Holding

An Additional Judge who was not confirmed as a permanent judge lacks the requisite qualification under Section 16, and the failure to effect a proper consultative process renders the appointment invalid.

Summary

The appellant, N. Kannadasan, was an Additional Judge of the Madras High Court who was not confirmed as a permanent judge and later appointed as President of the State Consumer Disputes Redressal Commission under Section 16 of the Consumer Protection Act, 1986. Writ petitions challenged his appointment on the grounds that an Additional Judge who failed to secure permanent status does not satisfy the "is or has been a Judge" requirement and that the required consultation with the Chief Justice of the High Court was not properly conducted. The Supreme Court examined the constitutional provisions on judicial appointments (Article 217) and the statutory eligibility criteria, emphasizing the need for integrity, ability and standing, and held that the consultative process was vitiated. It further ruled that the Chief Justice could not recommend a panel of names and that the appellant’s lack of confirmed status rendered him ineligible. Consequently, the appointment was declared invalid and the appeals were dismissed.

Issues considered

The meaning of "is or has been a Judge of a High Court" in Section 16(1)(a) of the Consumer Protection Act with respect to an Additional Judge who was not made permanent.
Whether the statutory requirement of consultation with the Chief Justice of the High Court, as per the proviso to Section 16, was complied with.
Whether a recommendation of a panel of names by the Chief Justice is permissible under the consultative process.
Whether allegations of lack of probity and the collegium’s finding of unfitness affect the appellant’s eligibility for the post.
Whether a writ of quo warranto (or certiorari) is maintainable to challenge the appointment.

Legislation cited

Constitution of Indias. Article 216, s. Article 217, s. Article 219, s. Article 220, s. Article 221, s. Article 222, s. Article 223, s. Article 224, s. Article 50
Consumer Protection Act, 1986s. 16, s. 16(1)(a), s. 16(1)(A), s. 16(1)(b)(iii)

Subjects

consumer protectionjudicial appointmentadditional judgeeligibility criteriaconsultation processintegritypurposive interpretationquo warrantojudicial independenceSection 16

Judgment

[2009] 7 S.C.R. 668

A N. KANNADASAN
v
AJOY KHOSE AND OTHERS
Civil Appeal No. 7360 of 2008
MAY 6, 2009
B
(S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.)
Consumer Protection Act, 1986:
Section 16 - Post of Chairman, State Consumer
c 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 of a Judge of 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 -
Moreover, when for a Member of the Commission, ability,
E 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 -
F Consultation.
Constitution of India, 1950:
Articles 32, 226 - Writs - Writ of Quo Warranto and Writ
of certiorari - Scope and ambit of - Discussed.
G
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
H 668
N. KANNADASAN V AJOY KHOSE AND OTHERS 669
-.:..;.
-J Permanent Judge, and he demitted office. His name was A
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
three persons including the appellant was sent to the State 8
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. c
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
-<. D
Constitution of India_ has been assumed by this Court to
be available for the eligible persons who are retired Judges
~which_would mean that those Judges who had retired from
service without any blemish whatsoever and not merely
a person who "has been a judge". [Para 16) [701-D]
E
Ashish Handa v. The Hon'ble the Chief Justice of High
Court of Punjab and Haryana and others, (1996) 3 sec 145
- relied on.

.....
' Supreme Court Advocates-on-Record Association. and
others v. Union of India, (1993) 4 SCC 441; 'Ashok Kumar F
"Yadav v. State of Haryana, (1985) 4 SCC 417 and T. Fenn
Walter (2002) 6 SCC 184 - r.eferred to.
2. An Additional Judge holding a tenure post stricto
~ sensu does not retire. It is one thing to say_ that having G
,.-(
regard to the constitutional embargo, he would not hold
office after he attains the age of 62 years but it is another
thing to say that for all other purposes, he can be equated
with a sitting Judge. [Para 16] [701-E-F]
3. An Additional Judge who has not been confirmed, H
670 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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, it is possible to take somewhat different view
having regard to his present status, viz., an advocate or a
B 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
c 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,
continµe as a Judge. [Para 16) [702-D-F]
D 4. 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
E wherefor is inter alia a former Judge. A Chief Justice of a
High Court, 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. [Para 16) [704-B-C]
F 5. 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
G ineligible to hold the post, it would not be correct to
contend that despite the same he fulfils the eligibility
criteria. [Para 16) [704-D]
6. If the Collegium of the Supreme Court Judges
H including the Chief Justice of India, which is a constitu-
N. KANNADASAN V. AJOY KHOSE AND OTHERS 671

~ tional authority in the matter of appointment of Judges A
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 B
recommendation by the Chief Justice is constitutionally
_.,,_
~
·:y 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- c
appointment. If he was ineligible for being recommended,
that is the end of the matter.[Para 16] [705-D-F]
M. Nagaraj and Others· v. Union of India and Others
~· (2006) 8 sec 212 - relied on. '
D
-.j_ 7.1 A case of this nature is a matter of moment. It
concerns public interest. Public information about
independence and impartiality of a judiciary would be !n
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 E
depend upon application of any known formalism. It must
be done having regard to the text and context thereof.
[Para 17] [705-G-H]
{
7.2 Eligibility of a Judge of a High Court should not F "
be construed ih a pedantic manner. It in the context of a
large number of decisions of this court including S.P.
Gupta must also be held to include suitability of a person
concerned. For 'th-e aforementioned purpose, the
principles of purposive interpretation is required to be
G
resorted to. [Para 17] [712-B]
S.P. Gupta v. Union of India, (1981) Supp. SCC 87; Carew
and Company Ltd. v. Union of India (1975) 2 SCC 791; K.P
Varghese v. Income Tax Officer, Ernaku/am and Another (1981)
4 SCC 173; Bhudan Singh and Another v. Nabi Bux and H
672 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Another (1969) 2 SCC 481; Atma Ram Mittal v. lshwar Singh ,,.
I"

Punia, (1988) 4 SCC 284; High Court of Gujarat and Another
v. Gujarat Kishan Mazdoor Panchayat and Others (2003) 4
SCC 712; New India Assurance Company Ltd. v. Nusli Neville
Wadia and Another (2008) 3 SCC 279; Union of India v.
B Ranbaxy Laboratories Limited and Others (2008) 7 SCC 502;
Harbhajan Singh v. Press Council of India and others (2002)
3 SCC 722 and Sangeeta Singh v. Union of India and Others ,, t-
(2005) 7 sec 484 - referred to.
~
Regina v. Secretary of State for Health ex parate
c Quintaval/e [2003] UKHL 13 and Australian Finance Direct
Limited v. Director of Consumer Affairs Victoria [2007] HCA
57 - referred to.
8. The Constitution Bench in Ashok Tanwar, however,
clearly held that the consultation process in terms of
D
Article 217 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 appointmentwas required to be made by a sitting
E or a retired judge whose antecedents are known to the
Chief Justice.[Para 18) [714-E-F]
Ashish Handa v. The Hon'ble the Chief Justice of High
Court of Punjab and Haryana and others, (1996) 3 SCC 145 ~

F and Ashok Tanwar and another v. State of Himachal Pradesh
and others, (2005) 2 sec 104 - relied on.
9.1 This Court is 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
G 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 were
recommended together. A large number of vacancies
existed. Six of them were recommended to be appointed
H as Permanent Judges. In respect of one name, the Chief
N. KANNADASAN V. AJOY KHOSE AND OTHERS 673

