TMI Blog2009 (5) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... ired Judges of the High Court for the purposes of obtaining medical benefits but would not be entitled to any pensionary benefits - In the meantime on or about, he was appointed as an Additional Advocate General of the State of Madras - Appellant name was included in the list of retired Judges - Before the post of President of the Commission fell vacant, the Government of Tamil Nadu requested the Registrar General of the High Court to forward names of eligible candidates for appointment as President of the Commission - The said post, however, fell vacant only - The Government of Tamil Nadu appointed Shri Kannadasan as the president of the Commission - HELD THAT:- The words is or has been refer to the person holding the office of a Judge or who has held the said office. It may be said to have the same meaning so far as eligibility is concerned. Suitability of a person to be considered for appointment as a Chairman of a State Commission having regard to the provisions contained in Article 217 of the Constitution of India has been assumed by this Court to be available for the eligible persons who are retired Judges which would mean that those Judges who had retired from s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a Permanent Judge. The matter might have been different if such a fact had been taken into consideration. If a decision for the purpose of making a recommendation in terms of proviso appended to Section 16 necessitates looking into all relevant materials, non- consideration of such a vital fact, in our opinion, cannot be ignored as the opinion is a subjective one and not based on objective criteria. We are more than sure that had the records been brought to his notice, the Chief Justice would not have made the recommendation. Judicial Review - Judicial review in our constitutional scheme itself is a part of its basic structure. Decisions whether arrived at by the Executive or the Judiciary are subject to judicial review. 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. It will also not be correct to contend that as non-appointment of the appellant did not cast a stigma, such a fact was not necessary to be noticed. We have noticed S.P. Gupta [ 1981 (12) TMI 165 - SUPREME COURT] that where facts are brought to the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Articles 217 and 124 of the Constitution of India, the procedures laid down thereunder has undergone a drastic change. A recommendation instead and in place of Chief Justice of India must emanate from the Collegium. However, for the purpose of making recommendation in terms of Section 16(1) the opinion of the Chief Justice alone shall prevail. It is true 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. We have, therefore, no hesitation in holding that the process adopted by the High Court and the Chief Justice in asking for a panel of name and sending the same was not legally permissible. Conclution - The summary of our discussions is as under: (i) Judicial review although has a limited application but is not beyond the pale of the superior judiciary in a case of this nature. (ii) The superior courts may not only issue a writ of quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ran, Prashant Bhushan, Rohit Kumar Singh, Sumeet Sharma, Somesh Rattan, Abhishek Sood, R. Vaigai, Kamini Jaiswal, Devika, D. Nagasaila and Gaurav Aggarwal, Advs JUDGMENT S.B. Sinha, J. INTRODUCTION 1. Justiciability of the recommendations of the Chief Justice of Madras High Court for appointment of Shri N. Kannadasan (the appellant) as the President of the State Consumer Disputes Redressal Commission (`the Commission') in terms of Section 16 of the Consumers Protection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer Additional Judge, High Court, Madras and now Additional Advocate General has addressed a letter to the Registry in connection with the inclusion of His Lordship's name in the category of Retired/Former Judge etc. As directed by your Lordship, the said matter was placed before the full court which was held on 11th July, 2008 and minuted as follows: Considered the representation of Hon'ble Thiru Justice N. KANNADASAN, Former 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia and the Collegium of the Supreme Court and of the Central Government that a person should not be considered as a Judge on grounds of unsuitability and as being public interest, are not vital and decisive considerations that should weigh with the Chief Justice of the High Court in considering the same person for appointment to any judicial office under the Consumer Protection 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 retire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into by and between the State and the Registry leading to the sending of the panel by the Chief Justice, it was held: 78. Judged in the light of the discussion made earlier, the inevitable conclusion is that there has not been any effective consultation mainly on account of the fact that the Consultee, namely, the Honourable 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 assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Judge thereof. 3. As an Additional Judge of a High Court is not appointed on probation, the High Court committed a serious error in applying in the theory of `confirmation in service' which is foreign to the concept of appointment and status of a High Court judge. 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India and other authorities specified therein who shall hold office in the case of an additional or acting Judge, as provided in Article 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 Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. 35. Section 17 provides for the jurisdiction of the State Commission. It has original jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-makers did not assume that an acting or Additional Judge would necessarily be made permanent and he would have to go back to the Bar. The learned Judge furthermore noticed the enactment of the Constitution (Seventh Amendment) Act, 1956, in terms 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Brother Desai and Brother Venkataramiah, JJ. have stressed this aspect of the matter in their own way and I agree with their views. