N. KANNADASAN v. AJOY KHOSE AND OTHERS

Citation: [2009] 7 S.C.R. 668

Court: Supreme Court of India

Bench: S.B. SINHA, MUKUNDAKAM SHARMA

Case summary

N. KANNADASAN v. AJOY KHOSE AND OTHERS.pdf

Judgment text

[2009] 7 S. C. R. 668 N. KANNADASAN v AJOY KHOSE AND OTHERS Civil Appeal No. 7360 of 2008 MAY 6, 2009 (S. B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.

) Consumer Protection Act, 1986: Section 16 - Post of Chairman, State Consumer Commission - Appointment of - Person who was earlier Additional Judge of High Court and had demitted office since he was not made Permanent Judge, was recommended and appointed - Challenged before High Court - Allowed by the High Court holding that the recommendation itself was vitiated - On appeal, Held: If a person does not have qualification to 0 hold the office ofa Judge ofHigh Court, it is difficult to conceive as to how despite such deficiency in qualification, he could be recommended for appointment to a statutory post, the eligibility criteria wherefor is inter alia a former Judge - Moreover, when for a Member of the Commission, ability, integrity and standing are essential qualifications, such criteria should equally apply to the Chairman - Indisputably a person having doubtful integrity should neither be recommended by the High Court nor ~pointed by the State Government - Judicial Review - Constitution of India, Article 217 - Consultation.

Constitution of India, 1950: Articles 32, 226 - Writs - Writ of Quo Warranto and Writ of certiorari - Scope and ambit of - Discussed. The appellant who was a practicing Advocate was appointed as an Additional Judge of the Madras High Court. During his tenure there were allegations of lack of probity against him and he was not appointed as a -. :.. ;. -J Permanent Judge, and he demitted office. His name was included in the list of retired Judges. . State Government requested the High Court to send a list of names for appointment as President of the State Consumer Disputes Reddressal CommissiOn. Names of 8 three persons including the appellant was sent to the State Government and the appellant was appointed as .... President of the Commission. -+ Writ Petitions filed in the High Court challenging the appellant's appointment were allowed. Hence the appeals. Dismissing the appeals, the Court HELD: 1.

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 - i. appointed as a Permanent Judge. However, no such restriction is imposed in regard to an Additional Judge. Article 221 provides for salaries and other emoluments, which, indisputably, are the same for a permanent judge or an additional judge. ·Article 222 provides for a transfer of a judge. Indisputably again an additional judge can also be transferred from one High . Court to another High Court. Article 223 provides for appointment of acting Chief Justice. Article 224 provides for appointment as additional and acting judges commonly known as ad hoc judges. Part 'D' of the Second Schedule of the Constitution of India provides for the provision as to the quantity of payment of salary to the Judges of the Supreme Court and the High Court. Clause 11 thereof refers to the definitions of 'Chief Justice', 'Judge' and.

'actual service'. Definitions have also been referred to in the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short "the 1954 Act"). The 1954 Act also provides for qualification for payment of pension for Judges. An Additional Judge who h'olds a tenure post indisputably would not get any pensionary benefit. THE ACT 11. The Act was enacted to provide for better protection of the interests of consumers and for that purpose to make - >-j provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith. Section 2 thereof defines 'State Commission' to mean a , Consumer Disputes_ Redressal Commission established in a 1'- State under clause (b) of Section 9-: Section 3 provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law.

- Section 16 provides that the State Commission shall consist of a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President. A proviso was inserted threin by Act No. 50 of 1993 which has .. 1 come into force with effect from 18 h June, 1993 providing that /.. no appointment thereunder shall be made except after ,. consultation with the Chief Justice of the High Court: Clause (b) of sub-section (1) of Section 16 provides for appointment of members from amongst the persons of ability, integrity and standing and have adequate knowledge and experience ·of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. Section 17 provides for the jurisdiction of the State Commission.

