 there is no reason to treat any transfer as punitive;
\nand  therefore,\t the  observation  in  S.P.  Gupta4  that  a
\npunitive  transfer is impermissible has no  application\t any
\nmore.\tAs  indicated  by  us  later,  a  transfer  made  in
\naccordance  with the recommendation of the Chief Justice  of
\nIndia, is not justiciable.\n<\/p>\n
Promotion  of public interest by proper functioning  of\t the
\nHigh  Courts  and,  for that reason,  the  transfer  of\t any
\nJudge\/Chief  Justice from one High Court to another must  be
\nthe  lodestar for the performance of this duty\tenjoined  on
\nthe  Chief  Justice  of India, as the  head  of\t the  Indian
\nJudiciary.   Suitable  norms,  including-  those   indicated
\nhereafter, must be
\n310<\/span>
\nfollowed  by the Chief Justice of India, for  his  guidance,
\nwhile dealing with individual cases. (Paras 472 to 475)
\nNORMS
\nThe absence of specific Guidelines in the enacted provisions
\nappears to be deliberate, since the power is vested in\thigh
\nconstitutional functionaries and it was expected of them  to
\ndevelop\t requisite norms by convention in actual working  as
\nenvisaged  in the concluding speech of the President of\t the
\nConstituent  Assembly.\t The  hereinafter  mentioned   norms
\nemerging  from\tthe actual practice  and  crystallized\tinto
\nconventions  not exhaustive  are expected to be observed  by
\nthe   functionaries  to\t regulate  the\texercise  of   their
\ndiscretionary  power  in  the matters  of  appointments\t and
\ntransfers.\t\t\t     (Para 477)
\nTransfers
\n(1)  In\t the formation of his opinion, the Chief Justice  of
\nIndia,\tin  the case of transfer of a Judge other  than\t the
\nChief Justice, is expected to take into account the views of
\nthe Chief Justice of the High Court from which the Judge  is
\nto  be\ttransferred, any Judge of the  Supreme\tCourt  whose
\nopinion may be of significance in that case, as well as\t the
\nviews  of at least one other senior Chief Justice of a\tHigh
\nCourt,\tor  any\t other person  whose  views  are  considered
\nrelevant  by  the  Chief Justice  of  India.   The  personal
\nfactors relating to the Judge concerned, and his response to
\nthe   proposal,\t including  his\t preference  of\t places\t  of
\ntransfer, should be taken into account by the Chief  Justice
\nof  India before forming his final opinion  objectively,  on
\nthe  available material, in the public interest\t for  better
\nadministration of justice.\n<\/p>\n
(4)  It\t may  be  desirable  to\t transfer  in  advance\t the
\nseniormost Judge due for appointment as Chief Justice to the
\nHigh Court where he is likely to be appointed Chief Justice,
\nto  enable him to take over as Chief Justice as soon as\t the
\nvacancy\t arises and, in the meantime, acquaint himself\twith
\nthe  new High Court.  This would ensure a smooth  transition
\nwithout any gap in filling the office of Chief Justice.\t  In
\ntransfer   of  puisne  Judges,\tparity\tin   proportion\t  of
\ntransferred  Judges  must  be maintained  between  the\tHigh
\nCourts, as far as possible.\n<\/p>\n
(5)  The  recommendations  in  the Report  of  tile  Arrears
\nCommittee  (1989-90) mention certain factors to be  kept  in
\nview  while  making transfers to avoid any hardship  to\t the
\ntransferred Judges.  These must be taken into account. (Para\n<\/p>\n
479)
\nJUSTICIABILITY
\nAppointments and Transfers
\nThe  primacy of the judiciary in the matter of\tappointments
\nand  its  determinative nature in transfers  introduces\t the
\njudicial element in the
\n311<\/span>
\nprocess,  and is itself a sufficient justification  for\t the
\nabsence\t of  the need for further judicial review  of  those
\ndecisions,  which  is ordinarily needed as a  check  against
\npossible  executive excess or arbitrariness.   Plurality  of
\nJudges in the formation of the opinion of the Chief  Justice
\nof India, as indicated, is another inbuilt check against the
\nlikelihood of arbitrariness or bias, even subconsciously, of
\nany  individual.  The judicial element being predominant  in
\nthe  case  of appointments, and decisive  in  transfers,  as
\nindicated, the need for further judicial review, as in other
