N. KANNADASAN v. AJOY KHOSE AND OTHERS

"19. The learned counsel, alternatively, argued that the •

- v 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 ChiefJustice of the High Court to act as a Chairman. Even this argument does not commend itself to us. A literal reading of sub- .v- 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

N.. KANNADASAN V. AJOY KHOSE AND OTHERS 721 [S.B. SINHA, J.] -"'\ -'/ two sub-sections have to be harmoniously construed. The J •' 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 B agree. The interpretation given by the circular, and the '>I view taken by the Union of India in the matter of Section 16(1-A), is incorrect and we hold that the procedure -4 contemplated therein applies only to the appointments . made under clause (b) of sub-section (1) of Section 16." c 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 Ashish Handa only on -\ D the issue whether consultation with the Chief Justice meant consultation with the.collegium of the High Court. In other respects, Ashish Handa is approved." This Court in S.P Gupta (supra) opined that the principles as regards consultation for appointment of Judges in terms of E Article 217 of the Constitution of India would be the same as laid down in State of Gujarat v. Sankalchand Khodidas Patel, .. [ (1977) 4 sec 590 ] and other cases, stating :- ¥ "The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of F a topic in order to enable them to evolve a correct or at least a satisfactory solution" and added: "In order tnat the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which Gan at once G ....... ---......_ constitute both the source and foundation of the final • decision". Krishna Iyer, J. speaking on behalf of himself and Fazal Ali, J. also pointed out that "all the materials in the possession of one who consults must be unreservedly placed before the consultee" and further "a reasonable H

722 SUPREME COURT REPORTS [2009] 7 S.C.R.

A opportunity for getting information, taking other steps and .. getting prepared for tendering effective and meaningful . advice must be given to him" and "the consultant in turn must take the matter seriously since the subject is of grave importance" (SCC p. 267). The learned Judge proceeded B 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 ir

Justice, in turn, must collect necessary information through f.. responsible channels or directly, acquaint himself with the c 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

•D 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 E concerned as a Judge and the opinion of each of them taken on identical material must be .considered by the . C~ntral Government before it takes a decision whether or notto--appoint the person concerned as a Judge." . ,

" F In r~gard to the position of the Additional Judges, it was clearly held that same process must be followed. ' /, Fazal Ali, J. in his concurrent judgment noticed Union of India v: Sankalchand Himat/al Sheth [(1977) 4 SCC 193] wherein it_ was opined that for purposeful consideration of a G matter, the President while consulting the Chief Justice must make the relevant data available to him, stating: :y-::

"... 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 H

(5) The fulfilment by the President of his constitutional obligation and performance of his duty by !he C.J.I. are parts of the same process and after this process...is fully G cornp1iedwith, the consultation becomes full and effective and not formal or ynproductive. *** ***" ***

(7) After the data, facts or materials are placed before the H

724 SUPREME COURT REPORTS [2009] 7 S.C.R.

... A consulate and the consultee, there should be a full and complete application of minds in respect of the subject to " enable them to reach a satisfactory conclusion. In other words, the two minds must be able to confer and produce a mutual impact on the identical facts which would B constitute both the source and the foundation of the final decision. Ir (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 c h[s opinion to the President."

Appointment to the post of President of a State Commission must satisfy not only the eligibility criteria of the 'I..· candidate but also undertaking of the process of consultation. D Keeping in mind the aforementioned legal scenario the question as to whether the consultative process had been gone into, must be considered.

Indisputably, the decision by the Chief Justice must be an informed one with respect to the post of a Chairman of a State E 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 ~tate 1 Government were required to be duly informed about the person )' who is going to be appointed. With a view to fulfill the - F constitutional obligations as to whether he is a fit person, it is absolutely essential that all relevant information should be placed before the consulter 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 G 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. The Constitution Bench of this Court in Supreme Court Advocates-on-Record Association (supra) and in the H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 725 [S.B. SINHA, J.] .__,, Presidential Reference, SpeCial Reference No.1 of 1998 A (supra) laid down the law that consultation would mean 'concurrence' wherefor 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 B recommendation, instead and in place of the Collegium, would .. be that of the Chief Justice alone. We have no doubt in our mind that he is bound to take into consideration all facts relevant --4 therefor and must eschew irrelevant facts. => As suitaoility of a person, in view of S.P Gupta (supra), c depends upon several factors which are necessary to be considered for re-appointment and or making Additional Judge a permanent one, there does not exist any reason whatsoever •, why the same shall not be considered to be a relevant factor for recommending the name of a person who would hold such a D --i..- high office. It has not been denied or disputed that for one reason ·.Qr the other the Chief Justice of the High Court did not have the occasion to go through the said file. The ·original record maintained by the High Court as also by the Central Government

-. ... had been placed before the High Court as also before us.

