Full Judgment Text
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PETITIONER:
ANAND KUMAR
Vs.
RESPONDENT:
SRI KATTALI BHASKARAN & ORS.
DATE OF JUDGMENT19/01/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
SHARMA, L.M. (J)
CITATION:
1988 SCR (2) 728 1988 SCC (2) 50
JT 1988 (1) 154 1988 SCALE (1)120
ACT:
Constitution of India, 1951) Articles 74. 217(3)-
Determination of age of Chief Justice or Judge of High Court
to be decided by the President of India as a constitutional
functionary in consultation with the Chief Justice of India-
Such a question is beyond the reach of Council of Ministers.
HEADNOTE:
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The appellant raised the question as regards the
determination of age of the Chief Justice of Andhra Pradesh
High Court, in these Special Leave Petitions filed against
the Judgment and order of the Andhra Pradesh High Court
dismissing in limine the Writ Appeals against the order of
dismissal of the Writ Petitions by a Single Judge of the
High Court.
ln the course of the proceedings, this Court, on
January 8, 1988, made certain queries to which the
Additional Solicitor General furnished information broadly
on the following lines:
That a view in the matter will be taken by the
President of India after the advice of Chief Justice of
India is made available, and that all relevant files have
been submitted to the Chief Justice of India along with the
opinion as to the effect of the judgment pronounced by the
Andhra Pradesh High Court.
In view of the information made available, this Court
dismissed the Special Leave Petitions and,
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HELD: 1. The matter as to the age of the retired Chief
Justice or a sitting Judge of a High Court is a judicial
function of the President of India, which has to be
discharged in accordance with the special provisions made
under Article 2l7(3) of the Constitution. [730C-D]
2. Such a question as to the age of the Chief Justice
or a Judge, under Article 217(3) of the Constitution, is
beyond the reach of the Council of Ministers under Article
74 of the Constitution. [730D-E]
Union of India v. Jyoti Prakosh Mitter, [ 197 l ] 3 SCR
483, followed.
729
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3. Since the President of India, in compliance with
Article 2l7(3), has referred the question as to the age of
Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High
Court, to the Chief Justice of India for his opinion, no
Writ of Mandamus can lie. [730B]
4. The President of India as a constitutional
functionary has discharged his duties under Article 217(3)
and the decision must rest on the advice of the Chief
Justice of India and not the Council of Ministers. [730C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) Nos. 12-12A of 1988.
From the Judgment and order dated 18.12.1987 of the
Andhra Pradesh High Court in W.A. Nos. 1649 and 1650 of 1987
P.N. Lekhi, M.K. Garg and Lokesh Kumar for the
Petitioner.
Kuldeep Singh, Additional Solicitor General and Mrs. A.
Subhashini for the Respondents.
The following order of the Court was delivered:
O R D E R
In response to the queries made by this Court by its
order dated January 8, 1988 Shri Kuldeep Singh, learned
Additional Solicitor General has furnished the relevant
information as under:
(1) In the matter of the age of Shri Justice K.
Bhaskaran, Chief Justice of the Andhra Pradesh
High Court, the advice and comments of the Chief
Justice of India were sought in terms of Articles
217(3) of the Constitution of India. The files
containing all the relevant papers were referred
to the Chief Justice of India on 28th September,
1987.
(2) The Chief Justice of India on 29th December,
1987 desired to have an opinion as to the effect
of the judgment pronounced by the Andhra Pradesh
High Court concerning the matter of the age of the
Chief Justice Bhaskaran. The opinion was made
available to the Chief Justice of India on 6th
January, 1988. The Chief Justice of India on 11th
January, 1988 indicated further course of action
in the matter. The file has been resubmitted to
730
the Chief Justice of India on 16th January, 1988
for his further advice.
(3) A view in the matter will be taken by the
President of India after the advice of the Chief
Justice of India is made available.
In view of the foregoing, it is clear that the
President of India in compliance with Article 217(3) of the
Constitution of India has referred the question as to the
age of Shri K. Bhaskaran, the Chief Justice of the Andhra
Pradesh High Court to the Chief Justice of India for his
opinion. That being so, no writ of mandamus can lie. The
President of India as a constitutional functionary has
discharged his duties under Article 217(3) of the
Constitution and the decision must rest on the advice of the
Chief Justice of India and not the Council of Ministers. As
laid down in the Union of India v. Jyoti Prakash Mitter,.
[1971] 3 SCR at 503 & 504, the matter as to the age of the
Chief Justice or a sitting Judge of a High Court is a
judicial function of the President of India, which has to be
discharged in accordance with the special provisions made
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under Article 217(3) of the Constitution. Such a question as
to the age of the Chief Justice or a Judge under Article
217(3) of the Constitution is beyond the reach of the
Council of Ministers under Article 74 of the Constitution.
J.C. Shah, C.J., speaking for the Constitution Bench
has laid down the law in these words:
It is necessary to observe that the President in
whose name all executive functions of the Union
are performed is by Art. 217(3) invested with
judicial power of great significance which has
bearing on the independence of the Judges of the
Higher Courts. The President is by Art. 74 of the
Constitution the Constitutional head who acts on
the advice of the Council of Ministers.... "
The question as to the age of Shri K. Bhaskaran, the
Chief Justice of the Andhra Pradesh High Court must,
therefore, be decided by the President of India on the
advice of the Chief Justice of India as enjoined by Article
217(3) of the Constitution in the light of the principles
laid down by this Court in Jyoti Prakash Mitter’s, case.
The High Court, in our considered opinion, should have
thrown out the petition under Art. 226 of the Constitution
at the very threshold because the President of India was
seized with the question under Article 217(3) of the
Constitution. Indeed, it appears from the judgment of the
731
High court that when the learned counsel for the Union of
India A informed the Court that the President of India is
seized with the question, the counsel for the appellant
conceded that the writ of quo warranto is not maintainable.
The special leave petitions are accordingly dismissed.
G.N. Petitions dismissed.
732