\nexecutive actions, is eliminated.  The reduction of the area
\nof  discretion to the minimum, the element of  plurality  of
\nJudges\tin formation of the opinion of the Chief Justice  of
\nIndia,\teffective  consultation in writing,  and  prevailing
\nnorms  to  regulate the area of\t discretion  are  sufficient
\nchecks against arbitrariness.\n<\/p>\n
These  guidelines  in  the  form of  norms  are\t not  to  be
\nconstrued  as  conferring  any\tjusticiable  right  in\t the
\ntransferred   Judge.\tApart\tfrom   the    constitutional
\nrequirement   of   a  transfer\tbeing  made  only   on\t the
\nrecommendation\tof the Chief Justice of India, the issue  of
\ntransfer  is not justiciable on any other ground,  including
\nthe  reasons  for the transfer or  their  sufficiency.\t The
\nopinion\t of the Chief Justice of India formed in the  manner
\nindicated is sufficient safeguard and protection against any
\narbitrariness  or  bias,  as  well as  any  erosion  of\t the
\nindependence of the judiciary.\n<\/p>\n
This is also in accord with the public interest of excluding
\nthese appointments and transfers from litigative debate,  to
\navoid  any erosion in the credibility of the decisions,\t and
\nto  ensure a free and frank expression of honest opinion  by
\nall the constitutional functionaries, which is essential for
\neffective  consultation and for taking the  right  decision.
\nThe growing tendency of needless intrusion by strangers\t and
\nbusybodies  in\tthe functioning of the judiciary  under\t the
\ngarb of public interest litigation, in spite of the  caution
\nin S.P. Gupta 4 while expanding the concept of locus standi,
\nwas adverted to recently by a Constitution Bench in  Krishna
\nSwami  v. Union of India-.  It<\/a> is, therefore,  necessary  to
\nspell  out clearly the limited scope of judicial  review  in
\nsuch matters, to avoid similar situations in future.  Except
\non  the\t ground\t of  want of  consultation  with  the  named
\nconstitutional\tfunctionaries  or lack of any  condition  of
\neligibility in the case of an appointment, or of a  transfer
\nbeing  made without the recommendation of the Chief  Justice
\nof  India,  these matters are not justiciable on  any  other
\nground,\t including  that  of  bias, which  in  any  case  is
\nexcluded  by  the  element of plurality in  the\t process  of
\ndecision-making.”      (Paras 480 to 482)\n<\/p>\n
10.  Pandian,  J.  in his separate  concurring\topinion\t has
\nexpressed his entire agreement on this point, as under: (SCC
\np. 585a-c)
\n5 (1992) 4 SCC 605
\n312<\/span>
\n“Transfer of Judges
\nWith  regard to the interpretation of Article 222  regarding
\ntransfer  of  Judges  from  one High  Court  to\t another,  1
\nentirely agree with the reasoning and conclusion arrived  at
\nby learned brother, J.S. Verma, J.\n<\/p>\n
(Para 252)
\nConclusions
\nThough I have given my reasons separately, as indicated even
\nat the threshold of the judgment, I am in agreement with the
\nconclusions of my learned brother, J.S. Verma, J.  regarding
\nthe  process  of appointment of Judges,\t initiation  of\t the
\nproposal  for appointments and the right of primacy  to\t the
\nopinion\t of  Chief  Justice  of\t India\tin  the\t matter\t  of
\nappointment  of Judges, transfer of High Court\tJudges\/Chief
\nJustices of the High Courts, fixation of Judge-strength, the
\nsummary of which is given under Point Nos. (1) to (8), (10),
\n(12) and (13).” (Para 253)\n<\/p>\n
11.  One of us (Kuldip Singh, J.) while concurring with\t the
\nmajority, stated thus: (SCC p. 675 and 677)
\n“So  far-  as  the  interpretation of  Article\t222  of\t the
\nConstitution  regarding\t transfer of a Judge from  one\tHigh
\nCourt  to another, we entirely agree with the reasoning\t and
\nthe  conclusions reached by Verma, J. We reiterate that\t the
\npower  vested  under Article 222 can only  be  exercised  in
\n‘public\t interest’.  It is only the Chief Justice  of  India
\nwho can examine the circumstances in a given case and  reach
\na  conclusion  as  to whether it is in\tpublic\tinterest  to
\ntransfer  or re-transfer a Judge from one court to  another.
