REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7360 OF 2008

N. Kannadasan ….. Appellant

Versus

Ajoy Khose and others …. Respondents

WITH

CIVIL APPEAL NO. 7368 OF 2008

N. Kannadasan ….. Appellant

Versus

Anna Mathew and others …. Respondents

WITH

CIVIL APPEAL NO. 7371 OF 2008

Government of Tamil Nadu rep. by its Secretary….. Appellant

Versus

Ajoy Khose and others …. Respondents

AND

CIVIL APPEAL NO. 7372 OF 2008

Government of Tamil Nadu rep. by its Secretary….. Appellant

Versus

Anna Mathew and others …. Respondents

J U D G M E N T

S.B. SINHA, J.

INTRODUCTION

Justiciability of the recommendations of the Chief Justice of Madras

High Court for appointment of Shri N. Kannadasan (the appellant) as the

President of the State Consumer Disputes Redressal Commission (‘the

Commission’) in terms of Section 16 of the Consumers Protection Act,

1986 (‘the Act’) is the question involved herein.

BACKGROUND FACTS :

The said question arises in the following factual matrix.

The appellant was an Advocate practicing in the Madras High Court.

He was appointed as an Additional Judge of the said Court for a period of

two years on or about 6

th

November, 2003. During his tenure as an

Additional Judge a representation was made from the Members of the Bar

alleging lack of probity against him inter alia contending :

(A) (i) several orders had been passed by him granting

bail in Narcotic Drugs and Psychotropic Substances

2

(NDPS) matters in contravention of the mandate laid

down in Section 37 of the NDPS Act despite the refusal

of bail on earlier occasions either by him or by other

Judges ;

(ii)bail granted by him had subsequently been

cancelled by other Judges ;

(iii)Abuse of office to work the judicial system to his

own benefit through his former juniors

(B)Adverse reports from intelligence agencies.

Indisputably he was not appointed as a Permanent Judge as a result

whereof demitted his office on 5

th

November, 2005. He resumed practice in

Madras High Court. On a query made by the High Court as to whether the

appellant was entitled to pensionary and other benefits, the Government of

India by its letter dated 29

th

March, 2007 replied that he be treated at par

with the retired Judges of the High Court for the purposes of obtaining

medical benefits but would not be entitled to any pensionary benefits.

In the meantime on or about 6

th

November, 2006 he was appointed as

an Additional Advocate General of the State of Madras. Appellant intended

to have his name included in the list of retired Judges wherefor he wrote a

3

letter to the Registrar General of the Madras High Court on 24

th

May, 2008.

Indisputably his name was included in the said list by a Resolution adopted

in that behalf by the Full Court on 11

th

July, 2008.

PROCEEDINGS FOR APPOINTEMNT

Before the post of President of the Commission fell vacant, the

Government of Tamil Nadu by a letter dated 30

th

May, 2008 requested the

Registrar General of the High Court to forward names of eligible candidates

for appointment as President of the Commission. The said post, however,

fell vacant only on 5

th

July, 2008.

A note prepared by the Registry of the said Court as contained in

Roc.341/2008 dated 14

th

July, 2008 refers to the letter of the Government

dated 30

th

May, 2008.

Upon quoting Section 16 of the Act, it proceeds as follows:

“In view of the above, if your Lordship is so

pleased, willingness may be called for from the

Hon'ble judges retired in or after the year 2006, so

that, if appointed they may have a tenure of not

less than 2-1/2 years.

It is further submitted that the Hon'ble Thiru

Justice N. KANNADASAN, Former Judge, who

has completed 2 years of service as Additional

Judge, High Court of Madras ceased to hold the

Office on and from 06.11.2005. His Lordship's

date of birth is 15.11.1955.

4

Further, it is submitted that the Hon'ble Thiru

Justice N. KANNADASAN, Former Additional

Judge, High Court, Madras and now Additional

Advocate General has addressed a letter to the

Registry in connection with the inclusion of His

Lordship's name in the category of Retired/Former

Judge etc.

As directed by your Lordship, the said matter was

placed before the full court which was held on

11th July, 2008 and minuted as follows:

Considered the representation of Hon'ble

Thiru Justice N. KANNADASAN, Former

Judge of the High Court in the light of the

communication of Ministry of Law and

Justice, Government of India dated

29.03.2007.

Discussed the matter

It is resolved that the name of Hon'ble Thiru

Justice N. KANNADASAN be included as one of

the Retired Judges of the High Court in the records

of this Registry.

Further, it is submitted that the list of Hon'ble

Judges, retired during 2006 and 2007 is submitted

below 2006:

1. Hon'ble Thiru Justice T.V. MASILAMANI

(Chairman DRAT) - 29.05.2006

Chairman, DRAT

2. Hon'ble Thiru Justice A.R. RAMALINGAM

- 12.11.2006

- 2007

1.Hon'ble Thiru Justice M. HANIKACHALAM,

(Admission Committee) - 07.03.07

2. Hon'ble Thiru Justice J.A.K. SAMPATHKUMAR

(Chairman, Human Rights Commission,

Puducherry) - 05.05.2007

5

3.Hon'ble Thiru Justice R. BALASUBRAMANIAN

(Advisor, State Legal Services Authority)

- 15.08.2007

4. Hon'ble Thiru Justice N. KANNADASAN

(D.O.B. - 15.11.1955) - 05.11.2005

The term of Office of the President of the State

Consumer Dispute Redresssal Commission will be

5 years or up to the age of 67 years.

In this connection, it is respectfully submitted for

consideration and orders.

Whether:-

the list of retired Hon'ble Judges except

Hon'ble Thiru Justice T.V. MASILAMANI

(Chairman DRAT) and including N.

Kannadasdan, Former Additional Judge

may be forwarded to the Government,

for consideration for the post of President

of State Consumer Dispute Redressal

Commission.

Sd/- SO J Sd/-

14.07.2008 15.06.2008 Regr A

I send the panel of three

retired Judges of this Hon'ble Court

1. Justice A.R. Ramalingam

2. Justice M. Thanikachalam

3. Justice N. KANNADASAN

Sd/- CJ

16.06.2008”

The Government of Tamil Nadu appointed Shri Kannadasan as the

president of the Commission by issuing G.O. Ms. No.144 on 26

th

July, 2008.

6

WRIT PROCEEDINGS

Three writ petitions were filed by some Legal Practioners before the

Madras High Court.

Writ Petition No.18731 of 2008 was filed by one Anna Mathew and

ten others for issuance of writ of Quo Warranto against Shri Kannadasan

requiring him to show the authority to hold the office of President of the

Commission and consequently declaring G.O. Ms. No. 144 of 26

th

July,

2008 as illegal and unconstitutional.

Writ Petition No.21495 was filed by one R. Jaikumar and seven others

for issuance of writ of declaration to declare that the decision taken by the

Full Court of the Madras High Court in July, 2008 to treat Sh. Kannadasan

as a retired judge is unconstitutional and non-est in law.

Writ Petition No.21504 of 2008 was filed by Ajoy Khose and three

others for issuance of a writ of declaration declaring G.O. Ms. No.144 dated

26

th

July, 2008 issued by the Government of Taml Nadu as illegal and ultra

vires of the Constitution of India.

The Chief Justice of the High Court initially was impleaded as a party

in the said proceedings but later on his name was deleted.

7

By reason of the impugned judgment dated December 12, 2008 Writ

Petition Nos. 18731 of 2008 and 21504 of 2008 have been allowed while

Writ Petition No. 21495 of 2008 has been dismissed.

Before the High Court averments touching upon the lack of integrity

and honesty on the part of the appellant were made by the writ petitioners.

The High Court, however, did not think it necessary to consider them in

detail.

QUESTIONS BEFORE THE HIGH COURT :

Before the High Court, the writ petitioners-respondents raised the

following questions :-

“i) Whether the earlier recommendations of the

Constitutional functionaries under Article 217,

viz. the Chief Justice of the High Court and the

Chief Justice of India and the Collegium of the

Supreme Court and of the Central Government

that a person should not be considered as a Judge

on grounds of unsuitability and as being public

interest, are not vital and decisive considerations

that should weigh with the Chief Justice of the

High Court in considering the same person for

appointment to any judicial office under the

Consumer Protection Act, 1986 or any other

similar offices in other Tribunals &

Commissions ?

8

ii) Since an independent and fair judiciary is part

of the basic structure of the Constitution of India,

can a person found wanting in the necessary

intellectual and moral requirements to be a

Judge, be considered again for any other judicial

office ?

iii) If the Government considers and appoints

such a person to any judicial office, would it not

amount to interfering with the independence of

the judiciary contrary to Article 50 of the

Constitution of India ?

iv) Whether the expression "is or has been a

Judge of the High Court" in Section 16 would

include even a Judge, who had demitted office on

account of impeachment or unsuitability to hold a

judicial office ?

v) Whether an Additional Judge can be

considered as a retired Judge to be eligible for

appointment to judicial offices in various

Tribunals and Commissions ?”

The High Court inter alia formulated the following three questions for its

consideration :-

“(1) Whether Respondent No. 1 was ineligible to

be appointed as the President of the State

Consumer Disputes Redressal Commission?

(2) Whether the requirement of consultation with

the Honourable the Chief Justice had been

fulfilled ?

(3) Whether the appointment of Respondent No. 1

can be declared illegal and invalid on the ground

that such appointment was against public interest?

9

FINDINGS OF THE HIGH COURT

Re : Question No.1

Upon considering a few decisions of this Court as also the provisions

of the Constitution of India vis-à-vis Section 16 of the Act, the High Court

held that having regard to the fact that an additional judge appointed for a

period of two years can revert back to practice and would be entitled to

appear before any court of law including the lower courts, there existed a

distinction between a Permanent Judge and an Additional Judge. Section 16

of the Act requires that the President of the Commission, be a person ‘who is

or has been a judge’ and accordingly an additional judge who has demitted

office being not a retired judge, could not have been appointed. Although a

literal interpretation having regard to the decision of this Court S.P. Gupta

v. Union of India, [(1981) Supp. SCC 87] may lead to the conclusion that an

additional judge would be deemed to be a judge of the High Court for all

purposes, in a case of the nature before it, the principle of purposive

interpretation should be applied as it would indeed be a travesty of all

canons of principles of jurisprudence if it is held, by adopting a cussedly

narrow literal interpretation, that a person who was found by the appropriate

Constitutional functionaries, which includes the Chief Justice of the High

Court and the Collegium of the Supreme Court, unsuitable to be continued

10

as an additional Judge yesterday, is eligible today for being appointed as ad-

hoc Judge, for which only a retired Judge is eligible, on the specious plea,

that the person "has held the office of a Judge".

Re :- Question No.2

The High Court noticed that no affidavit has been filed by the Chief

Justice of the High Court or on his behalf. Upon taking into consideration

the correspondences entered into by and between the State and the Registry

leading to the sending of the panel by the Chief Justice, it was held :-

“78. Judged in the light of the discussion made

earlier, the inevitable conclusion is that there has

not been any effective consultation mainly on

account of the fact that the Consultee, namely, the

Honourable the Chief Justice has recommended

the name of Respondent No. 1 without at all

considering the background as available in the

High Court records regarding the circumstances

under which there was no extension of the term of

Respondent No. 1. It is no doubt true that this

Court is neither required nor expected to consider

the desirability of a person to be appointed for a

particular post as that is a matter for the authorities

concerned; (in this case the State Government and

the Honourable the Chief Justice) to consider. But,

where a decision itself is thickly clouded by non-

consideration of the most relevant and vital aspect,

the ultimate appointment is vitiated not because

the appointee is not desirable or otherwise, but

because mandatory statutory requirement of

consultation has not been rendered effectively and

meaningfully. Therefore, even assuming that

Respondent No. 1 was theoretically eligible for

11

being considered, the process of consultation

having been vitiated, the ultimate order is also

vulnerable.”

Re : Question No.3

The records produced by the Additional Solicitor General appearing

for the Central Government and the learned counsel for the High Court,

despite the fact that no privilege had been claimed, the High Court did not

think it fit to permit the counsel for the contesting parties to peruse the same

as in its opinion it would open a collateral battle on the question relating to

confirmation of Shri Kannadasan which was not and could not be an issue.

It was opined :

(A)Indisputably the allegations made in the said writ petitions that Shri

Kannadasan is not entitled to be considered for the post of the chairman of

the commission would have to be accepted; his tenure as additional judge

and/or appointed as a permanent judge, having not been confirmed, on the

basis of the allegations touching upon his integrity and honestly.

(B)An additional judge who had demitted the office on the expiry of the

term being not a permanent judge was ineligible for appointment in terms of

Section 16 of the Act.

12

(C)The recommendations. made by the Chief Justice of the High Court is

vitiated in law as before him all the relevant records relating to his non-

appointment as permanent judge and demission of office were not placed

and thus the decision making process became vitiated.

On the basis of the said findings, Writ Petition No.18731 of 2008 and

Writ Petition No.21504 of 2008 were allowed.

Writ Petition No.l2149 of 2008 for a declaration that the Full Court

Reference dated 11.07.2008 was unconstitutional was, however, dismissed.

Government of Tamil Nadu and Shri Kannadasan are before us in

these four appeals.

SUBMISSIONS

Mr. K.K. Venugopal and Mr. U.U. Lalit, learned senior counsel

appearing for the appellants, inter alia, would contend :-

1.Having regard to the constitutional scheme contained in Articles 216

to 224A of the Constitution of India, a permanent judge as also an

additional judge would be a judge for all purposes including power;

salary; remuneration; judicial functions; control over the subordinate

judiciary etc.

13

2.An Additional Judge does not cease to be a judge of the High Court

only because he was not re-appointed as a Permanent Judge thereof.

3.As an Additional Judge of a High Court is not appointed on probation,

the High Court committed a serious error in applying in the theory of

‘confirmation in service’ which is foreign to the concept of

appointment and status of a High Court judge.

4.A writ of Quo Warranto could be issued only when a candidate does

not specify the requisite eligibility criterion specified in the statute.

5.Suitability or otherwise of a candidate appointed by the State in

exercise of its statutory power cannot be a subject matter of judicial

review, far less for the purpose of issuance of a writ of quo warraanto.

