G KUMARASAMY Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner in W. P. No. 16042 of 1996 is the appellant herein. THE appellant herein filed the aforesaid writ petition for a writ of mandamus to forbear the first respondent herein from issuing a warrant of appointment, appointing the fourth respondent herein as a Judge of the High court of Judicature at Madras and pass such other further orders as may be necessary in the circumstances of the case. After hearing the learned counsel appearing for the petitioner and on going through the records, the learned Single Judge of this Court, thought fit to dismiss the writ petition even at the admission stage. It is against that order the present writ appeal has been preferred by the appellant herein.

(2.) THE main contention of Mr. Vedantham Srinivasan, learned counsel appearing for the appellant, was that having regard to the materials placed on record, the fourth respondent could not have been considered fit for appointment as a Judge of this Court. According to the learned counsel, there are records to show that the fourth respondent trespassed into the property of the appellant, in spite of the decree granted against him and the appellant is now seeking his remedy through execution proceedings. It was submitted that the fourth respondent was directed to pay a sum of Rs. 50,000 as compensation to the appellant by the learned single Judge of this Court. However, the order of the learned single Judge of this Court, awarding compensation of Rs. 50,000 was set aside by the Division Bench of this Court. THE learned counsel further submitted that the fourth respondent violated the rules prescribed by the M. M. D. A. , and he has been regularly paying a fine periodically. According to the learned counsel, if all the materials relating to the fourth respondent herein were placed before the concerned Constitutional authorities, the fourth respondent would not have been considered for appointment of a Judge of this Court. THE fourth respondent is one of the senior most District Judge in the State Judiciary. everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment of a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinions of all judges consulted by him, as a part of the record. Expression of opinion in writing is an in built check on exercise of the power, and ensures due circumspection. Exclusion of justificiability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. THE final opinion of the chief Justice of India, given after such effective consultation between the constitutional functionaries has primacy in the matter indicated.