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CASE NO.:

Appeal (civil) 8248 of 2004

PETITIONER:

Ashok Tanwar & Anr.

RESPONDENT:

State of H.P. & Ors.

DATE OF JUDGMENT: 17/12/2004

BENCH:

R.C. LAHOTI CJI & S.V.PATIL & K.G.BALAKRISHNAN & B.N.SRIKRISHNA & G.P.MATHUR

JUDGMENT:

JUDGMENT

(Arising out of Special Leave Petition (C) No.15706 of 2001)

DELIVERED BY:

S.V.PATIL,J.

Shivaraj V. Patil J.

Leave granted.

A Bench of three learned Judges of this Court made

the following order of reference on 7th March, 2002: -

"In the present case, under Section 16 of the Consumer Protection

Act, the President of the State Consumer Disputes Redressal

Commission has to be appointed in consultation with the Chief

Justice of the State. The question which arises is whether

consultation with an Acting Chief Justice is sufficient compliance

or not.

This question involves interpretation of Articles 217 and 223 of the

Constitution and as there is no decision of this Court which can be applied

in the present case, then by virtue of Article 145(3) of the Constitution

this case involving the said question of law involving interpretation of

the Constitution should be heard by a Bench of not less than five learned

Judges.

Let the papers be placed before the Hon'ble the Chief Justice of

India for appropriate orders for hearing of the case as

expeditiously as possible and within a period of four months."

Articles 217 to the extent relevant and 223 of the

Constitution of India read: -

"217. Appointment and conditions of

the office of a Judge of a High Court. \026

(1) Every Judge of a High Court shall be

appointed by the President by warrant

under his hand and seal after consultation

with the Chief Justice of India, the

Governor of the State, and, in the case of

appointment of a Judge other than the

Chief Justice, the Chief Justice of the High

court, and shall hold office, in the case of

an additional or acting Judge, as provided

in article 224, and in any other case, until

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he attains the age of sixty-two years:

"223. Appointment of acting Chief

Justice. \026 When the office of Chief Justice

of a High Court is vacant or when any such

Chief Justice is by reason of absence or

otherwise, unable to perform the duties of

his office, the duties of the office shall be

performed by such one of the other Judges

of the court as the President may appoint

for the purposes."

On 3rd March, 2000 The Financial Commissioner-cum-

Secretary (F&S), Government of Himachal Pradesh,addressed a letter to

Registrar General, Himachal Pradesh High Court stating that Justice P.N.

Nag (retired Judge of the High Court) shall cease to hold the post of

President of H.P. State Consumer Disputes Redressal Commission,

Shimla (for short 'the State Commission) on 4.3.2000, after attaining the

age of 67 years. In accordance with the provisions contained in The

Consumer Protection Act, 1986 (for short 'the Act'), a person who is or has

been a Judge of High Court can be appointed as President of the State

Commission, after consultation with the Chief Justice of the High Court.

After consideration the State Government decided to take the services of

Justice Surinder Swaroop, a sitting Judge of the High Court of Himachal

Pradesh for appointment as President of the State Commission.

Therefore, he requested that the proposal of the State Government may

kindly be placed before the Hon'ble Chief Justice, High Court for

consideration and recommending the name of Justice Surinder Swaroop for

appointment as President of the State Commission on part-time basis.

On the same day the High Court addressed a letter to the State

Government indicating that there was defect in

the process adopted by the State Government and that the reference made by

the State Government was not in conformity with the provisions of law as

the executive is expected to approach the Hon'ble Chief Justice when the

appointment was to be made, to initiate the proposal as per the procedure

to be followed for appointment of High Court Judge.

The State Government wrote the second letter to the

Registrar General of the High Court requesting the Hon'ble Chief Justice to

initiate the process for filling up the vacancy to the post of President of

the State Commission in accordance with the provisions of the Act and the

law laid down by this Court in Ashish Handa, Advocate vs. Hon'ble the Chief

Justice of High Court of Punjab & Haryana and others . On 7th March 2000

the Registrar General of the High Court addressed a letter to the Financial

Commissioner- cum-Secretary (F&S) of the State Government conveying

recommendation of the Chief Justice for appointment of Mr.Justice Surinder

Swaroop, a sitting Judge of the High Court, as President of the State

Commission holding additional charge of the post. In the said letter it

was also stated that the steps may be taken for appointment of Mr. Justice

Surinder Swaroop (respondent No. 3 herein) as President of the State

Commission in accordance with law and rules. Thereafter, a notification

dated 13th March, 2000 was issued by the Governor, Himachal Pradesh,

appointing Justice Surinder Swaroop as President of the State Commission.

