VISHWANATH GOPAL PALSHIKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard the petitioner party in person.

(2.) The petitioner is a Hon'ble Sitting Judge of this High Court. He has filed the writ petition and has prayed that this Court be pleased to-(a) call for the records from the respondent-Union of India pertaining to the appointment and transfer of the petitioner as a Judge of the High Court of Bombay to the Judge of the Rajasthan High Court and on perusal of the same; (b) quash the transfer order Annex. C by a writ of Certiorari or any other writ, order or direction being unconstitutional, illegal and arbitrary; (c) issue a writ of Mandamus or any other writ, order or direction directing the respondents to examine the policy of transfer and retransfer of all the transferred Judges transferred in the year 1994 without discrimination and malice; and (d) declare that the opinion given by the Supreme Court under Article 143 being unconstitutional, is not binding on the President of India; (e) declare that the additions made to Articles 124, 227 and 222 by the Judgment of the Supreme Court reported in AIR 1994 SC 268 as also the opinion given under Article 143 in October, 1998 as unconstitutional; (f) be ordained that all constitutional authorities shall continue to perform their constitutional functions in accordance with the Constitution of India as established by law ignoring the unconstitutional amendments made to it in the matter of appointments and transfer of Judges of the High Courts in India; (g) as an ad interim relief restrain the respondents during the pendency of the petition from making any retransfer on acceptance of representations at the instance of the collegium by appropriate ad interim writ, order or direction; and (h) grant any other relief, which this Hon'ble Court deems fit in the circumstances of the case.

(3.) Based on the averments made in the writ petition, he urged that the decisions of the Apex Court in the case of Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 and in Special Reference Case No. 1 of 1998, AIR 1999 SC 1, making additions to the Articles 124, 227 and 222 are per incuriam of the provisions of the Constitution and, as such, such additions made in the aforementioned judgment and the order made in the Special Reference Case may be declared as unconstitutional. He assailed the policy of transfer and retransfer of Judges from one High Court to the other as arbitrary in relation to some Judges and has sought for issuing of mandamus directing the respondents to examine the policy of transfer and retransfer of all the transferred Judges transferred in the year 1994 without discrimination and malice. According to him, under the circumstances, having regard to the nature of relief sought for and the averments made in the writ petition, the writ petition is maintainable.