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CASE NO.: Appeal (civil)  8248 of 2004

PETITIONER: Shri Ashok Tanwar & Anr.

RESPONDENT: State of H.P. & Ors.

DATE OF JUDGMENT: 17/12/2004

BENCH: CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna & G.P. Mathur.

JUDGMENT: J U D G M E N T  

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

Shivaraj V. Patil J.

       Leave granted.         A Bench of three learned Judges of this Court made  the following order of reference on 7th March, 2002: -

       "In the present case, under Section 16  of the Consumer Protection Act, the  President of the State Consumer Disputes  Redressal Commission has to be appointed  in consultation with the Chief Justice of the  State.  The question which arises is  whether consultation with an Acting Chief  Justice is sufficient compliance or not.  This  question involves interpretation of Articles  217 and 223 of the Constitution and as  there is no decision of this Court which can  be applied in the present case, then by  virtue of Article 145(3) of the Constitution  this case involving the said question of law  involving interpretation of the Constitution  should be heard by a Bench of not less  than five learned Judges.

       Let the papers be placed before the  Hon’ble the Chief Justice of India for  appropriate orders for hearing of the case  as expeditiously as possible and within a  period of four months."

Articles 217 to the extent relevant and 223 of the  Constitution of India read: - "217. Appointment and conditions of  the office of a Judge of a High Court. \026  (1) Every Judge of a High Court shall be  appointed by the President by warrant  under his hand and seal after consultation  with the Chief Justice of India, the  Governor of the State, and, in the case of  appointment of a Judge other than the  Chief Justice, the Chief Justice of the High

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court, and shall hold office, in the case of  an additional or acting Judge, as provided  in article 224, and in any other case, until  he attains the age of sixty-two years:  

"223.  Appointment of acting Chief  Justice. \026 When the office of Chief Justice  of a High Court is vacant or when any such  Chief Justice is by reason of absence or  otherwise, unable to perform the duties of  his office, the duties of the office shall be  performed by such one of the other Judges  of the court as the President may appoint  for the purposes."

       On 3rd March, 2000 The Financial Commissioner-cum- Secretary (F&S), Government of Himachal Pradesh,  addressed a letter to Registrar General, Himachal Pradesh  High Court stating that Justice P.N. Nag (retired Judge of  the High Court) shall cease to hold the post of President of  H.P. State Consumer Disputes Redressal Commission,  Shimla (for short ’the State Commission) on 4.3.2000, after  attaining the age of 67 years.  In accordance with the  provisions contained in The Consumer Protection Act, 1986  (for short ’the Act’), a person who is or has been a Judge of  High Court can be appointed as President of the State  Commission, after consultation with the Chief Justice of the  High Court.  After consideration the State Government  decided to take the services of Justice Surinder Swaroop, a  sitting Judge of the High Court of Himachal Pradesh for  appointment as President of the State Commission.   Therefore, he requested that the proposal of the State  Government may kindly be placed before the Hon’ble Chief  Justice, High Court for consideration and recommending the  name of Justice Surinder Swaroop for appointment as  President of the State Commission on part-time basis.         On the same day the High Court addressed a letter to  the State Government indicating that there was defect in  the process adopted by the State Government and that the  reference made by the State Government was not in  conformity with the provisions of law as the executive is  expected to approach the Hon’ble Chief Justice when the  appointment was to be made, to initiate the proposal as per  the procedure to be followed for appointment of High Court  Judge.         The State Government wrote the second letter to the  Registrar General of the High Court requesting the Hon’ble  Chief Justice to initiate the process for filling up the vacancy  to the post of President of the State Commission in  accordance with the provisions of the Act and the law laid  down by this Court in Ashish Handa, Advocate vs.  Hon’ble the Chief Justice of High Court of Punjab &  Haryana and others .         On 7th March 2000 the Registrar General of the High  Court addressed a letter to the Financial Commissioner- cum-Secretary (F&S) of the State Government conveying  recommendation of the Chief Justice for appointment of Mr.  Justice Surinder Swaroop, a sitting Judge of the High Court,  as President of the State Commission holding additional  charge of the post.  In the said letter it was also stated that  the steps may be taken for appointment of Mr. Justice  Surinder Swaroop (respondent No. 3 herein) as President of  the State Commission in accordance with law and rules.   Thereafter, a notification dated 13th March, 2000 was issued