Appellant No. 1, a permanent resident of Namol and a practicing

advocate at Solan and appellant No. 2, a retired Research Officer

resident of Shimla, filed Civil Writ Petition No. 647 of 2000 in

the High Court claiming to espouse public interest stating that

they were interested in proper functioning of the State Commission.

According to them the appointment of respondent No. 3 \026 Justice

Surinder Swaroop \026 as President of the State Commission was not in

accordance with law and was contrary to the decisions of this Court. They

sought for writ of quo warranto to the respondent No. 1 to quash the

appointment of respondent No. 3 mainly contending that there was a defect

in the initiation process for appointment to the post of President of

the State Commission on the ground that the process was initiated by the

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State Government instead of Chief Justice and that the Acting Chief Justice

did not consult the two senior most Judges of the High Court before

recommending the name of respondent No. 3 for appointment as the

President of the State Commission. In support of these contentions they

placed reliance on the decisions of this Court in Ashish Handa, Advocate

vs. Hon'ble the Chief Justice of High Court of Punjab & Haryana and others

(supra) and Supreme Court Advocates-on-Record Association and others vs.

Union of India . Respondent Nos. 1 and 3 resisted the writ petition

and respondent No. 2, the High Court, made the position clear

having regard to the records. The High Court, after consideration of the

respective contentions advanced on behalf of the parties and in the

light of the decisions of this Court, held that the case of Ashish Handa

(supra) related to the initiation of 'process', which was required to be

followed in making appointment of President of the State Commission, and

that such process should not have been initiated by the Government

but it ought to have been initiated by the Chief Justice. On facts the High

Court found that although initially the process was started by the

Government proposing the name of respondent No. 3, respondent No. 2,

however, was aware of the legal position and it immediately drew the

attention of respondent No. 1 that the procedure adopted by

respondent No. 1 was not in accordance with law. Therefore, second letter

was addressed by respondent No. 1 to respondent No. 2. Respondent No. 2 on

receipt of the second letter made the recommendation to appoint

respondent No. 3 as President of the State Commission. On that issue the

High Court held that the action taken either by respondent No. 1 or by

respondent No. 2 could not be said to be contrary to law or the directions

issued by this Court in the case of Ashish Handa (supra). Consequently

the writ petition was dismissed. Hence, this appeal. The High Court, in

the impugned judgment, dealing with initiation of the process and

consultation for appointment of respondent No. 3 as President of the State

Commission, has observed, thus: -

"The counsel for the petitioners contended that appointment of a person as

President to the State Commission, as ruled by the Supreme Court in Ashish

Handa, has to be made in accordance with the provisions of Article 217 of

the Constitution. In other words, before an appointment of a sitting or

retired Judge of a High Court is made as the President of the State

Commission, there should be consultation at three levels; firstly,

consultation with the Chief Justice of India, secondly, consultation with

the Governor of the State and thirdly, consultation with the Chief Justice

of the High Court concerned.

xxx xxx xxx xxx

Hence, if the submission of the learned counsel is upheld, the

result would be as under:

Before the appointment of respondent No. 3 by respondent No. 1 as

the President of the State Commission, respondent No. 1 ought to

have consulted the Governor of the State (the State Government),

(which is the appointing authority in the instant case), the Chief

Justice of India (not the Chief Justice of India in his individual

capacity but collectively, along with the collegium), the Chief

Justice of this Court (not the Chief Justice in his individual

capacity, but with the collegium, that is, his two senior most

colleagues) and also a Judge or Judges, who is/are in the Supreme

Court who is/are likely to be conversant with the affairs of this

High Court. Unless the above procedure is strictly adhered to, the

appointment of respondent No. 3 as the President of the State

Commission cannot be held legal and lawful."

In relation to the law laid down by this Court in Ashish Handa the High

Court noted that it was not the case before the High Court that the Chief

Justice had consulted his two senior most colleagues before approving the

name of Justice Agnihotri and yet the appointment was not interfered with.

The High Court also expressed that in Ashish Handa this Court has laid down

that under Section 16 of the Act process for appointment of a sitting or

retired Judge as President of the State Commission should be initiated by

the Chief Justice as is done in the case of appointment of a Judge to a

High Court under Article 217 of the Constitution and that such process

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should not be initiated by the Government. Before us, learned counsel

for the appellants urged that: -

1. since the recommendation to appoint respondent No. 3 was made by

the Acting Chief Justice without consulting two senior most Judges as

required in the light of decisions of this Court in Supreme Court

Advocates-on-Record Association (supra) and Ashish Handa (supra), the High

Court ought to have allowed the writ petition and quashed the appointment

of respondent No. 3.

