TMI Blog1974 (2) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Steel and Mines, was also in the array of respondents but his name was deleted on his demise. (2) The counter affidavits have replied to the facts relating to the merits of the petitions and at the same time contain demurrers, speaking generally to the jurisdiction of this Court to issue the writ and to the maintainability of the petitions and for that reason it was thought proper to first hear three of the preliminary objections as they were stated to go to the root of the matter. (3) It is necessary to state the facts shortly to furnish a backdrop for the discussion particularly because, admittedly, preliminary objections have to be decided on the assumption that the facts alleged by the petitioners are correct. I would like to emphasize this aspect of the matter because my opinion is not to be taken to be a finding as to the truth or correctness or otherwise of the facts alleged. A further fact may also be stated here, namely, that Justice A. N. Ray was appointed the Chief Justice of India by a warrant under the hand and seal of the President of India in pursuance of clause (2) of Article 124 of the Constitution. (4) I state the facts alleged in the petition of P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of stability required in order that the law of the land may be settled. In order that there should be no uncertainty, we will have a Supreme Court which will know its mind and give a clear verdict so that we know what the law of the land is. Justice Hegde told a Press Conference at which the petitioner, P.L. Lakhanpal was personally present, that the Prime Minister was personally piqued with him for his decision in her election appeal and that Mr. Kumaramangalam had differences with him which were fundamental and deep-rooted. Certain other quotations from Justice Hegde's statement are given. Mr. Kumaramangalam said in the Lok Sabha on May 2, 1973 that the Government wanted to appoint as Chief Justice a person who would help in ending confrontation between the judiciary and Parliament, one who would appreciate the winds of change sweeping the country and one who will help us in Court. He also said that the appointment was made in the interest of certainly about the state of law and a stable relationship between the court and ourselves. The appointment of Justice A. N. Ray as the Chief Justice of India was politically motivated and malafide. The independence of the judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are being heard by the Supreme Court and writs cannot be issued to superior Courts. As a subsidiary point it is urged that if the appointment of the Chief Justice of India is set aside by a writ of quo warranto, the Supreme Court will not be able to hear any appeal against the orders of this Court in these petitions in the absence of the Chief Justice of India. The Additional Solicitor General has urged that no Court has any jurisdiction to issue a writ of quo warranto against any Judge of the Supreme Court or the Chief Justice of India or against any Judge of a High Court including its Chief Justice who is appointed by the President by warrant under his hand and seal. The issue of such a writ would involve the ouster or, in other words, removal from office which can be done only in the manner prescribed by clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge of the Supreme Court or the Chief Justice of India and Article 218 read with clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge or Chief Justice of a High Court. (7) Before I deal with the points raised, I will state what I understand to be the scope and ambit of a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit of quo warrant, is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford : The Rev. Thomas Thellusson Carter : 5 AC 214 (3) also states that the issue of writ of quo warranto is in the discretion of a Court. The Canadian view as stated in The King excel Boudret v. Johnston : (1923) 2 DLR 278 is that the Court has to take into consideration public interest, the consequences to follow the issue of a writ of quo warranto and all the circumstances of the case. These general propositions have been accepted in America as appears from the statements contained in sections 5, 9, 10 and 18 in American Jurisprudence, Second Edition, Volume 65. (10) The above views and statements indicate and reflect the principles which have guided courts outside our country in issuing writs of quo warranto. There is abundant authority that these principles have been accepted and applied in this country. University of Mysore and another v. C. D. Govinda Rao and another : [1964]4SCR575 affirms some of these principles. One is that a writ of quo warranto is a writ of techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is wider in view of the words in the nature of appearing in Articles 32 and 226 of the Constitution. These words do not justify the argument because these very words preface the words a Quo Warranto as is apparent from para 273 at page 145 of Halsbury's Laws of England, Third Edition, Volume II. Certain cases have been cited to support this proposition. I do not think any of them supports it. The first case is Statesman (Private) Ltd. v. H. R. Dev and others: [1968]3SCR614 . The question in this case was whether a Sub-Deputy Collector vested with magisterial powers could be said to have held a judicial office within the meaning of section 7(3)(d) of the Industrial Disputes Act, 1947 so as to make him eligible for appointment as the Presiding Officer of a Labour Court. The case started by way of a writ of certiorari under Article 226 of the Constitution against the order of the Presiding Officer. It was held that a Magistrate holds a judicial office. Sub-section (1) of section 9 of the Act conferred finality to orders Constituting Boards etc. It was in the context of this section that a passing observation was made by the