~ Justice of India exercised his prerogative jurisdiction to A
extend his term from time to time. He had also been made
a Permanent Judge. Only i1:1 relation to the appellant herein
the collegium refused to make a recommendation which
was also accepted by the Chief Justice of India. [Para 19]
[717-F-H; 718-A] B
9.2 In a few decisions, this Court has held that only a
~ sitting or retired Judge is suitable for appointment.--The
.._ same cLearly goes to sh.ow that Judge whose tenure
. ended by way of non extension as a stigma would not
come within the purview of the definition of term 'has been C
a Judge of the High Court'. (Para 19] [718-B]
9.3 Section 16(1)(b)(iii) of the Consumtr" Protection
Act, 1986 in relation to appointment of a Membef~ of the
Commission lays down inter alia the qualifications of a
person of ability, integrity and standing. If in the case of a D
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)
thereof. The said criteria was not necessary to be E
expressly .stated as the same could be presumed as
recommendation in that behalf, to be made by the Chief
Justice of a High Court. [Pa'ra 19] (718-C-D]
Shanti Bhushan and another v. Union of India and
another, (2009) 1 SCC 657; Brij Mohan Lal v. Union of India F ·
(2002) 5 SCC 1; Pareena Swarup v. Union of India 2008 ( 13) .
SCALE 84 and B.R. Kapur v. State of TN. and Another(2001)
7 sec 231 - referred to.
10.1 Appointment to the post of President of a State G
Commission must satisfy not only the eligi~ility cr.iterta of
.---4 the candidate but also undertaking. of the process of
consultation. (Para 20) [724-C-D]
10.2 Indisputably, the decision by the Chief Justice
must be an informed one with respect to the post of a H.
674 SUPREME COURT REPORTS [2009] 7 S.C.R.
.
A Chairman of a State Commission, keeping in view the
importance thereof having regard to the fact that the
Commission is required to perform judicial functions, both
the Chief Justice as also the State Government were
required to be duly informed about the person who is
s going to be appointed. With a view to fulfill the constitu-
tional obligations as to whether he is a fit person, it is
absolutely essential that all relevant information should
be placed before the consultor as also the consultee. As
far as the proviso appended to Section 16 of the Act is
C concerned, keeping in view the constitutional post he'ld
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.[Para 20] [724-E-G]
D 10.3 The Constitution-Bench of this Court in Supreme
Court Advocates-on-Record Association and in the
Presidential Reference, Special Reference No.1 of 1998
laid down the law that consultation would mean
'concurrence' wherefor the primacy has been shifted to
E 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
F Justice alone. There is no doubt that he is bound to take
into consideration all facts relevant therefor and must
eschew· irrelevant facts. [Para 20] [724-H; 725-A-B]
10.4 The superior courts must take into consideration
as to what is good for the judiciary as an institution and
G 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.
H It would not delve deep into the allegations. The court must
N. KANNADASAN V AJOY KHOSE AND OTHERS 675

) bear in mind the limitations in arriving at a finding in regard A
to lack of integrity against the person concerned. The test
which must be applied for the purpose of assessing the
suitability of a person for appointment as a Judge must
be whether the Chief Justice of the High Court or for the
matter' of that, any other constitutional authority concerned B
in the appointment is satisfied abo1,.1t the integrity of the
person under consideration and, thus, if he does not enjoy
_.. "' good reputation, it would not be possible for the Chief
Justice of the High Court to say that he is satisfied about
the integrity of such person and in such an event he would c
be justified in not recom-mending him for appointment
and in fact it would be his duty not to recommend his
name. [Para 20) (725-F-H; 726-A-B]
---;
10.5 It is one thing to say that in the absence of any
document, any reflection or aspersion on the reputation D
or character of an Additional Judge shall not be cast but
it is another thing to say that the ultimate result, viz., that
an Additional Judge did not obtain any extension or was
not made a Permanent Judge of the High Court, would
totally be ignored. It may be true that the appellant did not E
question the decision of the collegium not to re-appoint
him, but the fact remains that he was not appointed by
the collegium wherefor sufficient material existed. Arriving
I
). at such a conclusion was an objective opinion on the part
of the collegium. [Para 20) [729-C-E) F
10.6 The consultative process brings within its ambit
a heavy duty so as to enable the holder of a high office
like Chief Justice to know the same. It must be shown
that he had access and in fact was aware of the fact that
the appellant had not been made a Permanent Judge. T,he G-
,..-..i.,
matter might have been different if such a fact had been
taken into consideration. If a decision for the purpose of
making a recommendation in terms of proviso appended
to Section 16 of the Act necessitates looking into all
relevant materials, non-consideration of such a vital fact, H
....
676 SUPREME COURT REPORTS [2009] 7 S.C.R.

A cannot be ignored as the opinion is a subjective one and r,..,
not based on objective criteria. This Court is more than
sure that had the records been brought to his notice, the
Chief Justice would not have made the recommendation.
[Para 20] [730-E-G]
-B State of Haryana and Ors. v. National Consumer
Awareness Group and Ors. (2005) 5 SCC 284; State of Gujarat
v. Sankalchand Khodidas Patel, (1977) 4 SCC 590; S.P. Gupta .,.
v. Union of India, (1981) Supp. SCC 87; Supreme Court ~
Advocates-on-Record Association and others v. Union of India,
c (1993) 4 SCC 441 and Re - Special Reference No. 1 of 1998,
(1998) 7 sec 739 - relied on.
11.1 Section 16 of the Act envisages a limitation on

D
the power of both the State as also the Chief Justice in
the matter of making an appointment. The facts relevant
for such an appointment must be placed before both the
-
statutory authorities. One of such fact is that an Additional
Judge, for one reason or the other was found not fit to be
made permanent or to be given an extension of his tenure.
Indisputably, a person having doubtful integrity should
E neither be recommended by the High Court nor appointed
by the State Government. [Para 21] [732-F-G]
11.2 Opinion of a Chief Justice by itself may not lead
to an administrative decision but it, having regard to his ..
F primacy, save and except for cogent reasons, would lead
to an appointment. Indisputably, his opinion is final and,
thus, for all intent and purport, decisive. The recommen-
dations made, thus, may be arrived at on the basis of his
subjective satisfaction, but it must be based on objective
criteria. Such subjective satisfaction must be arrived at
G
on consideration of all relevant criteria. When recommen-
dation of a Former Judge of a High Court is made for ~- ..
appointment as Chairman of the State Commission
ordinarily a judicial review shall not lie. It is true that
recommendation would be as a result of due application
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 677

of mind. He is required to recommend the name of one of A
'---i the former Judges of the said Court. All relevant facts
leading to formation of an opinion as regards suitability
of the person would presumably be known to him. But a
Chief Justice coming from outside may not know the
former judges of the concerned High Court. He may not 8
consult his brother judges keeping in view the element of
confidentiality attached to such recommendation. It may
... be true that the statute does not lay down an objective
_....
criterion. Such objective criteria cannot also be laid down
keeping in view the status of the parties. Such appoint- c
ment, nowever, must be made keeping in view the
independence of judiciary; as the incumbent of the post
would discharge judicial functions of grave importance.
[Para 21) [732-H; 733-A-E]
11.3 While exercising the power of judicial review in D
a case of this nature, the court would ·not be concerned
with the merit of the decision but with the decision making
process. If it is found that the decision making process
has not been adhered to, indisputably, judicial review
would lie. [Para 21) [737-D-E] E
11.4 It will also not be correct to contend that as non-
appointmenf of the appellant did not cast a -stigma, such
j a fact was not necessary to be noticed. It is noticed in S.P.
;)..
· Gupta that where facts are brought to the notice of the
court, whether by way of affidavit by the constitutional F
authorities or by placing before the court the entire
material, it is permissible to delve deep into the matter.
Once, thus, decision making process had been under-
gone in terms of the constitutional scheme in its correct
perspective, judicial review may not be maintainable. [Para G
21) [738-B-C]
,-J