6.The consultative process having been initiated by the Chief Justice of

the High Court by recommending a panel of 3 names, the State was

within its right to select any one of them as President of the

Commission. Recommendations of the Chief Justice of the High

Court for appointment to a statutory post being discretionary and

based on his subjective satisfaction, the High Court committed a

serious error in opining that the Chief Justice should have called for

the records/files leading to Shri Kannadasan’s non-appointment as a

permanent judge.

14

7.The High Court itself having held that the records produced by the

High Court and/or the State could not have been shown to the writ

petitioners as the suitability of Shri Kannadasan was not justiciable,

committed a serious error in arriving at a different conclusion in

regard to his eligibility in terms of the Constitution of India as also the

1984 Act relying on or on the basis of the purported records of his

suitability.

Mr. Anil Diwan, learned senior counsel appearing on behalf of the

writ petitioners-respondents, on the other hand, urged :-

i)The constitutional provisions make a distinction between a

permanent judge and an additional judge who had not been made

permanent for one reason or the other.

ii)Section 16 of the Act while using the terms “is” or “has been a

judge” could not have included within is purview an advocate who

has been appointed only for two years and was not found fit for

appointment as a permanent judge in view of the fact that

independence and impartiality of the judiciary plays an important

role in the matter of discharge of judicial functions.

iii)The State Commission being a judicial body and the eligibility

criteria having been laid down in the Act, the Chief Justice of the

15

High Court was obligated to take into consideration the past

conduct, as also general reputation of the recommendee.

iv)Only because a name of a judge has been included in the capacity

as a retired judge and is entitled to medical benefits the same by

itself would not be sufficient to answer the description of ‘has been

a judge’ within the meaning of the provisions of Section 16 of the

Act.

v)While taking an important decision like recommending the name

of a retired judge who was not found fit to occupy the post of a

permanent Judge, the Chief Justice was bound to take into

consideration all relevant factors including the question of honesty

and integrity of a judge; which being a relevant statutory

requirement, would determine the eligibility criteria, and thus a

writ of quo warranto could be issued.

CONSTITUTIONAL PROVISIONS :

Chapter V of the Constitution deals with the High Courts in the States.

Article 216 of the Constitution of India provides that every High

Court shall consist of a Chief Justice and such other judges as the President

may from time to time deem it necessary. Article 217 states that every

16

judge of a High Court shall be appointed by the President in consultation

with the Chief Justice of India and other authorities specified therein who

shall hold office in the case of an additional or acting Judge, as provided in

Article 224, and in any other case, until he attains the age of sixty two years.

Indisputably in terms of the proviso, an additional judge, like a permanent

judge, may also resign his office, or be removed therefrom by the President

in the manner as provided in clause (4) of Article 124 of the Constitution of

India for the removal of the Supreme Court Judge. Clause (2) of Article 217

of the Constitution of India prescribes the eligibility criterion. Clause (3)

thereof provides for resolution of disputes if any question arises as to the age

of a Judge of the High Court by the President after consultation with the

Chief Justice of India. Article 219 provides for oath of affirmation by

Judges of the High Courts which is to be affirmed according to form set out

for the purpose in the Third Schedule.

Article 220 restricts practice by a judge after being appointed as a

Permanent Judge. However, no such restriction is imposed in regard to an

Additional Judge. Article 221 provides for salaries and other emoluments,

which, indisputably, are the same for a permanent judge or an additional

judge.

17

Article 222 provides for a transfer of a judge. Indisputably again an

additional judge can also be transferred from one High Court to another

High Court. Article 223 provides for appointment of acting Chief Justice.

Article 224 provides for appointment as additional and acting judges

commonly known as ad hoc judges.

Part ‘D’ of the Second Schedule of the Constitution of India provides

for the provision as to the quantity of payment of salary to the Judges of the

Supreme Court and the High Court. Clause 11 thereof refers to the

definitions of ‘Chief Justice’, ‘Judge’ and ‘actual service’. Definitions have

also been referred to in the High Court Judges (Salaries and Conditions of

Service) Act, 1954 (for short “the 1954 Act”). The 1954 Act also provides

for qualification for payment of pension for Judges. An Additional Judge

who holds a tenure post indisputably would not get any pensionary benefit.

THE ACT

The Act was enacted 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.

Section 2 thereof defines ‘State Commission’ to mean a Consumer

Disputes Redressal Commission established in a State under clause (b) of

18

Section 9. Section 3 provides that the provisions of the Act shall be in

addition to and not in derogation of the provisions of any other law.

Section 16 provides that the State Commission shall consist of a

person who is or has been a Judge of a High Court, appointed by the State

Government, who shall be its President. A proviso was inserted threin by

Act No.50 of 1993 which has come into force with effect from 18

th

June,

1993 providing that no appointment thereunder shall be made except after

consultation with the Chief Justice of the High Court. Clause (b) of sub-

section (1) of Section 16 provides for appointment of members from

amongst the persons of ability, integrity and standing and have adequate

knowledge and experience of at least ten years in dealing with problems

relating to economics, law, commerce, accountancy, industry, public affairs

or administration.

Section 17 provides for the jurisdiction of the State Commission. It

has original jurisdiction to entertain complaints where the value of the goods

or services and compensation, if any, claimed exceeds rupees twenty lakhs

but does not exceed rupees one crore. It entertains appeals against the orders

of District Form within the State. The Commission has the power to transfer

any complaint pending before any District Forum to another District Forum.

19

Appeal against the orders passed by the Commission shall lie only before the

National Commission.

Section 20(1)(a) provides that the National Commission shall consist

of a person who is or has been a Judge of the Supreme Court, to be

appointed by the Central Government, who shall be its President, provided

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

with the Chief Justice of India.

INTERPRETATION OF CONSTITUTIONAL PROVISIONS IN REGARD

TO THE STATUS OF AN ADDITIONAL JUDGE

The High Court has taken recourse to the rule of purposive

construction whereas learned counsel appearing on behalf of the appellants

want us to invoke the rule of literal meaning.

Interpretative tools of constitutional provisions and the statutory

provisions may be different. Whatever interpretative tool is applied, the

Court must not forget that its job is to find out the intention of the

legislature. It can be gathered from the words used. However, if plain

meaning assigned to the section results in absurdity or anomaly, literal

meaning indisputably would not be applied.

It is also well settled that the Court may have to change the

interpretative tool in the event it is necessary to give effective contextual

20

meaning to the Act. It is one thing to say that an Additional Judge would be

on the same pedestal as a Permanent Judge for all practical purposes, namely

– judicial function; administrative function; pay and remuneration etc. but

would it mean that the same interpretation would be applicable even in a

case where an Additional Judge despite his legitimate expectation to become

a Permanent Judge has not been conferred on the said stating allegations of

lack of probity.

An Additional Judge on the expiry of his tenure has a right to be

considered for re-appointment if he is not appointed as a Permanent Judge.

He may not, however, be reappointed if it is found that he is otherwise

disqualified therefor, namely to satisfy the test of fitness and suitability,

physical, intellectual and moral, before the Central Government can,

consistently with its constitutional obligation and in public interest, decide to

reappoint him as an Additional Judge or appoint him as a Permanent Judge.

SOME PRECEDENT

S.P. GUPTA

In the context of Central Government’s refusal to re-appoint some

additional judges as permanent judges, the Supreme Court in S.P. Gupta

(supra) had the occasion to consider the said question. Bhagwati, J. (as His

21

Lordship then was) traced the history of appointment of ad hoc or temporary

judges, the provisions of the Government of India Act, 1915; Section 220 of

the Government of India Act, 1935 and the speech of Sir Tej Bahadur Sapru

expressing his firm opposition to the practice of appointing acting or

Additional Judges to note that the drafting committee took the view that “it

was possible to discontinue the system of appointment of temporary and

Additional Judges in the High Courts altogether by increasing, if necessary,

the total number of permanent Judges of such Courts.”, to notice that the

Constitution-makers did not assume that an acting or Additional Judge

would necessarily be made permanent and he would have to go back to the

Bar. The learned Judge furthermore noticed the enactment of the

Constitution (Seventh Amendment) Act, 1956, in terms whereof existing

Article 224 was substituted by a new Article and the existing Article 224

was added as new Article 224A thereafter. It was held that the object clearly

was that Additional Judge should be appointed for a short period in order to

dispose of the temporary increase in the business of the High Court and/or to

clear off the arrears of pending cases. The underlying idea was that there

should be an adequate strength of permanent Judges in each High Court to

deal with its normal institutions and so far as the temporary increase in the

work or the arrears of pending cases were concerned, Additional Judges

appointed for a period not exceeding two years should assist in disposing of

22

such work. Additional Judges while entering into the High Court judiciary

had a legitimate expectation that they would not have to go back on the

expiration of their term and that they would be either reappointed as

Additional Judges for a further term or if in the meanwhile, a vacancy in the

post of a permanent Judge became available, they would be confirmed as

permanent Judges. The Government, in view of the constitutional scheme,

could not drop an additional Judge at its sweet will. The expectation has

been raised through a practice followed for almost over a quarter of a

century. The expression “every Judge” occurring in Article 217 must

include not only a permanent Judge but also an Additional Judge. The

Additional Judge, on the expiry of his tenure, could not just be dropped

without consideration (be of his re-appointment or made a permanent judge).

As Additional Judge is entitled to be appointed without anything more, the

process of selection in regard to his appointment need not be gone any

further. An Additional Judge is as much a Judge as a permanent Judge with

the same jurisdiction and the same powers and to treat him as he were on

probation, would not only detract from his status and dignity but also affect

his independence by making his continuance as a Judge dependent on the

good opinion of the Chief Justice of the High Court, the Governor of the

State and the Chief Justice of India. Although factors relevant for

consideration of his appointment as permanent Judge have not been laid

23

down having regard to the object and purpose of Article 217(1), it is obvious

that fitness and suitability, physical, intellectual and moral, would be the

governing considerations to be taken into account in deciding the question of

appointment.

The Central Government, however, in view of the constitutional

obligations, was, therefore, required to consider whether the Additional

Judge is fit and suitable to be reappointed as an Additional Judge or

appointed as a permanent Judge, as the case may be, must consider as to

whether he is physically, intellectually or morall unfit or unsuitable to be

appointed as such.

Justice Fazal Ali, J. in his concurring judgment opined :-

“533. Thus, the position is that even if an

Additional Judge is not appointed afresh and

somebody else is appointed, there is no question of

judicial review nor is there any question of the

non-appointment of an Additional Judge afresh

casting any reflection or aspersion on the

reputation or character of an Additional Judge

because he was appointed only for a particular

period and for a particular purpose and is not on

probation. Both Brother Desai and Brother

Venkataramiah, JJ. have stressed this aspect of the

matter in their own way and I agree with their

views.”

SUPREME COURT ADVOCATES-ON -RECORD ASSOCIATION

24

This Court in Supreme Court Advocates-on-Record Association and

others v. Union of India, [ (1993) 4 SCC 441 ] adopted a new approach

opining that keeping in view the fact that independence of judiciary is one of

the cardinal principles of constitution, the primacy of appointment shall be

with the Chief Justice of India as also the Chief Justice of the High Court.

However, before making recommendations in terms of Articles 124(2) and

217(1) of the Constitution, they would have to consult two other senior most

Judges who would be the members of the Collegium. It was opined that S.P.

Gupta (supra) should be read with Ashok Kumar Yadav v. State of

Haryana, [ (1985) 4 SCC 417 ]. As regards justiciability of appointment and

transfer it was laid down :-

“Except on the ground of want of consultation

with the named constitutional functionaries or lack

of any condition of eligibility in the case of an

appointment, or of a transfer being made without

the recommendation of the Chief Justice of India,

these matters are not justiciable on any other

ground, including that of bias, which in any case is

excluded by the element of plurality in the process

of decision-making.”

SPECIAL REFERENCE

25

In Re - Special Reference No. 1 of 1998, [(1998) 7 SCC 739], in

regard to justiciability of such power this Court held that having a plurality

of judges in the formation of opinion provides sufficient safeguards and that

they are sufficient checks against arbitrariness in the decision making

process relating to Appointment and Transfers, stating :-

“9. The majority judgment ends with a summary

of its conclusions. Conclusions 1, 2, 3, 4, 5, 7, 9,

10, 11 and 14 are relevant for our purposes. They

read thus:

“(1) The process of appointment of Judges to

the Supreme Court and the High Courts is an

integrated ‘participatory consultative process’

for selecting the best and most suitable persons

available for appointment; and all the

constitutional functionaries must perform this

duty collectively with a view primarily to reach

an agreed decision, subserving the

constitutional purpose, so that the occasion of

primacy does not arise.

* * * *

(5) In exceptional cases alone, for stated strong

cogent reasons, disclosed to the Chief Justice of

India, indicating that the recommendee is not

suitable for appointment, that appointment

recommended by the Chief Justice of India may

not be made. However, if the stated reasons are

not accepted by the Chief Justice of India and

the other Judges of the Supreme Court who

have been consulted in the matter, on reiteration

of the recommendation by the Chief Justice of

India, the appointment should be made as a

healthy convention.

* * *

(10) In making all appointments and transfers,

the norms indicated must be followed.

26

However, the same do not confer any

justiciable right in anyone.

(11) Only limited judicial review on the

grounds specified earlier is available in matters

of appointments and transfers.

* * *

(14) The majority opinion in S.P. Gupta v.

Union of India insofar as it takes the contrary

view relating to primacy of the role of the Chief

Justice of India in matters of appointments and

transfers, and the justiciability of these matters

as well as in relation to Judge-strength, does not

commend itself to us as being the correct view.

The relevant provisions of the Constitution

including the constitutional scheme must now

be construed, understood and implemented in

the manner indicated herein by us.”

(emphasis supplied)

It was furthermore held :-

“44. The questions posed by the Reference are

now answered, but we should emphasise that the

answers should be read in conjunction with the

body of this opinion:

1. The expression “consultation with the

Chief Justice of India” in Articles 217(1)

and 222(1) of the Constitution of India

requires consultation with a plurality of

Judges in the formation of the opinion of the

Chief Justice of India. The sole individual

opinion of the Chief Justice of India does

not constitute “consultation” within the

meaning of the said articles.

