National

Apex court upholds judge’s appointment

New Delhi: The Supreme Court on Wednesday upheld the appointment of Justice Ashok Kumar as judge of the Madras High Court, who was later shifted to the Andhra Pradesh High Court as permanent judge.

A Bench consisting of Justices Arijit Pasayat and Mukundakam Sharma, while declining to interfere with the appointment, took into consideration the fact that Justice Ashok Kumar was due to retire in July 2009 and that there was no challenge when his tenure as additional judge was extended from time to time.

The Bench, disposing of a writ petition filed by the former Union Law Minister, Shanthi Bhushan, and advocate Kamini Jaiswal, criticised the former Chief Justice of India (R.C. Lahoti) for extending Justice Ashok Kumar’s tenure as additional judge by one year accepting the recommendations of the Union government. “Judges, like Caesar’s wife, should be above suspicion is the focal point in this petition,” the Bench noted.

Quoting earlier judgments, the apex court held that the Chief Justice of India was not bound to consult other judges in the collegium while appointing an additional judge as permanent judge.

It was argued that the process of consultation at the time of initial appointment of an additional judge should be followed even when an additional judge was made permanent. The Bench rejected this argument, saying over 350 additional judges were made permanent by successive Chief Justices of India from January 1, 1999 to July 31, 2007 without consulting the judges in the collegium.

The Bench, in its judgment, pointed out that Justice Ashok Kumar was initially appointed additional judge for two years on April 3, 2003. On April 1, 2005, his tenure was extended by four months. On April 29, 2005, the collegium, including the then Chief Justice (Justice Lahoti) expressed the view that Justice Ashok Kumar could not be recommended along with another judge for confirmation as permanent judge. Accordingly with effect from August 3, 2005, his tenure was extended by one year and on August 3, 2006 by another six months.

Writing the judgment, Justice Pasayat said: “Since it is crystal clear that the judges are not concerned with any political angle if there be any in the matter of appointment as additional judge or permanent judge, the then CJI should have stuck to the view expressed by the collegium and should not have been swayed by the views of the government to recommend extension of the term of Justice Ashok Kumar for one year; as it amounts to surrender of primacy by jugglery of words.”

The Bench said that “again on August 3, 2006, the then Chief Justice of India [Justice Y.K. Sabharwal] who was [part of the previous collegium] earlier of the view about unsuitability of Justice Ashok Kumar, along with his senior colleagues, extended the term for six months on the ground that time was inadequate to obtain the views of the then Chief Justice of the Madras High Court.”

The Bench, accepting the petitioners’ contention, said: “We have no hesitation in saying that a person who is not suitable to be appointed as a permanent judge on the ground of unsuitability due to adverse factors on account of mental and physical capacity, adverse materials relating to character and integrity and other relevant matters, which are so paramount and sacrosanct for the functioning as a judge, should not be continued as an additional judge. Even when an additional judge is appointed as a permanent judge, he does not become immune from action, if circumstances so warrant.”

The Bench said: “It appears that Justice Ashok Kumar has been transferred to some other High Court in the public interest. If, it comes to the notice of the CJI that action needs to be taken in respect of him for any aberration while functioning as a judge, it goes without saying appropriate action as deemed proper shall be taken.”

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