The superior courts must take into consideration as to what is good for the judiciary as an institution and not for the judge himself. An act of balancing between public interest and private E

interest must be made. Thus, institution as also public interest must be uppermost in the mind of the court. When such factors F are to be taken into consideration, the court may not insist upon a proof. It would not delve deep into the allegations. The court must bear in, mind the limitations in arriving at a finding in regard to lack of integrity against the person concerned. As has been noticed in S.P Gupta (supra), the test which must be applied G '~ 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 H

726 SUPREME COURT REPORTS (2009] 7 S.C.R.

,A • A 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. 8 We may notice that recently a Division Bench of this Court of which one of us (Or. Justice Mukundakam Sharma) was a member in Shanti Bhushan and Another v. Union of India and • Another(supr.a) referring to S.P Gupta (supra}, Supreme Court ~

c Advocates-on-Record Association (supra) and other decisions, noticed: - "9.Pathak, J (as the Hon'ble Judge then was) had· I- 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 D - 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 ' - 1 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." -...-- y

It was furthermore opined: "15.As rightly submitted by learned Counsel for the Union of India unless the circumstances or events arise. H subsequent to the appointment as an Additional Judge,

N. KANNADASAN ' V. AJOY KHOSE . AND OTHERS 727 [S.B. SINHA, ,J.]

which bear adversely on the mental and physical capacity, character and integrity or other matters the appointment as a permanent Judge has to be, considered in the background of what has been stated In S.P. Gupta's case (supra). Though there is no right of automatic extension or · appointment as a permanent Judge, the same has to be decided on the touchstone. of fitness and suitability (physical, intellectual and moral). The weightage required to be given cannot be lost sight of."

- It was observed: '

; "19. But at the same time we find considerable substance · in the plea of the petitioners that a person who is not found c

suitable for being appointed as a permanent Judge, should not be given extension as an Additional Judge unless the same is occasioned because 9f non availability of the vacancy. If a person,·as rightly contended by the petitioners, is unsuitable to be considered for appointment as a permanent Judge because of circumstances and events which bear adversely on the mental and physical' capacity, . character and integrity or other relevant matters rendering it unwise for appointing him as a permanent Judge, same yardstick has to be followed while considering whether any extension is to be given to him as an Additional Judge. A person who· is functioning as an Additional Judge cannot be considered in such circumstances for re-appointment as an Additional Judge. If the factors which render him F unsuitabJe for appointment as a permanent Judge exist, it would not only be improper but also undesirable to continue him as an Additional Judge." Mr. Venugopal, however, has drawn our attention to S.P. G 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 bf India not to extend his term and indeed as a person concerned should not litigate his claim to this high office which would lower itsdignltyby making it subject H

728 SUPREME COURT REPORTS [2009] 7 S.C.R.

_,.... ' A 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 B disclose it. 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 dudge not only looked into the ~

c 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 D 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 E Kumar. The C.J.1., however, took a contrary view but he has also not disclosed the names of the lawyers or Judges t: 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. (2) These views were put before the Central Government and it was open to the President to accept one view or the other. The President chose to accept the view taken by y .. the C.J., Delhi more particularly because he was in a position to have firsthand information both regarding the reputation and working of the Additional Judge." *** *** *** H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 729 [S.B. SINHA, J.] .;. '.4 528. I might just state that even if the documents were not disclosed, the conclusion would have been the same

-- because in the affidavits it was not disputed that the two C.Js. had taken a contrary view regarding the doubtful reputation of Justice Kumar, nor was it suggested that C.J., Delhi had any ill will or animus against Justice Kumar. The B disclosure of the documents, however, unfortunately resulted .., in grave and serious consequences of far-reaching effect on the future of not only the judicial institutions but also .\. almost all the government departments." It is, thus, one thing to say that in the absence of any c document, any reflection or aspersion on the reputation or character of an Additional Judge shall not be cast but it is another thing to say that the ultimate result, viz., that an Additional Judge did not obtain any extension or was not made a Permanent Judge of the High Court, would totally be ignored. It may be true D - :!.- that the appellant did not question the decision of the collegium not to re-appoint him, but, the fact remains that he was not appointed'by the collegium wherefor sufficient material existed. Arriving at such a conclusion was an objective opinion on the part of the collegium. E It was contended that if such a consideration is given an importance, those Chief Justices who had not been elevated t~ ~ the Supreme Court despite seniority but were appointed as

