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1974 (2) TMI 87
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.... Kumaramanglam, the then Minister of Steel and Mines, was also in the array of respondents but his name was deleted on his demise. (2) The counter affidavits have replied to the facts relating to the merits of the petitions and at the same time contain demurrers, speaking generally to the jurisdiction of this Court to issue the writ and to the maintainability of the petitions and for that reason it was thought proper to first hear three of the preliminary objections as they were stated to go to the root of the matter. (3) It is necessary to state the facts shortly to furnish a backdrop for the discussion particularly because, admittedly, preliminary objections have to be decided on the assumption that the facts alleged by the petitioners are correct. I would like to emphasize this aspect of the matter because my opinion is not to be taken to be a finding as to the truth or correctness or otherwise of the facts alleged. A further fact may also be stated here, namely, that Justice A. N. Ray was appointed the Chief Justice of India by a warrant under the hand and seal of the President of India in pursuance of clause (2) of Article 124 of the Constitution. (4) I state the facts alle....
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....the Supreme Court where there is a certain degree of stability required in order that the law of the land may be settled. In order that there should be no uncertainty, we will have a Supreme Court which will know its mind and give a clear verdict so that we know what the law of the land is." Justice Hegde told a Press Conference at which the petitioner, P.L. Lakhanpal was personally present, that the Prime Minister was personally piqued with him for his decision in her election appeal and that Mr. Kumaramangalam had differences with him which were fundamental and deep-rooted. Certain other quotations from Justice Hegde's statement are given. Mr. Kumaramangalam said in the Lok Sabha on May 2, 1973 that the Government wanted to appoint as Chief Justice a person who would "help in ending confrontation between the judiciary and Parliament, one who would appreciate the winds of change sweeping the country and one who will help us in Court." He also said that the appointment was made "in the interest of certainly about the state of law and a stable relationship between the court and ourselves." The appointment of Justice A. N. Ray as the Chief Justice of Indi....
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.... issuing a writ of certiorari, mandamus or prohibition with respect to matters which are being heard by the Supreme Court and writs cannot be issued to superior Courts. As a subsidiary point it is urged that if the appointment of the Chief Justice of India is set aside by a writ of quo warranto, the Supreme Court will not be able to hear any appeal against the orders of this Court in these petitions in the absence of the Chief Justice of India. The Additional Solicitor General has urged that no Court has any jurisdiction to issue a writ of quo warranto against any Judge of the Supreme Court or the Chief Justice of India or against any Judge of a High Court including its Chief Justice who is appointed by the President by warrant under his hand and seal. The issue of such a writ would involve the ouster or, in other words, removal from office which can be done only in the manner prescribed by clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge of the Supreme Court or the Chief Justice of India and Article 218 read with clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge or Chief Justice of a High Court. (7) Before I deal with the p....
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....t, if there is one, could be cured, and they could be reappointed. Rex v. Stacey : 99 Engl Rep 938 holds that writ of quo warrant, is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford : The Rev. Thomas Thellusson Carter : 5 AC 214 (3) also states that the issue of writ of quo warranto is in the discretion of a Court. The Canadian view as stated in The King excel Boudret v. Johnston : (1923) 2 DLR 278 is that the Court has to take into consideration public interest, the consequences to follow the issue of a writ of quo warranto and all the circumstances of the case. These general propositions have been accepted in America as appears from the statements contained in sections 5, 9, 10 and 18 in American Jurisprudence, Second Edition, Volume 65. (10) The above views and statements indicate and reflect the principles which have guided courts outside our country in issuing writs of quo warranto. There is abundant authority that these principles have been accepted and applied in this country. University of Mysore and another v. C. D. Govinda Rao and ano....
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....cable here and that the scope of quo warranto as also of other writs which can be issued by the High Courts and the Supreme Court is wider in view of the words "in the nature of" appearing in Articles 32 and 226 of the Constitution. These words do not justify the argument because these very words preface the words "a Quo Warranto" as is apparent from para 273 at page 145 of Halsbury's Laws of England, Third Edition, Volume II. Certain cases have been cited to support this proposition. I do not think any of them supports it. The first case is Statesman (Private) Ltd. v. H. R. Dev and others: [1968]3SCR614 . The question in this case was whether a Sub-Deputy Collector vested with magisterial powers could be said to have held a judicial office within the meaning of section 7(3)(d) of the Industrial Disputes Act, 1947 so as to make him eligible for appointment as the Presiding Officer of a Labour Court. The case started by way of a writ of certiorari under Article 226 of the Constitution against the order of the Presiding Officer. It was held that a Magistrate holds a judicial office. Sub-section (1) of section 9 of the Act conferred finality to orders Constitut....
