S.P. Gupta v. Union of India,
AIR 1982 SC 149: (1981) Supp 1 SCC 87: Overruled in
Supreme Court Advocates-on-Record Association
v. Union of India,
AIR 1994 SC 268: (1993) 4 SCC 441
While testing the validity or otherwise of an order of transfer of a High Court Judge made by the President in exercise of the powers conferred by article 222(1), below mentioned tests will have to be applied:
(i) power to transfer a Judge of High Court is conferred on the President which as part of the executive function of the President he would, in view of article 74, discharge according to the aid and advice received by him from the Council of Ministers:
(ii) the power to transfer a High Court Judge thus is in the executive which is the litigant in a very large number of cases coming before a Judge of a High Court;
(iii) the power to transfer a High Court Judge is extraordinary power;
(iv) the limitation on the exercise of power is full, effective and meaningful consultation with the Chief Justice of India;
(v) the power to transfer can be exercised only in public interest and not according to the whim, caprice or fancy of the executive or to remove an inconvenient judge not toeing its line;
(vi) the consultation to be effective must be focussed upon very personal factors as the family problems of the judge, which include the position of his wife and children and parents, the reasons for transfer whether the transfer is actuated on account of anything in the conduct or behaviour of the judge, whether the injury, inconvenience and difficulties experienced by the judge consequent upon his transfer are such as to be inconsequential in view of the larger public interest for which the transfer is being ordered;
(vii) would the transfer cast a slur or stigma on the Judge proposed to be transferred;
(viii) the policy universally followed till 1976 of not transferring a Judge of High Court without his consent is being shelved for achieving some larger public interest or the so-called public interest is a cloak or device to strike at an inconvenient Judge;
(ix) is the transfer intended to inflict punishment for misbehaviour not of adequate magnitude to invoke proceedings analogous to impeachment as contemplated by article 124(4) and (5) read with article 218 and Judges (Inquiry) Act, 1968.
Appointment of Judges
1. An additional Judge can only be appointed in the High Court if the President is satisfied that there is a temporary increase in the work of the High Court or there are arrears and for this purpose it is necessary to increase the number of Judges in the High Court for the time being.
2. An additional Judge appointed initially for a certain tenure has a right to be considered for fresh appointment on the expiry of the tenure and the consultation must proceed along the same lines as prescribed under article 217.
3. Consultation under article 217 must be full, effective and meaningful and in the case of an additional Judge. If there is any defect drawback or deficiency in the consultation the decision arrived at is open to judicial review.
4. Power to transfer a High Court Judge conferred by article 222 on the President can be exercised after full, effective and meaningful consultation with the Chief Justice of India and this necessitates all the facts in possession of one or the other constitutional functionary being fully exchanged and deliberated upon.
5. Power to transfer a High Court Judge cannot be exercised with a view to punishing a Judge of for anything in his conduct or behaviour which may cast a slur or stigma on him.
6. The circular of the Law Minister dated March 18, 1981, does not suffer from any infirmity and is not constitutionally invalid.