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The bar on a permanent high court judge practising before the same court was not applicable to an additional judge, ruled the Bombay HC on Monday, dismissing a PIL seeking a ban on the practice of five ex-judges.

A division bench of Bombay HC,  Justice Dhannanjay Chandrachud and Justice Ramesh Dhanuka was hearing a petition filed by activist Nitin Deshpande saying they could practise in any other court, including Supreme Court, but not before the Bombay HC. The five, Y S Jahagirdar, Anil Sakhare, S U Kamdar, Ashutosh Kumbhakoni and Girish Godbole, were elevated to the bench from the bar.

Deshpande’s advocate Ashish Mehta argued that additional judges were appointed under Article 224 to temporarily tackle workload but over the years, it had become a convention to directly appoint them. “While the sanctioned high court posts are not yet filled by permanent judges, additional judges are appointed under Article 224, a gateway to appoint permanent judges,” said Mehta, adding Article 220 (bar on practice in the same HC) must be interpreted.

Earlier, it was argued by counsels of the five former judges that unless they had permanency of appointment, they could not be barred. Counsel Virendra Tulzapurkar, appearing for Jahagirdar, said there was no need for interpreting Article 220 when the statute was clear.

Counsel Aspi Chinoy, appearing for Kamdar, said the warrants stated it was for a two-year tenure. “He is intended to go back. Permanent judges are a species distinct from additional ones.

The five were never permanent,” said Chinoy. The judges , in their order, observed permanent and additional judges’ duties were same, but there was a cardinal distinction in tenure. They added while permanent judges had a service for 62 years, it was two years for additional judges.

They added the Constitution has drawn a careful balance between the independence of the judge and right of a person who held office to practice upon demitting office. It is a matter of constitutional choice. There may be a cause of concern regarding a member of the bar who demits office and proceeds to practice. So far as judicial review is concerned , the choice is made by the Constitution. The duty of this court is to protect the careful and conscious choice made by the constitutional body,” the judges concluded, adding that there is no need for HC’s interference.

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