It has original jurisdiction to entertain complaints Iwhere 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. 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 12. The High Court has taken recourse to the rule of '"" "I'.

purposive construction whereas learned counsel appearing on behalf of the appellants want us to invoke the rule of literal meaning. Interpretative tools of constitutional provisions and the statutory provisions may be different. Whatever interpretative tool is applied, the Court must not forget that its job is to find out the intention of the legislature. It can be gathered from the words .. used. However, if plain mean(ng assigned to the section results ~ in absurdity or anomaly, literal meaning indisputably would not be applied. It is also well settled that the Court may have to change the interpretative tool in the event it is necessary to give effective contextual meaning to the Act. It is one thing to say that an Additional Judge would be on the same pedestal as Permanent Judge for all practical purposes, namely - judicial function; administrative function; pay and remuneration etc.

but would it mean that the same interpretation would be applicable even in a case where an Additional Judge,despite his legitimate expectation to become a Permanent Judge has not been conferred on the said stating allegations of lack of probity. An Additional Judge on the expiry of his tenure has a right to be considered for re-appointment if he is not-appointed as a Permanent Judge. He may not, however, be reappointed if it is found that he is otherwise disqualified therefor, namely to satisfy the test of fitness and suitability, physical, intellectual and moral, before the Central Government can, consistently with its constitutional obligation and in public interest, decide to reappoint him as an Additional Judge or appoint him as a Permanent Judge. SOME PRECEDENT S. P. GUPTA pointed out in T Fenn Wa/ter(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.

An Additional Judge who has not been confirmed, may for the purpose of giving effect to the constitutional provisions be considered to be a former Judge but when it comes to the question of his appointment in the said capacity, in our opinion, ... it is possible to take somewhat different view having regard to his present status, viz. , an advocate or a district judge, as the case may be. He despite being a former Judge is entitled to practice in the same High Court, which other Judges are not permitted to do so. He may appear before the Tribunal and subordinate courts. A person for the aforementioned purpose must answer the test of his being qualified to be a Judge. For the purpose of Section 16 of the Act, he must be equated with a " .. sitting Judge of a High Court. In other words, he could, but for the reasons like reaching the age of superannuation, continue as a Judge. In S.

P Gupta (supra), this Court has categorically held that person who has not been confirmed would not be recommended for reappointment. If that be so, he could not continue to hold the High office of a Judge, although he was otherwise eligible therefor. v -~ In Supreme Court Advocates-on-Record Association (supra), this Court laid down the qualities of a Judge :- "Under our constitutional scheme, the judiciary has been ~ ~ ·"f assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting ~ courage and determination and resolute impartiality and ...

independence who would dispense justice without fear or favour, ill will or affection. Justice without fear or favour, ill will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country. There can be no two opinions at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. " A Judge must have these basic qualities and, thus, must be found to possess the same. A person found to be lacking these qualities would not be recommended for appointment of a permanent judge. The system of governance established by the Constitution 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 ... 'f in the Judiciary cannot be afforded to be er9ded.

Independence of judiciary is a much wider concept. Key note is judiciary and not the Judge. If a person does not have qualification for continuing to hold the office of the Judge of a High Court, it is difficult to conceive as to how despite such deficiency in qualification, he could be recommended for appointment to a statutory post, the eligibility criteria wherefor ~ is inter alia a former Judge. A Chief Justice of a High Gourt, ,} thus, before making recommendations for his appointment in terms of Section 16 of the Act must satisfy himself that the recommendee has/had those basic qualities. . While making recommendations the Chief Justice performs a constitutional duty. If while discharging his duty, he finds a former judge to be ineligible, the question of his being considered for appointment would not arise.

If such a person cannot be recommended being unfit or ineligible to hold the post, it would not be correct to contend that despite the same he fulfils the eligibility criteria. . E Whether the condition 'has been a judge' is not necessary to be construed for the purpose ofArticle 217 of the Constitution of India, it is required for the purpose of interpreting Section 16 of the Act as to whether he should be recommended for being appointed as a Chairman of the state commission. ·• .. In our constitutional scheme, the judge made law becomes a part of the Constitution. It has been so held in M. Nagaraj. and Others v. Union of India and Others [(2006) 8 sec 212] in the following terms: "... The Constitutio11, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme v--- Court which prevails as a law. The interpretation placed '" ....

on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under ( .. "( Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt iri the provisions interpreted. Such articles are capable of amendment under Article 368. " If a person has made himself disqualified to hold the post of a judge, the Chief Justice should not consider his name at all. 'I If a duty had been cast on the Chief Justice not to recommend, which is a constitutional duty for all intent and purpose- he must -·\ be held to be disqualified. If he stands disqualified following S. P Gupta (supra) and other cases-question of his candidature being considered does not arise. It is in that sense- the principle of purposive construction is to be taken recourse to.