" Chairman of various statutory authorities may be treated to be incompetent. F 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. G The same has nothing to do with eligibility or suitability. "* -"( 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, H

730 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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 on the register of retired Judges. The materials brought r on records before this Court clearly demonstrate that no other fact was brought to his notice. . S.P. Gupta (supra), Supreme C~JUrtAdvocates-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 ... ..; 'J 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. D 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.

E The consultative process brings within its ambit a heavy duty so as to enable the holder of a high office like Chief Justice to know the same. It must be shown that he had access and in fact was aware of the fact that the appellant had not been made a Permanent J\Jdge. The matter might have been different if • f F 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 of the Act 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 G had the records been brought to his notice, the Chief Justice would not have made the recommendation. y ...

JUDICIAL REVIEW

21Copy pinpoint21. Judicial review in our constitutional scheme itself is a H

,. N: KANNADASAN V. AJOY KHOSE AND OTHERS 731 [S.B. SINHA, J.] ~ part of its basic structure. Decisions whether arrived at by the A •• Executive or the Judiciary are subject to judicial review.

The Chief Justice of a High Court, while making such recommendations, exercises statutory functions. While it is incumbent upon the State Government to consult the Chief Justice, keeping in view a large number of decisions of this B Court we have referred to hereinbefore, indisputably the Chief Justice of the High Court would have a heavy burden on his () '.. shoulder to recommend the name of a person who would be suitable therefor. 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 D i -~ 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 t/;Jat the proviso appended .. ~· to Sectien 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 Justice before forming opinion must have access to all relevant informations. Application of mind orrihe part of consultant and consulttee on such relevant information was, in our considered opinion, absolutely imperative. ' ""~ 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. H

732 SUPREME COURT REPORTS [2009] 7 S.C.R.

~ A 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 B to a statutory post is an administrative decision. The act of consultation is an executive act.

In Supreme Court Advocates-on-Record Association (supra), it was opined that the matter of appointment is an },

Executive Act. It was furthermore held: c " ... The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation D between all the consultees before the appointment is ~ - made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. E The answer which best subserves this constitutional purpose would be the correct answer." -- Section 16 of the Act envisages a limitation on the power of both the State as also the Chief Justice in the matter of making • ~

F an appointment. The facts relevant for such an appointment must be placed before both the statutory authorities. One of such fact is that an Additional Judge, for one reason or the other was found not fit to be made permanent or to be given an extension of his tenure. Indisputably, a person having doubtful integrity should neither be recommended by the High Court nor G appointed by the State Government. )-- ..... Opinion of a Chief Justice by itself may not lead to an administrative decision but it, having regard to his primacy, save ~.

and except for cogent reasons, would lead to an appointment. H Indisputably, his opinion is final and, thus, for all intent and purport,

N. KANNADASAN V AJOY KHOSE AND OTHERS 733 [S.B. SINHA, J.] ... ... decisive. The recommendations made, thus, may be arrived at A 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 B a judicial review shafl not lie. It is true that recommendation would

•-" be as a result of due application of mind. He is r~quired 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 c 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. It may be true that the statute does not lay down an objective D - ~ 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. E Mr. Venugopal submits that the reaso·n 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 therefor should have been made known to him. The High Court noticed that apart from placing the records to which' F 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. We are not in a position tp persuade ourselves that the G 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 H

734 SUPREME COURT REPORTS (2009] 7 S.C.R.

A record to enable the Chief Justice of India vis-a-vis the collegium ~ • to make any recommendation that he was a fit person to be appointed. If the collegium could not make such a recommendation, a' fortiori ordinarily the Chief Justice of High Court would also not make such a recommendation. B In Special Reference No. 1 of 1998, RE: (supra), it was concluded:

"44. The questions posed by the Reference are now ..... y answered, but we should emphasise that the answers c should be read in conjunction with the body of this opinion: )()()( :xxx xxx

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not D -4 • been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to b~ effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been E obtained." The High Court in a case of this nature could have peeped into consultative process vis-a-vis eligibility of the candidate through a narrow hole. Howsoever limited be the field of judicial ~

