TaxTMI 
TaxTMI 
2004 (12) TMI 728
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....ted in consultation with the Chief Justice of the State. The question which arises is whether consultation with an Acting Chief Justice is sufficient compliance or not. This question involves interpretation of Articles 217 and 223 of the Constitution and as there is no decision of this Court which can be applied in the present case, then by virtue of Article 145(3) of the Constitution this case involving the said question of law involving interpretation of the Constitution should be heard by a Bench of not less than five learned Judges. Let the papers be placed before the Hon'ble the Chief Justice of India for appropriate orders for hearing of the case as expeditiously as possible and within a period of four months." Articles 217 to the extent relevant and 223 of the Constitution of India read: - "217. Appointment and conditions of the office of a Judge of a High Court. - (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief....
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....g up the vacancy to the post of President of the State Commission in accordance with the provisions of the Act and the law laid down by this Court in Ashish Handa, Advocate v. Hon'ble the Chief Justice of High Court of Punjab & Haryana and Ors., [1996]3SCR474 . 6. On 7th March 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 the steps may be taken for appointment of Mr. Justice Surinder Swaroop (respondent No. 3 herein) as President of the State Commission in accordance with law and rules. Thereafter, a notification dated 13th March, 2000 was issued by the Governor, Himachal Pradesh, appointing Justice Surinder Swaroop as President of the State Commission. 7. Appellant No. 1, a permanent resident of Namol and a practicing advocate at Solan and appellant No. 2, a retired Research Officer resident of Shimla, filed Civil Writ Petition No. 647 ....
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....espondent No. 1 or by respondent No. 2 could not be said to be contrary to law or the directions issued by this Court in the case of Ashish Handa (supra). Consequently the writ petition was dismissed. Hence, this appeal. 10. The High Court, in the impugned judgment, dealing with initiation of the process and consultation for appointment of respondent No. 3 as President of the State Commission, has observed, thus: - "The counsel for the petitioners contended that appointment of a person as President to the State Commission, as ruled by the Supreme Court in Ashish Handa, has to be made in accordance with the provisions of Article 217 of the Constitution. In other words, before an appointment of a sitting or retired Judge of a High Court is made as the President of the State Commission, there should be consultation at three levels; firstly, consultation with the Chief Justice of India, secondly, consultation with the Governor of the State and thirdly, consultation with the Chief Justice of the High Court concerned. xxx xxx xxx xxx Hence, if the submission of the learned counsel is upheld, the result would be as under....
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....rt of Allahabad in Bishal Chand Jain v. Chattur Sen and Ors., (1968)IILLJ708All . 12. In opposition learned counsel for the respondents in their arguments reiterated the submissions that were made before the High Court and supported the impugned judgment for the very reasons stated therein. 13. The learned counsel for the Union of India and for Attorney General submitted that consultation should be as stated in two decisions of this Court in Ashish Handa and Supreme Advocates-on-Record Association (supra), i.e., the Chief Justice of a High Court has to consult two senior most Judges in the case of appointment of a sitting or retired Judge of the High Court as President of the State Commission. As regards the discharge of duties of the Chief Justice by the Acting Chief Justice, the submission was that the Acting Chief Justice could perform all the functions of the Chief Justice by virtue of Article 223 of the Constitution, otherwise there will be practical difficulty leading to anomalous situation in cases where the Chief Justices are not appointed for some reasons and Acting Chief Justices continue for longer period. 14. Section 16 of the Act, to the extent relevant, reads....
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....bviously 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 provisions in Section 16(1)(a) for appointment of the President of the State Commission and in Section 20(1)(a) for appointment of the President of the National Commission are in pari materia and have to be similarly construed. The construction of the proviso in Section 16(1)(a) and that in Section 20(1)(a) must be the same because of the identity of the language. 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 AIR1994SC268 . 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 Judg....
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....f the Constitution of India in relation to appointment of a Judge of a High Court nor can it be placed on the same pedestal. Consultation by the Chief Justice of the High Court with two senior most Judges in selecting a suitable candidate for appointment as a Judge is for the purpose of selecting the best person to the high office of a Judge of the High Court as a constitutional functionary. Consultation with the Chief Justice of the High Court in terms of Section 16 of the Act is a statutory requirement. This apart, the interpretation of a provision of the Constitution having regard to various aspects serving the purpose and mandate of the Constitution by this Court stands on a separate footing. A constitution unlike other statutes is meant to be a durable instrument to serve through longer number of years, i.e., ages without frequent revision. It is intended to serve the needs of the day when it was enacted and also to meet needs of the changing conditions of the future. This Court in R.C. Poudyal v. Union of India and Ors., in paragraph 124, observed thus:- "124. In judicial review of the vires of the exercise of a constitutional power such as the one un....
