Full Judgment Text
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CASE NO.:
Appeal (civil) 8248 of 2004
PETITIONER:
Ashok Tanwar & Anr.
RESPONDENT:
State of H.P. & Ors.
DATE OF JUDGMENT: 17/12/2004
BENCH:
R.C. LAHOTI CJI & S.V.PATIL & K.G.BALAKRISHNAN & B.N.SRIKRISHNA & G.P.MATHUR
JUDGMENT:
JUDGMENT
(Arising out of Special Leave Petition (C) No.15706 of 2001)
DELIVERED BY:
S.V.PATIL,J.
Shivaraj V. Patil J.
Leave granted.
A Bench of three learned Judges of this Court made
the following order of reference on 7th March, 2002: -
"In the present case, under Section 16 of the Consumer Protection
Act, the President of the State Consumer Disputes Redressal
Commission has to be appointed in consultation with the Chief
Justice of the State. The question which arises is whether
consultation with an Acting Chief Justice is sufficient compliance
or not.
This question involves interpretation of Articles 217 and 223 of the
Constitution and as there is no decision of this Court which can be applied
in the present case, then by virtue of Article 145(3) of the Constitution
this case involving the said question of law involving interpretation of
the Constitution should be heard by a Bench of not less than five learned
Judges.
Let the papers be placed before the Hon’ble the Chief Justice of
India for appropriate orders for hearing of the case as
expeditiously as possible and within a period of four months."
Articles 217 to the extent relevant and 223 of the
Constitution of India read: -
"217. Appointment and conditions of
the office of a Judge of a High Court. \026
(1) Every Judge of a High Court shall be
appointed by the President by warrant
under his hand and seal after consultation
with the Chief Justice of India, the
Governor of the State, and, in the case of
appointment of a Judge other than the
Chief Justice, the Chief Justice of the High
court, and shall hold office, in the case of
an additional or acting Judge, as provided
in article 224, and in any other case, until
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he attains the age of sixty-two years:
"223. Appointment of acting Chief
Justice. \026 When the office of Chief Justice
of a High Court is vacant or when any such
Chief Justice is by reason of absence or
otherwise, unable to perform the duties of
his office, the duties of the office shall be
performed by such one of the other Judges
of the court as the President may appoint
for the purposes."
On 3rd March, 2000 The Financial Commissioner-cum-
Secretary (F&S), Government of Himachal Pradesh,addressed a letter to
Registrar General, Himachal Pradesh High Court stating that Justice P.N.
Nag (retired Judge of the High Court) shall cease to hold the post of
President of H.P. State Consumer Disputes Redressal Commission,
Shimla (for short ’the State Commission) on 4.3.2000, after attaining the
age of 67 years. In accordance with the provisions contained in The
Consumer Protection Act, 1986 (for short ’the Act’), a person who is or has
been a Judge of High Court can be appointed as President of the State
Commission, after consultation with the Chief Justice of the High Court.
After consideration the State Government decided to take the services of
Justice Surinder Swaroop, a sitting Judge of the High Court of Himachal
Pradesh for appointment as President of the State Commission.
Therefore, he requested that the proposal of the State Government may
kindly be placed before the Hon’ble Chief Justice, High Court for
consideration and recommending the name of Justice Surinder Swaroop for
appointment as President of the State Commission on part-time basis.
On the same day the High Court addressed a letter to the State
Government indicating that there was defect in
the process adopted by the State Government and that the reference made by
the State Government was not in conformity with the provisions of law as
the executive is expected to approach the Hon’ble Chief Justice when the
appointment was to be made, to initiate the proposal as per the procedure
to be followed for appointment of High Court Judge.
The State Government wrote the second letter to the
Registrar General of the High Court requesting the Hon’ble Chief Justice to
initiate the process for filling up the vacancy to the post of President of
the State Commission in accordance with the provisions of the Act and the
law laid down by this Court in Ashish Handa, Advocate vs. Hon’ble the Chief
Justice of High Court of Punjab & Haryana and others . On 7th March 2000
the Registrar General of the High Court addressed a letter to the Financial
Commissioner- cum-Secretary (F&S) of the State Government conveying
recommendation of the Chief Justice for appointment of Mr.Justice Surinder
Swaroop, a sitting Judge of the High Court, as President of the State
Commission holding additional charge of the post. In the said letter it
was also stated that the steps may be taken for appointment of Mr. Justice
Surinder Swaroop (respondent No. 3 herein) as President of the State
Commission in accordance with law and rules. Thereafter, a notification
dated 13th March, 2000 was issued by the Governor, Himachal Pradesh,
appointing Justice Surinder Swaroop as President of the State Commission.