F review, it cannot, in our opinion, be held to be beyond its pale. While we say so, we are not oblivious of the fact that the recommendations are required to be made from amongst the limited category of High Court Judges who were former Judges of that court. However, the Chief Justice may even recommend G 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. We have noticed hereinbefore that the Madras High Court maintains a register of retired Judges. Attention of the Chief H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 735 [S.B. SINHA, J.] ~~ Justice was drawn only to the said register. Names of five A Judges were proposed. 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 (36) 1949 PC 136], wherein it was held: 8

~ "21. Their Lordships now turn to the question of construction of s.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 c found the suggestion that the opinion of the Government is to be subject to objective tests. In terms the relevant .. I 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 D - )r sufficiency of the grounds on which the Government acted in forming an opinion." 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 E 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 Others reported F, in [1950 SCR 621] this Court referred to The Hubli Electricity Co. Ltd. (supra) to opine that objective criteria were, in fact, laid -1 down in the relevant provisions of the therein. It was, however, observed: " ... It is abundantly clear from the authorities cited above G ':'. -~ 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 supplie~ and the like may well be and, indeed, are often left to the subjective opinion or H

736 SUPREME COURT REPORTS [2009] 7 S.C.R

A satisfaction of the executive authority. Merely~ because such ). t a matter involves a question of fact it does not follow at all that it must always, and irrespective of the language of the particular enactment, be determined judicially as an objective fact. .. " B Everything, thus, depends upon the nature of the legal provision.

Administrative law moreover has much developed since • ~ then. The approach of the Privy Council decision does not c commend to us. Where an opinion was not formed on relevant facts or within the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative, evidently judicial review shall lie. [See Barium r ' Chemicals Ltd. and another v. Company Law Board and others <'==

AIR 1967 SC 295) D In fact The Hubli Electricity Co. Ltd. (supra) has been '.\ - considered by this Court in Narayanan Sankaran Mooss v. The State of Kera/a and Another [(1974) 1 SCC 68), stating: ,__

"20. The power to revoke the licence is a drastic power. E The revocation of licence results in severe abridgement of the right to carry on business. Having in mind the requirements of Article 19(1 )(g). Parliament has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Clauses .• F (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 G 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, itwill, we have no doubt, be void. The phrase "after consulting the State Electricity Board" is H sandwiched between the clause "if in its opinion the public

N. KANNADASAN V AJOY KHOSE AND OTHERS 737 [S.B. SINHA, J) "I , ~ interest so requires" and clauses (a) to (d). In this conte~<t A 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 B that the phrase "after consulting the State Electricity Board" ~ did not find place in Section 4 as it stood originally. It was ,J 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 ... c In Rohtas Industries v. S.D. Agarwal and Others [{1969) 1 · SCC 325], it was categorically held that the Judieial Committee was considering a pre-constitutional provision which was not subject to the mandate of Article 19(1 )(g) of the Constitution of ~ ~ India. D 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. E

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. F Even otherwise, the floodgate argument does not appeal to us. In Coal India Ltd. and Others v. Saroj Kumar Mishra, ((2007) 9 SCC 625], this Court held: G ;. .... ,~- "19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to .determine the H

738 SUPREME COURT REPORTS (2009) 7 S.C.R.

~· ,. A respective rights of the parties. [See Zee Telefilms Ltd. v. Union of India and Guruvayoor Devaswom Managing Committee v. C.K. Rajan)" It will also not be correct to contend that as non- appointment of the appellant did not cast a stigma, such a fact B was not necessary to be noticed. We have noticed S.P Gupta (supra) that where facts are brought to the notice of the court, , whether by way of affidavit by the constitutional authorities or by ~ placing before the court the entire material, it is permissible to delve deep into the matter. c Once, thus, decision making process had been undergone in terms of the constitutional scheme in its correct perspective, judicial review may not be maintainable. QUO WARRANTO D

22Copy pinpoint22. Respondents herein filed the writ petitions inter alia ~ - for issuance of a writ of Quo Warranto. A Writ of Quo Warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Section 16 of the Act lays down the qualifications inter alia for E appointment of the Chairman of the State Commission. Clause (a) of sub-section (1) of Section 16 provides that the candidate must be 'is' or 'has been a Judge'. The proviso appended thereto, however, mandates consultation by the State • Government with the Chief Justice of the concerned High Court. F 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 ; G (B) Processual machinery relating to consultation was ,._ ........ -:: not fully complied. 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