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. ~ 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 17. Acase of this nature is a matter of moment. It concerns public interest.

Public information about independence and ''4 impartiality of a judiciary would be in question. The duty of all organs of the State is that the public trust and confidence in the ,,,, judiciary may not go in vain. Construction of a statute would not necessarily depend upon application of any known formalism. It must be done having regard to the text and context thereof. .. y \ For the aforementioned purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve. A construction of a statute, as is well known, must subserve the tests of justi'ce and reason. It is a well-settled principle of law that in a given case with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted. )I Provisions of a statute can be read down (although sparingly and rarely). . J .. In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791], Krishna Iyer, J. opined: "21.

The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, . grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed4: "There is no surer way to misread a document than to read it literally. "" ~ . j Yet Again in K. P Varghese v. Income Tax Officer, Ernakulam and Another [(1981) 4 SCC 173], the strict literal reading of a statute was avoided as by reason thereof several vital considerations, which must always be borne in mind, would be ignored, stating: "... The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the vprecision of mathematical symbols.

It is an attempt to '~ discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the • expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be "drafted with divine prescience and perfect clarity". We can do no better thari repeat the famous words of Judge Learned Hand when he laid: 8 ''. .. it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any 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 0 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. " In the aforementioned case, therefore, some words were read into and the plain and natural construction was not given. In Bhudan Singh and Another v. Nabi Bux and Another [(1969) 2 SCC 481], 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, ridiculously or in any other man.

ner contrary to prevailing conceptions of justice and reason, in most instance, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law makers. In the absence of .. )'some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent. " This Court Atma Ram Mittal v. lshwar Singh Punia, [ (1988) 4 sec 284]: "9. Judicial time and energy is more often than not • consumed in finding what is the intention of Parliament or ). in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.

(emphasis by the court) See Commentaries on the Laws of England (facsimile of 1st ~-~ Edn. Of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). " In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat and Others [ (2003) 4 SCC 712 ], this Court noticed: "33. In United Bank of India v. Abhijit Tea Co. (P) Ltd. this to- Court noti¥ed: (SCC p. 366, paras 25-26) ~ + "25. In regard to purposive interpretation, Justice Frankfurte~ observed as follows: 'Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other v > external manifestations of purpose [Some Reflections on the Reading ofStatutes, 47 Columbia LR 527, at p. 538 (1947)]. ' xxx xxx xxx ' ... C"( 38.

In The Interpretation and Application of Statutes by Reed Dickerson, the author at p. 135 has discussed the subject while dealing with the importance of context of the statute in the following terms: "... The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to ~. which it belongs. For this reason, language has been called -4. 'conceptual map of human experience'. " In New India Assurance Company Ltd. v. Nusli Neville Wadia and Another [(2008) 3 SCC 279], 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. )" In Union of India v. Ranbaxy Laboratories Limited and Others [(2008) 7 SCC 502], this Court held that the principles of purposive construction may be employed for making an exemption notification a workable one.

We may notice that in Regina v. Secretary of State for Health ex parate Quintava/le [2003] UKHL 13], the House of Lords stated the law as under: "8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman willfeel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute.

Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. *** *** *** The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763.

In any event, nowadays the shift towards purposive interpretation is not in doubt. " ""· -'( Yet again, the Australian High Court in Australian Finance Direct Limited v. Director of Consumer Affairs Victoria (2007] HCA 57], held : "40. This explanation of the approach to be taken to problem of construction has been cited, restated and applied in this Court so many times that it should be uncontroversial. Some judges have not been 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. -1( 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. " Mr. Venugopal would, however, place strong reliance on Harbhajan Singh v. Press Council of India and others [(2002) 3 sec 722] to emphasise that the golden rule is that the words of statute must be prima facie given their ordinary meaning. In that case, itself, this Court has referred to the 'Principles of ~ Statutory Interpretation' by Justice G. P.

