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2009 (5) TMI 977
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....on Act, 1986 (`the Act') is the question involved herein. BACKGROUND FACTS: 2. The said question arises in the following factual matrix. 3. 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 (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. 4. 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 ....
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....rmer 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: 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. 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/....
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....tection Act, 1986 or any other similar offices in other Tribunals & Commissions ? 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 ? 18. 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) Whet....
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....urable 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 being considered, the process of consultation having been vitiated, the ultimate order is also vulnerable. Re : Question No. 3 21. The records produced by the Additional Solicitor General appearing for the Central Government and the learned Counsel fo....
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.... 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. 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 ....
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....rticle 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. 29. 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. 30. Article 222 provides for a transfer of a judge. Indisputably again an additional jud....
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....s 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. Appeal against the orders passed by the Commission shall lie only before the National Commission. 36. 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 37. 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. 38. 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....
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....s 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 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 expec....
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....ciation and Ors. v. Union of India AIR1994SC268 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 AIR1987SC454 . 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 45. In Re - Special Reference No. 1 of 1998, (1998) 7 SCC 739, i....
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....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 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 47. 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 b....
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....mission 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. 53. 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 so....
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....nsibility 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 everywhere and therefore the People's faith in the Judiciary cannot be afforded to be eroded. 58. 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 deficie....
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....tice 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. 64. 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 65. 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 of a statute would not necessarily depend upon application of any known formalism. It must be don....
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....dence 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. 69. In the aforementioned case, therefore, some words were read into and the plain and natural construction was not given. 70. In Bhudan Singh and Anr. v. Nabi Bux and Anr. [1970]2SCR10 , 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 see....
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....is 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.) 74. In Union of India v. Ranbaxy Laboratories Limited and Ors. AIR2008SC2286 , this Court held that the principles of purposive construction may be emplo....
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.... 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. 77. Mr. Venugopal would, however, place strong reliance on Harbhajan Singh v. Press Council of India and Ors. [2002]2SCR369 to emphasise that the golden rule is that the words of statute must be prima facie g....
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....t 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 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 maj....
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....intment 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 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 constitut....
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....concerned with a situation of this nature. 85. 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 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'. 86. 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....
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....rman 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. 90. 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]3SCR810 , 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. 91. As regards the qualifications ....
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....pointment 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. 96. In State of Haryana and Ors. v. National Consumer Awareness Group and Ors. AIR2005SC2356 this Court did not give a literal 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 ....
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....ce" (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 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. 99. In regard to....
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....mplete 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. 103. 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. 104. Keeping in mind the aforementioned legal scenario the question as to whether the consultative process had been gone into, must be considered. 105. 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 w....
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....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 be justified in not recommending him for appointment and in fact it would be his duty not to recommend his name. 109. We may notice that recently a Division Bench of this Court of which one of us (Dr. Justice Mukundakam Sharma) was a member in Shanti Bhushan and Anr. v. Union of India and Anr. (supra) referring to S.P. Gupta (supra), Supreme Court Advocates-on-Record Association (supra) and other decisions, noticed: 9. Pathak, J (as the Hon'ble Judge then was) had expressed similar opinion by o....
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....owed 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 improper but also undesirable to continue him as an Additional Judge. 112. 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. 113. While saying so, the court while considering the case of S.N. Kumar who had....
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....ould 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 wherefore sufficient material existed. Arriving at such a conclusion was an objective opinion on the part of the collegium. 115. 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. 116. 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. 117. 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 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 ....
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....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 therefore. We are not oblivious of the fact that no court howsoever high 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 consul....
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.... 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 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. 128. It may be true that the statute does not lay down an ob....
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....e held to be beyond its pale. 133. While we say so, we are not oblivious of the fact that the recommendations are required to be made from amongst the limited 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. 134. 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. 135. 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 1949 PC 136, wherein it was held: 21. Their Lordships now turn to the question of construction of Section 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 ....
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....n 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 "a....
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....fice 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 `has been a Judge'. The proviso appended thereto, however, mandates consultation by the State Government with the Chief Justice of the concerned High Court. 148. 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. 149. 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 m....
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.... 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 Anr. v. The Speaker and Ors. [1993]2SCR820 ]. 157. 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. 158. 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. 159. 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 govern....
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....ecome 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. 163. 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. 164. 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....
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....l, 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 sensitive post like member of CAT. In Delhi Admn. v. Sushil Kumar 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 pass....
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....rotrao and Ors. [1979]3SCR1078 wherein it has been held that Regulation 25 of the Life Insurance Corporation of India (Staff) Regulations 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 lite....
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....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 179. 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. 180. Independence of the judiciary as embedded in Article 50 of the Constitution of India needs no over-emphasis. 181. 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. 182. 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. 183. The process of selection in view of the decisions of this Court in Ashish Handa (supra) and ....
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....rue 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. 186. 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. 187. 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. 188. In A. Pandurangam Rao v. State of Andhra Pradesh and Ors. [1976]1SCR602 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 en....
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....e could not understand the reason for writing such a letter 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 Co....
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....etter 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. 190. In National Consumer Awareness Group (supra) this Court has held: 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....
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....b and Haryana High Court to the newly introduced Section 16(1A), 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(1A). There was certain other correspondence about certain representations made, which is not material. x x x 18. We are unable to accept this contention of the learned Counsel for the Union of India. It is inconceivable that Sub-section (1A) 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 (1A). This conclusion of ours is driven home by the proviso to Sub-section (1A). This proviso is intended to take care of a contingency where there exists a Pr....
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.... 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. 194. 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 resignatio....