N. KANNADASAN V. AJOY KHOSE AND OTHERS 739 [S.S. SINHA, J.]

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. .. It is indisputably a high prerogative writ which was reserved for the use of Crown. The width and ambit of the writ, however, in the course of c practice, have widened and it is permissible to pray for issuance • of a writ in the nature of quo warranto. In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], 'Quo Warranto' is defined as under : ' D "Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to te&t 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 relater must E establish that the office is being unlawfully held and exercised by respondent, and that realtor is entitled to the office." · ' In the Law Lexicon by J.J.S. Wharton, Esq., 1987, 'Quo Warranto' has been defined as under: F "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 libert}', to enquire by what authority he supports his claim, in order G to determine the right. It lies also in case of non-user, or long neglect of a franchise, or mis-user or abuse of it; ' being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it be neglect or abuse." H

740 SUPREME COURT REPORTS [2009] 7 S.C.R.

N. KANNADASAN V. AJOY KHOSE AND OTHERS 741 [S.B. SINHA, J] ... -4 raised therein, since that is a matter of public concern and relates to good governance of the State. In Shri Kumar Prasad v. J,Jnion of India and Others [(1992) 2 SCC 428), this Court held: "22. It is in the above context that we have to interpret the meaning of expression "judicial office" under Article 'Ii 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 c 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 D -+ 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) means the person who exercises only judicial functions, determines causes inter-partes and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary." G --4 It was held that the Law Secretary although was holder of a judicial office but being not a judicial officer was not qualified to be appointed as a Judge of the High Court and, thus, his appointment was quashed. H

742 SUPREME COURT REPORTS (2009] 7 S.C.R.

A In B.R. Kapur v. State of TN. and Another (supra), the question which arose for consideration was as to whether the Chief Minister of a State, who having been convicted in a criminal case, disqualified herself to become a member of a Legislative Assembly in terms of Article 191 (1) of the - B Constitution of India could be appointed as the Chief Minister for a period of six months in terms of Article 164 thereof. This Court having regard to Article 164(4) of the Constitution of India , opined that if a person is disqualified to become a member of the legislative assembly, he cannot be inducted into the Council C of Ministers for a short term which would extend beyond a period of six months. It was held that a Writ of Quo Warranto can be issued even when the President or the Governor had appointed a person to a constitutional office. It was furthermore held that the qualification of that person to hold that office can be examined in a quo warranto proceedings and the appointment can be quashed. In R.K. Jain (supra), consultation by the executive which Chief Justice having found to be not necessary, it was held that no case tor 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, H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 743 [S.B. SINHA, J] ... -4 but it be left to the executive to select the personnel as per law or procedure in this behalf ... " 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. We may incidentally place on record that a declaratory relief had also been prayed for in the writ petitions filed by the c respondents. Reliance has also been placed on a decision of this Court in Union of India and Others v. Kali Dass Batish and Another [(2006) 1 sec 779] wherein it was held: D "... 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 E argument made at the Bar that the Chief Justice of India might not have been supplied with the necessary inputs has no merit. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence F without application of mind or without calling for the necessary inputs. The argument, to say the least, deserves summary dismissal." (Emphasis supplied) G · - -4 The decision in that case was rendered in the factual matrix obtaining therein. Noticing that where members of the bar were required to be considered for important judicial posts, their antecedents are verified through the Intelligence Bureau and a report is obtained from it. H

744 SUPREME COURT REPORTS [2009] 7 S.C.R.

A It was noticed that the Secretary (Personnel) had forwarded all necessary papers including the IB Report and sought for concurrence of the Chief Justice with regard to the names recommended by the Central Government. In that case, as concurrence to the proposal of the Chief Justice of India was B obtained after consideration of all the material, it was held: " ... It must be remembered that a member of an , Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind c likely to interfere with independent judicial functioning or militate thereagainst. It is for this reason, that a policy decision had been taken by the Government of India that while considering members of the Bar for appointment to such a post, their antecedents have to be verified by IB. D 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 Kumar1 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 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 H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 745 [S.B. SINHA, J.]