Singh wherein it has been stated that the Judges can adopt a purposive interpretation if they can find in a statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy. Although ordinarily, ,. . ..... an ordinary meaning cannot be departed from by the Judges in the light of their own views as to policy. ~ Eligibility of a Judge of a High Court should not be construed in a pedantic manner. It in the context of a large number of decisions of this court including S. P Gupta (supra) must also be held to include suitability of a person concerned. For the aforementioned purpose, the principles of purposive • interpretation is required to be resorted to. i Reliance has also been placed on Sangeeta Singh v. .. Union of India and Others [(2005) 7 SCC 484] wherein also while dealing to principles of construction, it was clearly stated: "5.

It is a well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute xis the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements. " PRECEDENTS GOVERNING APPOINTMENT OF CHAIRMAN, STATE COMMISSION. 18. The question in regard to the appointment of a former Judge of the High Court as the President of the State ~ Commission has been considered by this Court in Ashish ~ Handa v. The Hon'ble the ChiefJustice ofHigh Court ofPunjab and Haryana and others, (supra) wherein it was opined :- "3.... The scheme is that these three agencies constituted for redressal of consumer disputes at different levels have as its President a person who is, or has been a Judge at the corresponding level.

This is so because the function of these agencies is primarily the adjudication of consumer .... - disputes and, therefore, a person from the judicial branch is considered to be suitable for the office of the President. The appointment to the office of the President of the State Commission is to be made "only after consultation with the Chief Justice of the High Court" and to 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 0 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. Jt is unnecessary to restate the same which is summarised in the majority opinion in the Judges-II case. This is necessary to maintain independence of the judiciary and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment.. ..

The requirement of consultation with the Chief Justice in the proviso to Section 16(1 )(a) and Section 20(1 )(a) of the Consumer Protection Act being similar to that in Article 217, . the principles enunciated in the majority opinion in the Judges-II case must apply, as indicated earlier, even for initiating the proposal. The executive is expected to approach the Chief Justice when the appointment is to be made for taking the steps to initiate the proposal, and the procedure followed should be the same as for appointment of a High Court Judge. That would give greater credibility to the appointment made. Yet again in Ashok Tanwar and another v. State of Himacha/ Pradesh and others, [ (2005) 2 SCC 104] this Court held:- "23.... A person to be appointed as President of the State Commission has to be necessarily a sitting or a retired Judge of a High Court and not that any person can be appointed as President of the State Commission.

This being the position, it does not stand to reason as to why again in respect of a sitting or retired Judge of a High Court the whole process contemplated under Article 217 of the Constitution must be resorted to. To put in clear • terms so as to remove any doubt. we state that in the matter of appointment of a sitting or retired Judge of a High Court as President of the State Commission. process must be initiated by the Chief Justice under Section 16 of the Act and "consultation" contemplated in the said section Jlfr' is "consultation" only with the Chief Justice of the High Court and not with the collegium. (Emphasis added)" The Constitution Bench in Ashok Tanwar, however, clearly held that the consultation process in terms of Article 217 of the of the Constitution of India, for the purpose of finding out of the suitability or otherwise of the candidate, namely the members of the Collegium is not necessary.

Such a finding was arrived at inter alia on the premise that an appointment was required to be made by a sitting or a retired judge whose antecedents are known to the Chief Justice stating :- "19. It is thus clear that the expression "consultation" used in Article 217 of the Constitution in relation 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 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 constitutional functionaries, which does not stand to reason. 0 Hence, obviously for appointment of a person as President of the State Commission, consultation as required under Article 217 of the Constitution as against the requirement stated in Section 16 of the Act is not necessary.