Appellant No. 1, a permanent resident of Namol and a practicing
advocate at Solan and appellant No. 2, a retired Research Officer
resident of Shimla, filed Civil Writ Petition No. 647 of 2000 in
the High Court claiming to espouse public interest stating that
they were interested in proper functioning of the State Commission.
According to them the appointment of respondent No. 3 \026 Justice
Surinder Swaroop \026 as President of the State Commission was not in
accordance with law and was contrary to the decisions of this Court. They
sought for writ of quo warranto to the respondent No. 1 to quash the
appointment of respondent No. 3 mainly contending that there was a defect
in the initiation process for appointment to the post of President of
the State Commission on the ground that the process was initiated by the
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State Government instead of Chief Justice and that the Acting Chief Justice
did not consult the two senior most Judges of the High Court before
recommending the name of respondent No. 3 for appointment as the
President of the State Commission. In support of these contentions they
placed reliance on the decisions of this Court in Ashish Handa, Advocate
vs. Hon’ble the Chief Justice of High Court of Punjab & Haryana and others
(supra) and Supreme Court Advocates-on-Record Association and others vs.
Union of India . Respondent Nos. 1 and 3 resisted the writ petition
and respondent No. 2, the High Court, made the position clear
having regard to the records. The High Court, after consideration of the
respective contentions advanced on behalf of the parties and in the
light of the decisions of this Court, held that the case of Ashish Handa
(supra) 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 the High
Court found that although initially the process was started by the
Government proposing the name of respondent No. 3, respondent No. 2,
however, was aware of the legal position and it immediately drew the
attention of respondent No. 1 that the procedure adopted by
respondent No. 1 was not in accordance with law. Therefore, second letter
was addressed by respondent No. 1 to respondent No. 2. Respondent No. 2 on
receipt of the second letter made the recommendation to appoint
respondent No. 3 as President of the State Commission. On that issue the
High Court held that the action taken either by respondent No. 1 or by
respondent No. 2 could not be said to be contrary to law or the directions
issued by this Court in the case of Ashish Handa (supra). Consequently
the writ petition was dismissed. Hence, this appeal. The High Court, in
the impugned judgment, dealing with initiation of the process and
consultation for appointment of respondent No. 3 as President of the State
Commission, has observed, thus: -
"The counsel for the petitioners contended that appointment of a person as
President to the State Commission, as ruled by the Supreme Court in Ashish
Handa, has to be made in accordance with the provisions of Article 217 of
the Constitution. In other words, before an appointment of a sitting or
retired Judge of a High Court is made as the President of the State
Commission, there should be consultation at three levels; firstly,
consultation with the Chief Justice of India, secondly, consultation with
the Governor of the State and thirdly, consultation with the Chief Justice
of the High Court concerned.
xxx xxx xxx xxx
Hence, if the submission of the learned counsel is upheld, the
result would be as under:
Before the appointment of respondent No. 3 by respondent No. 1 as
the President of the State Commission, respondent No. 1 ought to
have consulted the Governor of the State (the State Government),
(which is the appointing authority in the instant case), the Chief
Justice of India (not the Chief Justice of India in his individual
capacity but collectively, along with the collegium), the Chief
Justice of this Court (not the Chief Justice in his individual
capacity, but with the collegium, that is, his two senior most
colleagues) and also a Judge or Judges, who is/are in the Supreme
Court who is/are likely to be conversant with the affairs of this
High Court. Unless the above procedure is strictly adhered to, the
appointment of respondent No. 3 as the President of the State
Commission cannot be held legal and lawful."
In relation to the law laid down by this Court in Ashish Handa the High
Court noted that it was not the case before the High Court that the Chief
Justice had consulted his two senior most colleagues before approving the
name of Justice Agnihotri and yet the appointment was not interfered with.