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by the Governor, Himachal Pradesh, appointing Justice  Surinder Swaroop as President of the State Commission.         Appellant No. 1, a permanent resident of Namol and a  practicing advocate at Solan and appellant No. 2, a retired  Research Officer resident of Shimla, filed Civil Writ Petition  No. 647 of 2000 in the High Court claiming to espouse  public interest stating that they were interested in proper  functioning of the State Commission.  According to them  the appointment of respondent No. 3 \026 Justice Surinder  Swaroop \026 as President of the State Commission was not in  accordance with law and was contrary to the decisions of  this Court.  They sought for writ of quo warranto to the  respondent No. 1 to quash the appointment of respondent  No. 3 mainly contending that there was a defect in the  initiation process for appointment to the post of President of  the State Commission on the ground that the process was  initiated by the State Government instead of Chief Justice  and that the Acting Chief Justice did not consult the two  senior most Judges of the High Court before recommending  the name of respondent No. 3 for appointment as the  President of the State Commission.  In support of these  contentions they placed reliance on the decisions of this  Court in Ashish Handa, Advocate vs. Hon’ble the Chief  Justice of High Court of Punjab & Haryana and others  (supra) and Supreme Court Advocates-on-Record  Association and others vs. Union of India .         Respondent Nos. 1 and 3 resisted the writ petition and  respondent No. 2, the High Court, made the position clear  having regard to the records.         The High Court, after consideration of the respective  contentions advanced on behalf of the parties and in the  light of the decisions of this Court, held that the case of  Ashish Handa (supra) related to the initiation of ’process’,  which was required to be followed in making appointment  of President of the State Commission, and that such  process should not have been initiated by the Government  but it ought to have been initiated by the Chief Justice. On  facts the High Court found that although initially the  process was started by the Government proposing the name  of respondent No. 3, respondent No. 2, however, was aware  of the legal position and it immediately drew the attention  of respondent No. 1 that the procedure adopted by  respondent No. 1 was not in accordance with law.   Therefore, second letter was addressed by respondent No.  1 to respondent No. 2.  Respondent No. 2 on receipt of the  second letter made the recommendation to appoint  respondent No. 3 as President of the State Commission.  On  that issue the High Court held that the action taken either  by respondent No. 1 or by respondent No. 2 could not be  said to be contrary to law or the directions issued by this  Court in the case of Ashish Handa (supra). Consequently  the writ petition was dismissed.  Hence, this appeal.         The High Court, in the impugned judgment, dealing  with initiation of the process and consultation for  appointment of respondent No. 3 as President of the State  Commission, has observed, thus: - "The counsel for the petitioners contended  that appointment of a person as President  to the State Commission, as ruled by the  Supreme Court in Ashish Handa, has to be  made in accordance with the provisions of  Article 217 of the Constitution.  In other  words, before an appointment of a sitting  or retired Judge of a High Court is made as  the President of the State Commission,

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there should be consultation at three  levels; firstly, consultation with the Chief  Justice of India, secondly, consultation with  the Governor of the State and thirdly,  consultation with the Chief Justice of the  High Court concerned. xxx             xxx             xxx             xxx         Hence, if the submission of the learned  counsel is upheld, the result would be as  under:         Before the appointment of respondent  No. 3 by respondent No. 1 as the President  of the State Commission, respondent No. 1  ought to have consulted the Governor of  the State (the State Government), (which  is the appointing authority in the instant  case), the Chief Justice of India (not the  Chief Justice of India in his individual  capacity but collectively, along with the  collegium), the Chief Justice of this Court  (not the Chief Justice in his individual  capacity, but with the collegium, that is, his  two senior most colleagues) and also a  Judge or Judges, who is/are in the  Supreme Court who is/are likely to be  conversant with the affairs of this High  Court.  Unless the above procedure is  strictly adhered to, the appointment of  respondent No. 3 as the President of the  State Commission cannot be held legal and  lawful."

In relation to the law laid down by this Court in Ashish  Handa the High Court noted that it was not the case before  the High Court that the Chief Justice had consulted his two  senior most colleagues before approving the name of  Justice Agnihotri and yet the appointment was not  interfered with.  The High Court also expressed that in  Ashish Handa this Court has laid down that under Section  16 of the Act process for appointment of a sitting or retired  Judge as President of the State Commission should be  initiated by the Chief Justice as is done in the case of  appointment of a Judge to a High Court under Article 217 of  the Constitution and that such process should not be  initiated by the Government.           Before us, learned counsel for the appellants urged  that: - 1.      since the recommendation to appoint respondent No.  3 was made by the Acting Chief Justice without  consulting two senior most Judges as required in the  light of decisions of this Court in Supreme Court  Advocates-on-Record Association (supra) and  Ashish Handa (supra), the High Court ought to have  allowed the writ petition and quashed the appointment  of respondent No. 3. 2.      The Acting Chief Justice could not initiate the process  for appointment of respondent No. 3 under Section 16  of the Act as it is only the Chief Justice, who is to be  consulted; the Acting Chief Justice is not appointed to  the Office of Chief Justice, he is only to discharge the  duties of the Chief Justice.  Reliance was placed on the  decision of High Court of Allahabad in Bishal Chand  Jain vs. Chattur Sen and others .         In opposition learned counsel for the respondents in  their arguments reiterated the submissions that were made