2. The Acting Chief Justice could not initiate the process for

appointment of respondent No. 3 under Section 16 of the Act as it is only

the Chief Justice, who is to be consulted; the Acting Chief Justice is not

appointed to the Office of Chief Justice, he is only to discharge the

duties of the Chief Justice. Reliance was placed on the decision of High

Court of Allahabad in Bishal Chand Jain vs. Chattur Sen and others .

In opposition learned counsel for the respondents in their

arguments reiterated the submissions that were made before the High

Court and supported the impugned judgment for the very reasons

stated therein. The learned counsel for the Union of India and for

Attorney General submitted that consultation should be as stated in

two decisions of this Court in Ashish Handa and Supreme Advocates-

on-Record Association (supra), i.e., the Chief Justice of a High

Court has to consult two senior most Judges in the case of

appointment of a sitting or retired Judge of the High Court as

President of the State Commission. As regards the discharge of

duties of the Chief Justice by the Acting Chief Justice, the

submission was that the Acting Chief Justice could perform all the

functions of the Chief Justice by virtue of Article 223 of the

Constitution, otherwise there will be practical difficulty leading to

anomalous situation in cases where the Chief Justices are not appointed for

some reasons and Acting Chief Justices continue for longer period.

Section 16 of the Act, to the extent relevant, reads: -

"16. Composition of the State

Commission. - (1) Each State Commission

shall consist of, -

(a) a person who is or has been a Judge of

a High Court, appointed by the State

Government, who shall be its President :

Provided that no appointment under this clause shall be made except after

consultation with the Chief Justice of the High Court."

In the case of Ashish Handa the question that came up for

consideration was as to initiation of process in the matter of

appointment. A person, who is or has been a Judge of a High Court,

shall be appointed by the State Government as President of the

State Commission after consultation with the Chief Justice of the

High Court as per Section 16 of the Act. This Court held that the

executive is expected to approach the Chief Justice when the

appointment is to be made for taking the steps to initiate the proposal.

Para 3 of the judgment reads: -

"3. The Consumer Protection Act, 1986 is

an Act to provide for better protection of

the interests of consumers "and for that

purpose to make provision for the

establishment of consumer councils and

other authorities for the settlement of

consumers' disputes and for matters

connected therewith". The National

Commission, the State Commission and the

District Forum are established as the

agencies for the redressal of consumer

disputes by Section 9 of the Act. Section l0

of the Act provides for composition of the

District Forum, Section 16 for the State

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Commission and Section 20 for the

National Commission. The scheme is that

these three agencies constituted for

redressal of consumer disputes at different

levels have as its President a person who

is, or has been a Judge at the

corresponding level. This is so because the

function of these agencies is primarily the

adjudication of consumer disputes and,

therefore, a person from the judicial branch

is considered to be suitable for the office of

the President. The appointment to the

office of the President of the State

Commission is to be made "only after

consultation with the Chief Justice of the

High Court" and to the office of the

President of the National Commission "after

consultation with the Chief Justice of

India". Such a provision requiring prior

consultation with the Chief Justice is

obviously for the reason that he is the most

suitable person to know about the

suitability of the person to be appointed as

the President of the Commission. The

provisions in Section 16(1)(a) for

appointment of the President of the State

Commission and in Section 20(1)(a) for

appointment of the President of the

National Commission are in pari materia

and have to be similarly construed. The

construction of the proviso in Section

16(1)(a) and that in Section 20(1)(a) must

be the same because of the identity of the

language. The expression "after

consultation with the Chief Justice of the

High Court" and "after consultation with the

Chief Justice of India" must be construed in

the same manner as the expression "after

consultation with the Chief Justice of

India,... the Chief Justice of the High Court"

in Article 217 of the Constitution of India

made in Supreme Court Advocates-on-

Record Assn. v. Union of India [(1993) 4

SCC 441]. Accordingly, the opinion of the

Chief Justice of the High Court and the

requirement of consultation with him

according to the proviso in Section 16(1)(a)

must have the same status as that of the

Chief Justice of the High Court in the

appointment of a High Court Judge under

Article 217 of the Constitution of India; and

the process of appointment to the office of

the President of the State Commission

must also be similar. It is unnecessary to

restate the same which is summarised in

the majority opinion in the Judges-II case

[(1993) 4 SCC 441]. This is necessary to

maintain independence of the judiciary and

to avoid any possibility of a sitting or a

retired Judge depending on the executive

for such an appointment. Our attention was

drawn to certain observations in Sarwan

Singh Lamba v. Union of India [(1995) 4

SCC 546 : 1995 SCC (L&S) 546 : (1995)