If that be so, not only the opinion of two seniormost Judges of the High Court should be obtained but also the consultation should be made with other constitutional functionaries as contemplated under Article 217 of the Constitution .. including the Chief Justice of India. Hence insistence on "consultation" by the Chief Justice of a High Court with his two seniormost colleagues in the High Court for the purpose of Section 16 of the Act, in our view, is unwarranted. " CONSTITUTIONAL INTERPRETATION 19. Independence and impartiality of judiciary is a basic ~ feature of the Constitution. Constitutionalism envisages that all laws including the constitutional provisions should be interpreted so as to uphold the basic feature of the Constitution. A person lacking probity would not be a person who could be found fit for appointment as a High Court Judge. A case of this nature where [2009] 7 S. C. R.

no re-appointment was made or an Additional Judge despite ~ existence of vacancy was not made a Permanent Judge, in our opinion, deserves serious consideration. It is not a case where reappointment as an Additional Judge or appointment to a .. ,. Permanent Judge was not possible for want of vacancy or the purpose for which such appointments had been made was achieved. An Additional Judge may not be made permanent or re-appointed in the said capacity if: ,. (a) If the requirement contemplated under Article 224 no longer exists ; .. (b) He had attained the age of 62 years ; (c) He is not inclined to continue further ; (d) His inability to continue further on account of physical or mental capacity ; In SP Gupta (supra) a Seven Judge Bench of this Court has clearly held that every re-appointment should undergo the same processes as envisaged under Article 217 of the Constitution of India.

We are although not oblivious of a decision of the Division Bench of this Court in Shanti Bhushan and another v. Union of India and another, [ (2009) 1 sec 657 ] wherein it has been held that extension of the tenure of an Additional Judge is the prerogative of the Chief Justice of India but therein this Court was not concerned with a situation of this .. nature. • 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 orAdditional 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'. '.

· 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 8 · and the discussions touching upon the question of confirmation' of the RespondE;)nt No. 1. Even though all such papers have been made available to us by the Addi. Solicitor General appe'aring for the Central Government and Shri Muthukumarasamy, Senior Counsel, for the High Court and no privilege has been claimed, we have not thought it fit to permit the Counsels for the contesting parties to peruse such papers, because, in our considered opinion, it would open a collateral battle on the question relating to confirmation of Respondent No. 1, which is not and cannot be an issue. Moreover, it is not for us to decide about the suitability of Respondent No.

1 for the post of President of the Consumer Commission as that was a· matter for the State Government to decide in consultation with the Chief Justice. If the appointment of a person is. otherwise legal, the Judiciary may not be justified in interfering with such appointment on the ground that it is· against public interest. As already noticed, . the sentiment expressed in R. K. Jain case is clear on this aspect. " ... We have perused the records ourselves. We are satisfied that it was necessary for the Chief Justice of the High Court to apprise himself the reasons with reference to the backdrop of events as to why the collegium of the Supreme Court of India · · did not find the appellant to be a fit person for re-appointment or made a Permanent Judge. Names of eight persons w~re recommended together. A large number of vacancies existed. Six of them were recommended to be appointed as Permanen~ Judges.

In respect of one name, the Chief Justice of India exercised his prerogative jurisdiction to extend his term from time to time. He had also been made a Permanent Judge. [See Shanti Bhushan (supra)] Only in relation to the appellant herein the collegium refused to make a recommendation which was also accepted by the Chief Justice of India. '1 We may also place on record that at least in a few .. decisions, this Court has held that only a sitting or retired Judge is suitable for appointment. In our opinion, the same clearly goes to show that Judge whose tenure ended by way of non extension as a stigma would not come within the purview of the definition of term 'tias been a Judge of the High Court'. , We say so for more than one reason. Section 16(1 )(b)(iii) >of the Act in relation to appointment of a Member of the 1 f Commission lays down inter alia the qualifications of a person of ability, integrity and standing.

If in the case of a Member, ability, integrity and standing are essential qualifications, it is difficult to perceive why the same qualification is not required for • appointment as Chairman of the Commission within the meaning of clause (a) there9f. 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. . ~ ~·E 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) 5 SCC 1 ], observed as under:- >1' "6. We find substance in the stand taken by the learned 1' . F 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 A// lridia Judges' Assn. v. Union of India and in A// 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. " As regards the qualifications of a Fast Track Court Judges, "' keeping in view the laudable object with which the Scheme had been conceived and introduced, inter alia the following directions were issued :- "2. The second preference in appointments to Fast Track 8 Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, "\ integrity and character are concerned.