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before the High Court and supported the impugned  judgment for the very reasons stated therein.         The learned counsel for the Union of India and for  Attorney General submitted that consultation should be as  stated in two decisions of this Court in Ashish Handa and  Supreme Advocates-on-Record Association (supra),  i.e., the Chief Justice of a High Court has to consult two  senior most Judges in the case of appointment of a sitting  or retired Judge of the High Court as President of the State  Commission.  As regards the discharge of duties of the  Chief Justice by the Acting Chief Justice, the submission  was that the Acting Chief Justice could perform all the  functions of the Chief Justice by virtue of Article 223 of the  Constitution, otherwise there will be practical difficulty  leading to anomalous situation in cases where the Chief  Justices are not appointed for some reasons and Acting  Chief Justices continue for longer period.

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

"16. Composition of the State  Commission. - (1) Each State Commission  shall consist of, -  (a) a person who is or has been a Judge of  a High Court, appointed by the State  Government, who shall be its President :  Provided that no appointment under this  clause shall be made except after  consultation with the Chief Justice of the  High Court."

       In the case of Ashish Handa the question that came  up for consideration was as to initiation of process in the  matter of appointment.  A person, who is or has been a  Judge of a High Court, shall be appointed by the State  Government as President of the State Commission after  consultation with the Chief Justice of the High Court as per  Section 16 of the Act.  This Court held that the executive is  expected to approach the Chief Justice when the  appointment is to be made for taking the steps to initiate  the proposal.  Para 3 of the judgment reads: - "3. The Consumer Protection Act, 1986 is  an Act to provide for better protection of  the interests of consumers "and for that  purpose to make provision for the  establishment of consumer councils and  other authorities for the settlement of  consumers’ disputes and for matters  connected therewith". The National  Commission, the State Commission and the  District Forum are established as the  agencies for the redressal of consumer  disputes by Section 9 of the Act. Section l0  of the Act provides for composition of the  District Forum, Section 16 for the State  Commission and Section 20 for the  National Commission. The scheme is that  these three agencies constituted for  redressal of consumer disputes at different  levels have as its President a person who  is, or has been a Judge at the  corresponding level. This is so because the  function of these agencies is primarily the  adjudication of consumer disputes and,

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therefore, a person from the judicial branch  is considered to be suitable for the office of  the President. The appointment to the  office of the President of the State  Commission is to be made "only after  consultation with the Chief Justice of the  High Court" and to the office of the  President of the National Commission "after  consultation with the Chief Justice of  India". Such a provision requiring prior  consultation with the Chief Justice is  obviously for the reason that he is the most  suitable person to know about the  suitability of the person to be appointed as  the President of the Commission. The  provisions in Section 16(1)(a) for  appointment of the President of the State  Commission and in Section 20(1)(a) for  appointment of the President of the  National Commission are in pari materia  and have to be similarly construed. The  construction of the proviso in Section  16(1)(a) and that in Section 20(1)(a) must  be the same because of the identity of the  language. The expression "after  consultation with the Chief Justice of the  High Court" and "after consultation with the  Chief Justice of India" must be construed in  the same manner as the expression "after  consultation with the Chief Justice of  India,... the Chief Justice of the High Court"  in Article 217 of the Constitution of India  made in Supreme Court Advocates-on- Record Assn. v. Union of India [(1993) 4  SCC 441]. Accordingly, the opinion of the  Chief Justice of the High Court and the  requirement of consultation with him  according to the proviso in Section 16(1)(a)  must have the same status as that of the  Chief Justice of the High Court in the  appointment of a High Court Judge under  Article 217 of the Constitution of India; and  the process of appointment to the office of  the President of the State Commission  must also be similar. It is unnecessary to  restate the same which is summarised in  the majority opinion in the Judges-II case  [(1993) 4 SCC 441]. This is necessary to  maintain independence of the judiciary and  to avoid any possibility of a sitting or a  retired Judge depending on the executive  for such an appointment. Our attention was  drawn to certain observations in Sarwan  Singh Lamba v. Union of India [(1995) 4  SCC 546 : 1995 SCC (L&S) 546 : (1995)  30 ATC 585], to suggest that the name for  appointment to the Administrative Tribunal  may be suggested even by the executive  which may have the effect of initiating the  proposal. In the facts of that case,  substantial compliance of the requirement  of approval by the Chief Justice of India  was found proved and, therefore, the  appointments were upheld. The  requirement of consultation with the Chief