\nConcept of ‘public interest’ when read in Article 222  makes
\nit  obligatory that the views of the Chief Justice of  India
\nare accepted by the executive.\tWe also agree with Verma, J.
\nthat   a   transfer   made  in\tpublic\t interest   on\t the
\nrecommendation\tof  the\t Chief\tJustice\t of  India  is\t not
\njusticiable.\t\t\t\t\t (Para 407)
\nOn  the\t basis of the reasoning and  discussion\t on  various
\nissues, we conclude and hold as under:\n<\/p>\n
(10) A Chief Justice\/Judge may be transferred from one\tHigh
\nCourt  to  another   Article 222   in  public  interest.   A
\ntransferred Chief Justice\/Judge can be transferred again and
\nthe  power is not exhausted after the first  transfer.\t The
\nconsent of the Chief Justice\/Judge concerned is not required
\nunder  the Constitution.  S.P. Gupta case4 stands  overruled
\nto the extent.\n<\/p>\n
(11) A proposal for transfer of a Chief Justice\/Judge  under
\nArticle\t 222  has to be initiated by the  Chief\t Justice  of
\nIndia  and  the ultimate recommendation in that\t respect  is
\nbinding on the executive.\n<\/p>\n
(12)   The  transfer  of  a  Chief   Justice\/Judge  is\t not
\nJusticiable  in the court of law except on the\tground\tthat
\nthe  transfer  was made without the  recommendation  of\t the
\nChief Justice of India. (Para 41 1)
\n313<\/span>\n<\/p>\n
12.  Ahmadi, J. in his separate opinion, on this point,\t has
\ntaken  substantially  the same view by saying  that  a\tHigh
\nCourt Judge can be transferred in public interest and such a
\ntransfer  is not punitive.  Punchhi, J. in his\topinion\t has
\ngenerally  agreed  with\t Ahmadi, J. In short,  there  is  no
\ndisagreement  on this aspect in the opinion of\tany  learned
\nJudge in the Judges’\t Case-II1.\n<\/p>\n
13.  It\t is,  therefore,  clear that exercise  of  power  of
\ntransfer under Article 222 of the    Constitution   is\t  to
\nsubserve a public purpose and to promote  ‘public  interest’
\nfor better administration of justice throughout the country,
\nwhich  is the inherent guideline implicit in Article 222  as
\nheld  in  the  Judges’\tCase-H1.   The\texpression   ‘public
\ninterest’  has a legal connotation well known  and  properly
\nunderstood  and so also the requirement of promoting  better
\nadministration\tof justice throughout the country, which  is
\nthe  guideline\theld to be implicit in Article\t222  of\t the
\nConstitution.\n<\/p>\n
14.  The expression ‘public interest’ in the context of\t the
\nPremature  Retirement  Rules was held to  be  an  expression
\nhaving\tthe  well-settled  meaning that\t it  refers  to\t the
\ninterests of public administration. (See Gian Singh Mann  v.
\nHigh Court of Punjab and Haryana6 and Union of India<\/a> v. Col.
\nJ.N. Sinha7.)\n<\/p>\n
15.  In\t our  opinion, the guideline of\t ‘public  interest’,
\ni.e.,  “for  promoting\tbetter\tadministration\tof   justice
\nthroughout  the country” is sufficient guideline for  proper
\nexercise  of  the  power  and to  ensure  exclusion  of\t the
\npossibility of any arbitrariness in the exercise of power of
\ntransfer   under   Article  222\t in  accordance\t  with\t the
\nrecommendation of the Chief Justice of India as indicated in
\nthe  Judges’  Case-II1′; and its application  to  individual
\ncases  is  a  question of fact in each\tcase.\tLaying\tdown
\nexhaustive  guidelines in this behalf is  neither  expedient
\nnor  pragmatic.\t It has also been indicated in\tthe  Judges’
\nCase-11′    that    “suitable\tnorms,\t  including    those
\nindicated  ….\t must be followed by the  Chief\t Justice  of
\nIndia,\tfor  his  guidance, while  dealing  with  individual
\ncases”.\t   The\tapplication  of\t the  broad  guidelines\t  to
\nindividual cases according to norms evolved in practice\t has
\nto  be left to the discretion of the Chief Justice of  India
\nwhich is to be exercised in consultation with his colleagues
\nwhose opinion is required to be taken for this purpose.\t The
\nfactors\t  which\t may  be  relevant  for\t  promoting   better
\nadministration of justice throughout the country to subserve
\nthe  public  interest contemplated by such  transfers  would
\ndepend on the myriad situations which might have to be\tmet.
