"How can you challenge it? This is an administrative order which you are assailing in SLP under Article 136 of the Constitution. You (Kapil Sibal) argue on maintainability," a bench comprising Justices J S Khehar and C Nagappan said.
"Tomorrow is the last working day (in the High Court) before the vacation. A democratically elected government will be out," Rebia's counsel Sibal said, adding that either this court or a division bench of the High Court should hear the matter.
Rebia, who has challenged in Gauhati High Court various decisions of the Governor and Deputy Speaker including his removal from the Speaker's post, alleged the Acting Chief Justice of the High Court "erroneously rejected" his plea, filed on judicial side, in administrative capacity. He had sought recusal of Justice B K Sharma from hearing his plea.
At the outset, the bench suggested to both parties that it may "request" the Acting Chief Justice to set up a division bench to hear the matter and the two judges, mentioned in the petition, will not be part of the new bench.
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They said nobody was alleging anything against the judge concerned and setting up of a new bench cannot be done as the Acting Chief Justice of the High Court was the "master of the roaster" who was well within his rights to assign judicial work to a particular bench.
The bench then asked Sibal to establish that Rebia's plea before it is maintainable.
Rebia was removed from the post of the Speaker by 14 rebel Congress MLAs, disqualified by the Speaker, and BJP MLAs on December 16 in an assembly session presided over by the Deputy Speaker in a Community Hall in Itanagar.
Later, various decisions of the Governor and the Deputy Speaker were challenged by Rebia in Gauhati High Court which passed an interim order keeping in abeyance the decisions of Governor and Deputy Speaker till February one.
Rebia has now moved the apex court alleging that he had filed an interim application on the judicial side by seeking recusal of Justice B K Sharma from hearing his plea in the High Court.
However, the Acting Chief Justice, on January 4, "has erroneously rejected the Petitioner's recusal application" which should have been decided by Justice B K Sharma whose recusal was sought, Rebia said in his petition.
"Whether the Acting Chief Justice of Gauhati High Court committed an error by taking unto himself the Recusal Application, which ought to have been listed for hearing before Justice B K Sharma," Rebia asked in his plea.
He also claimed that the plea, filed in the judicial side, was decided by the Acting Chief Justice in his "administrative" capacity.