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....he petitioner. A contention was raised by the respondents that a writ of quo warranto cannot be issued if the defect can be remedied by the authority who committed the mistake by amending the rules with retrospective effect. The principle of "could be reappointed" is entirely different. It does not contemplate a change in the existing law. It proceeds on the basis that there is no legal impediment to a re-appointment according to the law as it stands. A possibility of change in the law with retrospective effect, as suggesed in this case, would not come within the principle of futility of the writ. By reason of lacking in qualifications or being junior, there was an existing legal impediment to re-appointment. The next case relied upon is Prabhudutt Sharma v. State of Rajasthan and others: 1971 Lab Indu Cas 556. This case, rather than support the petitioners, goes against their contention. It is clearly stated that the conditions for the issue of a writ of quo warranto are similar to those for laying an information in the nature of a quo warranto in England. Then it specifies the four requisites for a writ of quo warranto namely, (1) the office must be held under the State....
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....w it does. In Narayan Keshav Dandekar v. R. C. Rathi and another: AIR1963MP17 . Apart from holding that the appointment was in violation of the provisions of a statute, it was held that the appointment had been made contrary to Article 16 of the Constitution as before making the appointment, the post was not regularly advertised nor were any applications invited from persons qualified to hold the post. No argument of futility was addressed in this case possibly because the appointment was held to be in violation of Article 16 of the Constitution thereby depriving other person from applying for the post. This case can, Therefore, be no authority for the proposition now being considered. In Puranlal Lakhanpal v. Dr. P. C. Ghosh and others: AIR1970Cal118 the question was whether a writ of quo warranto should issue to a person who had resigned from his office. I do not at all see the relevancy of this case to the contention being discussed now. None of these cases, Therefore, supports the argument that scope of Articles 32 and 226 is wider in so far as the writ of quo warranto is concerned. (13) On the other hand, in Janardan Reddy and others v. The State of Hyderabad and others: 1951....
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....ia is a good, valid and legal warrant and exists in fact and in the eye of law or it is bad, invalid and illegal and does not exist in the eye of law though it exists in fact. In the former case, a writ of quo warranto cannot issue and it gives good, valid and legal title to Justice A. N. Ray to function as Chief Justice of India- In the alternative and converse case, having no existence, validity or effect in the eye of law, it cannot affect the continued existence, validity or effect of the first warrant of appointment as a Judge of the Supreme Court. (16) Mr. Lakhanpal further contends that the two offices, namely, (1) Judge of the Supreme Court and (2) Chief Justice of India, cannot vest in the same person at the same time. In other words, the contention is that the Chief Justice of India is not a Judge of the Supreme Court. Otherwise, says he, the Chief Justice of India will be entitled to draw salary as such as also as a Judge of the Supreme Court under Article 125(1) of the Constitution. The language of this Article is, I am clear, destructive of the argument. This Article says that there shall be paid to the Judges of the Supreme Court such salaries as are specified in the....
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....r to the conclusion that Chief Justice of India is a Judge of the Supreme Court. (17) In support of his contention, Mr. Lakhanpal first relies on Kashi Nath Misra Vs. University of Allahabad and others: AIR1967All101 where after discussing some Articles of the Constitution pertaining to the High Court, namely, Article 216 comparable to Article 124(1), Article 217 comparable to Article 124(2), Article 219 comparable to Article 124(6), Article 220 comparable to Article 124(7), Article 221 comparable to Article 125(1), Article 222 and Article 223 comparable to Article 126, the Division Bench expressed the view that,- " THESE provisions and many others in the Constitution clearly show that the office of the Chief Justice is a distinctly different office from that of a Judge and normally a Chief Justice of a High Court is called Chief Justice of that Court and not a Judge of that Court." This observation does not mean that the Chief Justice of a High Court ceases to be a Judge of that Court. All that is meant is that the office of the Chief Justice of a High Court is an office different from the office of a Judge of the High Court and the former is normally called the Chie....