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....on in its provisions. An eminent jurist observed that "constitutional interpretation is as much a process of creation as one of discovery." 325. It would be useful to quote hereunder a paragraph from the judgment of Supreme Court of Canada in Hunter v. Southam Inc. (1984) 2 SCR 145 : "It is clear that the meaning of 'unreasonable' cannot be determined by recourse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities of....
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....d in that process to assist in the selection of the best available material." (emphasis supplied) 18. Pandian, J. in his concurring opinion in Supreme Court Advocates-on-Records Association aforementioned, with regard to meaning of the word 'consultation' has observed that the derivative meaning of the word in the context depended not merely on its ordinary lexicon definition but greatly upon its contents according to the circumstances and the time in which the word or expression is used; therefore, in order to ascertain its colour and content one must examine the context in which that word is used. In this regard in paragraph 163 it is stated that: - "The word 'consultation' is used in the context of appointment of Judges to the Supreme Court under Article 124(2) and to the High Courts under Article 217(1). Though such a consultation is not constitutionally required in the case of appointment of other constitutional appointees, which we have indicated and itemized in the proceeding part of this judgment." (emphasis supplied) Further, in paragraph 196 it is observed that in the background of the....
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....ed 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 senior most colleagues in the High Court for the purpose of Section 16 of the Act, in our view, is unwarranted. 20. While dealing with the question of primacy of the opinion of the Chief Justice of India in that context this Court held that such opinion of Chief Justice is to be formed collectively after taking into account the views of his senior colleagues, who are required to be consulted by him for the formation of his opinion. As is evident from paragraph 450 of the same judgment consultation with the Chief Justice of India was introduced because of the realization that the Chief Justice is best equipped to know and assess the worth of the candidate and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge. In order to select the best candidate and to give primacy to the opinion of the Chief Justice this Court held that consultation with two senior most Judges of the High Court was needed in t....
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....udge as President of the State Commission. It is in that context this Court held that the process must be initiated by the Chief Justice of the High Court and not by the executive of the State. The reading of the judgment gives an impression that the consultation process must be the same in respect of appointment of a sitting or retired Judge to State Commission as is required for appointment of a High Court Judge in terms of Article 217 of the Constitution. Firstly, the said judgment should be read and understood in the context of that case, the question that arose for consideration and what was really decided, i.e., initiation of process by the Chief Justice of the High Court. To remove doubt, if any, we make it clear that the consultation for the purpose of Section 16 of the Act in relation to the appointment of a Judge or a retired Judge of a High Court as President of the State Commission cannot be taken or equated to consultation process as required under Article 217 of the Constitution, which, in our view, is the correct position. Certain statements made by this Court in Ashish Handa, in para 3, give an impression that Chief Justice of a High Court has to consult his two sen....
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....ecree of Civil Judge made in the original suit. In the first appeal a preliminary objection was raised on behalf of the appellant himself to the effect that the High Court was not properly constituted and that appeal could not be heard on the ground that the office of the Chief Justice of the High Court fell vacant as a result of the elevation of Mr. Justice V. Bhargava, Chief Justice of that High Court to the Bench of this Court; Nasirullah Beg, J., a senior most Judge of the Court was appointed as Acting Chief Justice of the High Court, but as oath of office had not been taken by him, the High Court could not be deemed to be properly constituted. Alternatively, there was no Chief Justice at that time and thus the Court was not properly constituted. It was in that context the Division Bench of the Allahabad High Court, in paragraph 7, has stated thus: - "(7) We are, however, of the view that Article 223 of the Constitution does not contemplate the appointment of a Chief Justice of a High Court or an appointment to the office of Chief Justice of a High Court. In spite of such appointment being made under Article 223, the office of the Chief Justice remains vac....
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....ding a fresh appointment to the office of Chief Justice." 25. A careful reading of the paragraph extracted above shows that an appointment of one or the other Judges of the High Court to perform the duties of the office of Chief Justice really results in an arrangement for the performance of the duties of the vacant office of the Chief Justice pending fresh appointment to the office of the Chief Justice. In that case the view was that even if an acting Chief Justice is appointed under Article 223 of the Constitution for performance of the duties of the Chief Justice, the office of Chief Justice still remains vacant. This also shows that one or the other Judges of the High Court can perform the duties of the Chief Justice. 26. In the case on hand we have to consider whether acting Chief Justice could be consulted under Section 16 of the Act or the process initiated and opinion given by the acting Chief Justice could be valid to satisfy the requirement of the said Section. 27. In the very terms of Article 223 of the Constitution, when the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform t....