Those who were ~ not given the benefit of two years' extension of the age of '~ superannuation, shall not be considered for appointment. .. It should be ensured that they satisfy the conditions laid down in Articles 233(2) and 309 of the Constitution. The High Court concerned shall take adecision with regard·to • the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts. - ~ 3. No judicial officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial officers who have sought voluntary retirement after initiation of departmental proceedings/inquiry shall not be considered for appointment. ". Iii Pareena Swarup v. Union of India [2008 {13) SCALE • • • 84], this Court intervened stating legislative amend_ments are· v carried out to protect judicial independence in a case inyolving' -. ' the Prevention of Money Laundering Act, 2002.

Qualification to hold the post was found to be necessary . 4. also in B. R. Kapur v. State of TN. and Another [(2001) 7 SCC 231]. CONSULTATION -~ 20. We may consider as to whether the consultative process required to be gone into for the purpose of appointment of Chairman, State Commission was complied with. ,.. _ The word "consultation" may mean differently in different \>situations depending on the nature and purport of the statute. Consultation, although in regard to the appointment of the High Court and the Supreme Court Judges, having regard to the decision of this Court in Supreme Court Advocates-on Record Association (supra) would mean "concurrence", should it for the purpose of the provisions of Section 16 mean differently is the question. Indisputably, in view of the decisions of this Court in ,. Ashok Tanwar (supra) and Ashish Handa (supra) consultation ,.. with the Chief Justice would not mean the consultation with the Collegium of the High Court.

Concedingly again, proposal for such appointment must be initiated 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. In State of Haryana and Ors. v. National Consumer Awareness Group and Ors. [ (2005) 5 SCC 284] this Court did not give a literal meaning to sub-section (1 A) 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 • 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- . vsection (1-A) may prima facie suggest that appointments under clauses (a) and (b) of sub-section (1) are also governed by the procedure contemplated therein, under sub-section (1-A), but as rightly held by the High Court the -"'\ -'/ two sub-sections have to be harmoniously construed. The 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 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. " While approving Ashish Handa (supra) andAshok Tanwar (supra) it was observed :- "14. A careful reading of Ashok Tanwar shows that the Constitution Bench differed from Ashish Handa only on -\ 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 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 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 ....... ---...... _ 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 .. 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 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 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" •D ) 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 . C~ntral Government before it takes a decision whether or . , notto--appoint the person concerned as a Judge. " " 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 matter, the President while consulting the Chief Justice must :y-:: make the relevant data available to him, stating: "...

If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask ·for them because, in casting on the President the obligation *** *** **? (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 ... 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 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 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. 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 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 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 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 . _ _,, Presidential Reference, SpeCial Reference No.

1 of 1998 (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 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), 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 --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 .. interest must be made. Thus, institution as also public interest must be uppermost in the mind of the court. When such factors 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 for the purpose of assessing the suitability of a person for '~ appointment as a Judge must be whether the Chief Justice of 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) ... 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 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 Court had met and considered the names of several x-persons, and unanimously decided to recommend Justice R. C.

Kathuria (retired) of the Punjab and Haryana High Court as most suitable and fit for appointment as President of the State Commission. A copy of the relevant resolution was forwarded for information. The resolution took note of the credentials of the three retired Judges, whose suitability was conside~ed, and decided to recommend Mr Justice A R. C. Kathuria as most suitable and fit for appointment. , 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 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 proposed by the High Court. Once again, the High Court 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, · 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 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. xxx xxx 18. We are unable to accept this contention of the learned counsel fo'r the Union of India. It is inconceivable that subsection (1-A) 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 o(judicial independence than such interpretation of sub-section (1-A). This conclusion of ours is driven home by the proviso to subsection (1-A). This proviso is intended to take care of 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 ! " 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 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 :- ".... 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 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 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 • · asking for a panel of name and sending·the same was not legally permissible. CONCLUSION 25. The summary of our aforementioned 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 awrit of quo """""' warranto but also a writ in the nature of quo warranto.

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 8 "has been" would ordinarily mean a retired Judge 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 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 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 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. Before parting, however, we would place on record that Mt. Ramamurthy, learned counsel on 5. 5. 2009 filed 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 . 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. 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 in these appeals, which are dismissed accordingly. No costs. G. N. Appeals dismissed.