* * *

4. The Chief Justice of India is not entitled

to act solely in his individual capacity,

without consultation with other Judges of

the Supreme Court, in respect of materials

and information conveyed by the

27

Government of India for non-appointment of

a Judge recommended for appointment.

* * *

8. The Chief Justice of India is obliged to

comply with the norms and the requirement

of the consultation process, as aforestated, in

making his recommendations to the

Government of India.”

INTERPRETATION OF SECTION 16 OF THE ACT

For this purpose, we will proceed on the basis that save and except for

certain purposes an additional judge and a permanent judge enjoy equal

status. It could be said that for the purpose of appointment as Chairperson

of some Tribunal, the name of an additional judge may also be taken into

consideration but would that mean that an additional judge whose services

were tainted or having regard to his general reputation or lack of integrity,

wherefor he had not been made permanent as opposed to a situation where

having regard to the policy decision of the Central Government or the

purpose for which the additional judges are appointed to clear the back log is

the question which falls for consideration. This Court in T. Fenn Walter

[(2002) 6 SCC 184] laid down some broad guidelines as to the manner in

which the appointment of a sitting Judge of a High Court to a Commission

should be made. In view of the said decision, it is expected that a sitting

judge may not be recommended by the Chief Justice of the High Court for

such appointment.

28

The words “is or has been” refer to the person holding the office of a

Judge or who has held the said office. It may be said to have the same

meaning so far as eligibility is concerned.

Suitability of a person to be considered for appointment as a

Chairman of a State Commission having regard to the provisions contained

in Article 217 of the Constitution of India has been assumed by this Court to

be available for the eligible persons who are retired Judges which would

mean that those Judges who had retired from service without any blemish

whatsoever and not merely a person who “has been a judge”. [See Ashish

Handa v. The Hon’ble the Chief Justice of High Court of Punjab and

Haryana and others, (1996) 3 SCC 145].

An Additional Judge holding a tenure post stricto sensu does not

retire. It is one thing to say that having regard to the constitutional embargo,

he would not hold office after he attains the age of 62 years but it is another

thing to say that for all other purposes, he can be equated with a sitting

Judge.

There cannot be any doubt whatsoever that ordinarily a literal

meaning should be given to the provisions of the Constitution as also a

statute. However, while applying the golden rules of literal interpretation

one must be clear in his mind that same should not defeat the object and

29

purpose for which the Act was enacted. We could advert to this question a

little later.

The jurisdiction of the consumer courts and particularly that of the

State Commission and the National Commission is of great importance.

Various complicated questions of law and facts arise for their consideration.

It must, save and except for very cogent reasons refuse to entertain a claim

application and ask the parties to agitate their grievances before a Civil

Court. Indisputably, the functions of the Commission are judicial. The

State Commission, as noticed hereinbefore, not only exercises original

jurisdiction but also appellate jurisdiction. The guidelines clearly point out

as to why, considering the basic feature of the Constitution, namely the

independence of the judiciary, a sitting Judge must maintain the high

traditions. While a sitting Judge may be appointed to a statutory post or

Tribunal, this Court as pointed out in T. Fenn Walter (supra) that he would

not discharge the duties both as the Presiding Officer of a Judicial Tribunal

and as a sitting Judge of the High Court.

An Additional Judge who has not been confirmed, may for the

purpose of giving effect to the constitutional provisions be considered to be

a former Judge but when it comes to the question of his appointment in the

said capacity, in our opinion, it is possible to take somewhat different view

30

having regard to his present status, viz., an advocate or a district judge, as

the case may be. He despite being a former Judge is entitled to practice in

the same High Court, which other Judges are not permitted to do so. He

may appear before the Tribunal and subordinate courts. A person for the

aforementioned purpose must answer the test of his being qualified to be a

Judge. For the purpose of Section 16 of the Act, he must be equated with a

sitting Judge of a High Court. In other words, he could, but for the reasons

like reaching the age of superannuation, continue as a Judge.

In S.P. Gupta (supra), this Court has categorically held that a person

who has not been confirmed would not be recommended for reappointment.

If that be so, he could not continue to hold the High office of a Judge,

although he was otherwise eligible therefor.

In Supreme Court Advocates-on-Record Association (supra), this

Court laid down the qualities of a Judge :-

“Under our constitutional scheme, the judiciary has

been assigned the onerous task of safeguarding the

fundamental rights of our citizens and of

upholding the rule of law. Since the Courts are

entrusted the duty to uphold the Constitution and

the laws, it very often comes in conflict with the

State when it tries to enforce its orders by exacting

obedience from recalcitrant or indifferent State

agencies. Therefore, the need for an independent

and impartial judiciary manned by persons of

sterling quality and character, undaunting courage

and determination and resolute impartiality and

independence who would dispense justice without

fear or favour, ill will or affection. Justice without

fear or favour, ill will or affection, is the cardinal

31

creed of our Constitution and a solemn assurance

of every Judge to the people of this great country.

There can be no two opinions at the Bar that an

independent and impartial judiciary is the most

essential characteristic of a free society. “

A Judge must have these basic qualities and, thus, must be found to

possess the same. A person found to be lacking these qualities would not be

recommended for appointment of a permanent judge.

The system of governance established by the Constitution is based on

distribution of powers and functions amongst the three organs of the State.

It is the prerogative of the Legislature to enact laws; responsibility of the

Executive to enforce the laws and administer the country; and the duty of the

Judiciary to adjudicate upon the disputes that arise between individuals,

between an individual & the State or between different States. In this

scheme of things, Supreme Court has been assigned the duty of being the

final arbiter, including on the question of interpretation of the Constitution &

the laws. It is the majesty of the institution that has to be maintained and

preserved in the larger interest of the rule of law by which we are governed.

It is the obligation of each organ of the State to support this important

institution. Judiciary holds a central stage in promoting and strengthening

democracy, human rights and rule of law. People's faith is the very

foundation of any judiciary. Injustice anywhere is a threat to justice

32

everywhere and therefore the People’s faith in the Judiciary cannot be

afforded to be eroded.

Independence of judiciary is a much wider concept. Key note is

judiciary and not the Judge. If a person does not have qualification for

continuing to hold the office of the Judge of a High Court, it is difficult to

conceive as to how despite such deficiency in qualification, he could be

recommended for appointment to a statutory post, the eligibility criteria

wherefor is inter alia a former Judge. A Chief Justice of a High Court, thus,

before making recommendations for his appointment in terms of Section 16

of the Act must satisfy himself that the recommendee has/had those basic

qualities.

While making recommendations the Chief Justice performs a

constitutional duty. If while discharging his duty, he finds a former judge to

be ineligible, the question of his being considered for appointment would not

arise. If such a person cannot be recommended being unfit or ineligible to

hold the post, it would not be correct to contend that despite the same he

fulfils the eligibility criteria.

Whether the condition ‘has been a judge’ is not necessary to be

construed for the purpose of Article 217 of the Constitution of India, it is

required for the purpose of interpreting Section 16 of the Act as to whether

33

he should be recommended for being appointed as a Chairman of the state

commission.

In our constitutional scheme, the judge made law becomes a part of

the Constitution. It has been so held in M. Nagaraj and Others v. Union of

India and Others [(2006) 8 SCC 212] in the following terms:

“…The Constitution, according to the

respondents, is not merely what it says. It is what

the last interpretation of the relevant provision of

the Constitution given by the Supreme Court

which prevails as a law. The interpretation placed

on the Constitution by the Court becomes part of

the Constitution and, therefore, it is open to

amendment under Article 368. An interpretation

placed by the Court on any provision of the

Constitution gets inbuilt in the provisions

interpreted. Such articles are capable of

amendment under Article 368.”

If a person has made himself disqualified to hold the post of a judge,

the Chief Justice should not consider his name at all. If a duty had been cast

on the Chief Justice not to recommend, which is a constitutional duty for all

intent and purpose – he must be held to be disqualified. If he stands

disqualified following S.P. Gupta (supra) and other cases –question of his

candidature being considered does not arise. It is in that sense – the

principle of purposive construction is to be taken recourse to.

34

If the Collegium of the Supreme Court Judges including the Chief

Justice of India, which is a constitutional authority in the matter of

appointment of Judges and re-appointment of Additional Judges did not find

him eligible, it would be beyond anybody’s comprehension as to how Chief

Justice of a High Court could find him eligible/suitable for holding a

statutory post requiring possession of qualification of holder of a

constitutional office. If no recommendation by the Chief Justice is

constitutionally permissible, the question of the eligibility criteria being not

satisfied certainly is relevant.

Question is not whether he is a former judge or not. Question is

whether he was eligible for appointment, having not been found fit for re-

appointment. If he was ineligible for being recommended, that is the end of

the matter.

PURPOSIVE INTERPRETATION

A case of this nature is a matter of moment. It concerns public

interest. Public information about independence and impartiality of a

judiciary would be in question. The duty of all organs of the State is that the

public trust and confidence in the judiciary may not go in vain. Construction

35

of a statute would not necessarily depend upon application of any known

formalism. It must be done having regard to the text and context thereof.

For the aforementioned purpose, it is necessary to take into

consideration the statutory scheme and the purpose and object it seeks to

achieve. A construction of a statute, as is well known, must subserve the

tests of justice and reason. It is a well-settled principle of law that in a given

case with a view to give complete and effective meaning to a statutory

provision, some words can be read into; some words can be subtracted.

Provisions of a statute can be read down (although sparingly and rarely).

In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791],

Krishna Iyer, J. opined:

“21. The law is not “a brooding omnipotence in the

sky” but a pragmatic instrument of social order. It

is an operational art controlling economic life, and

interpretative effort must be imbued with the

statutory purpose. No doubt, grammar is a good

guide to meaning but a bad master to dictate.

Notwithstanding the traditional view that

grammatical construction is the golden rule,

Justice Frankfurter used words of practical widom

when he observed4:

“There is no surer way to misread a document than

to read it literally.””

Yet Again in K.P. Varghese v. Income Tax Officer, Ernakulam and

Another [(1981) 4 SCC 173], the strict literal reading of a statute was

36

avoided as by reason thereof several vital considerations, which must always

be borne in mind, would be ignored, stating:

“…The task of interpretation of a statutory

enactment is not a mechanical task. It is more than

a mere reading of mathematical formulae because

few words possess the precision of mathematical

symbols. It is an attempt to discover the intent of

the legislature from the language used by it and it

must always be remembered that language is at

best an imperfect instrument for the expression of

human thought and as pointed out by Lord

Denning, it would be idle to expect every statutory

provision to be “drafted with divine prescience and

perfect clarity”. We can do no better than repeat

the famous words of Judge Learned Hand when he

laid:

“... it is true that the words used, even in their

literal sense, are the primary and ordinarily the

most reliable, source of interpreting the meaning of

any writing: be it a statute, a contract or anything

else. But it is one of the surest indexes of a mature

and developed jurisprudence not to make a fortress

out of the dictionary; but to remember that statutes

always have some purpose or object to accomplish,

whose sympathetic and imaginative discovery is

the surest guide to their meaning.”

“... the meaning of a sentence may be more than

that of the separate words, as a melody is more

than the notes, and no degree of particularity can

ever obviate recourse to the setting in which all

appear, and which all collectively create.”

In the aforementioned case, therefore, some words were read into and

the plain and natural construction was not given.

37

In Bhudan Singh and Another v. Nabi Bux and Another [(1969) 2

SCC 481], this Court held:

“The object of every legislation is to advance

public welfare. In other words as observed by

Crawford in his book on “Statutory Constructions”

that the entire legislative process is influenced by

considerations of justice and reason. Justice and

reason constitute the great general legislative intent

in every peace of legislation. Consequently where

the suggested construction operates harshly,

ridiculously or in any other manner contrary to

prevailing conceptions of justice and reason, in

most instance, it would seem that the apparent or

suggested meaning of the statute, was not the one

intended by the law makers. In the absence of

some other indication that the harsh or ridiculous

effect was actually intended by the legislature,

there is little reason to believe that it represents the

legislative intent.”

This Court Atma Ram Mittal v. Ishwar Singh Punia, [ (1988) 4 SCC

284]:

“9. Judicial time and energy is more often than not

consumed in finding what is the intention of

Parliament or in other words, the will of the

people. Blackstone tells us that the fairest and most

rational method to interpret the will of the

legislator is by exploring his intentions at the time

when the law was made, by signs most natural and

probable. And these signs are either the words, the

context, the subject-matter, the effects and

consequence, or the spirit and reason of the law.

(emphasis by the court) See Commentaries on the

Laws of England (facsimile of 1

st

Edn. Of 1765,

University of Chicago Press, 1979, Vol. 1, p. 59).”

38

In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor

Panchayat and Others [ (2003) 4 SCC 712 ], this Court noticed:

“33. In United Bank of India v. Abhijit Tea Co.

(P) Ltd. this Court noticed: (SCC p. 366, paras

25-26)

“25. In regard to purposive interpretation,

Justice Frankfurter observed as follows:

‘Legislation has an aim, it seeks to obviate

some mischief, to supply an inadequacy, to effect a

change of policy, to formulate a plan of

Government. That aim, that policy is not drawn,

like nitrogen, out of the air; it is evidenced in the

language of the statute, as read in the light of other

external manifestations of purpose [Some

Reflections on the Reading of Statutes, 47

Columbia LR 527, at p. 538 (1947)].’

xxx xxx xxx

38. In The Interpretation and Application of

Statutes by Reed Dickerson, the author at p. 135

has discussed the subject while dealing with the

importance of context of the statute in the

following terms:

“… The essence of the language is to reflect,

express, and perhaps even affect the conceptual

matrix of established ideas and values that

identifies the culture to which it belongs. For this

reason, language has been called ‘conceptual map

of human experience’.”