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION 44. This Court in Supreme Court Advocates-on-Record Association 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed, understood and implemented in the manner indicated herein by us. 46. It was furthermore held: 44. The questions posed by the Reference are now answered, but we should 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Act was enacted. We could advert to this question a little later. 52. The jurisdiction of the consumer courts and particularly that of the State Commission 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is based on distribution of powers and functions amongst the three organs of the State. It is the prerogative of the Legislature to enact laws; responsibility 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - the principle of purposive construction is to be taken recourse to. 63. If the Collegium of the Supreme Court Judges including the Chief Justice 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 confiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence 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, ridiculous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Neville Wadia and Anr. AIR2008SC876 , this Court held: 52. Barak in his 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sympathetic to the purposive approach[39]. 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the office of the President 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to appointment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no privilege ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission 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 of a Fast Track Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suggest that appointments under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the position of the Additional Judges, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who is going to be appointed. With a view to fulfill the constitutional obligations as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 observing that in following the procedure of Article 217(1) while appointing an Additional Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 claimed relief from the court in regard to his continuance as an Additional Judge not only looked into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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 in July, 2008. Prior thereto, as noticed hereinbefore, pursuant to a resolution adopted by a Full Court, the name of the appellant was put o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore. 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 consult the Chief Justice, we reiterate, such consultation must be an effective and informed one. Both the State Government as also the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 objective criterion. Such objective criteria cannot also be laid down keeping in view the status of the parties. Such appointment, however, must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is the opinion of the Government - 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 after consulting the State Electricity Board did not 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 introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right. 150. It is indisputably a high prerogative writ which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 governance of the State. 160. In Shri Kumar Prasad v. Union of India and Ors. (1993)IILLJ972SC , this Court held: 22. It is in the above context that we have to interpret the meaning of expression judicial office under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice of the selection, but it be left to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed the written test and interview and was provisionally selected, if on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a constable, the view taken by the appointing authority could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the teleological, the textual, the contextual and the functional. The strictly literal may not often be logical if the context indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Ashok Tanwar (supra) and National Consumer Awareness Group (supra) must be initiated by the High Court itself. Having regard to the fact that the Chief Justice has the primacy as regards recommendations of the name for appointment to the post of Chairman of the State Commission, the method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enable the State to appoint the selectees out of the said panel is illegal stating: 9. The recommendation of the High Court for filling up the six vacancies was contained in its letter dated July 13, 1973. Government was not bound to accept all the recommendations but could tell the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation 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 Court higher than those now selected are given in the annexure enclosed to this DO letter. The High Court, to be more accurate, the Chief Justice to whom the letter dated November 30, 1973 was addressed seems to have not resented or protested against the selection so made by the Government in clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Punjab and Haryana High Court. By a communication dated 26-8-2003, the Chief Justice of the Punjab and Haryana High Court drew the attention of the Chief Minister to the decision of this Court in Ashish Handa v. Chief Justice of High Court of Punjab Haryana and took the stand: (SCC p. 148, para 3) ...even for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 President of the State Commission, who is unable to chair the Selection Committee meeting because of absence or other similar reasons. It is only in such a situation, that the State Government may request the Chief Justice of the High Court to nominate a sitting Judge to act as Chairman of the Selection Committee. If the argument of the learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 resignation. It is, however, not stated that the said offer of resignation has been accepted by the State of Tamil Nadu. Moreover, there is no prayer for withdrawal of the special leave petition. 195. We, in the aforementioned situation, are proceeding to pronounce our judgment. 196. We must also place on record our deep appreciation for the learned Counsel for the parties and in particul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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