SHANTI BHUSHAN AND ANR. versus UNION OF INDIA AND ANR.

Citation: [2008] 17 S.C.R. 791 · Decided: 17-12-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

[2008] 17 S.C.R. 791 
' -
SHANTI BHUSHAN AND ANR. 
A 
v. 
UNION OF INDIA AND ANR. 
(Writ Petition (Civil) No. 375 of 2007) 
DECEMBER 17, 2008 
B 
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
" ..,., 
Superior Judiciary - High Court Judge - Appointment of 
Additional Judge as Permanent Judge - Without consultation c 
with col/egiLim of Judges - Challenged in public interest -
Extension of the term of the Judge concerned as Additional 
Judge on various occasions whereas not found suitable for 
appointment as Permanent Judge - Held: Appointment of 
Additional Judge as Permanent Judge without consultation 
D 
with the co/legium is not illegal - Such consultation has been 
--
r 
resorted to at the time of initial appointment as Additional 
Judge - The rigor of the scrutiny and the process of selection 
initially as an Additional Judge and a Permanent Judge are 
not different - However, person not found suitable for 
appointment as Permanent Judge cannot be given extension 
E 
as Additional Judge unless the same is occasioned by non-
availability of vacancy - But the belated challenge to such 
extension not to be interfered with - Even when an additional 
Judge is appointed as a Permanent Judge, he does not 
become immune from action -
Whenever materials are 
F 
T 
...., 
brought to the notice about lack of mental and physical 
• 
capacity, character and integrity of such Judge, the Chief 
Justice of India can take appropriate action. 
The present writ petition was filed under Article 32 of 
the Constitution of India., in public interest. Petitioners 
G 
sought declaration and issuance of writ of quo warranto 
or any other direction quashing the appointment of 
respondent No.2 as a Judge of Madras High Court. 
Petitioners contended that while appointing the 
791 
H 
792 
SUPREME1 COURT REPORTS 
[2008] 17 S.C.R. 
A respondent-Judge as Permanent Judge, the required 
norms for appointment of Permanent Judge as laid down 
in Judgment in Supreme Court Advocates on-Record. 
Association & Ors. Vs. Union oflndia 1993 (4) SCC 441 and 
in Special Reference No.1 of 1998 1998 (7) SCC 739, have 
8 not been followed; and that the term of the respondent-
Judge was extended twice as an Additional Judge, as he 
was not found suitable for appointment as Permanent 
· Judge by the Collegium including Chief Justice of India 
and thus when the respondent-Judge was not found 
suitable to be made Permanent Judge, his tenure as 
C Additional Judge could not have been extended. 
Respondent-State contended that there was no 
infirmity in his appointment as Permanent Judge; that 350 
Judges had been appointed as Permanent Judges during 
the period from 1.1.1999 to 31.7.2007 without consulting 
D the collegium, as the collegium was consulted at the 
stage· of initial appointment as Additional Judge and thus 
in view of this practice, elaborate consultation as required 
for forming opinion for appointment of Additional Judge 
might not have been considered necessary by the State, 
E for·appointmenf as Permanent Judge, while implementing 
Office Memorandum of Procedure for appointment of 
Permanent Judges. 
Disposing of the petition, the Court 
HELD: 1.1. So far as the scope of judicial review in 
F matters as in the instant case is concerned, it is extremely 
limited and is permitted to the extent indicated in Supreme 
Court Advocates-on-Record case. [Para 8] [815-E] 
1.2. The concept of plurality and the limited scope of 
judicial review because a number of constitutional 
G functionaries are involved, are ·certainly important factors. 
H 
But where the constitutional functionaries have already 
expresse~ their opinion regarding the suitability of the 
person as an Additional Judge; the parameters as stated 
in para 13 have to be considered differently from the 
SHANTI BHUSHAN AND ANR. v. UNION OF INDIA AND 
793 
ANR. 
• 
parameters of para 12. Having regard to the fact that there 
A 
is already a full fledged participative consultation in the 
~ 
backdrop of pluralistic view at the time of initial 
appointment as Additional Judge or Permanent Judge, • 
repetition of the same process does not appear to be the 
intention. [Para 11] [817-C-E] 
a 
" 
1.3. The rigor of the scrutiny ~nd the process of 
\ 
selection initially as an Additional Judge and a Permanent 
Judge are not different. The yardsticks are the same. 
·-"( 
Whether a person is appointed as an Additional Judge 
or a Permanent Judge on the same date, he has to satisfy c 
the high st

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