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Justice in the proviso to Section 16(1)(a)  and Section 20(1)(a) of the Consumer  Protection Act being similar to that in  Article 217, the principles enunciated in the  majority opinion in the Judges-II case must  apply, as indicated earlier, even for  initiating the proposal. The executive is  expected to approach the Chief Justice  when the appointment is to be made for  taking the steps to initiate the proposal.  and the procedure followed should be the  same as for appointment of a High Court  Judge. That would give greater credibility  to the appointment made." (emphasis supplied) The aforementioned decision of this Court is to be read and  understood on the facts and in the context in relation to  initiation of the process for the appointment of a sitting or  retired Judge as the President of the State Commission.   The High Court in the impugned judgment also states that  the judgment of this Court in Ashish Handa should not be  understood or construed as insisting upon to follow the  same procedure, which has to be followed for appointment  of a Judge of a High Court under Article 217 of the  Constitution.  If the judgment in Ashish Handa is to be  read in the way the appellants projected, it will lead to  anomalous situation and further it does not stand to reason.         The process of consultation envisaged under Section  16 of the Act can neither be equated to the constitutional  requirement of consultation under Article 217 of the  Constitution of India in relation to appointment of a Judge  of a High Court nor can it be placed on the same pedestal.   Consultation by the Chief Justice of the High Court with two  senior most Judges in selecting a suitable candidate for  appointment as a Judge is for the purpose of selecting the  best person to the high office of a Judge of the High Court  as a constitutional functionary.  Consultation with the Chief  Justice of the High Court in terms of Section 16 of the Act is  a statutory requirement.  This apart, the interpretation of a  provision of the Constitution having regard to various  aspects serving the purpose and mandate of the  Constitution by this Court stands on a separate footing.  A  constitution unlike other statutes is meant to be a durable  instrument to serve through longer number of years, i.e.,  ages without frequent revision.  It is intended to serve the  needs of the day when it was enacted and also to meet  needs of the changing conditions of the future.  This Court  in R.C. Poudyal vs. Union of India and others , in  paragraph 124, observed thus: - "124.   In judicial review of the vires of the  exercise of a constitutional power such as  the one under Article 2, the significance  and importance of the political components  of the decision deemed fit by Parliament  cannot be put out of consideration as long  as the conditions do not violate the  constitutional fundamentals.  In the  interpretation of a constitutional document,  "words are but the framework of concepts  and concepts may change more than words  themselves".  The significance of the  change of the concepts themselves is vital  and the constitutional issues are not solved  by a mere appeal to the meaning of the  words without an acceptance of the line of

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their growth.  It is aptly said that "the  intention of a Constitution is rather to  outline principles than to engrave details"."

In the first B.N. Rau Memorial Lecture on ’Judicial Methods’  M. Hidayatullah, J. observed, "More freedom exists in the  interpretation of the Constitution than in the interpretation  of ordinary laws.  This is due to the fact that the ordinary  law is more often before courts, that there are always dicta  of judges readily available while in the domain of  constitutional law there is again and again novelty of  situation and approach.  Chief Justice Marshall while  deciding the celeberated Mc. Culloch v. Maryland (4  Wheaton 316, 407) made the pregnant remark \026 "We must  never forget that it is the constitution we are expounding" \026  meaning thereby that it is a question of new meaning in  new circumstances.  Cardozo in his lectures also said: "The  great generalities of the Constitution have a content and a  significance that vary from age to age."  Chief Justice  Marshall in Mc. Culloch vs. Maryland declared that the  constitution was ’intended to endure for ages to come, and  consequently to be adapted to the various crises of human  affairs....’  In this regard it is worthwhile to see the  observations made in paragraphs 324 to 326 in Supreme  Court Advocates-on-Record Association: - "324. The case before us must be  considered in the light of our entire  experience and not merely in that of what  was said by the Framers of the  Constitution. While deciding the questions  posed before us we must consider what is  the judiciary today and not what it was fifty  years back. The Constitution has not only  to be read in the light of contemporary  circumstances and values, it has to be read  in such a way that the circumstances and  values of the present generation are given  expression in its provisions. An eminent  jurist observed that "constitutional  interpretation is as much a process of  creation as one of discovery."  325. It would be useful to quote hereunder  a paragraph from the judgment of  Supreme Court of Canada in Hunter v.  Southam Inc. [(1984) 2 SCR 145, 156  (Can)] :  "It is clear that the meaning of  ’unreasonable’ cannot be  determined by recourse to a  dictionary, nor for that matter,  by reference to the rules of  statutory construction. The task  of expounding a constitution is  crucially different from that of  construing a statute. A statute  defines present rights and  obligations. It is easily enacted  and as easily repealed. A  Constitution, by contrast, is  drafted with an eye to the  future. Its function is to provide  a continuing framework for the  legitimate exercise of  governmental power and, when  joined by a Bill or a Charter of