The High Court also expressed that in Ashish Handa this Court has laid down
that under Section 16 of the Act process for appointment of a sitting or
retired Judge as President of the State Commission should be initiated by
the Chief Justice as is done in the case of appointment of a Judge to a
High Court under Article 217 of the Constitution and that such process
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should not be initiated by the Government. Before us, learned counsel
for the appellants urged that: -
1. since the recommendation to appoint respondent No. 3 was made by
the Acting Chief Justice without consulting two senior most Judges as
required in the light of decisions of this Court in Supreme Court
Advocates-on-Record Association (supra) and Ashish Handa (supra), the High
Court ought to have allowed the writ petition and quashed the appointment
of respondent No. 3.
2. The Acting Chief Justice could not initiate the process for
appointment of respondent No. 3 under Section 16 of the Act as it is only
the Chief Justice, who is to be consulted; the Acting Chief Justice is not
appointed to the Office of Chief Justice, he is only to discharge the
duties of the Chief Justice. Reliance was placed on the decision of High
Court of Allahabad in Bishal Chand Jain vs. Chattur Sen and others .
In opposition learned counsel for the respondents in their
arguments reiterated the submissions that were made before the High
Court and supported the impugned judgment for the very reasons
stated therein. The learned counsel for the Union of India and for
Attorney General submitted that consultation should be as stated in
two decisions of this Court in Ashish Handa and Supreme Advocates-
on-Record Association (supra), i.e., the Chief Justice of a High
Court has to consult two senior most Judges in the case of
appointment of a sitting or retired Judge of the High Court as
President of the State Commission. As regards the discharge of
duties of the Chief Justice by the Acting Chief Justice, the
submission was that the Acting Chief Justice could perform all the
functions of the Chief Justice by virtue of Article 223 of the
Constitution, otherwise there will be practical difficulty leading to
anomalous situation in cases where the Chief Justices are not appointed for
some reasons and Acting Chief Justices continue for longer period.
Section 16 of the Act, to the extent relevant, reads: -
"16. Composition of the State
Commission. - (1) Each State Commission
shall consist of, -
(a) a person who is or has been a Judge of
a High Court, appointed by the State
Government, who shall be its President :
Provided that no appointment under this clause shall be made except after
consultation with the Chief Justice of the High Court."
In the case of Ashish Handa the question that came up for
consideration was as to initiation of process in the matter of
appointment. A person, who is or has been a Judge of a High Court,
shall be appointed by the State Government as President of the
State Commission after consultation with the Chief Justice of the
High Court as per Section 16 of the Act. This Court held that the
executive is expected to approach the Chief Justice when the
appointment is to be made for taking the steps to initiate the proposal.
Para 3 of the judgment reads: -
"3. The Consumer Protection Act, 1986 is
an Act to provide for better protection of
the interests of consumers "and for that
purpose to make provision for the
establishment of consumer councils and
other authorities for the settlement of
consumers’ disputes and for matters
connected therewith". The National
Commission, the State Commission and the
District Forum are established as the
agencies for the redressal of consumer
disputes by Section 9 of the Act. Section l0
of the Act provides for composition of the
District Forum, Section 16 for the State
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Commission and Section 20 for the
National Commission. 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
provisions in Section 16(1)(a) for
appointment of the President of the State
Commission and in Section 20(1)(a) for
appointment of the President of the
National Commission are in pari materia
and have to be similarly construed. The
construction of the proviso in Section
16(1)(a) and that in Section 20(1)(a) must
be the same because of the identity of the
language. The expression "after
consultation with the Chief Justice of the
High Court" and "after consultation with the
Chief Justice of India" must be construed in
the same manner as the expression "after
consultation with the Chief Justice of
India,... the Chief Justice of the High Court"
in Article 217 of the Constitution of India
made in Supreme Court Advocates-on-
Record Assn. v. Union of India [(1993) 4
SCC 441]. Accordingly, the opinion of the
Chief Justice of the High Court and the
requirement of consultation with him
according to the proviso in Section 16(1)(a)
must have the same status as that of the
Chief Justice of the High Court in the
appointment of a High Court Judge under
Article 217 of the Constitution of India; and
the process of appointment to the office of
the President of the State Commission
must also be similar. It is unnecessary to
restate the same which is summarised in
the majority opinion in the Judges-II case
[(1993) 4 SCC 441]. 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. Our attention was
drawn to certain observations in Sarwan
Singh Lamba v. Union of India [(1995) 4
SCC 546 : 1995 SCC (L&S) 546 : (1995)
30 ATC 585], to suggest that the name for
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appointment to the Administrative Tribunal
may be suggested even by the executive
which may have the effect of initiating the
proposal. In the facts of that case,
substantial compliance of the requirement
of approval by the Chief Justice of India
was found proved and, therefore, the
appointments were upheld. 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."