"'4 precise reason that sub-section (7) to Section 6 of the Act A requires that the appointment of a member of CAT cannot be made "except after consultation with the Chief Justice of India"." We may, however, notice that the Bench itself opined that for appointment as a member of an Administrative Tribunal like B

.. CAT, absolute judicial independence must be ensured. It was furthermore opined: t. "This consultation should, of course, be an effective consultation after all necessary papers are laid before the c <~· Chief Justice of India, and is the virtual guarantee for appointment of absolutely suitable candidates to the post." 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 D India might not have been supplied with necessary inputs was found to be wholly meritless deserving summary rejection thereof. In a case of this nature, there would not be any IB enquiry. It was necessary for the Chief Justice to apprise himself fully with the background of the former judge concerned particularly E where for one reason or the other he was not made permanent.

( . ~ Our attention ,_ has furthermore been drawn to a decision of this Court in High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat and Others (supra) wherein, one of us was F a member. Therein the question which arose for consideration ..... was as to whether without appointing the members, the President of the Industrial Court, which was to consist of three or more members out of which one may be a President, could have been appointed straightway without appointing him as a G member. , -4 It has, however, been contended that disqualification cannot be read into or implied into th.e wording of a section . .Reliance in this behalf has been placed on Manohar H

746 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Nathurao Samarth v Marotrao and Others [(1979) 4 SCC 93] wherein it has been held that Regulation 25 of the Life Insurance Corporation of India (Staff) Regulations 1960 framed under the Lif~ Insurance Corporation Act, 1956 and read with Section 15(g) of the City of Nagpur Corporation Act, 1948 provided for s 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 C 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 indicates a contrary legislative intent. Courts are not victims ofverbalism 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 H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 747 [S.B. SINHA, J]

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 derive, rather than any other; anq would consider any different meaning, by comparison, strained, or far-fetched, D ..i.. + or unusual, or unlikely." The said decision, thus, is an authority that in a given case, the disciplinary prescription may be magnified to. a disenfranchising taboo, if any ground rooted in public policy is found therefor. Emphasis has been laid on policy oriented E understanding of a legal profession and not the strict literal --- meaning which may not often be logical if the context indicates • a contrary legislative intent. -1. We have found hereinbefore that the appellant was not eligible for appointment of a public office and in any event the F Processual machinery relating to consultation was not fully complied. WRIT OF DECLARATION

23Copy pinpoint23. In this case, moreover, a writ of declaration was sought G for. This Court in Shri Kumar Padma Prasad (supra) issued a writ of declaration although a writ of quo warranto was sought for. Declaring that the appellant therein was not qualified to be appointed as a Judge of the High Court, a consequential order directing him not to appoint was also issued. H

748 SUPREME COURT REPORTS [2009] 7 S.C.R.

I" A PANEL ~·

24Copy pinpoint24. The Chief Justice of the High Court forwarded a panel of three Judges including the appellant herein. Whether Section 16 of the Act contemplates such a situation is the question. ... B Independence of the Judiciary as embedded in Article 50 of the Constitution of India needs no over-emphasis. 1 We have noticed hereinbefore that the State of Tamil Nadu 1 in its letter dated 30 h May, 2008 addressed to the Registrar of ,\

c 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 therefor. ' Pursuant thereto or in furtherance thereof, the Chief Justice D only forwarded a panel of three Judges. The Executive ~,..

Government of the State made a final choice therefrom. The process of selection in view of the decisions of this Court in Ashish Handa (supra) and Ashok Tanwar (supra) and E 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 adopted herein, in our considered ~ • F 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 G whatsoever in the matter. The process for preparation of a panel )c• , 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 H

- N. KANNADASAN V. AJOY KHOSE AND OTHERS [S.B. SINHA, J.] 749

instant case, the primary of the Chi.ef Justice, as opined by this A Court in the aforementioned decisions, would stand eroded. It will bear repetition to state that ever, <or 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 ~udge, as· B contained in Article 217 of the Constitution of India, should be. · followed. It is accepted at the Bar that by reason of judicial constitutional interpretation 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 C 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 difficult to accept the submission of Mr. K.K. Venugopal_ D that such 'consultation' would not be 'concurrence' as like the Collegium in the matter of making recommendation for appointment of Judges of the Supreme Court and the High Courts where the view of he Collegium shall have the primacy. For appointment as President of the State Commission, the E Chief Justice of the High Court shall have the primacy and thus

- •i the term 'consultation' even for the said purpose shall mean 'concurrence' only.

It is true that if a panel of names is suggested ana the s, State makes an appointment of one out of the three, the question F 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. G· _.. _~

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 H

750 SUPREME COURT REPORTS [2009] 7 S.C.R.

A is his opinion, are independent and fit persons to be appointed. ~ • We are not in a position to accept the same. 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 B should by no means be allowed to be eroded.