Union of India v. Sankalchand Himatlal Sheth (1977) 4
SCC 193; Re - Special Reference No. 1 of 1998, (1998) 7
SCC 739; The Hubli Electricity Co. Ltd. v. The Province of
H
678 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Bombay Al R (36) 1949 PC 136; Province of Bombay v.
Kusaldas S. Advani and Others reported in 1950 SCR 621;
Barium Chemicals Ltd. and another v. Company Law Board
and others AIR 1967 SC 295; Narayanan Sankaran Mooss v.
The State of Kera/a and Another (1974) 1 SCC 68; Rohtas
B Industries v. S.D. Agarwal and Others (1969) 1 SCC 325 and
Coal India Ltd. and Others v. Saroj Kumar Mishra, (2007) 9
sec 625 - relied on.
..
12.1 Issuance of a writ of quo warranto is a discre-
tionary remedy. Authority of a person to hold a high public
C office can be questioned inter alia in the event an appoin-
tment is violative of any statutory provisions.[Para 22)
[740-E-F]
12.2 There concededly exists a distinction in regard
to issuance of a writ of quo warranto and issuance of a
0
writ of certiorari. The scope and ambit of these two writs
are different and distinct. Whereas a writ of quo warranto
can be issued on a limited ground, the considerations for
issuance of a writ of certiorari are wholly different. [Para
E 22) [740-F-G]
12.3 The appellant was not eligible for appointment
of a public office and in any event the Processual
machinery relating to consultation was not fully complied.
[Para 22] [747-F]
F R.K. Jain v. Union of India and, (1993) 4 SCC 119; Mor
Modern Coop. Transport Society Ltd. v. Financial Commr. &
Secy. (2002) 6 SCC 269; Dr. Duryodhan Sahu and Others v.
Jitendra Kumar Mishra and Others (1998) 7 SCC 273; Arun
Singh alias Arun Kr. Singh v. State of Bihar and Others (2006)
G 9 SCC 375; Dr Kashinath G. Jalmi and Another v. The Speaker
and Others (1993) 2 SCC 703; Shri Kumar Prasad v. Union of
India and Others (1992) 2 SCC 428; Union of India and Others
v. Kali Dass Batish and Another (2006) 1 SCC 779 and
Manohar Nathurao Samarth v. Marotrao and Others (1979) 4
H SCC 93 - referred to.
N. KANNADASAN V AJOY KHOSE AND OTHERS 679

~ Cc;irpus Juris Secundum 74 C.J.S. Quo Warranto 14 and A
Law Lexicon by J.J.S. Wharton, Esq., 1987 - referred to.
13. 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. [Para 24] [756-F]
B
A. Pandurangam Rao v. State of Andhra Pradesh ahd
... others AIR 1975 SC 1925; Union of India and Others v. Kali
_... Dass Batish and Another (2006) 1 SCC 779; State of Haryana
and Ors. v. National Consumer Awareness Group and Ors.
(2005) 5 SCC 284 and Ashok Tanwar and another v. State of c
Himachal Pradesh and others, (2005) 2 SCC 104 - referred
to.
Case Law Reference
(1981) Supp. sec 87 referred to Paras
D
(1993) 4 sec 441 referred to Para 14
(1985) 4 sec 417 referred to Para 14
(1998) 1 sec 739 ·relied on Para 15
E
(1996) 3 .~cc 145 relied on Para 16
(2002) s sec 184 referred to Para 16
;
(2oos) 8 sec 212 relied on Para 16
* (1975) 2 sec 191 referred to Para 17 F
(1981) 4 sec 113 referred to Para 17
(1969) 2 sec 481 referred to Para 17
(1988) 4 sec 284 referred to Para 17
G
"~ (2003) 4 sec 112 referred to Para 17
'

(2008) 3 sec 219 referred to Para 17
(2008) 1 sec 502 referred to Para 17
(2002) 3 sec 122 referred to Para 17 H
680 SUPREME COURT REPORTS [2009] 7 S.C.R.

,..
A (2005) 1 sec 484 referred to Para 17 ·,..-

[2003] UKHL 13 referred to Para 17
[2007] HCA 57 referred to Para 17
(2005) 2 sec 104 relied on Para 18
B
(2009) 1 sec 657 referred to Para 19
(2002) 5 sec 1 referred to Para 19 •
2008 (13) SCALE 84 referred to Para 19 .._

c (2001) 1 sec 231
(2005) 5 sec 284
referred to
relied on
Para 19
Para 20
-
(1977) 4 sec 590 relied on Para 20
(1977) 4 sec 193 relied on Para 20
D AIR (36) 1949 PC 136 relied on Para 21
1950 SCR 621 relied on Para 21
AIR 1967 SC 295 relied on Para 21
(1974) 1 sec 68 relied on Para 21
E
(196.9) 1 sec 325 relied on Para 21
(2001) 9 sec 625 relied on Para 21
(1993) 4 sec 119 referred to Para 22 .+'
F (2002) 6 sec 269 referred to Para 22
(1998) 1 sec 213 referred to Para 22
(2006) 9 sec 375 referred to Para 22
(1993) 2 sec 103 referred to Para 22
G
(1992) 2 sec 428 referred to Para 22 jp. . ,

(2006) 1 sec 779 referred to Para 22
(1979) 4 sec 93 referred to Para 22
H AIR 1975 SC 1925 referred to Para 24
N. KANNADASAN V AJOY KHOSE AND OTHERS 681

.....
-4 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7360 A
of 2008
From the Judgement and Order dated 12.12.2008 of the
High Court of Judicatur~ at Madras in Writ Petition No. 21504
of 2008
8
WITH
• Civil Appeal No. 7368 of 2008
·--" . Civil Appeal No. 7371 of 2008

Civil Appeal No. 7372 of 2008 c
Goolam E. Vahanvati, S.G. (A.C.), Mohan Parasaran, ASG,
. K.K. Venugopal, Anil 8. Divan, Satish Parasaran, Atul Nanda,
Rameeza Hakeem, Sanjay Bhardwaj (for M/s. Law Associates
& Co.), T. Harish Kumar, V. Vasudevan (for R. Nedumaran), V. D
Balachandran, Prashant Bhushan, Rohit Kumar Singh, Sumeet
Sharma, Somesh Rattan, Abhishek Sood, R. Vaigai, Kamini
Jaiswal, Devika, D. Nagasnila, Gaurav Aggarwal, appearing
for the parties.
The Judgement of the Court was delivered by E
-.~

S.B. SINHA, J.
~
INTRODUCTION
i
' Justiciability of the recommendations of the Chief Justice
of Madras High Court for appointment of Shri N. Kannadasan F
(the appellant) as the President of the State Consumer Disputes
Redressal Commission ('the Commission') in terms of Section
16 of tne Consumers Protection Act, 1986 ('the Act') is the
question involved herein.
G
,..,..,~
BACKGROUND FACTS :
2. The said question arises in the following factual matrix.
The appellant was an Advocate practicing in the M<1dras
High Court. He was appointed as an Additional Judge of the
H
682 SUPREME COURT REPORTS [2009] 7 S. C.R.