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.... a writ of quo warranto, he, as the senior-most puisne Judge of the Supreme Court, will be entitled to be appointed as the Chief Justice of India if the contention that the convention of seniority is a rule of law and is inherent in Article 124(2) of the Constitution be correct. I make it clear that what I have said is not to be taken to be the expression of an opinion either that there is such a convention or that it has such effect. Therefore, not only being eligible for reappointment as Chief Justice of India but being entitled to be so reappointed, a writ of quo warranto ousting Justice A. N. Ray from the office of the Chief Justice of India will be futile and such a writ cannot be issued. (19) Then I deal with the other facet of this preliminary objection which arises out of the averment that the requirement of consultation under Article 124(2) of the Constitution is mandatory. The Attorney General presses for acceptance of the argument of futility even if it be so. The Atterney General does not dispute that if an order is passed in violation of or contrary to the mandatory provisions of a statute or of the Constitution, it would be illegal and void and as such will not have ....
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.... only be in the affirmative because the relevant question is not whether he "would" be re-appointed but whether he "could" be re-appointed after such consultation. The answer as stated by me is as it is because normally it is only the alleged usurper holding the office who is the only necessary party to an information in the nature of quo warranto. The appointing authority is not a necessary party: see Ashgar Ally v. Dr. Birendra Nath Dey : AIR1945Cal249 where Gentle, J. was considering the question whether in the information by way of quo warranto at the instance of a relator before him, the Government or the Corporation were proper parties. He held that the relator being the only party, the absence of the Government or of the Corporation from the array of parties could not prevent relief being granted. Whichever way the matter is looked at, I have to conclude that Justice A. N. Ray "could" be re-appointed by the appointing authority by going through the process of consultation as envisaged by Article 124(2) of the Constitution. (20) I may here notice another argument on behalf of one of the petitioners. The argument is that the principle of futility....
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....ot admission that the appointment of Justice A. N. Ray is mala fide. It is indisputable that mala fide action is no action in the eye of law. But to my mind, the mala fide of the appointing authority or, in other words. the motives of the appointing authority in making the appointment of a particular person are irrelevant in considering the question of issuing a writ of quo warranto. It is a writ, as I have stated, of a technical nature. It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office. What works in the mind of the appointing authority in appointing a particular person is irrelevant and does not fall to be considered in a proceeding of quo warranto and in determining the title of the person who has been appointed. Otherwise, the alleged usurper will be at a great disadvantage. He is, normally, the only party to the petition. He could certainly be called upon to show his authority or warrant to hold the office. He can also be called upon to show whether he possesses the necessary qualifications prescribed for that office. He can be asked ev....
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....adisan, J. was more direct. He said :- "I am of opinion that questions of alleged motive and purpose supposed to constitute the background for the order of appointment of the first respondent are wholly foreign to the scope of the present proceedings before us. As observed by Lord Denning in his Hamlyn Lectures on Freedom under the Law: 'No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do.' Act of favoritism by way backdoor appointment and deviation from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction of the courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Prerogative writs which this court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to. The province of this Court in a quo warranto proceeding is to determine whether there has been usurpation of a public office and not to search the conscience o....
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....in future that the Chairman who was the holder of the office acted willfully and contumaciously in his own election, the Court might, in its discretion, order the filling of an information in order to check such a practice. This case does not support the petitioners. In Mahabir Prasad Sharma v. Prafulla Chandra Ghose and others : AIR1969Cal198 , the petition for a writ of quo warranto came up for admission and it was dismissed in liming. The learned Judge observed at that stage that the impugned orders of the Governor could not be said to be tainted with mala fide. The question whether the motive of the appointing authority is relevant in a petition for a writ of quo warranto was neither raised nor decided. This case cannot, Therefore, be an authority for the proposition. It is then contended that the view expressed by the Madras High Court in A. Ramachandran v. A. Alagiriswami (supra) with regard to the irrelevancy of the motives or mala fides of the appointing authority has been impliedly over-ruled by the observation of Supreme Court in University of Mysore and another v. C. D. Govinda Rao and another (supra) that proceedings by way of quo warranto "also tend to protect the....
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....and the attack was that the alleged opinion of the Provincial Government that it was necessary to supersede the Commissioners for ensuring the due maintenance of the vital services in the event of hostile attack was not an honest and bona fide opinion but had been procured by one Pain who was the Chairman of the Municipality . There was no attack on the appointment of Nomani being mala fide. That is the essential difference between that case and the case before me. In the case .before me, there is no order of supersession as such which could be set aside as having been passed for a collateral purpose resulting inevitably in the order of appointment being rendered of no effect. The order of supersession in that case was held to be mala fide and, Therefore, automatically the position in law would be that the Municipality was not superseded and its Commissioners including the Chairman would continue to exercise the powers and perform the duties which they were exercising and performing before the order of supersession. This situation would inevitably result in the order appointing Nomani being rendered of no effect. The real question is whether mala fide of the appointing authority in....