30 ATC 585], to suggest that the name for

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appointment to the Administrative Tribunal

may be suggested even by the executive

which may have the effect of initiating the

proposal. In the facts of that case,

substantial compliance of the requirement

of approval by the Chief Justice of India

was found proved and, therefore, the

appointments were upheld. The

requirement of consultation with the Chief

Justice in the proviso to Section 16(1)(a)

and Section 20(1)(a) of the Consumer

Protection Act being similar to that in

Article 217, the principles enunciated in the

majority opinion in the Judges-II case must

apply, as indicated earlier, even for

initiating the proposal. The executive is

expected to approach the Chief Justice

when the appointment is to be made for

taking the steps to initiate the proposal.

and the procedure followed should be the

same as for appointment of a High Court

Judge. That would give greater credibility

to the appointment made."

(emphasis supplied)

The aforementioned decision of this Court is to be read and

understood on the facts and in the context in relation to

initiation of the process for the appointment of a sitting or

retired Judge as the President of the State Commission.

The High Court in the impugned judgment also states that

the judgment of this Court in Ashish Handa should not be

understood or construed as insisting upon to follow the

same procedure, which has to be followed for appointment

of a Judge of a High Court under Article 217 of the

Constitution. If the judgment in Ashish Handa is to be

read in the way the appellants projected, it will lead to

anomalous situation and further it does not stand to reason.

The process of consultation envisaged under Section

16 of the Act can neither be equated to the constitutional

requirement of consultation under Article 217 of the

Constitution of India in relation to appointment of a Judge

of a High Court nor can it be placed on the same pedestal.

Consultation by the Chief Justice of the High Court with two

senior most Judges in selecting a suitable candidate for

appointment as a Judge is for the purpose of selecting the

best person to the high office of a Judge of the High Court

as a constitutional functionary. Consultation with the Chief

Justice of the High Court in terms of Section 16 of the Act is

a statutory requirement. This apart, the interpretation of a

provision of the Constitution having regard to various

aspects serving the purpose and mandate of the Constitution by this Court

stands on a separate footing. A constitution unlike other statutes is

meant to be a durable instrument to serve through longer number of years,

i.e., ages without frequent revision. It is intended to serve the

needs of the day when it was enacted and also to meet needs of the changing

conditions of the future. This Court in R.C. Poudyal vs. Union of India

and others , in paragraph 124, observed thus: -

"124. In judicial review of the vires of the

exercise of a constitutional power such as the one under Article 2, the

significance and importance of the political components

of the decision deemed fit by Parliament cannot be put out of consideration

as long as the conditions do not violate the constitutional fundamentals.

In the interpretation of a constitutional document,

"words are but the framework of concepts and concepts may change more than

words themselves". The significance of the change of the concepts

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themselves is vital and the constitutional issues are not solved

by a mere appeal to the meaning of the words without an acceptance of the

line of their growth. It is aptly said that "the intention of a

Constitution is rather to outline principles than to engrave details"."

In the first B.N. Rau Memorial Lecture on 'Judicial Methods'

M. Hidayatullah, J. observed, "More freedom exists in the interpretation of

the Constitution than in the interpretation of ordinary laws. This is due

to the fact that the ordinary law is more often before courts, that there

are always dicta of judges readily available while in the domain of

constitutional law there is again and again novelty of situation and

approach. Chief Justice Marshall while deciding the celeberated Mc.

Culloch v. Maryland (4 Wheaton 316, 407) made the pregnant remark \026 "We

must never forget that it is the constitution we are expounding" \026

meaning thereby that it is a question of new meaning in new circumstances.

Cardozo in his lectures also said: "The great generalities of the

Constitution have a content and a significance that vary from age to age."

Chief Justice Marshall in Mc. Culloch vs. Maryland declared that the

constitution was 'intended to endure for ages to come, and consequently to

be adapted to the various crises of human affairs....' In this regard it

is worthwhile to see the observations made in paragraphs 324 to 326 in

Supreme Court Advocates-on-Record Association: -

"324. The case before us must be considered in the light of our entire

experience and not merely in that of what was said by the Framers of the

Constitution. While deciding the questions posed before us we must consider

what is the judiciary today and not what it was fifty years back. The

Constitution has not only to be read in the light of contemporary

circumstances and values, it has to be read in such a way that the

circumstances and values of the present generation are given

expression in its provisions. An eminent jurist observed that

"constitutional interpretation is as much a process of

creation as one of discovery."