A said Court for a period of two years on or about 6th November, ,,
,....
2003. During his tenure as an Additional Judge a representation
was made from the Members of the Bar alleging lack of probity
against him inter alia contending :
(A) (i) several orders had been passed by him granting
B bail in Narcotic Drugs and Psychotropic Substances
(NDPS) matters in contravention of the mandate laid
down in Section 37 of the NDPS Act despite the •
refusal of bail on earlier occasions either by him or
by other Judges ;
...
c
(ii) bail granted by him had subsequently been cancelled
by other Judges ;
(iii) Abuse of office to work the judicial system to his own
benefit through his former juniors
D
(B) Adverse reports from intelligence agencies.
Indisputably he was not appointed as a Permanent Judge
as a result whereof demitted his office on 5th November, 2005.
He resumed practice in Madras High Court. On a query made
E by the High Court as to whether the appellant was entitled to
pensionary and other benefits, the Government of India by its ,.,
letter dated 29th March, 2007 replied that he be treated at par
with the retired Judges of the High Court for the purposes of
!·
obtaining medical benefits but would not be entitled to any _..
F pensionary benefits. ,.
In the meantime on or about 6th November, 2006 he was
appointed as an Additional Advocate General of the State of
Madras. Appellant intended to have his name included in the
list of retired Judges wherefor he wrote a letter to the Registrar
G General of the Madras High Court on 24th May, 2008. Indisputably
his name was included in the said list by a Resolution adopted in
th ,,,. .
that behalf by the Full Court on 11 July, 2008.
PROCEEDINGS FOR APPOINTEMNT
H 3. Before the post of President of the Commission fell
N. KANNADASAN V. AJOY KHOSE AND OTHERS 683
[S.B. SINHA, J.]
~ vacant. the Government of Tamil Nadu by a letter dated 30
th
A
. May, 2008 requested the Registrar General of the High Court
.. to forward names of eligible candidates for appointment as
President of the Commission. The said post, however, fell
th
vacant only on 5 July, 2008.
A note prepared by the Registry of the said Court as B
contained in Roc.341/2008 dated 14th July, 2008 refers to the
• th
letter of the Government dated 30 May, 2008.
-+
Upon quoting Section 16 of the Act, it proceeds as follows:
"In view of the above, if your Lordship is so pleased, c
willingness may be called for from the Hon'ble judges
retired in or after the year 2006, so that, if appointed they
may have a tenure of not less than 2-1/2 years.
It is further submitted that the Hon'ble Thiru Justice N.
-. KANNADASAN, Former Judge, who has completed 2
D
years of service as Additional Judge, High Court of Madras ·
ceased to hold the Office on and from 06.11.2005. His
Lordship's date of birth is 15.11.1955.
Further, it is submitted that the Hon'ble Thiru Justice N. E
KANNADASAN, Former Additional Judge, High Court,
Madras and now Additional Advocate General has
' addressed a letter to the Registry in connection with the
~
inclusion of His Lordship's name in the category of Retired/
Former Judge etc. F
As directed by your Lordship, the said matter was placed
before the full cour:t which was held on 11th July, 2008 and
minuted as follows:
Considered the representation of Hon'ble Thiru Justice N. G
r~. KANNADASAN, Former Judge of the High Court in the
light of the communication of Ministry of Law and Justice,
Government of India dated 29.03.2007.
Discussed the matter
H
684 SUPREME COURT REPORTS (2009] 7 S.C.R.

,..
A It is resolved that the name of Hon'ble Thiru Justice N. y

KANNADASAN be included as one of the Retired Judges
of the High Court in the records of this Registry.
Further, it is submitted that the list of Hon'ble Judges,
retired during 2006 and 2007 is submitted below 2006:
B
1. Hon'ble Thiru Justice T.V. MASILAMANI

(Chairman DRAT) c 29.05.2006 Chairman, DRAT •
2. Hon'ble Thiru Justice A.R. RAMALINGAM
+
c - 12.11.2006
- 2007
1.Hon'ble Thiru Justice M. HANIKACHALAM,
(Admission Committee) - 07.03.07
D ~

2. Hon'ble Thiru Justice J.A.K. SAMPATHKUMAR
(Chairman, Human Rights Commission,
Puducherry) - 05.05.2007
E
3.Hon'ble Thiru Justice R. BALASUBRAMANIAN
l
(Advisor, State Legal Services Authority)

- 15.08.2007 ,._

F 4. Hon'ble Thiru Justice N. KANNADASAN
(D.O.B. - 15.11.1955) - 05.11.2005
The term of Office of the President of the State Consumer
Dispute Redresssal Commission will be 5 years or up to
G the age of 67 years.
~~
In this connection, it is respectfully submitted for
consideration and orders.
Whether:-
H the list of retired Hon'ble Judges except Hon'ble Thiru
,.
- _.,,J

N. KANNADASAN V. AJOY KHOSE AND OTHERS 685
[S.S. SINHA, J.]
~

-, Justice T.V. MASI LAMAN I (Chairman DRAT) and including A
N. Kannadasdan, Former Additional Judge may be
forwarded to the Government, for consideration for the
post of President of State Consumer Dispute Redressal
Commission.
Sd/- SO J Sd/- ~,: ...,. B
14.07.2008 15.06.2008 Regr A
.,
I send the panel of three retired Judges of this Hon'ble
' ,,. Court
1. Justice A.R. Ramalingam
c
2. Justice M. Thanikachalam
3. Justice N. KANNADASAN
Sd/- CJ D
--.!.-
16.06.2008"
The Government of Tamil Nadu appointed Shri Kannadasan
as thettfresident of the Commission by issuing G.O. Ms. No.144
on 26 July, 2008. E
WRIT PROCEEDINGS
4. Three writ petitions were filed by some Legal Pri;ictioners
' before the Madras High Court.
~

,.. Writ Petition No.18731 of 2008 was filed by one Anna F
Mathew and ten others for issuance of writ of Quo Warranto
against Shri Kannadasan requiring him to show the authority to
hold the office of President of the Commission and consequently
· declaring G.O. Ms. No. 144 of 26th July, 2008 as illegal and
unconstitutional. G
r ,.......,',
Writ Petition No.21495 was filed by one R. Jaikumar and
seven others for issuance of writ of declaration to declare that
the decision taken by the Full Court of the Madras High Court in
July, 2008 to treat Sh. Kannadasan as a retired judge is
unconstitutional and non-est in law. H
686 SUPREME COURT REPORTS [2009] 7 S.C.R.

" ,.
A Writ Petition No.21504 of 2008 was filed by Ajoy Khose r
and three others for
.
issuance
th
of a writ of declaration declaring
G.O. Ms. No. 144 dated 26 July, 2008 issued by the Government
of Tami Nadu as illegal and ultra vires of the Constitution of India.
The Chief Justice of the High Court initially was impleaded
B as a party in the said proceedings but later on his name was
deleted.
~

By reason of the impugned judgment dated December 12, ~
2008 Writ Petition Nos. 18731 of 2008 and 21504 of 2008 have
c been allowed while Writ Petition No. 21495 of 2008 has been
dismissed.
Before the High Court averments touc~ing upon the lack
of integrity and honesty on the part of the appellant were made
by the writ petitioners. The High Court, however, did not think it
D necessary to consider them in detail. +-
QUESTIONS BEFORE THE HIGH COURT :
5. Before the High Court, the writ petitioners-respondents
raised the following questions :-
E "i) Whether the earlier recommendations of the
Constitutional functionaries under Article 217, viz. the Chief
Justice of the High Court and the Chief Justice of India
I
and the Collegium of the Supreme Court and of the Central +
Government that a person should not be considered as a
F Judge on grounds of unsuitability and as being public
interest, are not vital and decisive considerations that
should weigh with the Chief Justice of the High Court in
considering the same person for appointment to any
judicial office under the Consumer Protection Act, 1986
G or any other similar offices in other Tribunals &
Commissions ? .:-.-..,
ii) Since an independent and fair judiciary is part of the
basic structure of the Constitution of India, can a person
found wanting in the necessary intellectual and moral
H ....
N. KANNADASAN V. AJOY KHOSE AND OTHERS 687
[S.S. SINHA, J.]