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Rights, for the unremitting  protection of individual rights  and liberties. Once enacted, its  provisions cannot easily be  repealed or amended. It must,  therefore, be capable of growth  and development over time to  meet new social, political and  historical realities often  unimagined by its framers. The  judiciary is the guardian of the  Constitution and must, in  interpreting its provisions, bear  these considerations in mind.  Professor Paul Freund expressed  this idea aptly when he  admonished the American  Courts ’not to read the  provisions of the Constitution  like a last will and testament  lest it become one’."  326. The constitutional provisions cannot  be cut down by technical construction  rather it has to be given liberal and  meaningful interpretation. The ordinary  rules and presumptions, brought in aid to  interpret the statutes, cannot be made  applicable while interpreting the provisions  of the Constitution. In Minister of Home  Affairs v. Fisher [(1979) 3 All ER 21 :  (1980) AC 319] dealing with Bermudian  Constitution, Lord Wilberforce reiterated  that a Constitution is a document "sui  generis, calling for principles of  interpretation of its own, suitable to its  character". " (emphasis supplied) This Court in Ms. Aruna Roy and others vs. Union of  India and others  recalled the famous words of the Chief  Justice Holmes that "spirit of law is not logic but it has been  experience" and observed that these words apply with  greater force to constitutional law.  In the same judgment  this Court expressed that Constitution is a permanent  document framed by the people and has been accepted by  the people to govern them for all times to come and that  the words and expressions used in the Constitution, in that  sense, have no fixed meaning and must receive  interpretation based on the experience of the people in the  course of working of the Constitution.  The same thing  cannot be said in relation to interpreting the words and  expressions in a statute.         Verma, J. (as he then was) speaking for the majority  in the case of Supreme Court Advocates-on-Records  Association, in paragraph 433, has stated, thus: - "433.   It is with this perception that the  nature of primacy, if any, of the Chief  Justice of India, in the present context, has  to be examined in the constitutional  scheme.  The hue of the word  ’consultation’, when the consultation is with  the Chief Justice of India as the head of the  Indian Judiciary, for the purpose of  composition of higher judiciary, has to be  distinguished from the colour and the same  word ’consultation’ may take in the context

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of the executive associated in that process  to assist in the selection of the best  available material."

(emphasis supplied)

       Pandian,J. in his concurring opinion in Supreme  Court Advocates-on-Records Association  aforementioned, with regard to meaning of the word  ’consultation’ has observed that the derivative meaning of  the word in the context depended not merely on its  ordinary lexicon definition but greatly upon its contents  according to the circumstances and the time in which the  word or expression is used; therefore, in order to ascertain  its colour and content one must examine the context in  which that word is used.  In this regard in paragraph 163 it  is stated that: -         "The word ’consultation’ is used in the  context of appointment of Judges to the  Supreme Court under Article 124(2) and to  the High Courts under Article 217(1).   Though such a consultation is not  constitutionally required in the case of  appointment of other constitutional  appointees, which we have indicated and  itemized in the proceeding part of this  judgment." (emphasis supplied)

Further, in paragraph 196 it is observed that in the  background of the factual and legal position, meaning of the  word ’consultation’ cannot be confined to its ordinary  lexicon definition; its contents greatly vary according to the  circumstances and the context in which the word is used as  in our Constitution.  In paragraph 195 it is stated that the  consultation with the Chief Justice of India by the President  is relatable to the judiciary and not to any other service; in  the process of various constitutional appointments,  ’consultation’ is required only to the judicial office in  contrast to the other high ranking constitutional offices.         It is thus clear that the expression ’consultation’ used  in Article 217 of the Constitution of India in relation to  appointment of High Court Judges cannot be read in the  same way into ’consultation’ as contemplated under Section  16 of the Act in the light of what is stated above in the  Supreme Court Advocates-on-Record Association.   The meaning of the word ’consultation’ must be given in the  context of an enactment.  If the argument that the  consultation process in regard to appointment of a Judge or  retired Judge of High Court to the State Commission under  Section 16 must be in the same manner as required under  Article 217 of the Constitution, it will lead to anomalous  situation.  Under Article 217(1) of the Constitution,  consultation contemplated with constitutional functionaries  mentioned therein is for the purpose of appointment of a  Judge of a High Court and not for appointment of a person  as the President of the State Commission under Section 16  of the Act.  If the consultation to be made for appointment  of a person as President of the State Commission, as  required under Section 16 of the Act, is to be similar as  under Article 217 of the Constitution, then, even in case of  appointment of a retired Judge as President of the State  Commission, such consultation has to be made with all  constitutional functionaries, which does not stand to reason.   Hence, obviously for appointment of a person as President