In A. Pandurangam Rao v. State of Andhra Pradesh and others [ AIR 1975 SC 1925 ] this Court has held that the • r"' procedure adopted by the High Court by sending list of all the .. c 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,

D 1973. Government was not bound to accept all the recommendations but could tell the 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 E recommendation in his case stood withdrawn and there was no question of appointing him. Even if the High Court

F 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 G 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 r H

N. KANNADASAN V. AJOY KHOSE AND OTHERS ·. 751 [S.B. SINHA, J.] ..., .,j candidature recommended by the High Court had been rejected when the letter dated·Juiy 26, 1973 was written by the Government. Even after rejection the Government could not ask the High Court to send the list of all persons whom the High Court considered to have reasonable claim to the appointment. We feel distressed to find that instead of pointing out the correct position of law to the Government 'I' and itself acting according to it, a letter like the one dated August 1, 1973 was sent by the High Court in reply to the +- Government's letter dated July 26, 1973. It is not clear from this letter whether it was written under the directions c of Chief Justice and the other Judges of the High Court as in the case of the letter dated July 13, 1973. But surely it was very much wrong _on the part of the High Court to forward the entire list of the candidates interviewed with the marks obtained by them and adding at the same time ..,. D (- that the High Court had no further remarks to offer. We could not understand the reason for writing such a letter by the High Court. But ifwe may hazard a surmise it seems to have been written in utter disgust at the Government's unreasonable attitude displayed in its letter dated July 26,

1973. By no means could it be, nor was it, a E recommendation by the High Court of all ·the 263 candidates interviewed, that all of them had a reasonable ~ claim, or in other words, were fit to be. appointed District 1 Judges. We must express our displeasure at and disapproval of all that happened between the Government F and the High Court- in the former writing the letter dated July 26, 1973 and th~ latter sending the reply dated August 1, 1973.

10. Then comes the letter dated November 30, 1973.After G tracing the history of the recommendations made by the --·"' . High Court in its letter dated July 13, 1973 and "int.he light of further information about these candidates as required from High Court", Government decided to select the six candidates mentioned therein including Respondents 3 H

752 SUPREME COURT REPORTS [2009] 7 S.C.R.

to 6 as 1f 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 B 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 .. violation of Article 233 of the Constitution. We find it intriguing that the letter written by the Registrar to the High c 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 D appointed as their names had never been recommended."

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- E 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 F 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 Pradesh, G appointing Justice Surinder Swaroop as President of the State Commission.

xxx xxx xxx

9. The High Court, after consideration of the respective H contentions advanced on behalf of the parties and in the

N. KANNADASAN V. AJOY Kf-IOSE AND OTHERS 753 [S.B. SINHA, J.] ,-_-~

light of the decisions of this Court, held that the .case of A Ashish Handa related to the initiation of "process", which was required to be followed in making appointment of President of the State Commission, and that such process should not have been initiated by the Government but it ought to have been initiated by the Chief Justice. On facts B the High Court. found that although initially the process was started by tge Government proposing the name of Respondent 3, Respondent2, however, was aware of the legal position arid it immediately drew the attention of. · Respondent 1 that the procedure adopted by Respongent ·c 1 was not in accordance with law. Therefore, a. second letter was addressed by Respondent 1 to Respondent 2. Respondent 2 on receipt of the secondJetter 'madeJhe recommendation to appoint Responder:it 3 as President of the State Commission. On that issue the Higll:court D held that the action taken either by Respondent 1 or -by . :_

Respondent 2 could not be saj~ to be contrary to law or · the directions issued by this Court in the·case of Ashish Handa. Consequently the writ petition was dismissed. Hence, this appeal." E 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 F Redressal Commission (hereinafter referred to as "the State Commission"). On 25-8-2003 the Chief Minister of Haryana addressed a letter to the Chief Ju~tice bf the Punjab and Haryana High Court drawing his attention to the vacancy that was likely to arise on 5-9-2003, and G expressed his view that Justice R.S. Mongia, retired Chie( Justice of the Gauhati High Court, would be a befitting incumbent to be appointed to the said post and requested for communication of th'e views of the Chie(Justice of the Punjab and Haryana High Court. By a communication dated~H

754 SUPREME COURT REPORTS [2009] 7 S.C.R.

.. A 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 & Haryana1 and took the stand: (SCC p.148, para 3) B ... even for initiation 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 -1 same as for appointment of a High Court Judge. That c 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 i:;ommunication dated 27-8-2003, the Chief Justice informed the Chief Minister that the collegium of the High D Court had met and considered the names of several persons, and unanimously decided to recommend Justice x-- 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 E was forwarded for information. The resolution took note of the credentials of the three retired Judges, whose suitability was conside~ed, and decided to recommend Mr Justice R.C. Kathuria as most suitable and fit for appointment. , A

Jµstice R.S. Mongia was also one of the three retired .F Ju(jges, whose suitability was considered by the said resolution.