(emphasis supplied)
The aforementioned decision of this Court is to be read and
understood on the facts and in the context in relation to
initiation of the process for the appointment of a sitting or
retired Judge as the President of the State Commission.
The High Court in the impugned judgment also states that
the judgment of this Court in Ashish Handa should not be
understood or construed as insisting upon to follow the
same procedure, which has to be followed for appointment
of a Judge of a High Court under Article 217 of the
Constitution. If the judgment in Ashish Handa is to be
read in the way the appellants projected, it will lead to
anomalous situation and further it does not stand to reason.
The process of consultation envisaged under Section
16 of the Act can neither be equated to the constitutional
requirement of consultation under Article 217 of the
Constitution of India in relation to appointment of a Judge
of a High Court nor can it be placed on the same pedestal.
Consultation by the Chief Justice of the High Court with two
senior most Judges in selecting a suitable candidate for
appointment as a Judge is for the purpose of selecting the
best person to the high office of a Judge of the High Court
as a constitutional functionary. Consultation with the Chief
Justice of the High Court in terms of Section 16 of the Act is
a statutory requirement. This apart, the interpretation of a
provision of the Constitution having regard to various
aspects serving the purpose and mandate of the Constitution by this Court
stands on a separate footing. A constitution unlike other statutes is
meant to be a durable instrument to serve through longer number of years,
i.e., ages without frequent revision. It is intended to serve the
needs of the day when it was enacted and also to meet needs of the changing
conditions of the future. This Court in R.C. Poudyal vs. Union of India
and others , in paragraph 124, observed thus: -
"124. In judicial review of the vires of the
exercise of a constitutional power such as the one under Article 2, the
significance and importance of the political components
of the decision deemed fit by Parliament cannot be put out of consideration
as long as the conditions do not violate the constitutional fundamentals.
In the interpretation of a constitutional document,
"words are but the framework of concepts and concepts may change more than
words themselves". The significance of the change of the concepts
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themselves is vital and the constitutional issues are not solved
by a mere appeal to the meaning of the words without an acceptance of the
line of their growth. It is aptly said that "the intention of a
Constitution is rather to outline principles than to engrave details"."
In the first B.N. Rau Memorial Lecture on ’Judicial Methods’
M. Hidayatullah, J. observed, "More freedom exists in the interpretation of
the Constitution than in the interpretation of ordinary laws. This is due
to the fact that the ordinary law is more often before courts, that there
are always dicta of judges readily available while in the domain of
constitutional law there is again and again novelty of situation and
approach. Chief Justice Marshall while deciding the celeberated Mc.
Culloch v. Maryland (4 Wheaton 316, 407) made the pregnant remark \026 "We
must never forget that it is the constitution we are expounding" \026
meaning thereby that it is a question of new meaning in new circumstances.
Cardozo in his lectures also said: "The great generalities of the
Constitution have a content and a significance that vary from age to age."
Chief Justice Marshall in Mc. Culloch vs. Maryland declared that the
constitution was ’intended to endure for ages to come, and consequently to
be adapted to the various crises of human affairs....’ In this regard it
is worthwhile to see the observations made in paragraphs 324 to 326 in
Supreme Court Advocates-on-Record Association: -
"324. The case before us must be considered in the light of our entire
experience and not merely in that of what was said by the Framers of the
Constitution. While deciding the questions posed before us we must consider
what is the judiciary today and not what it was fifty years back. The
Constitution has not only to be read in the light of contemporary
circumstances and values, it has to be read in such a way that the
circumstances and values of the present generation are given
expression in its provisions. An eminent jurist observed that
"constitutional interpretation is as much a process of
creation as one of discovery."