In New India Assurance Company Ltd. v. Nusli Neville Wadia and

Another [(2008) 3 SCC 279], this Court held:

39

“52. Barak in his exhaustive work on “Purposive

Construction” explains various meanings attributed

to the term “purpose”. It would be in the fitness of

discussion to refer to Purposive Construction in

Barak’s words:

“Hart and Sachs also appear to treat ‘purpose’ as a

subjective concept. I say ‘appear’ because,

although Hart and Sachs claim that the interpreter

should imagine himself or herself in the

legislator’s shoes, they introduce two elements of

objectivity: First, the interpreter should assume

that the legislature is composed of reasonable

people seeking to achieve reasonable goals in a

reasonable manner; and second, the interpreter

should accept the non-rebuttable presumption that

members of the legislative body sought to fulfil

their constitutional duties in good faith. This

formulation allows the interpreter to inquire not

into the subjective intent of the author, but rather

the intent the author would have had, had he or she

acted reasonably.”

(Aharon Barak, Purposive Interpretation in Law,

(2007) at p.87.)”

In Union of India v. Ranbaxy Laboratories Limited and Others

[(2008) 7 SCC 502], this Court held that the principles of purposive

construction may be employed for making an exemption notification a

workable one.

We may notice that in Regina v. Secretary of State for Health ex

parate Quintavalle [2003] UKHL 13], the House of Lords stated the law as

under:

40

“8. The basic task of the court is to ascertain and

give effect to the true meaning of what Parliament

has said in the enactment to be construed. But that

is not to say that attention should be confined and a

literal interpretation given to the particular

provisions which give rise to difficulty. Such an

approach not only encourages immense prolixity in

drafting, since the draftsman will feel obliged to

provide expressly for every contingency which

may possibly arise. It may also (under the banner

of loyalty to the will of Parliament) lead to the

frustration of that will, because undue

concentration on the minutiae of the enactment

may lead the court to neglect the purpose which

Parliament intended to achieve when it enacted the

statute. Every statute other than a pure

consolidating statute is, after all, enacted to make

some change, or address some problem, or remove

some blemish, or effect some improvement in the

national life. The court's task, within the

permissible bounds of interpretation, is to give

effect to Parliament's purpose. So the controversial

provisions should be read in the context of the

statute as a whole, and the statute as a whole

should be read in the historical context of the

situation which led to its enactment.

*** *** ***

The pendulum has swung towards purposive

methods of construction. This change was not

initiated by the teleological approach of European

Community jurisprudence, and the influence of

European legal culture generally, but it has been

accelerated by European ideas: see, however, a

classic early statement of the purposive approach

by Lord Blackburn in River Wear Commissioners

v Adamson (1877) 2 App Cas 743, 763. In any

event, nowadays the shift towards purposive

interpretation is not in doubt.”

41

Yet again, the Australian High Court in Australian Finance Direct

Limited v. Director of Consumer Affairs Victoria [2007] HCA 57], held :

“40. This explanation of the approach to be taken

to a problem of construction has been cited,

restated and applied in this Court so many times

that it should be uncontroversial. Some judges

have not been sympathetic to the purposive

approach[39]. Some have clearly yearned for a

return to the perceived simplicities of literalism,

either generally or in particular fields of law. On

the whole, however, this Court has adhered to the

doctrinal shift with a fair degree of consistency. In

my view, there is a need for such consistency. We

should avoid opportunistic reversions to the old

approach of literalism which the legal mind

sometimes finds congenial.

41. Obviously, a balance must be struck between,

on the one hand, an exclusive focus on the text of

legislation and, on the other, reference to extrinsic

information that assists to explain its purpose.

Those bound by the law will often have no access

to such information. Cases do arise where the legal

prescription is relatively clear on the face of the

written law. To the extent that external inquiries

are necessary, they obviously add to marginal costs

and can sometimes occasion disputes and

uncertainty which the words of the law alone

would not have produced.”

Mr. Venugopal would, however, place strong reliance on Harbhajan

Singh v. Press Council of India and others [(2002) 3 SCC 722] to emphasise

that the golden rule is that the words of statute must be prima facie given

their ordinary meaning. In that case, itself, this Court has referred to the

42

‘Principles of Statutory Interpretation’ by Justice G.P. Singh wherein it has

been stated that the Judges can adopt a purposive interpretation if they can

find in a statute read as a whole or in material to which they are permitted by

law to refer as aids to interpretation an expression of Parliament’s purpose or

policy. Although ordinarily, an ordinary meaning cannot be departed from

by the Judges in the light of their own views as to policy.

Eligibility of a Judge of a High Court should not be construed in a

pedantic manner. It in the context of a large number of decisions of this

court including S.P. Gupta (supra) must also be held to include suitability of

a person concerned. For the aforementioned purpose, the principles of

purposive interpretation is required to be resorted to.

Reliance has also been placed on Sangeeta Singh v. Union of India

and Others [(2005) 7 SCC 484] wherein also while dealing to principles of

construction, it was clearly stated:

“5. It is a well-settled principle in law that the

court cannot read anything into a statutory

provision or a stipulated condition which is plain

and unambiguous. A statute is an edict of the

legislature. The language employed in a statute is

the determinative factor of legislative intent.

Similar is the position for conditions stipulated in

advertisements.”

43

PRECEDENTS GOVERNING APPOINTMENT OF CHAIRMAN, STATE

COMMISSION.

The question in regard to the appointment of a former Judge of the

High Court as the President of the State Commission has been considered by

this Court in Ashish Handa v. The Hon’ble the Chief Justice of High Court

of Punjab and Haryana and others, (supra) wherein it was opined :-

“3. ...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 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. Accordingly, the opinion

of the Chief Justice of the High Court and the

requirement of consultation with him according to

44

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. 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.... 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.

Yet again in Ashok Tanwar and another v. State of Himachal

Pradesh and others, [ (2005) 2 SCC 104 ] this Court held :-

“23.... 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 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

45

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.

(Emphasis added)”

The Constitution Bench in Ashok Tanwar, however, clearly held that

the consultation process in terms of Article 217 of the of the Constitution of

India, for the purpose of finding out of the suitability or otherwise of the

candidate, namely the members of the Collegium is not necessary. Such a

finding was arrived at inter alia on the premise that an appointment was

required to be made by a sitting or a retired judge whose antecedents are

known to the Chief Justice stating :-

“19. It is thus clear that the expression

“consultation” used in Article 217 of the

Constitution 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

Supreme Court Advocates-on-Record Assn. 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 the High Court to the

State Commission under Section 16 must be in the

same manner as required under Article 217 of the

Constitution is accepted, 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 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

46

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 the

opinion of two seniormost 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

seniormost colleagues in the High Court for the

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

unwarranted.”

CONSTITUTIONAL INTERPRETATION

Independence and impartiality of judiciary is a basic feature of the

Constitution. Constitutionalism envisages that all laws including the

constitutional provisions should be interpreted so as to uphold the basic

feature of the Constitution. A person lacking probity would not be a person

who could be found fit for appointment as a High Court Judge. A case of

this nature where no re-appointment was made or an Additional Judge

despite existence of vacancy was not made a Permanent Judge, in our

opinion, deserves serious consideration. It is not a case where

reappointment as an Additional Judge or appointment to a Permanent Judge

was not possible for want of vacancy or the purpose for which such

47

appointments had been made was achieved. An Additional Judge may not

be made permanent or re-appointed in the said capacity if:

(a)If the requirement contemplated under Article 224 no longer

exists ;

(b)He had attained the age of 62 years ;

(c)He is not inclined to continue further ;

(d)His inability to continue further on account of physical or

mental capacity ;

In S.P. Gupta (supra) a Seven Judge Bench of this Court has clearly

held that every re-appointment should undergo the same processes as

envisaged under Article 217 of the Constitution of India. We are although

not oblivious of a decision of the Division Bench of this Court in Shanti

Bhushan and another v. Union of India and another, [ (2009) 1 SCC 657 ]

wherein it has been held that extension of the tenure of an Additional Judge

is the prerogative of the Chief Justice of India but therein this Court was not

concerned with a situation of this nature.

In this case the collegium have found him unfit to continue as a Judge.

We have gone through the records produced before us. We are satisfied that

for good and sufficient reasons, he was found not fit to be recommended for

appointment as a Permanent Judge. We say no more being wholly

48

unnecessary. An Additional Judge who had not been made permanent,

technically, could be appointed as an acting or Additional Judge but then the

question which was required to be asked was: should a person who had not

been found fit be so appointed? The answer to the aforementioned question

clearly would a big emphatic ‘no’.

Before us both the High Court as also the Union of India have

produced records; in relation whereto the High Court, stated:

“84…The learned counsel sought leave of this

Court to wade through the entire file containing the

correspondence and the discussions touching upon

the question of confirmation of the Respondent

No. 1. Even though all such papers have been

made available to us by the Addl. Solicitor General

appearing for the Central Government and Shri

Muthukumarasamy, Senior Counsel, for the High

Court and no privilege has been claimed, we have

not thought it fit to permit the Counsels for the

contesting parties to peruse such papers, because,

in our considered opinion, it would open a

collateral battle on the question relating to

confirmation of Respondent No. 1, which is not

and cannot be an issue. Moreover, it is not for us

to decide about the suitability of Respondent No. 1

for the post of President of the Consumer

Commission as that was a matter for the State

Government to decide in consultation with the

Chief Justice. If the appointment of a person is

otherwise legal, the Judiciary may not be justified

in interfering with such appointment on the ground

that it is against public interest. As already

noticed, the sentiment expressed in R.K. Jain case

is clear on this aspect.”

49

We have perused the records ourselves. We are satisfied that it was

necessary for the Chief Justice of the High Court to apprise himself the

reasons with reference to the backdrop of events as to why the collegium of

the Supreme Court of India did not find the appellant to be a fit person for

re-appointment or made a Permanent Judge. Names of eight persons were

recommended together. A large number of vacancies existed. Six of them

were recommended to be appointed as Permanent Judges. In respect of one

name, the Chief Justice of India exercised his prerogative jurisdiction to

extend his term from time to time. He had also been made a Permanent

Judge. [See Shanti Bhushan (supra)] Only in relation to the appellant herein

the collegium refused to make a recommendation which was also accepted

by the Chief Justice of India.

We may also place on record that at least in a few decisions, this

Court has held that only a sitting or retired Judge is suitable for appointment.

In our opinion, the same clearly goes to show that Judge whose tenure ended

by way of non extension as a stigma would not come within the purview of

the definition of term ‘has been a Judge of the High Court’.

We say so for more than one reason. Section 16(1)(b)(iii) of the Act in

relation to appointment of a Member of the Commission lays down inter alia

the qualifications of a person of ability, integrity and standing. If in the case

50

of a Member, ability, integrity and standing are essential qualifications, it is

difficult to perceive why the same qualification is not required for

appointment as Chairman of the Commission within the meaning of clause

(a) thereof. The said criteria was not necessary to be expressly stated as the

same could be presumed as recommendation in that behalf, to be made by

the Chief Justice of a High Court.

It is also of some significance to notice that in the matter of

appointment of the Fast Track Court Judges, this Court in Brij Mohan Lal v.

Union of India, [ (2002) 5 SCC 1 ], observed as under :-

“6. We find substance in the stand taken by the

learned counsel who have highlighted the non-

desirability of appointing judicial officers who did

not carry good reputation so far as their honesty

and integrity is concerned. It is to be noted that in

All India Judges’ Assn. v. Union of India and in

All India Judges’ Assn. v. Union of India this

Court took note of the non-desirability to grant the

benefit of two years’ extension in service i.e. from

58 years to 60 years in the case of officers who

were not found to be of continued utility. In each

case an evaluation of the service records was

directed to be undertaken to find out whether the

officer has or lacks potentiality for getting such

benefit.”

As regards the qualifications of a Fast Track Court Judges, keeping in

view the laudable object with which the Scheme had been conceived and

introduced, inter alia the following directions were issued :-

51

“2. The second preference in appointments to Fast

Track Courts shall be given to retired judges who

have good service records with no adverse

comments in their ACRs, so far as judicial

acumen, reputation regarding honesty, integrity

and character are concerned. Those who were not

given the benefit of two years’ extension of the age

of superannuation, shall not be considered for

appointment. It should be ensured that they satisfy

the conditions laid down in Articles 233(2) and

309 of the Constitution. The High Court concerned

shall take a decision with regard to the minimum-

maximum age of eligibility to ensure that they are

physically fit for the work in Fast Track Courts.

3. No judicial officer who was dismissed or

removed or compulsorily retired or made to seek

retirement shall be considered for appointment

under the Scheme. Judicial officers who have

sought voluntary retirement after initiation of

departmental proceedings/inquiry shall not be

considered for appointment.”

In Pareena Swarup v. Union of India [2008 (13) SCALE 84], this

Court intervened stating legislative amendments are carried out to protect

judicial independence in a case involving the Prevention of Money

Laundering Act, 2002.

Qualification to hold the post was found to be necessary also in B.R.

Kapur v. State of T.N. and Another [(2001) 7 SCC 231].

CONSULTATION

52

We may consider as to whether the consultative process required to be

gone into for the purpose of appointment of Chairman, State Commission

was complied with.

The word “consultation” may mean differently in different situations

depending on the nature and purport of the statute. Consultation, although in

regard to the appointment of the High Court and the Supreme Court Judges,

having regard to the decision of this Court in Supreme Court Advocates-on

Record Association (supra) would mean “concurrence”, should it for the

purpose of the provisions of Section 16 mean differently is the question.

Indisputably, in view of the decisions of this Court in Ashok Tanwar (supra)

and Ashish Handa (supra) consultation with the Chief Justice would not

mean the consultation with the Collegium of the High Court. Concedingly

again, proposal for such appointment must be initiated by the Chief Justice.

The manner of initiation of proposal for consultation need not be as laid

down in Ashish Handa (supra) but as laid down in Ashok Tanwar (supra)

wherein it was clearly laid down that the manner of initiation of proposal

must remain the same throughout as the law in this behalf is quite well

settled and the Bench was felt bound by the same.

In State of Haryana and Ors. v. National Consumer Awareness

Group and Ors. [ (2005) 5 SCC 284 ] this Court did not give a literal

53

meaning to sub-section (1A) of Section 16 to hold that both sub-section 1(a)

and (1A) of Section 16 must be harmoniously construed, stating :-

“19. The learned counsel, alternatively, argued that

the scheme contemplated by sub-section (1-A) is

quite workable even in a situation where there

exists already a President, but the question arises

of his reappointment which would make him

unable to act as Chairman of the Selection

Committee. In such cases, a sitting Judge of the

High Court could be nominated by the Chief

Justice of the High Court to act as a Chairman.