8. By a letter dated 29-10-2003 the Chief Minister, Haryana, raised certain objections to the proposal made by the Chief Justice. The collegium of the High Court considered G the letter dated 29-10-2003 of the Chief Minister, Haryana '). .r., · and reiterated its earlier recommendation. By a letter of 1-12-2003 the Chief Minister drew the attention of the Chief Justice to what he considered were the deficiencies in the candidature of the learned Judge, whose name was H

N. KANNADASAN V. AJOY KHOSE AND OTHERS 755 [S.B. SINHA, J.]

proposed by the High Court. Once again, the High Court A after calling for several records and considering various other aspects of the matter reiterated its stand that there was no reason to recall the earlier recommendations to appoint Justice R.C. Kathuria (retired) as the President of the State Commission. By another letter dated 7-1-2004, · B the Chief Minister of Haryana drew the attention of the Chief Justice of the Punjab and Haryana High Court to the newly introduced Section 16(1-A), vide (Amendment) Act 62 of 2002, and stated that since the post of the president of the State Commission was vacant at the moment, an c Hon'ble sitting Judge of the Punjab and Haryana High Court was required to be nominated to act as Chairman of the Selection Committee to be constituted under Section 16(1-A). There was certain other correspondence about certain representations made, which is not material. D xxx xxx

18. We are unable to accept this contention of the learned counsel fo'r the Union of India. It is inconceivable that sub- section (1-A) is intended for appointment of the President of the State Commission itself. In the first place, we cannot · E 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 o(judicial independence F than such interpretation of sub-section (1-A). This conclusion of ours is driven home by the proviso to sub- section (1-A). 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 G 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 H

756 SUPREME COURT REPORTS [2009] 7.S.C.R.

A counsel of the Union 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 B be members. That would be obviously destructive of , judicial independence. y

Even in Union of India v. Kali Dass Batish, (supra) whereupon strong reliance has been placed by Mr. Venugopal, ~

this Court held :- c " .... 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 D 41' ..... 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 E any kind likely to interfere with inde_pendent judicial functioning or miHtate thereagainst." We have, therefore, no he.sitation in holding that the .. process adopted by the High Court and the Chief Justice in • F asking for a panel of name and sending ·the same was not legally · permissible. CONCLUSION

25Copy pinpoint25. The summary of our aforementioned discussions is as under: · G ; (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 """""' H

N. KANNADASAN V. AJOY KHOSE AND·-OTHERS 757 [S.B. SINHA, J.]

warranto but also a writ in the nature of quo warranto. A It is also entitled to issue a writ of declaration which would achieve the same purpose. (iii). For the purpose of interpretation of Constitution in regard to the status of an Additional Judge, the word "has been" would ordinarily mean a retired Judge 8 and for the purpose of examining the question of eligibility, not only his being an Additional judge but also a qualification as to whether he could continue in the said post or he be appointed as an acting or adhoc judge, his suitability may also be taken into C consideration. (iv) Section 16 of the Act must also be given a contextual meaning. In a case of this nature, the court having regard to the wider public policy as also the basic 0 feature of the Constitution, viz., independence and impartiality of the judiciary, would adopt a rule of purposive interpretation instead of literal interpretation. (v) Due consultative process as adumbrated by this E 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 paneLof F 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. G Before parting, however, we would place on record that Mt. 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 re~ignation has been accepted.by . H

758 SUPREME COURT REPORTS [2009] 7 S.C.R

A the State of Tamil Nadu. Moreover, there is no prayer for withdrawal of the special leave petition.

We, in the aforementioned situation, are proceeding to pronounce our judgment.

B We must also place on record our deep appreciation for the learned counsel for the parties and in particular Shri G.E. Vahanvati, the learned Solicitor General of India for rendering valuable assistance to us. For the reasons aforementioned, we do not find any merit C in these appeals, which are dismissed accordingly. No costs.

G.N. Appeals dismissed.