325. It would be useful to quote hereunder
a paragraph from the judgment of Supreme Court of Canada in Hunter v.
Southam Inc. [(1984) 2 SCR 145, 156 (Can)] :
"It is clear that the meaning of ’unreasonable’ cannot be
determined by recourse to a dictionary, nor for that matter,
by reference to the rules of statutory construction. The task
of expounding a constitution is crucially different from that of
construing a statute. A statute defines present rights and
obligations. It is easily enacted and as easily repealed. A
Constitution, by contrast, is drafted with an eye to the
future. Its function is to provide a continuing framework for the
legitimate exercise of governmental power and, when
joined by a Bill or a Charter of Rights, for the unremitting
protection of individual rights and liberties. Once enacted, its
provisions cannot easily be repealed or amended. It must,
therefore, be capable of growth and development over time to
meet new social, political and historical realities often
unimagined by its framers. The judiciary is the guardian of the
Constitution and must, in interpreting its provisions, bear
these considerations in mind. Professor Paul Freund expressed
this idea aptly when he admonished the American Courts ’not to read the
provisions of the Constitution like a last will and testament
lest it become one’."
326. The constitutional provisions cannot be cut down by technical
construction rather it has to be given liberal and
meaningful interpretation. The ordinary rules and presumptions, brought in
aid to interpret the statutes, cannot be made applicable while interpreting
the provisions of the Constitution. In Minister of Home
Affairs v. Fisher [(1979) 3 All ER 21 :(1980) AC 319] dealing with
Bermudian
Constitution, Lord Wilberforce reiterated that a Constitution is a document
"sui generis, calling for principles of interpretation of its own, suitable
to its character". "
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(emphasis supplied)
This Court in Ms. Aruna Roy and others vs. Union of India and others
recalled the famous words of the Chief Justice Holmes that "spirit of law
is not logic but it has been experience" and observed that these words
apply with greater force to constitutional law. In the same judgment
this Court expressed that Constitution is a permanent document framed by
the people and has been accepted by the people to govern them for all times
to come and that the words and expressions used in the Constitution, in
that sense, have no fixed meaning and must receive interpretation based on
the experience of the people in the course of working of the Constitution.
The same thing cannot be said in relation to interpreting the words and
expressions in a statute.
Verma, J. (as he then was) speaking for the majority in the case of Supreme
Court Advocates-on-Records
Association, in paragraph 433, has stated, thus: -
"433. It is with this perception that the nature of primacy, if any, of
the Chief Justice of India, in the present context, has to be examined in
the constitutional scheme. The hue of the word ’consultation’, when the
consultation is with the Chief Justice of India as the head of the
Indian Judiciary, for the purpose of composition of higher judiciary, has
to be distinguished from the colour and the same word ’consultation’ may
take in the context of the executive associated in that process to assist
in the selection of the best available material."
(emphasis supplied)
Pandian,J. in his concurring opinion in Supreme Court Advocates-on-
Records Association aforementioned, with regard to meaning of the
word ’consultation’ has observed that the derivative meaning of
the word in the context depended not merely on its ordinary lexicon
definition but greatly upon its contents according to the circumstances and
the time in which the word or expression is used; therefore, in order to
ascertain its colour and content one must examine the context in
which that word is used. In this regard in paragraph 163 it is stated
that: -
"The word ’consultation’ is used in the context of appointment of
Judges to the Supreme Court under Article 124(2) and to the High
Courts under Article 217(1). Though such a consultation is not
constitutionally required in the case of appointment of other
constitutional appointees, which we have indicated and itemized in
the proceeding part of this judgment."
(emphasis supplied)
Further, in paragraph 196 it is observed that in the background of the
factual and legal position, meaning of the word ’consultation’ cannot be
confined to its ordinary lexicon definition; its contents greatly vary
according to the circumstances and the context in which the word is used as
in our Constitution. In paragraph 195 it is stated that the consultation
with the Chief Justice of India by the President is relatable to the
judiciary and not to any other service; in the process of various
constitutional appointments, ’consultation’ is required only to the
judicial office in contrast to the other high ranking constitutional
offices.