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of the State Commission consultation as required under  Article 217 of the Constitution as against the requirement  stated in Section 16 of the Act is not necessary.  If that be  so not only opinion of two senior most Judges of the High  Court should be obtained but also the consultation should  be made with other constitutional functionaries as  contemplated under Article 217 of the Constitution including  the Chief Justice of India.  Hence insistence on  ’consultation’ by the Chief Justice of a High Court with his  two senior most colleagues in the High Court for the  purpose of Section 16 of the Act, in our view, is  unwarranted. While dealing with the question of primacy of the  opinion of the Chief Justice of India in that context this  Court held that such opinion of Chief Justice is to be formed  collectively after taking into account the views of his senior  colleagues, who are required to be consulted by him for the  formation of his opinion.  As is evident from paragraph 450  of the same judgment consultation with the Chief Justice of  India was introduced because of the realization that the  Chief Justice is best equipped to know and assess the worth  of the candidate and his suitability for appointment as a  superior judge; and it was also necessary to eliminate  political influence even at the stage of the initial  appointment of a judge.  In order to select the best  candidate and to give primacy to the opinion of the Chief  Justice this Court held that consultation with two senior  most Judges of the High Court was needed in the matter of  recommending a candidate for appointment as Judge of the  High Court.  Under Section 16 of the Act only a person, who  is or has been a Judge of a High Court, is eligible to be  appointed as President of the State Commission.           In the matter of appointment of Judges of the High  Court, in paragraph 478 of the same judgment, it is stated,  thus: -         "In matters relating to appointments in  the High Courts, the Chief Justice of India  is expected to take into account the views  of his colleagues in the Supreme Court who  are likely to be conversant with the affairs  of the concerned High Court.  The Chief  Justice of India may also ascertain the  views of one or more senior Judges of that  High Court whose opinion, according to the  Chief Justice of India, is likely to be  significant in the formation of his opinion.   The opinion of the Chief Justice of the High  Court would be entitled to the greatest  weight, and the opinion of the other  functionaries involved must be given due  weight, in the formation of the opinion of  the Chief Justice of India.  The opinion of  the Chief Justice of the High Court must be  formed after ascertaining the views of at  least the two seniormost Judges of the High  Court."

In regard to initiation of the process for appointment, in  paragraph 478(10) it is stated: - "(10)   To achieve this purpose, and to  give legitimacy and greater credibility to  the process of appointment, the process  must be initiated by the Chief Justice of  India in the case of the Supreme Court,  and the Chief Justice of the High Court in

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the case of the High Courts.  This is the  general practice prevailing, by convention,  followed over the years, and continues to  be the general rule even now, after S.P.  Gupta vs. Union of India [1981 Supp. SCC  87].  The executive itself has so understood  the correct procedure, notwithstanding S.P.  Gupta and there is no reason to depart  from it when it is in consonance with the  concept of the independence of the  judiciary."