\nSome  such  relevant factors would be  shifting of  a  Judge
\nfrom one High Court to another for improving the functioning
\nof either High Court; avoiding embarrassment to the Judge on
\naccount of close relations practising ordinarily in the same
\nHigh Court or any court subordinate thereto; the  likelihood
\nof  embarrassment to the Judge on account of any  litigation
\nor  property interest in the same State; if the\t Judge,\t for
\nany reason, has become
\n6 (1980) 4 SCC 266: 1980 SCC (L&S) 527 : (198 1) 1 SCR 507
\n7 (1970) 2 SCC 458:(1971) 1 SCR\t\t     791
\n314<\/span>
\ncontroversial so that his continuance in the same High Court
\nis  not\t conducive to his interest or to the  image  of\t the
\nJudiciary  or to the proper functioning of that High  Court,
\nor  any other similar situation.  The transfer of any  Judge
\nwith  his  consent  can, of course,  be\t always\t made.\t The
\nfactors\t indicated  are not an exhaustive list\tof  all\t the
\nrelevant factors in this behalf and are merely illustrative.\n<\/p>\n
16.  The Chief Justice of India, as the paterfamilias of the
\njudiciary,  can\t be  safely relied upon in  his\t wisdom,  to
\nensure\tthat transfer of a judge is so effected as to  cause
\nhim the minimum inconvenience and to take into account\tsuch
\npersonal  factors as might be involved.\t Indication to\tthis
\neffect is also to be found in the Judges’ Case-III.\n<\/p>\n
17.  The  myth of non-transferability of High Court  Judges,
\nnotwithstanding Article 222, was blown in Union of India  v.
\nSankalchand Himatlal Sheth3.  Thereafter, the<\/a> constitutional
\nvalidity  of  the transfer policy was judicially  upheld  in
\nS.P. Gupta v. Union of India4.\tThe conferment of that power
\nby  Article  222 and the proper manner of  its\texercise  to
\nexclude\t any  arbitrariness has then been indicated  in\t the
\nJudges’ Case-III wherein the trust reposed by the  President
\nof   the   Constituent\tAssembly   in\tthe   constitutional
\nfunctionaries  was  recalled and adverted to.\tDr  Rajendra
\nPrasad had said:\n<\/p>\n
\t      “Many  things which cannot be written  in\t the
\n\t      Constitution are done by conventions.  Let  me
\n\t      hope  that we shall show those capacities\t and
\n\t      develop those conventions.”\n<\/p><\/blockquote>\n
18.  It is for this reason, that detailed guidelines are not
\nto  be found in the Constitution and they have to emerge  in
\nthe  working  of Article 222.  It has been made\t known\tthat
\nafter  the  Judges’  Case-Hi  the  Chief  Justice  of  India
\nconstituted   a\t Peer  Committee  comprising  of   the\t two
\nseniormost puisne Judges of the Supreme Court and two  Chief
\nJustices  of High Courts to make suggestions  for  transfers
\nand   the   Chief   Justice  of\t India\tis   to\t  make\t his
\nrecommendations\t on  that basis and in accordance  with\t the
\nbroad guidelines indicated in the Judges’ Case-Ill.  In\t our
\nview,  this  is\t sufficient  safeguard\tagainst\t any  likely
\narbitrariness  or  bias.   There is no\troom  left  for\t any
\napprehension of arbitrariness or bias in the transfer of any
\nJudge\/Chief  Justice of a High Court.  It is time  that\t the
\nmen at the apex level of the Indian Judiciary are  permitted
\nto manage the affairs of the judicial family and look  after
\nits  welfare  and interest instead  of\tpermitting  repeated
\nintrusions by some in the guise of ‘public interest’ thereby
\nrendering  the Judges vulnerable .to  avoidable\t controversy
\ninvolving  them.   We are constrained to  observe  that\t the
\nAllahabad case before us is of that kind.  We have no  doubt
\nthat the Chief Justice of India acting on the  institutional
\nadvice\tavailable  to him is the surest and safest  bet\t for
\npreservation of the independence of judiciary.\n<\/p>\n
19.  Judicial review of transfers of members of transferable
\nservices  Is exceptional and is made only  in  extraordinary
\ncases  on limited grounds.  This is so even in the  case  of
\ntransfer   of\tsubordinate  Judges  by\t the   High   Court,
\nindependence of subordinate Judges being equally  important.