It is thus clear that the expression ’consultation’ used in Article
217 of the Constitution of India 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 the Supreme Court Advocates-on-Record Association.
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 High Court to the State
Commission under Section 16 must be in the same manner as required under
Article 217 of the Constitution, 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
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appointment of a Judge of a High Court and not for appointment of a person
as the President of the State Commission under Section 16 of the Act. If
the consultation to be made for appointment of a person as President of the
State Commission, as required under Section 16 of the Act, is to be similar
as under Article 217 of the Constitution, then, even in case of
appointment of a retired Judge as President of the State Commission, such
consultation has to be made with all constitutional functionaries, which
does not stand to reason. 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 opinion of
two senior most 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 senior most colleagues in the High Court for
the purpose of Section 16 of the Act, in our view, is unwarranted.
While dealing with the question of primacy of the opinion of the Chief
Justice of India in that context this Court held that such opinion of Chief
Justice is to be formed collectively after taking into account the views of
his senior colleagues, who are required to be consulted by him for the
formation of his opinion. As is evident from paragraph 450 of the same
judgment consultation with the Chief Justice of India was introduced
because of the realization that the Chief Justice is best equipped to know
and assess the worth of the candidate and his suitability for appointment
as a superior judge; and it was also necessary to eliminate
political influence even at the stage of the initial appointment of a
judge. In order to select the best candidate and to give primacy to the
opinion of the Chief Justice this Court held that consultation with two
senior most Judges of the High Court was needed in the matter of
recommending a candidate for appointment as Judge of the High Court. Under
Section 16 of the Act only a person, who is or has been a Judge of a High
Court, is eligible to be appointed as President of the State Commission.
In the matter of appointment of Judges of the High Court, in
paragraph 478 of the same judgment, it is stated, thus: -
"In matters relating to appointments in the High Courts, the Chief
Justice of India is expected to take into account the views
of his colleagues in the Supreme Court who are likely to be conversant with
the affairs of the concerned High Court. The Chief Justice of India may
also ascertain the views of one or more senior Judges of that
High Court whose opinion, according to the Chief Justice of India, is
likely to be significant in the formation of his opinion.
The opinion of the Chief Justice of the High Court would be entitled to the
greatest weight, and the opinion of the otherfunctionaries involved must be
given due weight, in the formation of the opinion of the Chief Justice of
India. The opinion of the Chief Justice of the High Court must be
formed after ascertaining the views of at least the two seniormost Judges
of the High Court."
In regard to initiation of the process for appointment, in
paragraph 478(10) it is stated: -
"(10) To achieve this purpose, and to
give legitimacy and greater credibility to
the process of appointment, the process
must be initiated by the Chief Justice of
India in the case of the Supreme Court,
and the Chief Justice of the High Court in
the case of the High Courts. This is the
general practice prevailing, by convention,
followed over the years, and continues to
be the general rule even now, after S.P.
Gupta vs. Union of India [1981 Supp. SCC
87]. The executive itself has so understood
the correct procedure, notwithstanding S.P.
Gupta and there is no reason to depart
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from it when it is in consonance with the
concept of the independence of the
judiciary."
In Ashish Handa this Court, having regard to what is
stated above, held that it is the Chief Justice of the High
Court, who should initiate the process in the matter of
appointment of a Judge, sitting or retired, as President of
the State Commission.
In that case, as already noticed above, this Court was
dealing with initiation of the process for appointment of a
sitting or retired Judge as President of the State
Commission. It is in that context this Court held that the
process must be initiated by the Chief Justice of the High
Court and not by the executive of the State. The reading of
the judgment gives an impression that the consultation
process must be the same in respect of appointment of a
sitting or retired Judge to State Commission as is required
for appointment of a High Court Judge in terms of Article
217 of the Constitution. Firstly, the said judgment should
be read and understood in the context of that case, the
question that arose for consideration and what was really
decided, i.e., initiation of process by the Chief Justice of the
High Court. To remove doubt, if any, we make it clear that
the consultation for the purpose of Section 16 of the Act in
relation to the appointment of a Judge or a retired Judge of
a High Court as President of the State Commission cannot
be taken or equated to consultation process as required
under Article 217 of the Constitution, which, in our view, is
the correct position. Certain statements made by this Court
in Ashish Handa, in para 3, give an impression that Chief
Justice of a High Court has to consult his two senior most
colleagues before recommending a sitting or retired Judge
for appointment as President of a State Commission as per
Section 16 of the Act. In our view that is not the correct
position and we do not approve the same. To put it
positively, we state that for the purpose of Section 16 of
the Act a Chief Justice of a High Court need not consult his
two senior most colleagues in the High Court for
recommending a sitting or retired Judge of a High Court for
appointment as President of a State Commission.
