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  6th 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  

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(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 5th 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 29th 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 6th 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  

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letter to the Registrar General of the Madras High Court on 24th May, 2008.  

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

in that behalf by the Full Court on 11th July, 2008.   

PROCEEDINGS FOR APPOINTEMNT

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

Government of Tamil Nadu by a letter dated 30th 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 5th July, 2008.

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

Roc.341/2008 dated 14th July, 2008 refers to the letter of the Government  

dated 30th 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.

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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

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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 26th July, 2008.  

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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  26th 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  

26th 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.

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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 ?

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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?

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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  

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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  

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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.   

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(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.  

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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.   

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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  

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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  

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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.   

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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  

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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 18th 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.  

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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  

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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

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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.

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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 1st 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:

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“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.”

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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  

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‘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  

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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.”

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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  

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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 :-

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“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  

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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.”

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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  

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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  

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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  

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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  

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“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:

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“(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.”

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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  

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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  

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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  

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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  

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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.”

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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  

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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  

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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  

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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  

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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  

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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  

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‘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.

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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].

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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  

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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.”

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(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  

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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  

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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  

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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  

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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.

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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 30th 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  

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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  

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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.   

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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 :-

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“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.

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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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