'
. -.j
requirements to be a Judge, be considered again for any A
other judicial office ?
~.

iii) If the ~overnment considers and appoints such a
person to any judicial office, would it· (lot amount to
interfering with the independence of the judiciary contrary
to Article 50 of the Constitution of India? B'

• iv) Whether the expression "is or has been a Judge of the
High Court" in Section 16 would include even a Judge,
' ~
who had demitted office on account of impeachment or
unsuitabmty to hold a judicial office ? . C··
v) Whether an Additional Judge can be considered as a
retired Judge to be eligible for appointment to judicial
offices in various Tribunals and Commissions ?"
The High Court inter alia formulated the following three
·-+
D
questions for its consideration :-
"(1) Whether Respondent No. 1 was ineligible to b~
appointed as the President of the State Consumer
Disputes Redressal Commission?
(2) Whether the requirement of consultation with the
E
Honourable the Chief Justice had been fulfilled ?
(3) Whether the appointment of Respondent No. 1 can be
~ declared illegal and invalid on the ground that such
:)-
appointment was against public interest? F
FINDINGS OF THE HIGH COURT
Re : Question No.1
6. Upon considering a few decisions of this Court as also
the provisions of the Constitution of India vis-a-vis Section 16 G
( ...... of the Act, the High Court held that having regard to the fact that
' an additional judge appointed for a period of two years can
revert back to practice and would be entitled to appear before
any court of law including the lower courts, there existed a
distinction between a Permanent Judge and an Additfonal H
688 SUPREME COURT REPORTS [2009] 7 S.C.R.
,,
,....
A Judge. Section 16 of the Act requires that the President of the
Commission, be a person 'who is or has been a judge' and
accordingly an additional judge who has demitted office being
not a retired judge, could not have been appointed. Although a
literal interpretation having regard to the decision of this Court
B S.P. Gupta v. Union of India, [(1981) Supp. SCC 87] may lead
to the conclusion that an additional judge would be deemed to
be a judge of the High Court for all purposes, in a case of the
nature before it, the principle of purposive interpretation should
---)..
be applied as it would indeed be a travesty of all canons of
c principles of jurisprudence if it is held, by adopting a cussedly
narrow literal interpretation, that a person who was found by the
appropriate Constitutional functionaries, which includes the
Chief Justice of the High Court and the Collegium of the
Supreme Court, unsuitable to be continued as an additional
Judge yesterday, is eligible today for being appointed as ad-
D +--
hoc Judge, for which only a retired Judge is eligible, on the
specious plea, that the person "has held the office of a Judge".
Re :- Question No.2

-E~
7. The High Court noticed that no affidavit has been filed
by the Chief Justice of the High Court or on his behalf. Upon
taking into consideration the correspondences entered into by
and between the State and the Registry leading to the sending ;
of the panel by the Chief Justice, it was held :- k
"78. Judged in the light of the discussion made earlier, the
.
F
inevitable conclusion is that there has not been any effective
consultation mainly on account of the fact that the
Consultee, namely, the Honourable the Chief Justice has
recommended the name of Respondent No. 1 without at
all considering the background as available in the High
G
Court records regarding the circumstances under which ~ .
there was no extension of the term of Respondent No. 1.
It is no doubt true that this Court is neither required nor
...
expected to consider the desirability of a person to be
appointed for a particular post as that is a matter for the
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 689
[S.B. SINHA, J.]

""-;.; authorities concerned; (in this case the State Government A
and the Honourable the Chief Justice) to consider. But,
wher.e a decision itself is thickly clouded by non-
consideration of the most relevant and vital aspect, the
ultimate appointment is vitiated not because the appointee
is not desirable or otherwise, but because mandatory B
statutory requirement of consultation has not been
rendered effectively and meaningfully. Therefore, even
~
assuming that Respondent No. 1 was theoretically eligible
.. for being considered, the process of consultation having
been vitiated, the ultimate order is also vulnerable." c
Re : Question No.3

8. The records produced by the Additional Solicitor General
appearing for the Central Government and the learned counsel
for the High Court, despite the fact that no privilege had been
D
claimed, the High Court did not think it fit to permit the counsel
-t
for the contesting parties to peruse the same as in its opinion it
would open a collateral battle on the question relating to
confirmation of Shri Kannadasan which was not and could not
be an issue. It was opined :
E
(A) Indisputably the allegations made in the said writ
petitions that Shri Kannadasan is not entitled to be considered
for the post of the chairman of the commission would have to
~
• be accepted; his tenure as additional judge and/or appointed
as a permanent judge, having not been confirmed, on the basis F
of the allegations touching upon his integrity and honestly.
(B) An additional judge who had demitted the office on the
expiry of the term being not a permanent judge was ineligible
for appointment in terms of Section 16 of the Act.
G
(C) The recommendations. made by the Chief Justice of
.~ the High Court is vitiated in law as before him all the relevant
records relating to his non-appointment as permanent judge and
. demission of office were not placed and thus the decision
making process became vitiated.'
H
690 SUPREME COURT REPORTS [2009) 7 S. C.R.

A On the basis of the said findings, Writ Petition No.18731 .,..,.
of 2008 and Writ Petition No.21504 of 2008 were allowed.
Writ Petition No.12149 of 2008 for a declaration that the
Full Court Reference dated 11.07.2008 was unconstitutional
was, however, dismissed.
B
Government of Tamil Nadu and Shri Kannadasan are
before us in these four appeals. •
SUBMISSIONS ~

c 9. Mr. K.K. Venugopal and Mr. U.U. Lalit, learned senior
counsel appearing for the appellants, inter alia, would contend :-
1. Having regard to the constitutional scheme contained
in Articles 216 to 224A of the Constitution of India, a
permanent judge as also an additional judge would
D be a judge for all purposes including power; salary;
remuneration; judicial functions; control over the
subordinate judiciary etc.
2. An Additional Judge does not cease to be a judge
of the High Court only because he was not re-
E appointed as a Permanent Judge thereof.
3. As an Additional Judge of a High Court is not
appointed on probation, the High Court committed a
serious error in applying in the theory of 'confirmation ••
F in service' which is foreign to the concept of
appointment and status of a High Court judge.
4. A writ of Quo Warranto could be issued only when a
candidate does not specify the requisite eligibility
criterion specified in the statute.
G
5. Suitability or otherwise of a candidate appointed by
the State in exercise of its statutory power cannot be
-~ .
a subject matter of judicial review, far less for the
purpose of issuance of a writ of quo warraanto.
H 6. The consultative process having been initiated by
N. KANNADASAN V AJOY KHOSE AND OTHERS 691
[S.B. SINHA, J.]

the Chief Justice of the High Court by recommending A
a panel of 3 names, the State was within its right to
select any one of th'em as President of the
Commission. Recommendations of the Chief Justice
of the High Court for appointment to a statutory post .
being discretionary and based on his subjective 8
satisfaction, the High Court committed a serious error
in opining that the Chief Justice should have called
for the records/files leading to Shri Kannadasan's
non-appointment as a permanent judge .
. 7. The High Court itself having held that the records C
_produced by the High Court and/or the State could
not have been shown to the writ petitioners as the
suitability of Shri Kannadasan was not justiciable,
committed a serious error in arriving at a different
conclusion in regard to his eligibility in terms of the 0
Constitution of India as also the 1984Act relying on
or on the basis of the purported records of his
suitability.
Mr. Anil Diwan, learned senior counsel appearing on behalf
of the writ petitioners-respondents, on the other hand, urged :- E
i) The constitutional provisions make a distinction
between a permanent judge and an additional judge
who had not been made permanent for one reason
or the other.
F
• ii) Section 16 of the Act while using the terms "is" or
"has been a judge" could not have included within is
purview an advocate who has been appointed only _
for two years and was not found fit for appointment
as a permanent judge in view of the fact that G
. independence and impartiality of the judiciary plays
- ~··~ an important role in the matter of discharge of judicial
functions.
iii) The State Commission being a judicial body and the
eligibility criteria having been laid down in the Act, H
692 SUPREME.COURT REPORTS [2009] 7 S.C.R.

