Supreme Court Chief Justice Dipak Misra on Monday set up a five-judge bench to hear a petition filed by two Congress MPs challenging vice president Venkaiah Naidu's decision to reject a motion filed by the party to remove Misra as the chief justice.
The bench comprising Justices AK Sikri, Justice SA Bobde, Justice NV Ramana, Justice Arun Mishra, and Justice Adarsh Kumsar Goel will hear the matter as a first item at 10.30 am.
While Justice Sikri, who will head the bench, is number six in the seniority list, others follow him in the sequence of seniority.
However, Justice Chelameshwar said it had already been cleared that Chief Justice was the master of the roster and only he will allocate the cases and set up the benches. Sibal had said that this writ could not be mentioned anywhere else.
"I am of the view that it is imperative that we should have extraordinary, important and substantial grounds for the removal of a judge", he said.
The petition called for a declaration that the Vice President as chairman of the Rajya Sabha can not exercise discretion and that he must set up an inquiry panel under the Judges' Inquiry Act, to probe the allegations against CJI Misra.
The bench doesn't have any of the four senior most judges who have raised a banner of revolt against the CJI Dipak Misra on the issue of listing of politically sensitive cases before "select" benches.More news: Day holds off big challenge to win PGA title
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Both Justice Chelameswar and Justice Kaul went into a huddle and asked Sibal and Bhushan to come Tuesday so they could take a call on the issue.
The petitioners had asked for an urgent listing but no such orders were passed.
Said Sibal to Chelameswar: "I have been in practice for 45 years. If a matter can not be mentioned before the CJI then it is supposed to be heard here".
To Mr Sibal's debate, the judges answered the petition should be consumed before the main Justice, whose function as learn of their roster - the anyone to pick on assigning of cases - had been defined.
Last 30 days, the impeachment petition signed more than 60 Rajya Sabha parliamentarians required Justice Misra's impeachment 6 months before he retires.
Two Congress MPs moved the Supreme Court challenging the rejection of the impeachment notice against Misra by Naidu, claiming that the reasons given were "wholly extraneous" and not legally tenable. The proof was a matter of inquiry and the chairman could not have shut the inquiry in contravention of Article 124 (4) and 124 (5) of the Constitution, which provide the procedure for removal of an SC judge or CJI.