325. It would be useful to quote hereunder

a paragraph from the judgment of Supreme Court of Canada in Hunter v.

Southam Inc. [(1984) 2 SCR 145, 156 (Can)] :

"It is clear that the meaning of 'unreasonable' cannot be

determined by recourse to a dictionary, nor for that matter,

by reference to the rules of statutory construction. The task

of expounding a constitution is crucially different from that of

construing a statute. A statute defines present rights and

obligations. It is easily enacted and as easily repealed. A

Constitution, by contrast, is drafted with an eye to the

future. Its function is to provide a continuing framework for the

legitimate exercise of governmental power and, when

joined by a Bill or a Charter of Rights, for the unremitting

protection of individual rights and liberties. Once enacted, its

provisions cannot easily be repealed or amended. It must,

therefore, be capable of growth and development over time to

meet new social, political and historical realities often

unimagined by its framers. The judiciary is the guardian of the

Constitution and must, in interpreting its provisions, bear

these considerations in mind. Professor Paul Freund expressed

this idea aptly when he admonished the American Courts 'not to read the

provisions of the Constitution like a last will and testament

lest it become one'."

326. The constitutional provisions cannot be cut down by technical

construction rather it has to be given liberal and

meaningful interpretation. The ordinary rules and presumptions, brought in

aid to interpret the statutes, cannot be made applicable while interpreting

the provisions of the Constitution. In Minister of Home

Affairs v. Fisher [(1979) 3 All ER 21 :(1980) AC 319] dealing with

Bermudian

Constitution, Lord Wilberforce reiterated that a Constitution is a document

"sui generis, calling for principles of interpretation of its own, suitable

to its character". "

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(emphasis supplied)

This Court in Ms. Aruna Roy and others vs. Union of India and others

recalled the famous words of the Chief Justice Holmes that "spirit of law

is not logic but it has been experience" and observed that these words

apply with greater force to constitutional law. In the same judgment

this Court expressed that Constitution is a permanent document framed by

the people and has been accepted by the people to govern them for all times

to come and that the words and expressions used in the Constitution, in

that sense, have no fixed meaning and must receive interpretation based on

the experience of the people in the course of working of the Constitution.

The same thing cannot be said in relation to interpreting the words and

expressions in a statute.

Verma, J. (as he then was) speaking for the majority in the case of Supreme

Court Advocates-on-Records

Association, in paragraph 433, has stated, thus: -

"433. It is with this perception that the nature of primacy, if any, of

the Chief Justice of India, in the present context, has to be examined in

the constitutional scheme. The hue of the word 'consultation', when the

consultation is with the Chief Justice of India as the head of the

Indian Judiciary, for the purpose of composition of higher judiciary, has

to be distinguished from the colour and the same word 'consultation' may

take in the context of the executive associated in that process to assist

in the selection of the best available material."

(emphasis supplied)

Pandian,J. in his concurring opinion in Supreme Court Advocates-on-

Records Association aforementioned, with regard to meaning of the

word 'consultation' has observed that the derivative meaning of

the word in the context depended not merely on its ordinary lexicon

definition but greatly upon its contents according to the circumstances and

the time in which the word or expression is used; therefore, in order to

ascertain its colour and content one must examine the context in

which that word is used. In this regard in paragraph 163 it is stated

that: -

"The word 'consultation' is used in the context of appointment of

Judges to the Supreme Court under Article 124(2) and to the High

Courts under Article 217(1). Though such a consultation is not

constitutionally required in the case of appointment of other

constitutional appointees, which we have indicated and itemized in

the proceeding part of this judgment."

(emphasis supplied)

Further, in paragraph 196 it is observed that in the background of the

factual and legal position, meaning of the word 'consultation' cannot be

confined to its ordinary lexicon definition; its contents greatly vary

according to the circumstances and the context in which the word is used as

in our Constitution. In paragraph 195 it is stated that the consultation

with the Chief Justice of India by the President is relatable to the

judiciary and not to any other service; in the process of various

constitutional appointments, 'consultation' is required only to the

judicial office in contrast to the other high ranking constitutional

offices.

It is thus clear that the expression 'consultation' used in Article

217 of the Constitution of India in relation to appointment of High

Court Judges cannot be read in the same way into 'consultation' as

contemplated under Section 16 of the Act in the light of what is

stated above in the Supreme Court Advocates-on-Record Association.

