It is significant that the matter has not been listed before the judges who are number two to five in the seniority.
A five-judge constitution bench of the Supreme Court is all set to hear on Tuesday a petition moved by two Congress MPs challenging rejection of the impeachment notice against Chief Justice of India Dipak Misra by Rajya Sabha Chairman M Venkaiah Naidu.
The bench will be headed by Justice A K Sikri, number six in seniority. The other members are Justices S A Bobde, N V Ramana, Arun Mishra and A K Goel, who are next in the sequence of seniority.
The senior-most judges -- Justices J Chelameswar, Ranjan Gogoi, M B Lokur and Kurian Jospeh -- who had held the controversial January 12 press conference in which they had virtually revolted against the CJI by raising litany of allegations against him, have been kept out of the matter.
The setting up of the constitution bench was mentioned in Tuesday's list of business for the Supreme Court.
The development came hours after Justice Chelameswar, before whom the petition of the two Congress MPs was mentioned, expressed reservation in hearing the matter asking senior advocate Kapil Sibal and advocate Prashant Bhushan to "come back tomorrow".
The issue was raised at the start of the court's work in the morning when Sibal, one of the signatories to the impeachment notice in Rajya Sabha, mentioned the matter for urgent listing before a bench headed by Justice Chelameswar, the senior-most after CJI Misra.
In the petition challenging the rejection of impeachment notice against the CJI by the Rajya Sabha Chairman, the two MPs claimed that the reasons given were "wholly extraneous" and not legally tenable.
While Justice Chelameswar had initially asked him to mention the matter before the CJI, the bench, also comprising Justice S K Kaul, later asked Sibal and Bhushan to "come back tomorrow".
Justice Chelameswar also said he was on the verge of retirement.
Making his submissions, Sibal said Chairman Venkaiah Naidu cannot summarily reject the notice bearing signatures of 64 MPs and seven former members who had recently retired, on the ground that there was "no proved misbehaviour".
The bench asked Sibal and Bhushan to mention the matter before the Chief Justice of India for urgent listing, citing a constitution bench judgment on the powers of master of roster.
However, BJP leaders and advocates Meenakshi Lekhi and Aman Sinha said there was no merit in the challenge to the rejection of the impeachment notice as the Rajya Sabha Chairman's order was well reasoned and completely dealt with each and every ground.
While Lekhi termed the filing of plea in the apex court as a "deceptive methodology" of the Congress party to remain in the news, Sinha said there was no legal ground to challenge the decision of the Rajya Sabha Chairman.
In the apex court, Justice Chelameswar, who was initially reluctant to order listing of the petition said "there was a five-judge constitution bench verdict on powers of master of roster. It would be appropriate if you mention the matter in court number-1 before the bench of Chief Justice".
However after the submissions, Justice Chelameswar and Justice Kaul went into a huddle and asked Sibal and Bhushan to come tomorrow so they could take a call on the issue. "You come back tomorrow. We will see", the bench said.
The two leaders who have filed the petition are Rajya Sabha Congress MPs Partap Singh Bajwa from Punjab and Amee Harshadray Yajnik from Gujarat.
A five-judge constitution bench of the apex court had on November 10 last year categorically stated that the Chief Justice of India was the "master of the roster".
Advancing his arguments, Sibal said "I am aware of the procedure but it can't be mentioned anywhere else. A person cannot be a judge in his own cause. I am just asking for urgent listing and not seeking any interim relief."
He said the CJI cannot order for listing and hence the senior-most judge of the court must pass some orders as it was a matter of constitutional importance.
Naidu had on April 23 rejected the impleachment notice given by seven opposition parties led by the Congress on five grounds of "misbehaviour". This was the first time that an impeachment notice was filed against a sitting CJI.
The petition of the two Congress MPs filed through advocate Sunil Fernandes in the top court alleged that the charges contained in the notice of the motion were extremely serious and called for a full fledged inquiry.
It also said the reasons given by Naidu while rejecting the impeachment notice were "not legally tenable" and deserved to be set aside for being "wholly extraneous" and ultra vires the provisions of the Constitution and the Inquiry Act.
It sought setting aside of the Chairman's order terming the charges contained in the notice of motion are "extremely serious" and merit "a full-fledged inquiry to test their veracity".