Even this argument does not commend itself to us.

A literal reading of sub-section (1-A) may prima

facie suggest that appointments under clauses (a)

and (b) of sub-section (1) are also governed by the

procedure contemplated therein, under sub-section

(1-A), but as rightly held by the High Court the

two sub-sections have to be harmoniously

construed. The procedure contemplated under sub-

section (1-A) can apply only in respect of

appointment of members falling within the

contemplation of clause (b) of sub-section (1) of

Section 16. In our view, the High Court has given

adequate and justifiable reasons for this

interpretation with which we agree. The

interpretation given by the circular, and the view

taken by the Union of India in the matter of

Section 16(1-A), is incorrect and we hold that the

procedure contemplated therein applies only to the

appointments made under clause (b) of sub-section

(1) of Section 16.”

While approving Ashish Handa (supra) and Ashok Tanwar (supra) it

was observed :-

“14. A careful reading of Ashok Tanwar shows

that the Constitution Bench differed from Ashish

Handa only on the issue whether consultation with

the Chief Justice meant consultation with the

collegium of the High Court. In other respects,

Ashish Handa is approved.”

54

This Court in S.P. Gupta (supra) opined that the principles as regards

consultation for appointment of Judges in terms of Article 217 of the

Constitution of India would be the same as laid down in State of Gujarat v.

Sankalchand Khodidas Patel, [ (1977) 4 SCC 590 ] and other cases, stating :-

“The word ‘consult’ implies a conference of two or

more persons or an impact of two or more minds in

respect of a topic in order to enable them to evolve

a correct or at least a satisfactory solution” and

added: “In order that the two minds may be able to

confer and produce a mutual impact, it is essential

that each must have for its consideration full and

identical facts, which can at once constitute both

the source and foundation of the final decision”.

Krishna Iyer, J. speaking on behalf of himself and

Fazal Ali, J. also pointed out that “all the materials

in the possession of one who consults must be

unreservedly placed before the consultee” and

further “a reasonable opportunity for getting

information, taking other steps and getting

prepared for tendering effective and meaningful

advice must be given to him” and “the consultant

in turn must take the matter seriously since the

subject is of grave importance” (SCC p. 267). The

learned Judge proceeded to add (SCC p. 267):

“Therefore, it follows that the President must

communicate to the Chief Justice all the material

he has and the course he proposes. The Chief

Justice, in turn, must collect necessary information

through responsible channels or directly, acquaint

himself with the requisite data, deliberate on the

information he possesses and proceed in the

interests of the administration of justice to give the

President such counsel of action as he thinks will

further the public interest, especially the cause of

the justice system.” These observations apply with

55

equal force to determine the scope and meaning of

“consultation” within the meaning of clause (2) of

Article 124 and clause (1) of Article 217. Each of

the constitutional functionaries required to be

consulted under these two articles must have for

his consideration full and identical facts bearing

upon appointment or non-appointment of the

person concerned as a Judge and the opinion of

each of them taken on identical material must be

considered by the Central Government before it

takes a decision whether or not to appoint the

person concerned as a Judge.”

In regard to the position of the Additional Judges, it was clearly held

that same process must be followed.

Fazal Ali, J. in his concurrent judgment noticed Union of India v.

Sankalchand Himatlal Sheth [(1977) 4 SCC 193] wherein it was opined that

for purposeful consideration of a matter, the President while consulting the

Chief Justice must make the relevant data available to him, stating:

“…If the facts necessary to arrive at a proper

conclusion are not made available to the Chief

Justice, he must ask for them because, in casting

on the President the obligation to consult the Chief

Justice, the Constitution at the same time must be

taken to have imposed a duty on the Chief Justice

to express his opinion on nothing less than a full

consideration of the matter on which he is entitled

to be consulted. The fulfilment by the President, of

his constitutional obligation to place full facts

before the Chief Justice and the performance by

the latter, of the duty to elicit facts which are

necessary to arrive at a proper conclusion are parts

56

of the same process and are complementary to

each other. The faithful observance of these may

well earn a handsome dividend useful to the

administration of justice. Consultation within the

meaning of Article 222(1), therefore, means full

and effective, not formal or unproductive

consultation.”

It was held that both consultor and consultee must have before them

full and identical facts. The source of foundation therefor must also be the

same. It was opined that if the Chief Justice of India had not been consulted

fully, purposeful, effectively and was not informed about all the relevant

facts, the same would render an order of transfer unconstitutional.

What would be the necessary concomitants of an effective

consultation was stated thus in SP Gupta (supra):

“(3) If the consultation with the C.J.I. has not been

done before transferring a judge, the transfer

becomes unconstitutional.

*** *** ***

(5) The fulfilment by the President of his

constitutional obligation and performance of his

duty by the C.J.I. are parts of the same process and

after this process is fully complied with, the

consultation becomes full and effective and not

formal or unproductive.

*** *** ***

(7) After the data, facts or materials are placed

before the consulate and the consultee, there

57

should be a full and complete application of minds

in respect of the subject to enable them to reach a

satisfactory conclusion. In other words, the two

minds must be able to confer and produce a mutual

impact on the identical facts which would

constitute both the source and the foundation of the

final decision.

(8) The C.J.I. owes a corresponding duty both to

the President and to the Judge who is proposed to

be transferred to consider every relevant fact

before tendering his opinion to the President.”

Appointment to the post of President of a State Commission must

satisfy not only the eligibility criteria of the candidate but also undertaking

of the process of consultation.

Keeping in mind the aforementioned legal scenario the question as to

whether the consultative process had been gone into, must be considered.

Indisputably, the decision by the Chief Justice must be an informed

one with respect to the post of a Chairman of a State Commission, keeping

in view the importance thereof having regard to the fact that the Commission

is required to perform judicial functions, both the Chief Justice as also the

State Government were required to be duly informed about the person who

is going to be appointed. With a view to fulfill the constitutional

obligations as to whether he is a fit person, it is absolutely essential that all

relevant information should be placed before the consultor as also the

58

consultee. As far as the proviso appended to Section 16 of the Act is

concerned, keeping in view the constitutional post held by a Chief Justice,

there cannot be an iota of doubt that the recommendations made by him

shall carry great weight. Save and except for very cogent reasons, his

recommendation must be accepted.

The Constitution Bench of this Court in Supreme Court Advocates-

on-Record Association (supra) and in the Presidential Reference, Special

Reference No.1 of 1998 (supra) laid down the law that consultation would

mean ‘concurrence’ wherefor the primacy has been shifted to the Collegium

which provision in turn being applicable to the case of appointment of a

Chairman of a State Commission in terms of Section 16 of the Act, save and

except for the difference that recommendation, instead and in place of the

Collegium, would be that of the Chief Justice alone. We have no doubt in

our mind that he is bound to take into consideration all facts relevant

therefor and must eschew irrelevant facts.

As suitability of a person, in view of S.P. Gupta (supra), depends upon

several factors which are necessary to be considered for re-appointment and

or making Additional Judge a permanent one, there does not exist any reason

whatsoever why the same shall not be considered to be a relevant factor for

recommending the name of a person who would hold such a high office. It

59

has not been denied or disputed that for one reason or the other the Chief

Justice of the High Court did not have the occasion to go through the said

file. The Original record maintained by the High Court as also by the

Central Government had been placed before the High Court as also before

us.

The superior courts must take into consideration as to what is good for

the judiciary as an institution and not for the judge himself. An act of

balancing between public interest and private interest must be made. Thus,

institution as also public interest must be uppermost in the mind of the court.

When such factors are to be taken into consideration, the court may not

insist upon a proof. It would not delve deep into the allegations. The court

must bear in mind the limitations in arriving at a finding in regard to lack of

integrity against the person concerned. As has been noticed in S.P. Gupta

(supra), the test which must be applied for the purpose of assessing the

suitability of a person for appointment as a Judge must be whether the Chief

Justice of the High Court or for the matter of that, any other constitutional

authority concerned in the appointment is satisfied about the integrity of the

person under consideration and, thus, if he does not enjoy good reputation, it

would not be possible for the Chief Justice of the High Court to say that he

is satisfied about the integrity of such person and in such an event he would

60

be justified in not recommending him for appointment and in fact it would

be his duty not to recommend his name.

We may notice that recently a Division Bench of this Court of which

one of us (Dr. Justice Mukundakam Sharma) was a member in Shanti

Bhushan and Another v. Union of India and Another (supra) referring to S.P.

Gupta (supra), Supreme Court Advocates-on-Record Association (supra)

and other decisions, noticed:

“9.Pathak, J (as the Hon'ble Judge then was) had

expressed similar opinion by observing that in

following the procedure of Article 217(1) while

appointing an Additional Judge as a Permanent

Judge there would be reduced emphasis with

which the consideration would be exercised though

the process involves the consideration of all the

concomitant elements and factors which entered

into the process of consultation at the time of

appointment earlier as an additional Judge. The

position was succinctly stated by observing that

there is a presumption that a person found suitable

for appointment as an Additional Judge continues

to be suitable for appointment as a Permanent

Judge, except when circumstances or events arise

which bear adversely on the mental and physical

capacity, character and integrity or other matters

rendering it unwise to appoint him as a permanent

Judge. There must be relevant and pertinent

material to sufficiently convince a reasonable mind

that the person is no longer suitable to fill the high

office of a Judge and has forfeited his right to be

considered for appointment.”

It was furthermore opined:

61

“15.As rightly submitted by learned Counsel for

the Union of India unless the circumstances or

events arise subsequent to the appointment as an

Additional Judge, which bear adversely on the

mental and physical capacity, character and

integrity or other matters the appointment as a

permanent Judge has to be considered in the

background of what has been stated in S.P. Gupta's

case (supra). Though there is no right of automatic

extension or appointment as a permanent Judge,

the same has to be decided on the touchstone of

fitness and suitability (physical, intellectual and

moral). The weightage required to be given cannot

be lost sight of.”

It was observed:

“19. But at the same time we find considerable

substance in the plea of the petitioners that a

person who is not found suitable for being

appointed as a permanent Judge, should not be

given extension as an Additional Judge unless the

same is occasioned because of non availability of

the vacancy. If a person, as rightly contended by

the petitioners, is unsuitable to be considered for

appointment as a permanent Judge because of

circumstances and events which bear adversely on

the mental and physical capacity, character and

integrity or other relevant matters rendering it

unwise for appointing him as a permanent Judge,

same yardstick has to be followed while

considering whether any extension is to be given to

him as an Additional Judge. A person who is

functioning as an Additional Judge cannot be

considered in such circumstances for re-

appointment as an Additional Judge. If the factors

which render him unsuitable for appointment as a

permanent Judge exist, it would not only be

62

improper but also undesirable to continue him as

an Additional Judge.”

Mr. Venugopal, however, has drawn our attention to S.P. Gupta

(supra) so far as it while dealing with the case of Shri O.N. Vohra was

concerned to contend that as he had accepted the decision of the President of

India not to extend his term and indeed as a person concerned should not

litigate his claim to this high office which would lower its dignity by making

it subject matter of litigative controversy, even refused to look into the

correspondences exchanged between the Law Minister, the Chief Justice of

Delhi and the Chief Justice of India as being not relevant to the issues

arising for determination in the writ petition holding that the Union of India

could not be required to disclose it.

While saying so, the court while considering the case of S.N. Kumar

who had claimed relief from the court in regard to his continuance as an

Additional Judge not only looked into the files but made a deep probe in the

matter. The court further noticed the opinion of the Chief Justice of India in

that behalf, holding :

“526. At any rate, without going into further

details as several constitutional functionaries were

involved, two facts emerge:

63

“(1) That C.J., Delhi who had undoubtedly a better

chance of observing the performance and the

functioning of Justice Kumar, was in a position to

get first hand knowledge of his reputation, has

honestly believed that Kumar’s reputation of

integrity was doubtful. He has not revealed the

sources from which he came to know about the

reputation of Justice Kumar. The C.J.I., however,

took a contrary view but he has also not disclosed

the names of the lawyers or Judges who had given

him a contrary version.

In my opinion both of them did not disclose the

names because the Judges or the lawyers

concerned must have given the information in

confidence and they would have been seriously

embarrassed if their names were disclosed.

(2) These views were put before the Central

Government and it was open to the President to

accept one view or the other. The President chose

to accept the view taken by the C.J., Delhi more

particularly because he was in a position to have

firsthand information both regarding the reputation

and working of the Additional Judge.”

*** *** ***

528. I might just state that even if the documents

were not disclosed, the conclusion would have

been the same because in the affidavits it was not

disputed that the two C.Js. had taken a contrary

view regarding the doubtful reputation of Justice

Kumar, nor was it suggested that C.J., Delhi had

any ill will or animus against Justice Kumar. The

disclosure of the documents, however,

unfortunately resulted in grave and serious

consequences of far-reaching effect on the future

of not only the judicial institutions but also almost

all the government departments.”

64

It is, thus, one thing to say that in the absence of any document, any

reflection or aspersion on the reputation or character of an Additional Judge

shall not be cast but it is another thing to say that the ultimate result, viz.,

that an Additional Judge did not obtain any extension or was not made a

Permanent Judge of the High Court, would totally be ignored. It may be true

that the appellant did not question the decision of the collegium not to re-

appoint him, but, the fact remains that he was not appointed by the

collegium wherefor sufficient material existed. Arriving at such a

conclusion was an objective opinion on the part of the collegium.

It was contended that if such a consideration is given an importance,

those Chief Justices who had not been elevated to the Supreme Court despite

seniority but were appointed as Chairman of various statutory authorities

may be treated to be incompetent.

Appointment of a Judge of a Supreme Court in effect and substance is

merit based. Only because for one reason or the other he has been

overlooked, the same, by itself, in our opinion, would not make him unfit for

appointment on any other post. The same has nothing to do with eligibility

or suitability.