The meaning of the word 'consultation' must be given in the context of an

enactment. If the argument that the consultation process in regard to

appointment of a Judge or retired Judge of High Court to the State

Commission under Section 16 must be in the same manner as required under

Article 217 of the Constitution, it will lead to anomalous situation.

Under Article 217(1) of the Constitution, consultation contemplated with

constitutional functionaries mentioned therein is for the purpose of

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appointment of a Judge of a High Court and not for appointment of a person

as the President of the State Commission under Section 16 of the Act. If

the consultation to be made for appointment of a person as President of the

State Commission, as required under Section 16 of the Act, is to be similar

as under Article 217 of the Constitution, then, even in case of

appointment of a retired Judge as President of the State Commission, such

consultation has to be made with all constitutional functionaries, which

does not stand to reason. Hence, obviously for appointment of a person as

President of the State Commission consultation as required under

Article 217 of the Constitution as against the requirement stated in

Section 16 of the Act is not necessary. If that be so not only opinion of

two senior most Judges of the High Court should be obtained but also the

consultation should be made with other constitutional functionaries as

contemplated under Article 217 of the Constitution including the Chief

Justice of India. Hence insistence on 'consultation' by the Chief Justice

of a High Court with his two senior most colleagues in the High Court for

the purpose of Section 16 of the Act, in our view, is unwarranted.

While dealing with the question of primacy of the opinion of the Chief

Justice of India in that context this Court held that such opinion of Chief

Justice is to be formed collectively after taking into account the views of

his senior colleagues, who are required to be consulted by him for the

formation of his opinion. As is evident from paragraph 450 of the same

judgment consultation with the Chief Justice of India was introduced

because of the realization that the Chief Justice is best equipped to know

and assess the worth of the candidate and his suitability for appointment

as a superior judge; and it was also necessary to eliminate

political influence even at the stage of the initial appointment of a

judge. In order to select the best candidate and to give primacy to the

opinion of the Chief Justice this Court held that consultation with two

senior most Judges of the High Court was needed in the matter of

recommending a candidate for appointment as Judge of the High Court. Under

Section 16 of the Act only a person, who is or has been a Judge of a High

Court, is eligible to be appointed as President of the State Commission.

In the matter of appointment of Judges of the High Court, in

paragraph 478 of the same judgment, it is stated, thus: -

"In matters relating to appointments in the High Courts, the Chief

Justice of India is expected to take into account the views

of his colleagues in the Supreme Court who are likely to be conversant with

the affairs of the concerned High Court. The Chief Justice of India may

also ascertain the views of one or more senior Judges of that

High Court whose opinion, according to the Chief Justice of India, is

likely to be significant in the formation of his opinion.

The opinion of the Chief Justice of the High Court would be entitled to the

greatest weight, and the opinion of the otherfunctionaries involved must be

given due weight, in the formation of the opinion of the Chief Justice of

India. The opinion of the Chief Justice of the High Court must be

formed after ascertaining the views of at least the two seniormost Judges

of the High Court."

In regard to initiation of the process for appointment, in

paragraph 478(10) it is stated: -

"(10) To achieve this purpose, and to

give legitimacy and greater credibility to

the process of appointment, the process

must be initiated by the Chief Justice of

India in the case of the Supreme Court,

and the Chief Justice of the High Court in

the case of the High Courts. This is the

general practice prevailing, by convention,

followed over the years, and continues to

be the general rule even now, after S.P.

Gupta vs. Union of India [1981 Supp. SCC

87]. The executive itself has so understood

the correct procedure, notwithstanding S.P.

Gupta and there is no reason to depart

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from it when it is in consonance with the

concept of the independence of the

judiciary."

In Ashish Handa this Court, having regard to what is

stated above, held that it is the Chief Justice of the High

Court, who should initiate the process in the matter of

appointment of a Judge, sitting or retired, as President of

the State Commission.

