Noting that Justice Prasad had not practised as an advocate either in the high court, its subordinate courts or tribunals for a minimum period of 10 years as required, advocate M Radhakrishnan said, “The appointment of Justice Subramonium Prasad as an additional judge with effect from June 4 is null and void, as he is not qualified for it under Article 217(2)(b) of the Constitution.”

Relying on a nine-judge bench order of the Supreme Court, which held that the Chief Justice of India and the two senior most judges of the Supreme Court should form the opinion in regard to a person to be recommended for appointment to a high court, he said since Justice Prasad had never practiced law in Madras high court, its collegium had no occasion either to assess his performance or appreciate his potentiality to be a judge.

In the absence of any material touching the suitability of Justice Prasad for appointment as a judge, the high court collegium could not have formed any opinion at all, he said.

“Any opinion of the collegium could at best be described as one based on secondary sources. Such an opinion can never be the one arising out of effective consultation between the constitutional functionaries in the high court collegium. Thus, there was no effective consultation between the constitutional functionaries as contemplated by the Supreme Court ruling,” he said. The case is likely to be taken up for hearing on Monday.