We agree with Mr. Venugopal that ordinarily it might not have been

necessary for the Chief Justice of the High Court to call for such a file as the

65

same would be a well-known fact. The Chief Justice of the High Court had

joined sometime in May, 2008. The letter of the State Government was

received in July, 2008. Prior thereto, as noticed hereinbefore, pursuant to a

resolution adopted by a Full Court, the name of the appellant was put on the

register of retired Judges. The materials brought on records before this

Court clearly demonstrate that no other fact was brought to his notice.

S.P. Gupta (supra), Supreme Court Advocates-on-Record Association

(supra) and other decisions to which we have adverted to hereinbefore in no

uncertain terms lay down the law that the reason for non-appointment of an

Additional Judge keeping in view the materials on the basis whereof the

constitutional functionary, viz., the Chief Justice of the High Court, the State

Government, the collegium of the Supreme Court as also the Central

Government and ultimately the President of India had arrived at a decision

would be a relevant factor.

We have noticed hereinbefore that the integrity of the holder of a high

office plays an important role. It was, thus, a factor which was required to

be taken into consideration not only by the Chief Justice of the High Court

but also by the State.

The consultative process brings within its ambit a heavy duty so as to

enable the holder of a high office like Chief Justice to know the same. It

66

must be shown that he had access and in fact was aware of the fact that the

appellant had not been made a Permanent Judge. The matter might have

been different if such a fact had been taken into consideration. If a decision

for the purpose of making a recommendation in terms of proviso appended

to Section 16 of the Act necessitates looking into all relevant materials, non-

consideration of such a vital fact, in our opinion, cannot be ignored as the

opinion is a subjective one and not based on objective criteria. We are more

than sure that had the records been brought to his notice, the Chief Justice

would not have made the recommendation.

JUDICIAL REVIEW

Judicial review in our constitutional scheme itself is a part of its basic

structure. Decisions whether arrived at by the Executive or the Judiciary are

subject to judicial review.

The Chief Justice of a High Court, while making such

recommendations, exercises statutory functions. While it is incumbent upon

the State Government to consult the Chief Justice, keeping in view a large

number of decisions of this Court we have referred to hereinbefore,

indisputably the Chief Justice of the High Court would have a heavy burden

on his shoulder to recommend the name of a person who would be suitable

therefor. We are not oblivious of the fact that no court howsoever high

67

would have any power of judicial review in relation thereto. Power of

judicial review, although is very restricted, cannot be denied to be exercised

when relevant fact is not considered. It is now a well settled principle of

Administrative Law that the doctrine of error of law apparent on the face of

the record inter alia would take within its umbrage a case where statutory

authority in exercising its discretionary jurisdiction did not take into

consideration a relevant fact or based its decision on wholly irrelevant

factors not germane for passing the order. What is not the subject matter of

judicial review is the opinion of the Chief Justice touching upon the merit of

the decision but the decision making process is subject to judicial review. It

stands conceded that the proviso appended to Section 16 of the Act is

imperative in nature. An appointment made without consulting the Chief

Justice being wholly without jurisdiction would be void ab initio. If the

State is bound to consult the Chief Justice, we reiterate, such consultation

must be an effective and informed one. Both the State Government as also

the Chief Justice before forming opinion must have access to all relevant

informations. Application of mind on the part of consultant and consulttee

on such relevant information was, in our considered opinion, absolutely

imperative.

Indisputably, a writ petition even at the instance of a busy body for

issuance of a writ of quo warranto questioning the appointment of Chairman

68

of a State Commission made in terms of Section 16 of the Act would be

maintainable.

For the aforementioned purpose the eligibility criteria as laid down in

Section 16 of the Act as also the question as to whether in making such an

appointment the State consulted the Chief Justice of High Court as

envisaged under the proviso appended thereto would fall for consideration.

An appointment to a statutory post is an administrative decision. The act of

consultation is an executive act.

In Supreme Court Advocates-on-Record Association (supra), it was

opined that the matter of appointment is an Executive Act. It was

furthermore held:

“…The object of selecting the best men to

constitute the superior judiciary is achieved by

requiring consultation with not only the judiciary

but also the executive to ensure that every relevant

particular about the candidate is known and duly

weighed as a result of effective consultation

between all the consultees before the appointment

is made. It is the role assigned to the judiciary and

the executive in the process of appointment of

Judges which is the true index for deciding the

question of primacy between them, in case of any

difference in their opinion. The answer which best

subserves this constitutional purpose would be the

correct answer.”

69

Section 16 of the Act envisages a limitation on the power of both the

State as also the Chief Justice in the matter of making an appointment. The

facts relevant for such an appointment must be placed before both the

statutory authorities. One of such fact is that an Additional Judge, for one

reason or the other was found not fit to be made permanent or to be given an

extension of his tenure. Indisputably, a person having doubtful integrity

should neither be recommended by the High Court nor appointed by the

State Government.

Opinion of a Chief Justice by itself may not lead to an administrative

decision but it, having regard to his primacy, save and except for cogent

reasons, would lead to an appointment. Indisputably, his opinion is final

and, thus, for all intent and purport, decisive. The recommendations made,

thus, may be arrived at on the basis of his subjective satisfaction, but it must

be based on objective criteria. Such subjective satisfaction must be arrived

at on consideration of all relevant criteria. When recommendation of a

Former Judge of a High Court is made for appointment as Chairman of the

State Commission ordinarily a judicial review shall not lie. It is true that

recommendation would be as a result of due application of mind. He is

required to recommend the name of one of the former Judges of the said

Court. All relevant facts leading to formation of an opinion as regards

suitability of the person would presumably be known to him. But a Chief

70

Justice coming from outside may not know the former judges of the

concerned High Court. He may not consult his brother judges keeping in

view the element of confidentiality attached to such recommendation.

It may be true that the statute does not lay down an objective criterion.

Such objective criteria cannot also be laid down keeping in view the status

of the parties. Such appointment, however, must be made keeping in view

the independence of judiciary; as the incumbent of the post would discharge

judicial functions of grave importance.

Mr. Venugopal submits that the reason for non-reappointment of the

Additional Judge concerned need not be ascertained by the Chief Justice.

But the fact that he was not found fit therefor should have been made known

to him. The High Court noticed that apart from placing the records to which

reference has been made in its judgment, no other material was brought

before the High Court to establish that the Chief Justice was aware of the

said fact.

We are not in a position to persuade ourselves that the opinion of the

Collegium that the appellant was not found fit to be continued as a judge

was not relevant. The opinion of the collegium is based on certain material.

It might have been arrived at without giving an opportunity of hearing to the

Judge concerned. What is relevant is the availability of materials on record

71

to enable the Chief Justice of India vis-à-vis the collegium to make any

recommendation that he was a fit person to be appointed. If the collegium

could not make such a recommendation, a’ fortiori ordinarily the Chief

Justice of High Court would also not make such a recommendation.

In Special Reference No. 1 of 1998, RE: (supra), it was concluded :

“44. The questions posed by the Reference are

now answered, but we should emphasise that the

answers should be read in conjunction with the body

of this opinion:

xxx xxx xxx

2. The transfer of puisne Judges is judicially

reviewable only to this extent: that the

recommendation that has been made by the Chief

Justice of India in this behalf has not been made in

consultation with the four seniormost puisne

Judges of the Supreme Court and/or that the views

of the Chief Justice of the High Court from which

the transfer is to be effected and of the Chief

Justice of the High Court to which the transfer is to

be effected have not been obtained.”

The High Court in a case of this nature could have peeped into

consultative process vis-à-vis eligibility of the candidate through a narrow

hole. Howsoever limited be the field of judicial review, it cannot, in our

opinion, be held to be beyond its pale.

While we say so, we are not oblivious of the fact that the

recommendations are required to be made from amongst the limited

72

category of High Court Judges who were former Judges of that court.

However, the Chief Justice may even recommend the Judge of another High

Court. There is no constitutional bar that only a Judge of the High Court of

that State in which the post has fallen vacant must be recommended.

We have noticed hereinbefore that the Madras High Court maintains a

register of retired Judges. Attention of the Chief Justice was drawn only to

the said register. Names of five Judges were proposed.

Mr. Venugopal has placed strong reliance on a judgment of the Privy

Council in The Hubli Electricity Co. Ltd. v. The Province of Bombay [AIR

(36) 1949 PC 136], wherein it was held:

“21.Their Lordships now turn to the question of

construction of s.4(1)(a). Their Lordships are

unable to see that there is anything in the language

of the sub-section or in the subject-matter to which

it relates upon which to found the suggestion that

the opinion of the Government is to be subject to

objective tests. In terms the relevant matter is the

opinion of the Government – not the grounds on

which the opinion is based. The language leaves

no room for the relevance of a judicial examination

as to the sufficiency of the grounds on which the

Government acted in forming an opinion.”

In that case the question which arose for consideration was as to

whether in view of Section 4(1)(a) of the Indian Electricity Act, 1910, the

licence for generation of electricity could be revoked where the licensee in

73

the opinion of the Provincial Government makes willful and unreasonably

prolonged default in doing anything required of him by or under the Act.

Section 4(1)(a) of the Electricity Act underwent an amendment. Even in

Province of Bombay v. Kusaldas S. Advani and Others reported in [1950

SCR 621] this Court referred to The Hubli Electricity Co. Ltd. (supra) to

opine that objective criteria were, in fact, laid down in the relevant

provisions of the therein. It was, however, observed :

“…It is abundantly clear from the authorities cited

above that questions of fact such as the existence

of a public purpose or the interest of the public

safety or the defence of the realm or the efficient

prosecution of the war, or the maintenance of

essential supplies and the like may well be and,

indeed, are often left to the subjective opinion or

satisfaction of the executive authority. Merely

because such a matter involves a question of fact it

does not follow at all that it must always, and

irrespective of the language of the particular

enactment, be determined judicially as an objective

fact…”

Everything, thus, depends upon the nature of the legal provision.

Administrative law moreover has much developed since then. The

approach of the Privy Council decision does not commend to us. Where an

opinion was not formed on relevant facts or within the restraints of the

statute as an alternative safeguard to rules of natural justice where the

function is administrative, evidently judicial review shall lie. [See Barium

74

Chemicals Ltd. and another v. Company Law Board and others AIR 1967

SC 295]

In fact The Hubli Electricity Co. Ltd. (supra) has been considered by

this Court in Narayanan Sankaran Mooss v. The State of Kerala and Another

[(1974) 1 SCC 68], stating:

“20. The power to revoke the licence is a drastic

power. The revocation of licence results in severe

abridgement of the right to carry on business.

Having in mind the requirements of Article

19(1)(g). Parliament has, it seems to us, prescribed

certain conditions to prevent the abuse of power

and to ensure just exercise of power. Clauses (a) to

(d) of Section 4 prescribe some of the conditions

precedent for the exercise of power. The order of

revocation, in breach of any one of those

conditions, will undoubtedly be void. The clause

“if in its opinion the public interest so requires” is

also a condition precedent. On a successful

showing that the order of revocation has been

made without the Government applying its mind to

the aspect of public interest or without forming an

honest opinion on that aspect, it will, we have no

doubt, be void. The phrase “after consulting the

State Electricity Board” is sandwiched between the

clause “if in its opinion the public interest so

requires” and clauses (a) to (d). In this context it

appears to us that consultation with the Board is

also a condition precedent for making the order of

revocation. Accordingly the breach of this

condition precedent should also entail the same

consequence as the breach of the other conditions

referred to earlier. It may be observed that the

phrase “after consulting the State Electricity

Board” did not find place in Section 4 as it stood

originally. It was introduced in Section 4 in 1959

75

by an amendment. It seems to us that it was

introduced in Section 4 with the object of

providing an additional safeguard to the

licensee…”

In Rohtas Industries v. S.D. Agarwal and Others [(1969) 1 SCC 325],

it was categorically held that the Judicial Committee was considering a pre-

constitutional provision which was not subject to the mandate of Article

19(1)(g) of the Constitution of India.

While exercising the power of judicial review in a case of this nature,

the court would not be concerned with the merit of the decision but with the

decision making process. If it is found that the decision making process has

not been adhered to, indisputably, judicial review would lie.

Mr. Venugopal would submit that such an interpretation would open a

floodgate. We do not think so. We even wish no occasion like the present

one arises in future before the Superior Courts for their consideration.

Even otherwise, the floodgate argument does not appeal to us.

In Coal India Ltd. and Others v. Saroj Kumar Mishra, [(2007) 9 SCC

625], this Court held:

“19. The floodgate argument also does not appeal

to us. The same appears to be an argument of

desperation. Only because there is a possibility of

floodgate litigation, a valuable right of a citizen

76

cannot be permitted to be taken away. This Court

is bound to determine the respective rights of the

parties. [See Zee Telefilms Ltd. v. Union of India

and Guruvayoor Devaswom Managing Committee

v. C.K. Rajan]”

It will also not be correct to contend that as non-appointment of the

appellant did not cast a stigma, such a fact was not necessary to be noticed.

We have noticed S.P. Gupta (supra) that where facts are brought to the

notice of the court, whether by way of affidavit by the constitutional

authorities or by placing before the court the entire material, it is permissible

to delve deep into the matter.

Once, thus, decision making process had been undergone in terms of

the constitutional scheme in its correct perspective, judicial review may not

be maintainable.

QUO WARRANTO

Respondents herein filed the writ petitions inter alia for issuance of a

writ of Quo Warranto. A Writ of Quo Warranto can be issued when the

holder of a public office has been appointed in violation of constitutional or

statutory provisions. Section 16 of the Act lays down the qualifications inter

alia for appointment of the Chairman of the State Commission. Clause (a)

of sub-section (1) of Section 16 provides that the candidate must be ‘is’ or

77

‘has been a Judge’. The proviso appended thereto, however, mandates

consultation by the State Government with the Chief Justice of the

concerned High Court.

Concedingly, judicial review for the purpose of issuance of writ of

Quo Warranto in a case of this nature would lie :-

(A) in the event the holder of a public office was not eligible

for appointment ;

(B) Processual machinery relating to consultation was not

fully complied.

The writ of quo warranto proceedings affords a judicial remedy by

which any person who holds an independent substantive public office is

called upon to show by what right he holds the same so that his title to it

may be duly determined and in the event it is found that the holder has no

title he would be directed to be removed from the said office by a judicial

order. The proceedings not only give a weapon to control the executive

from making appointments to public office against law but also tend to

protect the public from being deprived of public office to which it has a

right.