Supreme Court that although the provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mistake by amending the rules with retrospective effect. The principle of could be reappointed is entirely different. It does not contemplate a change in the existing law. It proceeds on the basis that there is no legal impediment to a re-appointment according to the law as it stands. A possibility of change in the law with retrospective effect, as suggesed in this case, would not come within the principle of futility of the writ. By reason of lacking in qualifications or being junior, there was an existing legal impediment to re-appointment. The next case relied upon is Prabhudutt Sharma v. State of Rajasthan and others: 1971 Lab Indu Cas 556. This case, rather than support the petitioners, goes against their contention. It is clearly stated that the conditions for the issue of a writ of quo warranto are similar to those for laying an information in the nature of a quo warranto in England. Then it specifies the four requisites for a writ of quo warranto namely, (1) the office must be held under the State or have been created by a statute, (2) it should be an office of a substantive character, (3) its duties must be of a public nature and (4) it should have been usurped by som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appointment had been made contrary to Article 16 of the Constitution as before making the appointment, the post was not regularly advertised nor were any applications invited from persons qualified to hold the post. No argument of futility was addressed in this case possibly because the appointment was held to be in violation of Article 16 of the Constitution thereby depriving other person from applying for the post. This case can, Therefore, be no authority for the proposition now being considered. In Puranlal Lakhanpal v. Dr. P. C. Ghosh and others: AIR1970Cal118 the question was whether a writ of quo warranto should issue to a person who had resigned from his office. I do not at all see the relevancy of this case to the contention being discussed now. None of these cases, Therefore, supports the argument that scope of Articles 32 and 226 is wider in so far as the writ of quo warranto is concerned. (13) On the other hand, in Janardan Reddy and others v. The State of Hyderabad and others: 1951 Supreme Court Reports 344 (14) it has been observed that the power given to it under Part Iii of the Constitution is not wider than it is in England and courts in this with well esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the former case, a writ of quo warranto cannot issue and it gives good, valid and legal title to Justice A. N. Ray to function as Chief Justice of India- In the alternative and converse case, having no existence, validity or effect in the eye of law, it cannot affect the continued existence, validity or effect of the first warrant of appointment as a Judge of the Supreme Court. (16) Mr. Lakhanpal further contends that the two offices, namely, (1) Judge of the Supreme Court and (2) Chief Justice of India, cannot vest in the same person at the same time. In other words, the contention is that the Chief Justice of India is not a Judge of the Supreme Court. Otherwise, says he, the Chief Justice of India will be entitled to draw salary as such as also as a Judge of the Supreme Court under Article 125(1) of the Constitution. The language of this Article is, I am clear, destructive of the argument. This Article says that there shall be paid to the Judges of the Supreme Court such salaries as are specified in the Second Schedule. Chief Justice of India is not mentioned herein. Item 9(1) in the Second Schedule Part D also starts with the words There shall be paid to the Judges of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the High Court, namely, Article 216 comparable to Article 124(1), Article 217 comparable to Article 124(2), Article 219 comparable to Article 124(6), Article 220 comparable to Article 124(7), Article 221 comparable to Article 125(1), Article 222 and Article 223 comparable to Article 126, the Division Bench expressed the view that,- THESE provisions and many others in the Constitution clearly show that the office of the Chief Justice is a distinctly different office from that of a Judge and normally a Chief Justice of a High Court is called Chief Justice of that Court and not a Judge of that Court. This observation does not mean that the Chief Justice of a High Court ceases to be a Judge of that Court. All that is meant is that the office of the Chief Justice of a High Court is an office different from the office of a Judge of the High Court and the former is normally called the Chief Justice of that Court and not a Judge of that Court. It does not mean that the Chief Justice of a High Court is not and cannot be properly called a Judge of that Court. The difference in the office of a Judge of the High Court and that of the Chief Justice of that Court lies only in the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id is not to be taken to be the expression of an opinion either that there is such a convention or that it has such effect. Therefore, not only being eligible for reappointment as Chief Justice of India but being entitled to be so reappointed, a writ of quo warranto ousting Justice A. N. Ray from the office of the Chief Justice of India will be futile and such a writ cannot be issued. (19) Then I deal with the other facet of this preliminary objection which arises out of the averment that the requirement of consultation under Article 124(2) of the Constitution is mandatory. The Attorney General presses for acceptance of the argument of futility even if it be so. The Atterney General does not dispute that if an order is passed in violation of or contrary to the mandatory provisions of a statute or of the Constitution, it would be illegal and void and as such will not have any existence in the eye of law. He, however, says that the