We must also keep in mind one more aspect. Under
Article 217 of the Constitution for the purpose ofappointment of a Judge to
a High Court in view of decision in Supreme Court Advocates-on-Records
Association and that too interpreting the constitutional provisions to
maintain the independence of judiciary and to select the best of the
persons as judges such a procedure is adopted. 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 the 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 is ’consultation’ only with
the Chief Justice of the High Court and not with the collegium.
Argument that the ’consultation’ under Section 16 of the Act should
be with the Chief Justice of the High Court and not with the Acting
Chief Justice is not acceptable and this argument does not pose any
serious problem having regard to the clear constitutional
provision. The decision in Bishal Chand Jain vs. Chattur Sen and
others (supra), cited on behalf of the appellants does not help
them for the reasons more than one. That decision was on the facts
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of that case and the question that has arisen for consideration
in the present case did not arise there even remotely. In that case
plaintiff filed first appeal against the judgment and decree of Civil Judge
made in the original suit. In the first appeal a preliminary objection was
raised on behalf of the appellant himself to the effect that the High Court
was not properly constituted and that appeal could not be heard on the
ground that the office of the Chief Justice of the High Court fell vacant
as a result of the elevation of Mr. Justice V. Bhargava, Chief Justice of
that High Court to the Bench of this Court; Nasirullah Beg, J., a senior
most Judge of the Court was appointed as Acting Chief Justice of the High
Court, but as oath of office had not been taken by him, the High Court
could not be deemed to be properly constituted. Alternatively, there was no
Chief Justice at that time and thus the Court was not properly constituted.
It was in that context the Division Bench of the Allahabad High Court, in
paragraph 7, has stated thus: -
"(7) We are, however, of the view that Article 223 of the Constitution
does not contemplate the appointment of a Chief Justice of a High Court or
an appointmentto the office of Chief Justice of a High Court. In spite of
such appointment being made under Article 223, the office of the
Chief Justice remains vacant till a fresh appointment is made to that
office. It is on account of the existence of a vacancy in
the office of Chief Justice that one or the other Judges of the High Court
is appointed by the President for the purpose of
performing the duties of the office of Chief Justice. If such appointment
is to be held to put an end to the vacancy, then the exigency of such an
appointment ceases to exist. It, therefore, follows that exercise of
powers under Article 223 of the Constitution by the President does not
result in an appointment to the office of Chief Justice and in spite of
such appointment, the office of the Chief Justice remains vacant. All that
happens is that during the continuance of that vacancy, the
duties of that office are to be performed by one or the other Judges of the
High Court as the President may appoint for the purpose. The word
"temporarily" used in Article 224 clause (2) governs the words
"to act". The language of clause (2) of Article 224, therefore, does not
mean that an appointment of a Judge of a High Court to perform the duties
of the office of the Chief Justice under Article 223, is the appointment of
a temporary Chief Justice.
It is true that both in its marginal note and Article 223 the words
"appoint" or "appointment" has been used. But from this it does
not necessarily follow that the appointment is an appointment to
the office of the Chief Justice. In the marginal note, it is clear
that the appointment is not of a ’Chief Justice’ but of ’an acting
Chief Justice’. In the Article itself the word "appoint" relates
to the appointment of such of the other Judges of that Court as the
President may choose for the purpose of performance of the duties
of the office of Chief Justice. It is only when the appointment is
not an appointment to the office of Chief Justice, that it could be
said to be an appointment of one or the other Judges of that Court
for the purpose of performing the duties of the office of Chief
Justice. We have, therefore, no hesitation in coming to the
conclusion that an appointment of one or the other Judges of the
High Court to perform the duties of the office of Chief Justice
when that office is vacant, is not the appointment of a Chief
Justice to that office. It really results in an arrangement for the
performance of the duties of the vacant office of the Chief
Justice pending a fresh appointment to the office of Chief Justice."