In that case, as already noticed above, this Court was

dealing with initiation of the process for appointment of a

sitting or retired Judge as President of the State

Commission. It is in that context this Court held that the

process must be initiated by the Chief Justice of the High

Court and not by the executive of the State. The reading of

the judgment gives an impression that the consultation

process must be the same in respect of appointment of a

sitting or retired Judge to State Commission as is required

for appointment of a High Court Judge in terms of Article

217 of the Constitution. Firstly, the said judgment should

be read and understood in the context of that case, the

question that arose for consideration and what was really

decided, i.e., initiation of process by the Chief Justice of the

High Court. To remove doubt, if any, we make it clear that

the consultation for the purpose of Section 16 of the Act in

relation to the appointment of a Judge or a retired Judge of

a High Court as President of the State Commission cannot

be taken or equated to consultation process as required

under Article 217 of the Constitution, which, in our view, is

the correct position. Certain statements made by this Court

in Ashish Handa, in para 3, give an impression that Chief

Justice of a High Court has to consult his two senior most

colleagues before recommending a sitting or retired Judge

for appointment as President of a State Commission as per

Section 16 of the Act. In our view that is not the correct

position and we do not approve the same. To put it

positively, we state that for the purpose of Section 16 of

the Act a Chief Justice of a High Court need not consult his

two senior most colleagues in the High Court for

recommending a sitting or retired Judge of a High Court for

appointment as President of a State Commission.

We must also keep in mind one more aspect. Under

Article 217 of the Constitution for the purpose ofappointment of a Judge to

a High Court in view of decision in Supreme Court Advocates-on-Records

Association and that too interpreting the constitutional provisions to

maintain the independence of judiciary and to select the best of the

persons as judges such a procedure is adopted. A person to be appointed as

President of the State Commission has to be necessarily a sitting or a

retired Judge of a High Court and not that any person can be appointed as

President of the State Commission. This being the position, it does not

stand to the reason as to why again in respect of a sitting or retired

Judge of a High Court the whole process contemplated under Article 217 of

the Constitution must be resorted to. To put in clear terms so as to

remove any doubt we state that in the matter of appointment of a sitting or

retired Judge of a High Court as President of the State Commission process

must be initiated by the Chief Justice under Section 16 of the Act and

'consultation' contemplated in the said Section is 'consultation' only with

the Chief Justice of the High Court and not with the collegium.

Argument that the 'consultation' under Section 16 of the Act should

be with the Chief Justice of the High Court and not with the Acting

Chief Justice is not acceptable and this argument does not pose any

serious problem having regard to the clear constitutional

provision. The decision in Bishal Chand Jain vs. Chattur Sen and

others (supra), cited on behalf of the appellants does not help

them for the reasons more than one. That decision was on the facts

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of that case and the question that has arisen for consideration

in the present case did not arise there even remotely. In that case

plaintiff filed first appeal against the judgment and decree of Civil Judge

made in the original suit. In the first appeal a preliminary objection was

raised on behalf of the appellant himself to the effect that the High Court

was not properly constituted and that appeal could not be heard on the

ground that the office of the Chief Justice of the High Court fell vacant

as a result of the elevation of Mr. Justice V. Bhargava, Chief Justice of

that High Court to the Bench of this Court; Nasirullah Beg, J., a senior

most Judge of the Court was appointed as Acting Chief Justice of the High

Court, but as oath of office had not been taken by him, the High Court

could not be deemed to be properly constituted. Alternatively, there was no

Chief Justice at that time and thus the Court was not properly constituted.

It was in that context the Division Bench of the Allahabad High Court, in

paragraph 7, has stated thus: -

"(7) We are, however, of the view that Article 223 of the Constitution

does not contemplate the appointment of a Chief Justice of a High Court or

an appointmentto the office of Chief Justice of a High Court. In spite of

such appointment being made under Article 223, the office of the

Chief Justice remains vacant till a fresh appointment is made to that

office. It is on account of the existence of a vacancy in

the office of Chief Justice that one or the other Judges of the High Court

is appointed by the President for the purpose of

performing the duties of the office of Chief Justice. If such appointment

is to be held to put an end to the vacancy, then the exigency of such an

appointment ceases to exist. It, therefore, follows that exercise of

powers under Article 223 of the Constitution by the President does not

result in an appointment to the office of Chief Justice and in spite of

such appointment, the office of the Chief Justice remains vacant. All that

happens is that during the continuance of that vacancy, the

duties of that office are to be performed by one or the other Judges of the

High Court as the President may appoint for the purpose. The word

"temporarily" used in Article 224 clause (2) governs the words

"to act". The language of clause (2) of Article 224, therefore, does not

mean that an appointment of a Judge of a High Court to perform the duties

of the office of the Chief Justice under Article 223, is the appointment of

a temporary Chief Justice.