question for determination is whether Justice A.N. Ray could be re-appointed if the mandatory requirement is fulfilled . He emphasizes the word could . In other words, the question is whether Justice A. N. Ray is disentitled by lacking in the necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of quo warranto. The appointing authority is not a necessary party: see Ashgar Ally v. Dr. Birendra Nath Dey : AIR1945Cal249 where Gentle, J. was considering the question whether in the information by way of quo warranto at the instance of a relator before him, the Government or the Corporation were proper parties. He held that the relator being the only party, the absence of the Government or of the Corporation from the array of parties could not prevent relief being granted. Whichever way the matter is looked at, I have to conclude that Justice A. N. Ray could be re-appointed by the appointing authority by going through the process of consultation as envisaged by Article 124(2) of the Constitution. (20) I may here notice another argument on behalf of one of the petitioners. The argument is that the principle of futility of the writ applies only if (1) the appointment is at pleasure and (2) if there can be immediate re-appointment without having to comply with any conditions or formalities in the law before making the re-appointment. The first reason is untenable in view of Ex Parte Richards : (1878) 3 QBD 368 (19) where the appointment was in exercise of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of quo warranto. It is a writ, as I have stated, of a technical nature. It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office. What works in the mind of the appointing authority in appointing a particular person is irrelevant and does not fall to be considered in a proceeding of quo warranto and in determining the title of the person who has been appointed. Otherwise, the alleged usurper will be at a great disadvantage. He is, normally, the only party to the petition. He could certainly be called upon to show his authority or warrant to hold the office. He can also be called upon to show whether he possesses the necessary qualifications prescribed for that office. He can be asked even whether his appointment was made in accordance with law or not. He can further be asked whether the authority or warrant which he produces is by the person who is authorised to make an appointment to the office which he holds. He is expected to give an effective answer by producing the authority or warrant of his appointment, by showing that he possesses the neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecutive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do.' Act of favoritism by way backdoor appointment and deviation from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction of the courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Prerogative writs which this court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to. The province of this Court in a quo warranto proceeding is to determine whether there has been usurpation of a public office and not to search the conscience of the appointing authority to ascertain his motive. It is, Therefore, not necessary for me to say anything more than that the impugned order of the appointment of the first respondent has not transgressed any rule, regulation or law to afford a foundation for the issue of relief in a quo warranto proceeding. To the same effect is the statement in Volume 74, Corpus Jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me up for admission and it was dismissed in liming. The learned Judge observed at that stage that the impugned orders of the Governor could not be said to be tainted with mala fide. The question whether the motive of the appointing authority is relevant in a petition for a writ of quo warranto was neither raised nor decided. This case cannot, Therefore, be an authority for the proposition. It is then contended that the view expressed by the Madras High Court in A. Ramachandran v. A. Alagiriswami (supra) with regard to the irrelevancy of the motives or mala fides of the appointing authority has been impliedly over-ruled by the observation of Supreme Court in University of Mysore and another v. C. D. Govinda Rao and another (supra) that proceedings by way of quo warranto also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. I disagree. The Supreme Court was not considering the question or relevancy of mala fides. It is only stated as a matter of fact that there is no allegation about mala fides against the experts who constituted the Board. This statement cannot be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the essential difference between that case and the case before me. In the case .before me, there is no order of supersession as such which could be set aside as having been passed for a collateral purpose resulting inevitably in the order of appointment being rendered of no effect. The order of supersession in that case was held to be mala fide and, Therefore, automatically the position in law would be that the Municipality was not superseded and its Commissioners including the Chairman would continue to exercise the powers and perform the duties which they were exercising and performing before the order of supersession. This situation would inevitably result in the order appointing Nomani being rendered of no effect. The real question is whether mala fide of the appointing authority in making the appointment of the particular person who has been appointed is relevant. Such situation did not arise in the case of the Howrah Municipality because any other person could equally have been appointed in place of Nomani. There must be a personal connection between the person appointed to an office and the motive of the appointing authority in appointing him. Such connection was lacking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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