A the Chief Justice of the High Court was obligated to
take into consideration the past conduct, as also ·'
general reputation of the recommendee.
iv) Only b.ecause a name of a judge has been included
in the capacity as a retired judge and is entitled to
B medical benefits the same by itself would not be
sufficient to answer the description of 'has been a
judge' within the meaning of the provisions of Section
16 of the Act.

c v) While taking an important decision like
recommending the name of a retired judge who was
not found fit to occupy the post of a permanent Judge,
the Chief Justice was bound to take into
consideration all relevant factors including the
question of honesty and integrity of a judge; which
D
being a relevant statutory requirement, would
determine the eligibility criteria, and thus a writ of
quo warranto could be issued.
CONSTITUTIONAL PROVISIONS :
E 10. ChapterVofthe Constitution deals with the High Courts
in the States.
Article 216 of the Constitution of India provides that every
High Court shall consist of a Chief Justice and such other judges ·•I
F as the President may from time to time deem it necessary. Article
217 states that every judge of a High Court shall be appointed
by the President in consultation with the Chief Justice of India
and other authorities specified therein who shall hold office in
the case of an additional or acting Judge, as provided in Article
G 224, and in any other case, until he attains the age of sixty two
years. Indisputably in terms of the proviso, an additional judge,
like a permanent judge, may also resign his office, or be
removed therefrom by the President in the manner as provided
in clause (4) of Article 124 of the Constitution of India for the
H removal of the Supreme Court Judge. Clause (2) of Article 217
N. KANNADASAN V AJOY KHOSE AND OTHERS 693
[S.B. SINHA, J.]
...
~ of the Constitution of India prescribes the eligibility criterion. A
' · Clause (3) thereof provides for resolution of disputes if any
question arises as to the age of a Judge of the High Court by
•
the President after consultation with the Chief Justice of India.
Article 219 provides for oath of affirmation by Judges of the
High Courts which is.to be affirmed according to form set out B
for the purpose in the Third Schedule.·
... Article 220 restricts practice by a judge after being
>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, c
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
D
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 E
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 F
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
G
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 H
694 SUPREME COURT REPORTS [2009] 7 S.C.R.

,
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
-
B 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
c 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,
D 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
I-
where the value of the goods or services and compensation, if '
E 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
F 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
G 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

H 12. The High Court has taken recourse to the rule of
N. KANNADASAN V. AJOY KHOSE AND OTHERS 695
[S.B. SINHA, J.]
'""
"I'. purposive construction whereas learned counsel appearing on A
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 B

. 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.
c
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 a
Permanent Judge for all practical purposes, namely - judicial
D
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.
E
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, F
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
G
<fllp"-;-i
S.P. GUPTA
13. In the context of Central Government's refusal to re-
appoint some additional judges as permanent judges, the
Supreme Court in S.P. Gupta (supra) had the occasion to
consider the said question. Bhagwati, J. (as His Lordship then H
696 SUPREME COURT REPORTS [2009] 7 S.C.R.

A was) traced the history of appointment of ad hoc or temporary
judges, the provisions of the Government of India Act, 1915;
Section 220 of the Government of India Act, 1935 and the speech
of Sir Tej Bahadur Sapru expressing his firm opposition to the
practice of appointing acting or Additional Judges to note that
B the drafting committee took the view that "it was possible to
discontinue the system of appointment of temporary and
Additional Judges in the High Courts altogether by increasing,
if necessary, the total number of permanent Judges of such
Courts.", to notice that the Constitution-makers did not assume
C that an acting or Additional Judge would necessarily be made
permanent and he would have to go back to the Bar. The learned
Judge furthermore noticed the enactment of the Constitution
(Seventh Amendment) Act, 1956, in terms whereof existing
Article 224 was substituted by a new Article and the existing
Article 224 was added as new Article 224A thereafter. It was
0
held that the object clearly was that Additional Judge should be
appointed for a short period in order to dispose of the temporary
increase in the business of the High Court and/or to clear off the
arrears of pending cases. The underlying idea was that there
should be an adequate strength of permanent Judges in each
E High Court to deal with its normal institutions and so far as the
temporary increase in the work or the arrears of pending cases
were concerned, Additional Judges appointed for a period not
exceeding two years should assist in disposing of such work.
Additional Judges while entering into the High Court judiciary J
F had a legitimate expectation that they would not have to go back
on the expiration of their term and that they would be either
reappointed as Additional Judges for a further term or if in the
meanwhile, a vacancy in the post of a permanent Judge became
available, they would be confirmed as permanent Judges. The
G Government, in view of the constitutional scheme, could not drop
an additional Judge at its sweet will. The expectation has been
raised through a practice followed for almost over a quarter of a
century. The expression "every Judge" occurring in Article 217
must include not only a permanent Judge but also an Additional
H Judge. The Additional Judge, on the expiry of his tenure, could
N. KANNADASAN V. AJOY KHOSE AND OTHERS 697
[S.B. SINHA, J]

not just be dropped without consideration (be of his re- A
·appointment or made a permanent judge). As Additional Judge
is entitled to be appointed without anything more, the process
of selection in regard to his appointment need not be gone any
further. An Additional Judge is as much a Judge as a permanent
Judge with the same jurisdiction and the same powers and to B
treat him as he were on probation, would not only detract from
his status and dignity but also affect his independence by making
his continuance as a Judge dependent on the good opinion of
the Chief Justice of the High Court, the Governor of the State

- and the Chief Justice of India. Although factors relevant for.
consideration of his appointment as permanent Judge have not C
been laid down having regard to the object and purpose of Article
217(1 ), it is obvious that fitness and suitability, physical,
intellectual and moral, would be the governing considerations
to be taken into account in deciding the question of appointment
The Central Government, however, in view of the D
constitutional obligations, was, therefore, required to consider
whether the Additional Judge is fit and suitable to be reappointed
as an Additional Judge or appointed as a permanent Judge, as
the case may be, must consider as to whether he is physically,
intellectually or moral! unfit or unsuitable to be appointed as such. E

- Justice Fazal Ali, J. in his concurring judgment opined :-
"533. Thus, the position is that even if an Additional Judge
is not appointed afresh and somebody else is appointed,
there is no question of judicial review nor is there any
question of the non-appointment of an Additional Judge F
afresh casting any reflection or aspersion on the reputation
or character of an Additional Judge because he was
appointed only for a particular period and for a particular
purpose and is not on probation. Both Brother Desai and
Brother Venkataramiah, JJ. have stressed this aspect of G
the matter in their own way and I agree with their views."
SUPREME COURT ADVOCATES-ON-RECORD
ASSOCIATION
14. This Court in Supreme Court Advocates-on-Record H
698 SUPREME COURT REPORTS (2009) 7 S.C.R.