\nThis being so,
\n315<\/span>
\nthe  cry for a larger area of justiciability in the case  of
\ntransfer of High Court Judges is incongruous when the  power
\nis   to\t  be  exercised\t by   the   highest   constitutional
\nfunctionaries  of  the Indian Judiciary, with the  care\t and
\ncircumspection indicated in the Judges’ Case-III and herein.\n<\/p>\n
20.  The  Judges’ Case-III does not exclude judicial  review
\nbut  merely  limits  the  area\tof  justiciability  to\t the
\nconstitutional\trequirement of recommendation of  the  Chief
\nJustice of India for exercise of the power under Article 222
\nby  the President of India.  The power under Article 222  of
\nthe   Constitution  is\tto  be\texercised  by  the   highest
\nconstitutional\tfunctionaries in the country in\t the  manner
\nindicated which provides several inbuilt checks against\t the
\nlikelihood  of arbitrariness or bias.  In S.P. Gupta 4\teven
\nthough\tthe  concept  of locus standi  for  challenging\t the
\ntransfer  policy was liberalised and the standing to sue  in
\npublic\tinterest litigation has been  considerably  widened,
\nyet  the validity of individual transfers was examined\tonly
\nat  the\t instance of the transferred Judge and\tnot  at\t the
\ninstance  of  anyone  else.  The need  for  restricting\t the
\nstanding to sue in such a matter to the affected Judge alone
\nhas  been  reiterated  in  the\tJudges’\t Case-III.   It\t is,
\ntherefore,  made  clear that the transfer of  a\t High  Court
\nJudge  is  justiciable only on the ground indicated  in\t the
\nJudges’ Case-III and only at the instance of the transferred
\nJudge  himself\tand  not  anyone  else.\t  This\temphasis  is
\nnecessary to prevent any transferred Judge being exposed  to
\nany  litigation\t involving  him except when  he\t chooses  to
\nresort\tto  it\thimself in the\tavailable  limited  area  of
\njusticiability.\n<\/p>\n
21.  A\tuseful\tpassage\t from  Craig’s\tAdministrative\t Law
\n(Second Edn., p.    29 1) is as under:\n<\/p>\n
\t      “The traditional position was that the  courts
\n\t      would  control  the existence  and  extent  of
\n\t      prerogative  power,  but\tnot  the  manner  of
\n\t      exercise thereof. … The traditional position
\n\t      has however now been modified by the  decision
\n\t      in the GCHQ case.\t Their Lordships  emphasised
\n\t      that the review ability of discretionary power
\n\t      should  be dependent upon\t the  subject-matter
\n\t      thereof,\tand  not  whether  its\tsource\t was
\n\t      statute or the prerogative.  Certain exercises
\n\t      of  prerogative power would, because of  their
\n\t      subject-matter, be less justiciable, with Lord
\n\t      Roskill  compiling the broadest list  of\tsuch
\n\t      forbidden territory…….\n<\/p><\/blockquote>\n
\t      22.   In\tCouncil of Civil Service  Unions  v.