In Ashish Handa this Court, having regard to what is  stated above, held that it is the Chief Justice of the High  Court, who should initiate the process in the matter of  appointment of a Judge, sitting or retired, as President of  the State Commission. In that case, as already noticed above, this Court was  dealing with initiation of the process for appointment of a  sitting or retired Judge as President of the State  Commission.  It is in that context this Court held that the  process must be initiated by the Chief Justice of the High  Court and not by the executive of the State.  The reading of  the judgment gives an impression that the consultation  process must be the same in respect of appointment of a  sitting or retired Judge to State Commission as is required  for appointment of a High Court Judge in terms of Article  217 of the Constitution.  Firstly, the said judgment should  be read and understood in the context of that case, the  question that arose for consideration and what was really  decided, i.e., initiation of process by the Chief Justice of the  High Court.  To remove doubt, if any, we make it clear that  the consultation for the purpose of Section 16 of the Act in  relation to the appointment of a Judge or a retired Judge of  a High Court as President of the State Commission cannot  be taken or equated to consultation process as required  under Article 217 of the Constitution, which, in our view, is  the correct position.  Certain statements made by this Court  in Ashish Handa, in para 3, give an impression that Chief  Justice of a High Court has to consult his two senior most  colleagues before recommending a sitting or retired Judge  for appointment as President of a State Commission as per  Section 16 of the Act.  In our view that is not the correct  position and we do not approve the same.  To put it  positively, we state that for the purpose of Section 16 of  the Act a Chief Justice of a High Court need not consult his  two senior most colleagues in the High Court for  recommending a sitting or retired Judge of a High Court for  appointment as President of a State Commission.         We must also keep in mind one more aspect. Under  Article 217 of the Constitution for the purpose of  appointment of a Judge to a High Court in view of decision  in Supreme Court Advocates-on-Records Association  and that too interpreting the constitutional provisions to  maintain the independence of judiciary and to select the  best of the persons as judges such a procedure is adopted.   A person to be appointed as President of the State  Commission has to be necessarily a sitting or a retired  Judge of a High Court and not that any person can be  appointed as President of the State Commission.  This being  the position, it does not stand to the reason as to why  again in respect of a sitting or retired Judge of a High Court  the whole process contemplated under Article 217 of the  Constitution must be resorted to.  To put in clear terms so  as to remove any doubt we state that in the matter of

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appointment of a sitting or retired Judge of a High Court as  President of the State Commission process must be initiated  by the Chief Justice under Section 16 of the Act and  ’consultation’ contemplated in the said Section is  ’consultation’ only with the Chief Justice of the High Court  and not with the collegium.         Argument that the ’consultation’ under Section 16 of  the Act should be with the Chief Justice of the High Court  and not with the Acting Chief Justice is not acceptable and  this argument does not pose any serious problem having  regard to the clear constitutional provision.  The decision in  Bishal Chand Jain vs. Chattur Sen and others (supra),  cited on behalf of the appellants does not help them for the  reasons more than one.  That decision was on the facts of  that case and the question that has arisen for consideration  in the present case did not arise there even remotely.  In  that case plaintiff filed first appeal against the judgment  and decree of Civil Judge made in the original suit.  In the  first appeal a preliminary objection was raised on behalf of  the appellant himself to the effect that the High Court was  not properly constituted and that appeal could not be heard  on the ground that the office of the Chief Justice of the High  Court fell vacant as a result of the elevation of Mr. Justice  V. Bhargava, Chief Justice of that High Court to the Bench  of this Court; Nasirullah Beg, J., a senior most Judge of the  Court was appointed as Acting Chief Justice of the High  Court, but as oath of office had not been taken by him, the  High Court could not be deemed to be properly constituted.   Alternatively, there was no Chief Justice at that time and  thus the Court was not properly constituted.  It was in that  context the Division Bench of the Allahabad High Court, in  paragraph 7, has stated thus: - "(7)     We are, however, of the view that  Article 223 of the Constitution does not  contemplate the appointment of a Chief  Justice of a High Court or an appointment  to the office of Chief Justice of a High  Court.  In spite of such appointment being  made under Article 223, the office of the  Chief Justice remains vacant till a fresh  appointment is made to that office.  It is on  account of the existence of a vacancy in  the office of Chief Justice that one or the  other Judges of the High Court is appointed  by the President for the purpose of  performing the duties of the office of Chief  Justice.  If such appointment is to be held  to put an end to the vacancy, then the  exigency of such an appointment ceases to  exist.  It, therefore, follows that exercise of  powers under Article 223 of the  Constitution by the President does not  result in an appointment to the office of  Chief Justice and in spite of such  appointment, the office of the Chief Justice  remains vacant.  All that happens is that  during the continuance of that vacancy, the  duties of that office are to be performed by  one or the other Judges of the High Court  as the President may appoint for the  purpose.  The word "temporarily" used in  Article 224 clause (2) governs the words  "to act".  The language of clause (2) of  Article 224, therefore, does not mean that  an appointment of a Judge of a High Court