~
A Association and others v. Union of India, [ (1993) 4 SCC 441 'I
] adopted a new approach opining that keeping in view the fact
that independence of judiciary is one of the cardinal principles ,.
of constitution, the primacy of appointment shall be with the Chief
Justice of India as also the Chief Justice of the High Court.
B However, before making recommendations in terms of Articles
124(2) and 217(1) of the Constitution, they would have to consult
two other senior most Judges who would be the members of .,.
the Collegium. It was opined that S.P Gupta (supra) should be
,)
read with Ashok Kumar Yadav v. State of Haryana, [ (1985) 4
c SCC 417 ]. As regards justiciability of appointment and transfer
it was laid down:- '

"Except on the ground of want of consultation with the
-
named constitutional functionaries or lack of any condition
of eligibility in the case of an appointment, or of a transfer
D being made without the recommendation of the Chief
Justice of India, these matters are not justiciable on any
other ground, including that of bias, which in any case is
excluded by the element of plurality in the process of
decision-making."
E SPECIAL REFERENCE

15. In Re - Special Reference No. 1 of 1998, [(1998) 7
SCC 739], in regard to justiciability of such power this Court ...
-
held that having a plurality of judges in the formation of opinion ~

F provides sufficient safeguards and that they are sufficient checks
against arbitrariness in the decision making process relating
to Appointment and Transfers, stating :-
"9. The majority judgment ends with a summary of its
conclusions. Conclusions 1, 2, 3, 4, 5, 7, 9, 10, 11and14
G are relevant for our purposes. They read thus:
"(1) The process of appointment of Judges to the Supreme
,_,....,
Court and the High Courts is an integrated 'participatory
consultative process' for selecting the best and most
suitable persons available for appointment; and all the
H
N. KANNADASAN V AJOY KHOSE AND OTHERS 699
[S.B. SINHA, J.]

constitutional functionaries must perform this duty A
collectively with a view primarily to reach an agreed

• decision, subserving the constitutional purpose, so that
the occasion of primacy does not arise.
* * * *
B
(5) In exceptional cases alone, for stated strong cogent
reasons, disclosed to the Chief Justice of India, indicating
that the recommendee is not suitable for appointment,
that appointment recommended by the Chief Justice of
India may not be made. However, if the stated reasons c
are not accepted by the Chief Justice of India and the
other Judges of the Supreme Court who have been
consulted in the matter, on reiteration of the
recommendation by the Chief Justice of India, the
appointment should be rriade as a healthy convention.
D
* * *

(10) In making all appointments and transfers, the norms
indicated must be followed. However, the same do not
confer any justiciable right in anyone.
E
(11) Only limited judicial review on the grounds specified
earlier is available in matters of appointments and
transfers.
* * *
F
(14) The majority opinion in S.P. Gupta v. Union of India
insofar as it takes the contrary view relating to primacy of
the role of the Chief Justice of India in matters of
appointments and transfers, and the justiciability of these
matters as well as in relation to Judge-strength,k does not G
commend itself to us as being the correct view. The relevant
provisions of the Constitution including the constitutional
scheme must now be construed, understood and
·\ implemented in the manner indicated herein by us."
... (emphasis supplied) H
700 SUPREME COURT REPORTS [2009) 7 S.C.R.

,.
A It was furthermore held :-

..
't

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

B 1. The expression "consultation with the Chief Justice of
India" in Articles 217(1) and 222(1) of the Constitution of
India requires consultation with a plurality of Judges in the
lO
formation of the opinion of the Chief Justice of India. The
)
sole individual opinion of the Chief Justice of India does
c not constitute "consultation" within the meaning of the said
articles.
* * *
4. The Chief Justice of India is not entitled to act solely in
his individual capacity, without consultation with other
D
Judges of the Supreme Court, in respect of materials and ...--
information conveyed by the Government of India for non-
appointment of a Judge recommended for appointment.
* * *
E 8. The Chief Justice of India is obliged to comply with the
norms and the requirement of the consultation process,
as aforestated, in making his recommendations to the
Government of India."
..
F INTERPRETATION OF SECTION 16 OF THE ACT
16. For this purpose, we will proceed on the basis that
save and except for certain purposes an additional judge and a
permanent judge enjoy equal status. It could be said that for the
purpose of appointment as Chairperson of some Tribunal, the
G name of an additional judge may also be taken into
consideration but would that mean that an additional judge whose ~ ..,.,.
services were tainted or having regard to his general reputation
or lack of integrity, wherefor he had not been made permanent
as opposed to a situation where having regard to the policy
H decision of the Central Government or the purpose for which
N. KANNADASAN V AJOY KHOSE AND OTHERS 701
[S.B. SINHA, J.]
: ...
. "(' the additional judges are appointed to clear the back log is the A
question which falls for consideration. This Court in T Fenn
(
Walter [(2002) 6 SCC 184] laid down some broad guidelines
as to the manner in which the appointment of a sitting Judge of
a High Court to a Commission should be made. In view of the ...
said decision, it is expected that a sitting judge may not be B
recommended by the Chief Justice of the High Court for such
appointment.
~
The words "is or has been" refer to the person holding the
". office of a Judge or who has held the said office. It may be said
to have the same meaning so far as eligibility is concerned. c
Suitability of a person to be considered for appointment
as a Chairman of a State Commission having regard to the
provisions contained in Article 217 of the Constitution of India
has been assumed by this Court to be available for the eligible
persons who are retired Judges which would mean that those D
-.j Judges who had retired from service without any blemish
whatsoever and not merely a person who "has been judge". a
[See Ashish Handa v. The Hon'b/e the Chief Justice of High
Court of Punjab and Haryana and others, (1996) 3 SCC 145].
E
An Additional Judge holding a tenure post stricto sensu
~;I does not retire. It is one thing to say that having regard to the
constitutional embargo, he would not hold office after he attains
;. . the age of 62 years but it is another thing to say that for all other.
+ purposes, he can be equated with a sitting Judge.
F
There cannot b~ any doubt whatsoever that ordinarily a
literal meaning should be given to the provisions of the
Constitution as also a statute. However, while applying the
golden rules of literal interpretation one must be clear in his mind
that same should not defeat the object and purpose for which
G
the Act was enacted. We could advert to this question a little
--......; later.

.. The jurisdiction of the consumer courts and particularly that
of the State Commission and the National Commission is .of
great importance. Various complicated questions of law and H.
702 SUPREME COURT REPORTS . [2009] 7 S.C.R.

,.
A facts arise for their consideration. It must, save and except for 't
very cogent reasons refuse to entertain a claim application and
ask the parties to agitate their grievances before a Civil Court. ,_
Indisputably, the functions of the Commission are judicial. The
State Commission, as noticed hereinbefore, not only exercises
B original jurisdiction but also appellate jurisdiction. The guidelines
clearly point out as to why, considering the basic feature of the
Constitution, namely the independence of the judiciary, a sitting
Judge must maintain the high traditions. While a sitting Judge "
may be appointed to a statutory post or Tribunal, this Court as >
pointed out in T Fenn Wa/ter(supra) that he would not discharge
c 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
D
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
E 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
.."
F the reasons like reaching the age of superannuation, continue
as a Judge.
In S.P Gupta (supra), this Court has categorically held that
a person who has not been confirmed would not be
recommended for reappointment. If that be so, he could not
G 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 :-

H "Under our constitutional scheme, the judiciary has been
N. KANNADASAN V. AJOY KHOSE AND OTHERS 703
[S.B. SINHA, J.]
~
~
·"f assigned the onerous task of safeguarding the fundamental A
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, B
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
c
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. "
D
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 E
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, F
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 G
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 H
704 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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
c 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
D
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 of Article 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. . ·•
F 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
G
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
H
N. KANNADASAN V AJOY KHOSE AND OTHERS 705
-(
..
"(
[S.B. SINHA, J.]