78

It is indisputably a high prerogative writ which was reserved for the

use of Crown.

The width and ambit of the writ, however, in the course of practice,

have widened and it is permissible to pray for issuance of a writ in the nature

of quo warranto.

In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], ‘Quo

Warranto’ is defined as under :

“Quo warranto, or a proceeding in the nature

thereof, is a proper and appropriate remedy to test

the right or title to an office, and to remove or oust

an incumbent.

It is prosecuted by the state against a person who

unlawfully usurps, intrudes, or holds a public

office. The relator must establish that the office is

being unlawfully held and exercised by

respondent, and that realtor is entitled to the

office.”

In the Law Lexicon by J.J.S. Wharton, Esq., 1987, ‘Quo Warranto’

has been defined as under:

“QUO WARRANTO, a writ issuable out of the

Queen’s Bench, in the nature of a writ of right, for

the Crown, against him who claims or usurps any

office, franchise, or liberty, to enquire by what

authority he supports his claim, in order to

determine the right. It lies also in case of non-user,

or long neglect of a franchise, or mis-user or abuse

of it; being a writ commanding the defendant to

79

show by what warrant he exercises such a

franchise having never had any grant of it, or

having forfeited it be neglect or abuse.”

Indisputably a writ of Quo Warranto can be issued inter alia when the

appointment is contrary to the statutory rules as has been held by this Court

in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and

R.K. Jain v. Union of India and , [ (1993) 4 SCC 119 ]. See also Mor

Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy.

[(2002) 6 SCC 269].

In Dr. Duryodhan Sahu and Others v. Jitendra Kumar Mishra and

Others [(1998) 7 SCC 273], this Court has stated that it is not for the court to

embark upon an investigation of its own to ascertain the qualifications of the

person concerned. [See also Arun Singh alias Arun Kr. Singh v. State of

Bihar and Others (2006) 9 SCC 375]

We may furthermore notice that while examining if a person holds a

public office under valid authority or not, the court is not concerned with

technical grounds of delay or motive behind the challenge, since it is

necessary to prevent continuance of usurpation of office or perpetuation of

an illegality. [See Dr. Kashinath G. Jalmi and Another v. The Speaker and

Others (1993) 2 SCC 703].

80

Issuance of a writ of quo warranto is a discretionary remedy.

Authority of a person to hold a high public office can be questioned inter

alia in the event an appointment is violative of any statutory provisions.

There concededly exists a distinction in regard to issuance of a writ of

quo warranto and issuance of a writ of certiorari. The scope and ambit of

these two writs are different and distinct. Whereas a writ of quo warranto

can be issued on a limited ground, the considerations for issuance of a writ

of certiorari are wholly different.

In Dr. Kashinath G. Jalmi (supra), it was held that even the motive or

conduct of the appellants may be relevant only for denying them the costs

even if their claim succeeds but it cannot be a justification to refuse to

examine the merits of the question raised therein, since that is a matter of

public concern and relates to good governance of the State.

In Shri Kumar Prasad v. Union of India and Others [(1992) 2 SCC

428], this Court held:

“22. It is in the above context that we have to

interpret the meaning of expression “judicial office”

under Article 217(2)(a) of the Constitution of India.

The High Court Judges are appointed from two

sources, members of the Bar and from amongst the

persons who have held “judicial office” for not less

than ten years. Even a subordinate judicial officer

manning a court inferior to the District Judge can be

appointed as a Judge of a High Court. The expression

81

“judicial office” in generic sense may include wide

variety of offices which are connected with the

administration of justice in one way or the other.

Under the Criminal Procedure Code, 1973 powers of

judicial Magistrate can be conferred on any person

who holds or has held any office under the

Government. Officers holding various posts under the

executive are often vested with the Magisterial powers

to meet a particular situation. Did the framers of the

Constitution have this type of ‘offices’ in mind when

they provided a source of appointment to the high

office of a Judge of High Court from amongst the

holders of a “judicial office”. The answer has to be in

the negative. We are of the view that holder of

“judicial office” under Article 217(2)(a) means the

person who exercises only judicial functions,

determines causes inter-partes and renders decisions

in a judicial capacity. He must belong to the judicial

service which as a class is free from executive control

and is disciplined to uphold the dignity, integrity and

independence of judiciary.”

It was held that the Law Secretary although was holder of a judicial

office but being not a judicial officer was not qualified to be appointed as a

Judge of the High Court and, thus, his appointment was quashed.

In B.R. Kapur v. State of T.N. and Another (supra), the question

which arose for consideration was as to whether the Chief Minister of a

State, who having been convicted in a criminal case, disqualified herself to

become a member of a Legislative Assembly in terms of Article 191(1) of

the Constitution of India could be appointed as the Chief Minister for a

period of six months in terms of Article 164 thereof. This Court having

82

regard to Article 164(4) of the Constitution of India opined that if a person is

disqualified to become a member of the legislative assembly, he cannot be

inducted into the Council of Ministers for a short term which would extend

beyond a period of six months.

It was held that a Writ of Quo Warranto can be issued even when the

President or the Governor had appointed a person to a constitutional office.

It was furthermore held that the qualification of that person to hold that

office can be examined in a quo warranto proceedings and the appointment

can be quashed.

In R.K. Jain (supra), consultation by the executive which Chief Justice

having found to be not necessary, it was held that no case for issuance of

writ of quo warranto has been made out, stating:

“73. Judicial review is concerned with whether

the incumbent possessed of qualification for

appointment and the manner in which the

appointment came to be made or the procedure

adopted whether fair, just and reasonable. Exercise

of judicial review is to protect the citizen from the

abuse of the power etc. by an appropriate

Government or department etc. In our considered

view granting the compliance of the above power

of appointment was conferred on the executive and

confided to be exercised wisely. When a candidate

was found qualified and eligible and was

accordingly appointed by the executive to hold an

office as a Member or Vice-President or President

of a Tribunal, we cannot sit over the choice of the

83

selection, but it be left to the executive to select the

personnel as per law or procedure in this behalf…”

In that case, it was held that no case for issuance of a writ of certiorari

had been made out as a third party had no locus standi to canvass the legality

or correctness of the action seeking for issuance of a writ of certiorari. Only

public law declaration would be made at the behest of the appellant who was

a public spirited person.

We may incidentally place on record that a declaratory relief had also

been prayed for in the writ petitions filed by the respondents.

Reliance has also been placed on a decision of this Court in Union of

India and Others v. Kali Dass Batish and Another [(2006) 1 SCC 779]

wherein it was held:

“…Even assuming that the Secretary of the

department concerned of the Government of India

had not apprised himself of all necessary facts, one

cannot assume or impute to a high constitutional

authority, like the Chief Justice of India, such

procedural or substantive error. The argument

made at the Bar that the Chief Justice of India

might not have been supplied with the necessary

inputs has no merit. If Parliament has reposed faith

in the Chief Justice of India as the paterfamilias of

the judicial hierarchy in this country, it is not open

for anyone to contend that the Chief Justice of

India might have given his concurrence without

application of mind or without calling for the

necessary inputs. The argument, to say the least,

deserves summary dismissal.”

84

(Emphasis supplied)

The decision in that case was rendered in the factual matrix obtaining

therein. Noticing that where members of the bar were required to be

considered for important judicial posts, their antecedents are verified

through the Intelligence Bureau and a report is obtained from it.

It was noticed that the Secretary (Personnel) had forwarded all

necessary papers including the IB Report and sought for concurrence of the

Chief Justice with regard to the names recommended by the Central

Government. In that case, as concurrence to the proposal of the Chief

Justice of India was obtained after consideration of all the material, it was

held:

“…It must be remembered that a member of an

Administrative Tribunal like CAT exercises vast

judicial powers, and such member must be ensured

absolute judicial independence, free from

influences of any kind likely to interfere with

independent judicial functioning or militate

thereagainst. It is for this reason, that a policy

decision had been taken by the Government of

India that while considering members of the Bar

for appointment to such a post, their antecedents

have to be verified by IB. The antecedents would

include various facts, like association with

antisocial elements, unlawful organisations,

political affiliations, integrity of conduct and moral

uprightness. All these factors have necessarily to

be verified before a decision is taken by the

appointing authority to appoint a candidate to a

85

sensitive post like member of CAT. In Delhi

Admn. v. Sushil Kumar1 this Court emphasised

that even for the appointment of a constable in

police services, verification of character and

antecedents is one of the important criteria to test

whether the selected candidate is suitable for a post

under the State. Even if such candidate was found

physically fit, had passed the written test and

interview and was provisionally selected, if on

account of his antecedent record, the appointing

authority found it not desirable to appoint a person

of such record as a constable, the view taken by

the appointing authority could not be said to be

unwarranted, nor could it be interdicted in judicial

review. These are observations made in the case of

a constable, they would apply with greater vigour

in the case of appointment of a judicial member of

CAT. It is for this precise reason that sub-section

(7) to Section 6 of the Act requires that the

appointment of a member of CAT cannot be made

“except after consultation with the Chief Justice of

India”.”

We may, however, notice that the Bench itself opined that for

appointment as a member of an Administrative Tribunal like CAT, absolute

judicial independence must be ensured. It was furthermore opined:

“This consultation should, of course, be an

effective consultation after all necessary papers are

laid before the Chief Justice of India, and is the

virtual guarantee for appointment of absolutely

suitable candidates to the post.”

The observations of the Bench, as noticed hereinbefore, must be

understood in the factual backdrop of the case. The argument which was

86

advanced therein, viz., the Chief Justice of India might not have been

supplied with necessary inputs was found to be wholly meritless deserving

summary rejection thereof.

In a case of this nature, there would not be any IB enquiry. It was

necessary for the Chief Justice to apprise himself fully with the background

of the former judge concerned particularly where for one reason or the other

he was not made permanent.

Our attention has furthermore been drawn to a decision of this Court

in High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat

and Others (supra) wherein, one of us was a member. Therein the question

which arose for consideration was as to whether without appointing the

members, the President of the Industrial Court, which was to consist of three

or more members out of which one may be a President, could have been

appointed straightway without appointing him as a member.

It has, however, been contended that disqualification cannot be read

into or implied into the wording of a section.

Reliance in this behalf has been placed on Manohar Nathurao Samarth

v. Marotrao and Others [(1979) 4 SCC 93] wherein it has been held that

Regulation 25 of the Life Insurance Corporation of India (Staff) Regulations

87

1960 framed under the Life Insurance Corporation Act, 1956 and read with

Section 15(g) of the City of Nagpur Corporation Act, 1948 provided for

disciplinary action and not disqualificatory, observing:

“11…No ground rooted in public policy compels

us to magnify the disciplinary prescription into a

disenfranchising taboo. To revere the word to

reverse the sense is to do injustice to the art of

interpretation. Reed Dickerson quotes a passage

from an American case to highlight the guideline:

“The meaning of some words in a statute

may be enlarged or restricted in order to

harmonize them with the legislative intent of

the entire statute.... It is the spirit ... of the

statute which should govern over the literal

meaning”.

*** ***

***

13. It is quite conceivable, if the legislature so

expresses itself un-equivocally, that even in a law

dealing with disciplinary control, to enforce

electoral disqualifications provided the legislature

has competence. The present provision does not go

so far.

14. Even assuming that literality in construction

has tenability in given circumstances, the doctrinal

development in the nature of judicial interpretation

takes us to other methods like the teleological, the

textual, the contextual and the functional. The

strictly literal may not often be logical if the

context indicates a contrary legislative intent.

Courts are not victims of verbalism but are agents

of the functional success of legislation, given

flexibility of meaning, if the law will thereby hit

the target intended by the law-maker. Here the

emphasis lies on the function, utility, aim and

88

purpose which the provision has to fulfil. A policy-

oriented understanding of a legal provision which

does not do violence to the text or the context

gains preference as against a narrow reading of the

words used. Indeed, this approach is a version of

the plain meaning rule, and has judicial sanction.

In Hutton v. Phillips the Supreme Court of

Delaware said:

“(Interpretation) involves far more than

picking out dictionary definitions of words or

expressions used. Consideration of the context

and the setting is indispensable property to

ascertain a meaning. In saying that a verbal

expression is plain or unambiguous, we mean

little more than that we are convinced that

virtually anyone competent to understand it,

and desiring fairly and impartially to ascertain

its signification, would attribute to the

expression in its context a meaning such as the

one we derive, rather than any other; and would

consider any different meaning, by comparison,

strained, or far-fetched, or unusual, or

unlikely.”

The said decision, thus, is an authority that in a given case, the

disciplinary prescription may be magnified to a disenfranchising taboo, if

any ground rooted in public policy is found therefor. Emphasis has been

laid on policy oriented understanding of a legal profession and not the strict

literal meaning which may not often be logical if the context indicates a

contrary legislative intent.

89

We have found hereinbefore that the appellant was not eligible for

appointment of a public office and in any event the Processual machinery

relating to consultation was not fully complied.

WRIT OF DECLARATION

In this case, moreover, a writ of declaration was sought for. This

Court in Shri Kumar Padma Prasad (supra) issued a writ of declaration

although a writ of quo warranto was sought for. Declaring that the appellant

therein was not qualified to be appointed as a Judge of the High Court, a

consequential order directing him not to appoint was also issued.

PANEL

The Chief Justice of the High Court forwarded a panel of three Judges

including the appellant herein. Whether Section 16 of the Act contemplates

such a situation is the question.

Independence of the judiciary as embedded in Article 50 of the

Constitution of India needs no over-emphasis.

We have noticed hereinbefore that the State of Tamil Nadu in its letter

dated 30

th

May, 2008 addressed to the Registrar of the Madras High Court

while intimating that a vacancy had arisen in the post of President, State

Commission, made a request to him to send a panel of eligible names of

90

retired High Court Judges after approval by Hon’ble the Chief Justice of the

High Court of Madras for its consideration therefor.

Pursuant thereto or in furtherance thereof, the Chief Justice only

forwarded a panel of three Judges. The Executive Government of the State

made a final choice therefrom.