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to perform the duties of the office of the  Chief Justice under Article 223, is the  appointment of a temporary Chief Justice.         It is true that both in its marginal note  and Article 223 the words "appoint" or  "appointment" has been used.  But from  this it does not necessarily follow that the  appointment is an appointment to the  office of the Chief Justice.  In the marginal  note, it is clear that the appointment is not  of a ’Chief Justice’ but of ’an acting Chief  Justice’.  In the Article itself the word  "appoint" relates to the appointment of  such of the other Judges of that Court as  the President may choose for the purpose  of performance of the duties of the office of  Chief Justice.  It is only when the  appointment is not an appointment to the  office of Chief Justice, that it could be said  to be an appointment of one or the other  Judges of that Court for the purpose of  performing the duties of the office of Chief  Justice.  We have, therefore, no hesitation  in coming to the conclusion that an  appointment of one or the other Judges of  the High Court to perform the duties of the  office of Chief Justice when that office is  vacant, is not the appointment of a Chief  Justice to that office.  It really results in an  arrangement for the performance of the  duties of the vacant office of the Chief  Justice pending a fresh appointment to the  office of Chief Justice." A careful reading of the paragraph extracted above  shows that an appointment of one or the other Judges of  the High Court to perform the duties of the office of Chief  Justice really results in an arrangement for the performance  of the duties of the vacant office of the Chief Justice  pending fresh appointment to the office of the Chief Justice.   In that case the view was that even if an acting Chief  Justice is appointed under Article 223 of the Constitution for  performance of the duties of the Chief Justice, the office of  Chief Justice still remains vacant.  This also shows that one  or the other Judges of the High Court can perform the  duties of the Chief Justice.         In the case on hand we have to consider whether  acting Chief Justice could be consulted under Section 16 of  the Act or the process initiated and opinion given by the  acting Chief Justice could be valid to satisfy the requirement  of the said Section.           In the very terms of Article 223 of the Constitution,  when the office of Chief Justice of a High Court is vacant or  when any such Chief Justice is by reason of absence or  otherwise, unable to perform the duties of the office of the  Chief Justice, duties of the office of Chief Justice shall be  performed by such one or the other Judges of the Court as  the President may appoint for the purposes.  Plain reading  of this Article shows that one or the other Judges of the  High Court appointed in the vacancy of Chief Justice of a  High Court for the time being can perform the duties of the  office of Chief Justice.  No restriction or limitation in  performance of duties by acting Chief Justice can be read  into the said Article.  The Article also does not indicate as to  which of the duties of the Chief Justice can be performed or  which of the duties cannot be performed by the acting Chief

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Justice.  Appointment of one or the other Judges of a High  Court as acting Chief Justice is meant to carry on the work  of the High Court and the judiciary in the State.  May be  sometimes appointment of Chief Justice to a High Court  may take some time for various reasons and consequently  acting Chief Justice continues to work for longer period, but  that itself does not take away the powers conferred by the  Constitution on a Judge to act as Chief Justice to perform  the duties of the Chief Justice.  Normally the senior most  puisne Judge is appointed as acting Chief Justice.  Such  puisne Judge is expected to act appropriately in discharging  the duties of the office of Chief Justice.  It is rule of  prudence that the acting Chief Justice may not take major  decisions which otherwise could have been taken by the  Chief Justice or which decisions could wait for a Chief  Justice.  Assuming that some decisions taken by an acting  Chief Justice are required to be modified or corrected, that  can be done either on administrative side or on the judicial  side by the High Court or by this Court including the Chief  Justice of India, as the case may be.  In some cases if  appointment of Chief Justice of a High Court takes longer  time and the acting Chief Justices cannot discharge the  duties of the office of the Chief Justice the work of the High  Court or the State judiciary or for the matter wherever the  opinion of Chief Justice is required like the one under  Section 16 of the Act, it will result in anomalous position  leading to paralyzing the working or may be sometimes  creating a deadlock.  When Article 223 of the Constitution  in specific terms confers powers on acting Chief Justice to  discharge the functions of the office of Chief Justice without  any limitation or rider, it cannot be accepted that an acting  Chief Justice cannot perform the duties expected to be  performed by him under Section 16 of the Act.   Consultation with acting Chief Justice under Section 16 of  the Act is to be taken as consultation with the Chief Justice  of a High Court.   Powers  conferred  under  Article  223 of  the  Constitution  on  an  acting  Chief Justice to perform  the  duties  of  the  Chief  Justice  is  available  for  the  purpose  of  Section  16  of the Act.  We may hasten to add  that it is not the case of the petitioner in High Court that  the Chief Justice of the High Court was going to be  appointed shortly or the matter of appointment of President  of the State Commission was such, which on the facts and  in the circumstances of the case, did not call for an  immediate decision by Acting Chief Justice and could have  waited for the appointment of the Chief Justice of the High  Court.  In other words, no statutory provision can stand in  the way of constitutional provision in case of conflict  between them.           Thus, having examined all aspects and in the light of  what is stated above we are of the view that the High Court  was right in dismissing the writ petition.  We do not find  any good ground or valid reason to disturb the judgment  under challenge.  Consequently the appeal is dismissed  leaving the parties to bear their own costs.