2009 (5) TMI 977 - SC - Indian Laws

Appointment of Additional Judge as State Consumer Commission President Invalid Due to Integrity Concerns; Appeals Dismissed.

N. Kannadasan Versus Ajoy Khose and Ors. AND Government of Tamil Nadu rep. by its Secretary Versus Anna Mathew and Ors.

The SC held that the appointment of an Additional Judge as President of the State Consumer Disputes Redressal Commission was invalid. The Court found the ... 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') question involved herein - Interpretation of sec 16 of the Act - 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 - During his tenure as an Additional Judge a representation was made from the Members of the Bar alleging lack of probity against him - he was not appointed as a Permanent Judge as a result whereof demitted his office - He resumed practice in Madras High Court - the Government of India by its letter 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, he was appointed as an Additional Advocate General of the State of Madras - Appellant name was included in the list of retired Judges - Before the post of President of the Commission fell vacant, the Government of Tamil Nadu 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 - The Government of Tamil Nadu appointed Shri Kannadasan as the president of the Commission - HELD THAT:- 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'. 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. 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. We say so for more than one reason. Section 16(1)(b)(iii) 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 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. CONSULTATION - Whether the consultative process required to be gone into for the purpose of appointment of Chairman, State Commission was complied with - 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. 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 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 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. 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. 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 [1981 (12) TMI 165 - SUPREME COURT] 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 - 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. 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. PANEL - 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 retired High Court Judges after approval by Hon'ble the Chief Justice of the High Court of Madras for its consideration therefore. 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. 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 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 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. 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. Conclution - The summary of our 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 ad hoc 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. (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. Issues Involved:1. Eligibility of an Additional Judge for appointment as President of the State Consumer Disputes Redressal Commission.2. Requirement and validity of the consultative process with the Chief Justice.3. Legality and validity of the appointment against public interest.4. Issuance of writ of Quo Warranto and writ of declaration.5. Process of sending a panel of names for appointment.Issue-wise Detailed Analysis:1. Eligibility of an Additional Judge for Appointment:The Supreme Court examined whether an Additional Judge, who was not confirmed as a Permanent Judge, could be appointed as the President of the State Consumer Disputes Redressal Commission under Section 16 of the Consumer Protection Act, 1986. The Court held that an Additional Judge who had demitted office and was not made permanent due to allegations of lack of probity could not be considered eligible for such an appointment. The Court emphasized the need for purposive interpretation over literal interpretation, stating that it would be a travesty of justice to appoint someone found unsuitable for a judicial office to another judicial position.2. Requirement and Validity of the Consultative Process:The Court scrutinized whether the consultation with the Chief Justice of the High Court was effective and meaningful. It was found that the Chief Justice recommended the name of the Additional Judge without considering the background and reasons for his non-confirmation as a Permanent Judge. The Court concluded that the process of consultation was vitiated due to the non-consideration of vital aspects, rendering the appointment process invalid.3. Legality and Validity of the Appointment Against Public Interest:The Court noted that the records indicated allegations against the Additional Judge, including lack of integrity and honesty. It was held that the appointment was against public interest as the individual was not confirmed as a Permanent Judge due to these allegations. The Court reiterated that a person lacking the necessary qualities for a judicial office should not be considered for any other judicial position.4. Issuance of Writ of Quo Warranto and Writ of Declaration:The Court addressed the issuance of a writ of Quo Warranto, which challenges the authority of a person to hold a public office. It was held that such a writ could be issued if the appointment was made in violation of statutory provisions. The Court also acknowledged the issuance of a writ of declaration, stating that it could declare the appointment invalid if the process and eligibility criteria were not met.5. Process of Sending a Panel of Names for Appointment:The Court examined the process where the Chief Justice sent a panel of three names to the State Government for appointment. It was held that this process was impermissible as the Chief Justice should have recommended only one name. The practice of sending a panel eroded the primacy of the Chief Justice in the appointment process, which should be based on his sole recommendation to maintain judicial independence.Conclusion:The Supreme Court concluded that the appointment of the Additional Judge as the President of the State Consumer Disputes Redressal Commission was invalid due to the lack of effective consultation and the individual's ineligibility. The Court emphasized the need for purposive interpretation of statutory provisions to uphold judicial independence and integrity. The appeals were dismissed, and the appointment was declared illegal.