The process of selection in view of the decisions of this Court in

Ashish Handa (supra) and Ashok Tanwar (supra) and National Consumer

Awareness Group (supra) must be initiated by the High Court itself. Having

regard to the fact that the Chief Justice has the primacy as regards

recommendations of the name for appointment to the post of Chairman of

the State Commission, the method adopted herein, in our considered view, is

impermissible in law. For the said purpose only one name must emanate

from the Chief Justice ; only one name can be recommended by him and not

a panel of names. Having regard to processual mandate required for the

purpose of appointment to the post of Chairman, State Commission, the

Executive Government of the State cannot have any say whatsoever in the

matter. The process for preparation of a panel requested by the Executive

Government of the State and accepted by the Chief Justice of the High

Court, in our opinion, was impermissible in law. If the State is granted a

choice to make an appointment out of a panel, as has been done in the

91

instant case, the primacy of the Chief Justice, as opined by this Court in the

aforementioned decisions, would stand eroded. It will bear repetition to

state that even for the said purpose the procedure laid down by this Court in

Supreme Court Advocates-on-Record Association (supra) as also the Special

Reference, for recommendation of the name of the High Court Judge, as

contained in Article 217 of the Constitution of India, should be followed. It

is accepted at the Bar that by reason of judicial constitutional interpretation

of Articles 217 and 124 of the Constitution of India, the procedures laid

down thereunder has undergone a drastic change. A recommendation

instead and in place of Chief Justice of India must emanate from the

Collegium. However, for the purpose of making recommendation in terms

of Section 16(1) the opinion of the Chief Justice alone shall prevail.

It is difficult to accept the submission of Mr. K.K. Venugopal that

such ‘consultation’ would not be ‘concurrence’ as like the Collegium in the

matter of making recommendation for appointment of Judges of the

Supreme Court and the High Courts where the view of he Collegium shall

have the primacy. For appointment as President of the State Commission,

the Chief Justice of the High Court shall have the primacy and thus the term

‘consultation’ even for the said purpose shall mean ‘concurrence’ only.

92

It is true that if a panel of names is suggested and the State makes an

appointment of one out of the three, the question of meeting of mind

between the Chief Justice and the Executive would not arise but there cannot

be any doubt whatsoever that by reason thereof the ultimate authority to

appoint would be the Executive which in view of the decisions of this Court

would be impermissible.

Mr. Venugopal would contend that for the aforementioned purpose

the principle of purposive interpretation may be resorted to hold that the

Chief Justice by sending a panel of Judges is merely recommending the

names of the Judges, who is his opinion, are independent and fit persons to

be appointed. We are not in a position to accept the same.

For the aforementioned purpose the Court must bear in mind that the

constitutional scheme of independence of the judiciary embodied in Article

50 of the Constitution of India should by no means be allowed to be eroded.

In A. Pandurangam Rao v. State of Andhra Pradesh and others

[ AIR 1975 SC 1925 ] this Court has held that the procedure adopted by the

High Court by sending list of all the candidates for appointment to the post

of District Judge so as enable the State to appoint the selectees out of the

said panel is illegal stating :-

93

“9. The recommendation of the High Court for

filling up the six vacancies was contained in its

letter dated July 13, 1973. Government was not

bound to accept all the recommendations but could

tell the High Court its reasons for not accepting the

High Court’s recommendations in regard to certain

persons. If the High Court agreed with the reasons

in case of a particular person the recommendation

in his case stood withdrawn and there was no

question of appointing him. Even if the High Court

did not agree the final authority was the

Government in the matter of appointment and for

good reasons it could reject the High Court’s

recommendations. In either event it could ask the

High Court to make more recommendations in

place of those who have been rejected. But surely

it was wrong and incompetent for the Government

to write a letter like the one dated July 26, 1973

inviting the High Court’s attention to Instruction

12(5) of the Secretariat instructions and on the

basis of that to ask it to send the list of persons

whom the High Court considered to have

reasonable claims to the appointment. On the basis

of the furore created by the two Bar Associations

of Hyderabad and the High Court’s letter dated

July 26, 1973 written in reply to the Government’s

letter dated July 24, 1973 no person’s candidature

recommended by the High Court had been rejected

when the letter dated July 26, 1973 was written by

the Government. Even after rejection the

Government could not ask the High Court to send

the list of all persons whom the High Court

considered to have reasonable claim to the

appointment. We feel distressed to find that instead

of pointing out the correct position of law to the

Government and itself acting according to it, a

letter like the one dated August 1, 1973 was sent

by the High Court in reply to the Government’s

letter dated July 26, 1973. It is not clear from this

letter whether it was written under the directions of

Chief Justice and the other Judges of the High

Court as in the case of the letter dated July 13,

1973. But surely it was very much wrong on the

part of the High Court to forward the entire list of

the candidates interviewed with the marks obtained

by them and adding at the same time that the High

Court had no further remarks to offer. We could

not understand the reason for writing such a letter

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by the High Court. But if we may hazard a surmise

it seems to have been written in utter disgust at the

Government’s unreasonable attitude displayed in

its letter dated July 26, 1973. By no means could it

be, nor was it, a recommendation by the High

Court of all the 263 candidates interviewed, that all

of them had a reasonable claim, or in other words,

were fit to be appointed District Judges. We must

express our displeasure at and disapproval of all

that happened between the Government and the

High Court — in the former writing the letter

dated July 26, 1973 and the latter sending the reply

dated August 1, 1973.

10. Then comes the letter dated November 30,

1973. After tracing the history of the

recommendations made by the High Court in its

letter dated July 13, 1973 and “in the light of

further information about these candidates as

required from High Court”, Government decided

to select the six candidates mentioned therein

including Respondents 3 to 6 as if they were from

“the list recommended by the High Court”. It was

further stated in this letter “Reasons for not

selecting candidates placed by the High Court

higher than those now selected are given in the

annexure enclosed to this DO letter.” The High

Court, to be more accurate, the Chief Justice to

whom the letter dated November 30, 1973 was

addressed seems to have not resented or protested

against the selection so made by the Government

in clear violation of Article 233 of the

Constitution. We find it intriguing that the letter

written by the Registrar to the High Court on

August 1, 1973 was treated as a recommendation

of all the 263 candidates as having been found fit

for appointment as District Judges. By no means

could it be so. It was not so. And yet the High

Court or the Chief Justice did not object to the

appointment of Respondents 3 to 6 as District

Judges. They were not eligible to be so appointed

as their names had never been recommended.”

In Ashok Tanwar (supra) it was held :-

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“6. On 7-3-2000 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 steps could be taken

for appointment of Mr Justice Surinder Swaroop

(Respondent 3 herein) as President of the State

Commission in accordance with the law and rules.

Thereafter, a notification dated 13-3-2000 was

issued by the Governor, Himachal Pradesh,

appointing Justice Surinder Swaroop as President

of the State Commission.

xxx xxx xxx

9. 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 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 3,

Respondent 2, however, was aware of the legal

position and it immediately drew the attention of

Respondent 1 that the procedure adopted by

Respondent 1 was not in accordance with law.

Therefore, a second letter was addressed by

Respondent 1 to Respondent 2. Respondent 2 on

receipt of the second letter made the

recommendation to appoint Respondent 3 as

President of the State Commission. On that issue

the High Court held that the action taken either by

Respondent 1 or by Respondent 2 could not be

said to be contrary to law or the directions issued

by this Court in the case of Ashish Handa.

Consequently the writ petition was dismissed.

Hence, this appeal.”

In National Consumer Awareness Group (supra) this Court has held :-

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“7. Justice Amarjeet Chaudhary, the then

incumbent, was to demit his office on 4-9-2003 on

completion of his term as President of the Haryana

State Consumer Disputes Redressal Commission

(hereinafter referred to as “the State

Commission”). On 25-8-2003 the Chief Minister

of Haryana addressed a letter to the Chief Justice

of the Punjab and Haryana High Court drawing his

attention to the vacancy that was likely to arise on

5-9-2003, and expressed his view that Justice R.S.

Mongia, retired Chief Justice of the Gauhati High

Court, would be a befitting incumbent to be

appointed to the said post and requested for

communication of the views of the Chief Justice of

the Punjab and Haryana High Court. By a

communication dated 26-8-2003, the Chief Justice

of the Punjab and Haryana High Court drew the

attention of the Chief Minister to the decision of

this Court in Ashish Handa v. Chief Justice of

High Court of Punjab & Haryana1 and took the

stand: (SCC p. 148, para 3)

… even for initiation of 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.

He, however, postponed a decision, as the

seniormost Judge of the collegium was out of

station. By a confidential communication dated 27-

8-2003, the Chief Justice informed the Chief

Minister that the collegium of the High Court had

met and considered the names of several persons,

and unanimously decided to recommend Justice

R.C. Kathuria (retired) of the Punjab and Haryana

High Court as most suitable and fit for

appointment as President of the State Commission.

A copy of the relevant resolution was forwarded

for information. The resolution took note of the

credentials of the three retired Judges, whose

suitability was considered, and decided to

recommend Mr Justice R.C. Kathuria as most

suitable and fit for appointment. Justice R.S.

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Mongia was also one of the three retired Judges,

whose suitability was considered by the said

resolution.

8. By a letter dated 29-10-2003 the Chief

Minister, Haryana, raised certain objections to the

proposal made by the Chief Justice. The collegium

of the High Court considered the letter dated 29-

10-2003 of the Chief Minister, Haryana and

reiterated its earlier recommendation. By a letter of

1-12-2003 the Chief Minister drew the attention of

the Chief Justice to what he considered were the

deficiencies in the candidature of the learned

Judge, whose name was proposed by the High

Court. Once again, the High Court after calling for

several records and considering various other

aspects of the matter reiterated its stand that there

was no reason to recall the earlier

recommendations to appoint Justice R.C. Kathuria

(retired) as the President of the State Commission.

By another letter dated 7-1-2004, the Chief

Minister of Haryana drew the attention of the

Chief Justice of the Punjab and Haryana High

Court to the newly introduced Section 16(1-A),

vide (Amendment) Act 62 of 2002, and stated that

since the post of the President of the State

Commission was vacant at the moment, an

Hon’ble sitting Judge of the Punjab and Haryana

High Court was required to be nominated to act as

Chairman of the Selection Committee to be

constituted under Section 16(1-A). There was

certain other correspondence about certain

representations made, which is not material.

xxx xxx xxx

18. We are unable to accept this contention of the

learned counsel for the Union of India. It is

inconceivable that sub-section (1-A) is intended

for appointment of the President of the State

Commission itself. In the first place, we cannot

accede to the contention that the Chairman of the

State Commission, who is or has been a Judge of

the High Court, can be selected by a Selection

Committee comprising two Secretaries of the State

Government. Nothing could be more erosive of

judicial independence than such interpretation of

sub-section (1-A). This conclusion of ours is

driven home by the proviso to sub-section (1-A).

This proviso is intended to take care of a

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contingency where there exists a President of the

State Commission, who is unable to chair the

Selection Committee meeting because of absence

or other similar reasons. It is only in such a

situation, that the State Government may request

the Chief Justice of the High Court to nominate a

sitting Judge to act as Chairman of the Selection

Committee. If the argument of the learned counsel

of the Union of India and the construction

canvassed by him is admitted, it would mean that

even where the President of the State Commission

is appointed for the first time, the procedure would

be that he would be appointed by a Committee of

which two Secretaries would be members. That

would be obviously destructive of judicial

independence.

Even in Union of India v. Kali Dass Batish, (supra) whereupon strong

reliance has been placed by Mr. Venugopal, this Court held :-

“….Consequently, Parliament has taken great care

to enact, vide Sections 6 and 7 of the Act, that no

appointment of a person possessing the

qualifications prescribed in the Act as a member

shall be made, except after consultation with the

Chief Justice of India. The consultation with the

Chief Justice of India is neither a routine matter,

nor an idle formality. It must be remembered that a

member of an Administrative Tribunal like CAT

exercises vast judicial powers, and such member

must be ensured absolute judicial independence,

free from influences of any kind likely to interfere

with independent judicial functioning or militate

thereagainst.”

We have, therefore, no hesitation in holding that the process adopted

by the High Court and the Chief Justice in asking for a panel of name and

sending the same was not legally permissible.

CONCLUSION

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The summary of our aforementioned discussions is as under:

(i)Judicial review although has a limited application but is not beyond

the pale of the superior judiciary in a case of this nature.

(ii)The superior courts may not only issue a writ of quo warranto but also

a writ in the nature of quo warranto. It is also entitled to issue a writ

of declaration which would achieve the same purpose.

(iii)For the purpose of interpretation of Constitution in regard to the status

of an Additional Judge, the word “has been” would ordinarily mean a

retired Judge and for the purpose of examining the question of

eligibility, not only his being an Additional judge but also a

qualification as to whether he could continue in the said post or he be

appointed as an acting or adhoc judge, his suitability may also be

taken into consideration.

(iv)Section 16 of the Act must also be given a contextual meaning. In a

case of this nature, the court having regard to the wider public policy

as also the basic feature of the Constitution, viz., independence and

impartiality of the judiciary, would adopt a rule of purposive

interpretation instead of literal interpretation.

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(v)Due consultative process as adumbrated by this Court in various

decisions in this case having not been complied with, appointment of

Shri Kannadasan was vitiated in law.

(vi)The Government of the State of Tamil Nadu neither could have asked

the High Court to send a panel of names of eligible candidates nor the

Chief Justice of the High Court could have sent a panel of names of

three Judges for appointment to the post of Chairman, State

Commission.

Before parting, however, we would place on record that Mr.

Ramamurthy, learned counsel on 5.5.2009 filed a memorandum before us

stating that the appellant Shri N. Kannadasan has submitted his resignation.

It is, however, not stated that the said offer of resignation has been accepted

by the State of Tamil Nadu. Moreover, there is no prayer for withdrawal of

the special leave petition.

We, in the aforementioned situation, are proceeding to pronounce our

judgment.

We must also place on record our deep appreciation for the learned

counsel for the parties and in particular Shri G.E. Vahanvati, the learned

Solicitor General of India for rendering valuable assistance to us.

101

For the reasons aforementioned, we do not find any merit in these

appeals, which are dismissed accordingly. No costs.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Dr. Mukundakam Sharma]

New Delhi;

March 06, 2009

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