It is true that both in its marginal note and Article 223 the words

"appoint" or "appointment" has been used. But from this it does

not necessarily follow that the appointment is an appointment to

the office of the Chief Justice. In the marginal note, it is clear

that the appointment is not of a 'Chief Justice' but of 'an acting

Chief Justice'. In the Article itself the word "appoint" relates

to the appointment of such of the other Judges of that Court as the

President may choose for the purpose of performance of the duties

of the office of Chief Justice. It is only when the appointment is

not an appointment to the office of Chief Justice, that it could be

said to be an appointment of one or the other Judges of that Court

for the purpose of performing the duties of the office of Chief

Justice. We have, therefore, no hesitation in coming to the

conclusion that an appointment of one or the other Judges of the

High Court to perform the duties of the office of Chief Justice

when that office is vacant, is not the appointment of a Chief

Justice to that office. It really results in an arrangement for the

performance of the duties of the vacant office of the Chief

Justice pending a fresh appointment to the office of Chief Justice."

A careful reading of the paragraph extracted above shows that an

appointment of one or the other Judges of the High Court to perform the

duties of the office of Chief Justice really results in an arrangement for

the performance of the duties of the vacant office of the Chief Justice

pending fresh appointment to the office of the Chief Justice. In that case

the view was that even if an acting Chief Justice is appointed under

Article 223 of the Constitution for performance of the duties of the Chief

Justice, the office of Chief Justice still remains vacant. This also shows

that one or the other Judges of the High Court can perform the

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duties of the Chief Justice. In the case on hand we have to consider

whether acting Chief Justice could be consulted under Section 16 of

the Act or the process initiated and opinion given by the acting Chief

Justice could be valid to satisfy the requirement of the said Section.

In the very terms of Article 223 of the Constitution, when the

office of Chief Justice of a High Court is vacant or when any such

Chief Justice is by reason of absence or otherwise, unable to

perform the duties of the office of the Chief Justice, duties of

the office of Chief Justice shall be performed by such one or the

other Judges of the Court as the President may appoint for the

purposes. Plain reading of this Article shows that one or the

other Judges of the High Court appointed in the vacancy of Chief

Justice of a High Court for the time being can perform the duties

of the office of Chief Justice. No restriction or limitation in

performance of duties by acting Chief Justice can be read into the said

Article. The Article also does not indicate as to which of the duties of

the Chief Justice can be performed or which of the duties cannot be

performed by the acting Chief Justice. Appointment of one or the other

Judges of a High Court as acting Chief Justice is meant to carry on the

work of the High Court and the judiciary in the State. May be

sometimes appointment of Chief Justice to a High Court may take some time

for various reasons and consequently acting Chief Justice continues to work

for longer period, but that itself does not take away the powers conferred

by the Constitution on a Judge to act as Chief Justice to perform the

duties of the Chief Justice. Normally the senior most puisne Judge is

appointed as acting Chief Justice. Such puisne Judge is expected to act

appropriately in discharging the duties of the office of Chief Justice. It

is rule of prudence that the acting Chief Justice may not take major

decisions which otherwise could have been taken by the Chief Justice or

which decisions could wait for a Chief Justice. Assuming that some

decisions taken by an acting Chief Justice are required to be modified or

corrected, that can be done either on administrative side or on the

judicial side by the High Court or by this Court including the Chief

Justice of India, as the case may be. In some cases if appointment of

Chief Justice of a High Court takes longer time and the acting Chief

Justices cannot discharge the duties of the office of the Chief Justice the

work of the High Court or the State judiciary or for the matter wherever

the opinion of Chief Justice is required like the one under Section 16 of

the Act, it will result in anomalous position leading to paralyzing the

working or may be sometimes creating a deadlock. When Article 223 of the

Constitution in specific terms confers powers on acting Chief Justice to

discharge the functions of the office of Chief Justice without any

limitation or rider, it cannot be accepted that an acting Chief Justice

cannot perform the duties expected to be performed by him under Section 16

of the Act. Consultation with acting Chief Justice under Section 16 of

the Act is to be taken as consultation with the Chief Justice of a High

Court. Powers conferred under Article 223 of the Constitution on

an acting Chief Justice to perform the duties of the Chief Justice

is available for the purpose of Section 16 of the Act. We may

hasten to add that it is not the case of the petitioner in High Court that

the Chief Justice of the High Court was going to be appointed shortly or

the matter of appointment of President of the State Commission was such,

which on the facts and in the circumstances of the case, did not call for

an immediate decision by Acting Chief Justice and could have waited for the

appointment of the Chief Justice of the High Court. In other words, no

statutory provision can stand in the way of constitutional provision in

case of conflict between them.

Thus, having examined all aspects and in the light of

what is stated above we are of the view that the High Court was right in

dismissing the writ petition. We do not find any good ground or valid

reason to disturb the judgment under challenge. Consequently the appeal is

dismissed leaving the parties to bear their own costs.

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