A careful reading of the paragraph extracted above shows that an
appointment of one or the other Judges of the High Court to perform the
duties of the office of Chief Justice really results in an arrangement for
the performance of the duties of the vacant office of the Chief Justice
pending fresh appointment to the office of the Chief Justice. In that case
the view was that even if an acting Chief Justice is appointed under
Article 223 of the Constitution for performance of the duties of the Chief
Justice, the office of Chief Justice still remains vacant. This also shows
that one or the other Judges of the High Court can perform the
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duties of the Chief Justice. In the case on hand we have to consider
whether acting Chief Justice could be consulted under Section 16 of
the Act or the process initiated and opinion given by the acting Chief
Justice could be valid to satisfy the requirement of the said Section.
In the very terms of Article 223 of the Constitution, when the
office of Chief Justice of a High Court is vacant or when any such
Chief Justice is by reason of absence or otherwise, unable to
perform the duties of the office of the Chief Justice, duties of
the office of Chief Justice shall be performed by such one or the
other Judges of the Court as the President may appoint for the
purposes. Plain reading of this Article shows that one or the
other Judges of the High Court appointed in the vacancy of Chief
Justice of a High Court for the time being can perform the duties
of the office of Chief Justice. No restriction or limitation in
performance of duties by acting Chief Justice can be read into the said
Article. The Article also does not indicate as to which of the duties of
the Chief Justice can be performed or which of the duties cannot be
performed by the acting Chief Justice. Appointment of one or the other
Judges of a High Court as acting Chief Justice is meant to carry on the
work of the High Court and the judiciary in the State. May be
sometimes appointment of Chief Justice to a High Court may take some time
for various reasons and consequently acting Chief Justice continues to work
for longer period, but that itself does not take away the powers conferred
by the Constitution on a Judge to act as Chief Justice to perform the
duties of the Chief Justice. Normally the senior most puisne Judge is
appointed as acting Chief Justice. Such puisne Judge is expected to act
appropriately in discharging the duties of the office of Chief Justice. It
is rule of prudence that the acting Chief Justice may not take major
decisions which otherwise could have been taken by the Chief Justice or
which decisions could wait for a Chief Justice. Assuming that some
decisions taken by an acting Chief Justice are required to be modified or
corrected, that can be done either on administrative side or on the
judicial side by the High Court or by this Court including the Chief
Justice of India, as the case may be. In some cases if appointment of
Chief Justice of a High Court takes longer time and the acting Chief
Justices cannot discharge the duties of the office of the Chief Justice the
work of the High Court or the State judiciary or for the matter wherever
the opinion of Chief Justice is required like the one under Section 16 of
the Act, it will result in anomalous position leading to paralyzing the
working or may be sometimes creating a deadlock. When Article 223 of the
Constitution in specific terms confers powers on acting Chief Justice to
discharge the functions of the office of Chief Justice without any
limitation or rider, it cannot be accepted that an acting Chief Justice
cannot perform the duties expected to be performed by him under Section 16
of the Act. Consultation with acting Chief Justice under Section 16 of
the Act is to be taken as consultation with the Chief Justice of a High
Court. Powers conferred under Article 223 of the Constitution on
an acting Chief Justice to perform the duties of the Chief Justice
is available for the purpose of Section 16 of the Act. We may
hasten to add that it is not the case of the petitioner in High Court that
the Chief Justice of the High Court was going to be appointed shortly or
the matter of appointment of President of the State Commission was such,
which on the facts and in the circumstances of the case, did not call for
an immediate decision by Acting Chief Justice and could have waited for the
appointment of the Chief Justice of the High Court. In other words, no
statutory provision can stand in the way of constitutional provision in
case of conflict between them.
Thus, having examined all aspects and in the light of
what is stated above we are of the view that the High Court was right in
dismissing the writ petition. We do not find any good ground or valid
reason to disturb the judgment under challenge. Consequently the appeal is
dismissed leaving the parties to bear their own costs.
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