UNION OF INDIA versus SANKAL CHAND HIMATLAL SHETH AND ANR.

Citation: [1978] 1 S.C.R. 423 · Decided: 19-09-1977 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Disposed off

Cited by 16 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

423 
UNION OF INDIA 
v. 
SANKAL CHAND HIMATLAL SHETH AND ANR. 
September 19, 1977 
[Y. V. CHANDRACHUD, P. N. BHAGWATI, V. R. KRISHNA IYER, N. L. 
UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.J 
Practice and Procedure-When there has been a challenge to the 
constitu-
llonality of an Act, compending, of the /is cannot lull the Court into treating the 
subject non-issue-Constitution of India, 1950-Art. 136-Duty of Court in an 
appeal under. 
Interpretation of statutes-Interpretation of a Constitutional provision-Rule 
of harimonious construction, essence of. 
Interpretation of statutes-Meaning 
of 
words-Rule 
of 
constructio11-
Must he excunined in its context and in the sense which the legislature has· in 
view. 
).-
Interpretation of statutes-Interpretation of a constitutional code-Legislatire 
flistory plus-Value of and consultation by Courts. 
A 
B 
c 
Constitution of India, 1950, Art. 222(1)-lnterpretation of Art. 222(1)-
Whether it i1nplies "consent" of a judge before he can be transfen'ed by 
the 
D 
President of India froni one High Court to another-Wl1et'1er the transfer 
·without his consent unconstitutional. 
Constitution of India, 1950, Art. 222(1)-Transfer of judge fro111 one High 
Court to another by the President of India--Con.'lent and basic material and 
minimum requirements for consultation. 
Constitution of India, 1950, Arts. 50, 217(1) and 222(1)-Scope and e[Ject 
E 
of_ the word "transfer'' occurring in the said Article. 
Constitution of India, 1950, Article 222(1)-Whether the transfer of a High 
Court Judge fro1n one High Court to another without his consent is in violation 
of the principles of natuial justice. 
Bias, doctrine of-Objection by tlie Union of India to tile hearing, by 
a special Bench, of the Writ Petition by High Court Judge against the order of 
his transfer to another Higli Court-Propriety of the objections. 
F 
On May 27, 1976, the President of India issued a notification to lhe effect 
"'In exercise of the powers conferred by clause (i) of article 222 of the Cons~ 
titution of India, the President after consultation with the Chief Justice of India 
is pleased to transfer Shri Justice Sankalchand Himatlal Sheth, Judge of High 
Court of Gujarat as judge of High Court of Andhra Pradesh with effect from 
the date he assumes charge of his office." The notification was issued by the 
Government of India in its Ministry of La\v, Justice and 
Company Affairs, 
Department of Justice. Mr. Justice Sheth complied with the order of transfer 
G 
and assumed charge of his office as a judge of Andhra Pradesh High Court, 
but before doing so, he filed a Writ Petition No. 911 of 1977 in the Gujarat 
High Court challenging the constitutional validity of the notification 
on 
the 
following grounds : 
1. The order was passed without his consent; such consent must 
be necessarily implied under Article 222( 1) of the Constitution 
and, therefore, the transfer of a judge from one High Court to 
another High Court without his consent is unconstitutional; 
H 
2. The order was passed in breach of the 
assurance 
given 
on 
behalf of the Government of India by the then Law Minister 
A 
B 
c 
D 
E 
F 
G 
H 
424 
SUPREME COURT REPORTS 
[1978] I S.C.R. 
Shri A. K. Sen, while mQving the Constitution (15th Amend-
ment) Act, 1963 and in the Lok Sabha that "So far as the High 
Court Judges were concerned, they should not 
be 
transferred 
excepting by consent". 
Mr. Sheth having accepted the Judgeship 
of Gujarat High Court on April 23, 1969 on the faith of Law 
Minister's assurance, the Governrnent of India was bound by 
that assurance on the doctrine of promissory estoppel. 
3. The order of transf1:!r mitigated against public interest the po\ver 
conferred by Art. 222( 1) was conditioned 
by 
existence 
and 
requirement of public interest and since the imDugned transfer 
was not shown to have been made in public interest, it was ultra 
vires. and 
4. The order \Vas passed without effective consultation with the 
Chief Justice of India. 
'Consultation' under article 
222(1) 
means 'effective consultation' and since the 
pre-condition. of 
article 222(1) that no transfer can be made without such con-
sultation, was not fulfilied, the order was bad and of no effect. 
The Writ Petition was heard by a special Bench of 
three 
Judges. 
They 
unanimously rejected the challenge to the order of transfer on the ground of 
promissory estoppel. 
As regards the ground of consent J. B. Mehta and D. A. 
Desai JJ. held that the ord

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