\n\t      Minister\tfor the Civil Service8 (GCHQ  case),
\n\t      Lord  Roskill stated thus: (page 418 : All  ER
\n\t      p. 956)
\n\t      “But  I  do  not\tthink  that  that  right  of
\n\t      challenge\t can  be unqualified.\tIt  must,  I
\n\t      think,  depend upon the subject-matter of\t the
\n\t      prerogative  power which is  exercised.\tMany
\n\t      examples\twere  given during the\targument  of
\n\t      prerogative powers which as at present advised
\n\t      I\t do  not think could properly  be  made\t the
\n\t      subject\tof  judicial  review.\t Prerogative
\n\t      powers such as those relating to the making of
\n\t      treaties,\t the  defence  of  the\trealm,\t the
\n\t      prerogative  of mercy, the grant\tof  honours,
\n\t      the   dissolution\t  of  Parliament   and\t the
\n\t      appointment of ministers as well as others are
\n\t      not, I think,
\n\t      8\t    (1985) AC 374 : (1984) 3 All ER 935
\n\t      316<\/span>
\n\t      susceptible  to judicial review because  their
\n\t      nature  and subject-matter are such as not  to
\n\t      be amenable to the judicial process.”\n<\/p><\/blockquote>\n
\t      23.   The\t same indication of  judicial  self-
\n\t      restraint in such matters is to be found in De
\n\t      Smith’s  Judicial\t Review\t of   Administrative
\n\t      Action, thus:\n<\/p><\/blockquote>\n
\t      “Judicial self-restraint was still more marked
\n\t      in  cases where attempts were made  to  impugn
\n\t      the   exercise  of  discretionary\t powers\t  by
\n\t      alleging abuse of the discretion itself rather
\n\t      than  alleging non-existence of the  state  of
\n\t      affairs on which the validity of its  exercise
\n\t      was  predicated.\tQuite properly,\t the  courts
\n\t      were  slow  to read implied  limitations\tinto
\n\t      grants  of  wide\tdiscretionary  powers  which
\n\t      might  have  to be exercised on the  basis  of
\n\t      broad  considerations  of\t national   policy.”
\n\t      (page 32)\n<\/p><\/blockquote>\n
24.  It\t is  for  this\treason\tthat  the  reduced  area  of
\njusticiability\thas been indicated in the Judges’  Case-III.
\nWhen  it was said in the Judges’ Case-HI that the ground  of
\nbias  also is not available for challenging a  transfer,  it
\nwas  to emphasise that the decision made by  the  collective
\nexercise  of several Judges at the apex level  or  objective
\ncriterion  on which the recommendation of the Chief  Justice
\nof   India   is\t based,\t is  an\t in  built   check   against
\narbitrariness  and  bias  indicating  absence  of  need\t for
\njudicial  review on those grounds.  This is how the area  of
\njusticiability\tis reduced in the sphere of judicial  review
\nof transfer of Judges.\n<\/p>\n
25.  Ms\t  Indira  Jaising  also\t submitted  that  any\tsuch
\nlitigation should lie only in the Supreme Court of India and
\nnot  in\t any other court to prevent  embarrassment  to\tHigh
\nCourt Judges.  We consider it sufficient to observe that the
\nlimited area of justiciability in this sphere being  clearly
\ndeclared  in  the  Judges’ Case-III and\t also  herein  while
\nmaking it clear that no one other than the transferred Judge
\nhimself\t can  question\tthe validity of a  transfer,  it  is
\nunnecessary  to provide any further safeguard.\tWe  have  no
\ndoubt that if any other court in the country is called\tupon
\nto  decide  such a matter, it would  promptly  consider\t the
\noption of requesting this Court to withdraw the case to this
\nCourt for decision to avoid any embarrassment.\n<\/p>\n
26.  For  the aforesaid reasons, we must hold that there  is
\nno  merit  in  any of the points raised\t in  these  matters.
\nAccordingly, both matters are dismissed.\n<\/p>\n
318<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India K.Ashok Reddy vs Government Of India on 7 February, 1994 Equivalent citations: 1994 AIR 1207, 1994 SCR (1) 662 Author: J S Verma Bench: Verma, Jagdish Saran (J) PETITIONER: K.ASHOK REDDY Vs. RESPONDENT: GOVERNMENT OF INDIA DATE OF JUDGMENT07\/02\/1994 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) KULDIP SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-69774","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK.Ashok Reddy vs Government Of India on 7 February, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-ashok-reddy-vs-government-of-india-on-7-february-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Ashok Reddy vs Government Of India on 7 February, 1994 - 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