TaxTMI 
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2009 (5) TMI 977
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....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 made by the High Court as to whether the appellant was entitled to pensionary and other be....
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....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/- CJ 16.06.2008 9. 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. WRIT PROCEEDINGS 10. Three writ petitions were filed by s....
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.... 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) 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? FINDINGS OF THE HIGH COURT Re : Question No. 1 19.....
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....ider 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 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....
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....en 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 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. 26. 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 ma....
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....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 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. 31. 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 definition....
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.... 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 words used. However, if plain meaning assigned to the section results in absurdity or anomaly, literal meaning indisputably would not be applied. 39. 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 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 functi....
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....titutions 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 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 ....
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....ed 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, 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....
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.... 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 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, wherefore 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]SUPP1SCR134 laid down some broad guidelines as to t....
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....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 somewhat different view 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. 54. In S.P. Gupta (supra), this Court....
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....tage 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 deficiency in qualification, he could be recommended for appointment to a statutory post, the eligibility criteria wherefore 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. 59. 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 n....
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.... 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 done having regard to the text and context thereof. 66. 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). 67. In Carew and Company Ltd. v. Union of India [1976]1SCR379 , Krishna Iyer, J. opined: 21. The law is not "a brooding omn....
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....re. 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. 71. This Court Atma Ram Mittal v. Ishwar Singh Punia (1994)IIILLJ972SC : 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 sig....
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....s 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 employed for making an exemption notification a workable one. 75. 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: 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 conc....
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....ey 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 given their ordinary meaning. In that case, itself, this Court has referred to the `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. 78. 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 in....
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....ave 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. 81. Yet again in Ashok Tanwar and Anr. v. State....
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....or 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 83. Independence and impartiality of judiciary is a basic feature of the Constitution. Constitutionalism envisages tha....
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....ns 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. 87. 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 rea....
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....ho 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 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: 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 re....
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....ng 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(1A), 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. 97. 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....
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....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 the position of the Additional Judges, it was clearly held that same process must be followed. 100. Fazal Ali, J. in his concurrent judgment noticed Union of India v. Sankalchand Himatlal Sheth [1978]1SCR423 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 ....
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....erform 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 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. 106. 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' wherefore 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 Colleg....
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....nd other decisions, noticed: 9. Pathak, J (as the Hon'ble Judge then was) had expressed similar opinion by observing that in following the procedure of Article 217(1) while appointing an Additional Judge as a Permanent Judge there would be reduced emphasis with which the consideration would be exercised though the process involves the consideration of all the concomitant elements and factors which entered into the process of consultation at the time of appointment earlier as an additional Judge. The position was succinctly stated by observing that there is a presumption that a person found suitable for appointment as an Additional Judge continues to be suitable for appointment as a Permanent Judge, except when circumstances or events arise which bear adversely on the mental and physical capacity, character and integrity or other matters rendering it unwise to appoint him as a permanent Judge. There must be relevant and pertinent material to sufficiently convince a reasonable mind that the person is no longer suitable to fill the high office of a Judge and has forfeited his right to be considered for appointment. 110. It was furthermore opined: 15. As rightly submitted by l....
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....sclose it. 113. 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: (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. ....
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....tter 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. 118. 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. 119. 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. 120. The consultative process brings within its ambit a heavy duty....
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....f 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. 123. 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 of a State Commission made in terms of Section 16 of the Act would be maintainable. 124. 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. 125. 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....
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.... 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. 129. 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 therefore 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. 130. 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 to enable the Chief Justice of India vis-à-vis the collegium....
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....t - 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. 136. 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 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 Ors. reported in [1950]1SCR621 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....
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....find place in Section 4 as it stood originally. It was introduced in Section 4 in 1959 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.... 140. In Rohtas Industries v. S.D. Agarwal and Ors. [1969]3SCR108 , 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. 141. 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. 142. 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. 143. Even otherwise, the floodgate argument does not appeal to us. 144. In Coal India Ltd. and Ors. v. Saroj Kumar Mishra AIR2007SC1706 , this Court held: 19. The floodgate argument also does not ap....
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....eprived of public office to which it has a right. 150. It is indisputably a high prerogative writ which was reserved for the use of Crown. 151. 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. 152. 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. 153. 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.....
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....text 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 "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) mean....
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....ibunal, we cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf.... 165. 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. 166. We may incidentally place on record that a declaratory relief had also been prayed for in the writ petitions filed by the respondents. 167. Reliance has also been placed on a decision of this Court in Union of India and Ors. v. Kali Dass Batish and Anr. AIR2006SC789 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. ....
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....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". 170. 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. 171. The observations of the Bench, as noticed hereinbefore, must be understood in the factual backdrop of the case. The argument which was advanced therein, viz., the Chief Justice of India might not have been supplied with necessary inputs was found to be wholly meritl....
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.... 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 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 deriv....
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....ssion, 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 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 j....
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.... 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 ....
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....r 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. 189. In Ashok Tanwar (supra) it was held: 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 ....
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....tion 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. 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 ....
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....n 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. 191. 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. 192. We have, therefore, no hesitation in holding that the process adopted by....