Article 368. An interpretation placed by the Court on any A
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. B
'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 c
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
D
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 E
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 F
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
G
''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.
H
706 SUPREME COURT REPORTS [2009] 7 S.C.R.

y
. \
A 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
B 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
c 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, .-
D
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:
E
"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
F reading of a statute was avoided as by reason thereof several
vital considerations, which must always be borne in mind, would
be ignored, stating:

v-
"... The task of interpretation of a statutory enactment is
not a mechanical task. It is more than a mere reading of
G
mathematical formulae because few words possess the
precision 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
H •
N. KANNADASAN V. AJOY KHOSE AND OTHERS 707
[S.B. SINHA, J.]

expression of human thought and as pointed out by Lord A
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:

''. .. it is true that the words used, even in their literal sense, 8
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 C
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 E
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. F
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 G
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 H
708 SUPREME COURT REPORTS [2009] 7 S.C.R.
..
)'-
A 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]:
B
"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
c 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
D ~-~

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
E 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
F 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
G the language of the statute, as read in the light of other
v >
external manifestations of purpose [Some Reflections
on the Reading of Statutes, 47 Columbia LR 527, at p. 538
(1947)].'

xxx xxx xxx
H
N. KANNADASAN V AJOY KHOSE AND OTHERS 709
[S.B. SINHA, J]
' ...
C"(
38. In The Interpretation and Application of Statutes by A
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 B

~.
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 c
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: D

"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 E
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. F
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
G
-·~ 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. H
710 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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
c 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
D 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
E 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.
*** *** ***
F
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
G 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
H in doubt."
N. KANNADASAN V. AJOY KHOSE AND OTHERS 711
[S.B. SINHA, J.]
""·-'(
Yet again, the Australian High Court in Australian Finance A
Direct Limited v. Director of Consumer Affairs Victoria (2007]
HCA 57], held :
"40. This explanation of the approach to be taken to a
problem of construction has been cited, restated and
applied in this Court so many times that it should be B
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 c
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( D
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 E
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."
F
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
G
~ 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,
H
712 SUPREME COURT REPORTS [2009] 7 $.C.R.
,. .
.....
A 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)
B 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
.
c
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
D edict of the legislature. The language employed in a statute x-
is the determinative factor of legislative intent. Similar is
the position for conditions stipulated in advertisements."

PRECEDENTS GOVERNING APPOINTMENT OF
CHAIRMAN, STATE COMMISSION.
E
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 Chief Justice of High Court of Punjab
F 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
G 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
H the Chief Justice of the High Court" and to the office of the
N. KANNADASAN V. AJOY KHOSE AND OTHERS 713
[S.B. SINHA, J]

President of the National Commission "after consultation A
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 B
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 c
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 E
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 F
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 G
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.
H
714 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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
c 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
D the Act and "consultation" contemplated in the said section
is "consultation" only with the Chief Justice of the High Jlfr'

Court and not with the collegium.

(Emphasis added)"

E 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
F 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
G 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.
H If the argument that the consultation process in regard to
N. KANNADASAN V. AJOY KHOSE AND OTHERS 715
[S.B. SINHA, J)

appointment of a Judge or retired Judge of the High Court A
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 B
therein is for the purpose of appointment of a Judge of a
High Court and not for appointment of a person as the
President of the State Commission under Section 16 of
the Act. If the consultation to be made for appointment of
a person as President of the State Commission, as c
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 E
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 F
purpose of Section 16 of the Act, in our view, is
unwarranted."
CONSTITUTIONAL INTERPRETATION
19. Independence and impartiality of judiciary is a basic G
~ 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 H
716 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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 ; .
c (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 ;
D
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
E 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 ..
F
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.
G An Additional Judge who had not been made permanent,
technically, could be appointed as an acting or Additional Judge
but then the question which was required to be asked was:
..,.__
.

should a person who had not been found fit be so appointed?
The answer to the aforementioned question clearly would a big
H emphatic 'no'.
-N. KANNADASAN V. AJOY KHOSE AND OTHERS 717
[S.B. SINHA, J.]

'. · Before us both the High Court as also the Union of India A
have produced records; in relation whereto the High Court,
stated:
"84 ... The learned counsel sought leave of this Court to.
wade through the entire file containing the correspondence
· and the discussions touching upon the question of 8
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 C
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 D
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 E
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 F
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. G
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 H
718 SUPREME COURT REPORTS [2009] 7 S.C.R.

A the collegium refused to make a recommendation which was
also accepted by the Chief Justice of India.
We may also place on record that at least in a few
'1..
decisions, this Court has held that only a sitting or retired Judge
is suitable for appointment. In our opinion, the same clearly goes
B 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) >-
c 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
•
D
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
G 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
H the officer has or lacks potentiality for getting such benefit."
N. KANNADASAN V. AJOY KHOSE AND OTHERS 719
[S.B. SINHA, J]

As regards the qualifications of a Fast Track Court Judges, A
"' 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
Courts shall be given to retired judges who have good 8
service records with no adverse comments in their AC Rs,
"\ 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. c
It should be ensured that they satisfy the conditions laid
down in Articles 233(2) and 309 of the Constitution. The
a
High Court concerned shall take decision with regard·to
• the minimum-maximum age of eligibility to ensure that
they are physically fit for the work in Fast Track Courts. D
- ~
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 E
considered for appointment.".

• Iii Pareena Swarup v. Union of India [2008 {13) SCALE •
•v 84], this Court intervened stating legislative amend_ments are·

-. '
carried out to protect judicial independence in a case inyolving' F
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].
G
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.
H
720 SUPREME COURT REPORTS [2009] 7 S. C.R.

,.._
A 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
B 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
c 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
..
D
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
E 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
F 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
G the High Court to act as a Chairman. Even this argument
does not commend itself to us. A literal reading of sub- .v-
section (1-A) may prima facie suggest that appointments
under clauses (a) and (b) of sub-section (1) are also
governed by the procedure contemplated therein, under
H sub-section (1-A), but as rightly held by the High Court the
N.. KANNADASAN V. AJOY KHOSE AND OTHERS 721
[S.B. SINHA, J.]
-"'\
-'/
two sub-sections have to be harmoniously construed. The J
•' procedure contemplated under sub-section (1-A) can apply
only in respect of appointment of members falling within
the contemplation of clause (b) of sub-section (1) of Section
16. In our view, the High Court has given adequate and
justifiable reasons for this interpretation with which we B
agree. The interpretation given by the circular, and the
'>I view taken by the Union of India in the matter of Section
16(1-A), is incorrect and we hold that the procedure
-4
contemplated therein applies only to the appointments .
made under clause (b) of sub-section (1) of Section 16." c
While approving Ashish Handa (supra) and Ashok Tanwar

-
(supra) it was observed :-
"14. A careful reading of Ashok Tanwar shows that the
Constitution Bench differed from Ashish Handa only on
-\ D
the issue whether consultation with the Chief Justice meant
consultation with the.collegium of the High Court. In other
respects, Ashish Handa is approved."
This Court in S.P Gupta (supra) opined that the principles
as regards consultation for appointment of Judges in terms of E
Article 217 of the Constitution of India would be the same as
laid down in State of Gujarat v. Sankalchand Khodidas Patel,
.. [ (1977) 4 sec 590 ] and other cases, stating :-
¥
"The word 'consult' implies a conference of two or more
persons or an impact of two or more minds in respect of F
a topic in order to enable them to evolve a correct or at
least a satisfactory solution" and added: "In order tnat the
two minds may be able to confer and produce a mutual
impact, it is essential that each must have for its
consideration full and identical facts, which Gan at once G
....... ---......_ constitute both the source and foundation of the final
• decision". Krishna Iyer, J. speaking on behalf of himself
and Fazal Ali, J. also pointed out that "all the materials in
the possession of one who consults must be unreservedly
placed before the consultee" and further "a reasonable H
722 SUPREME COURT REPORTS [2009] 7 S.C.R.

A opportunity for getting information, taking other steps and
..
getting prepared for tendering effective and meaningful
.
advice must be given to him" and "the consultant in turn
must take the matter seriously since the subject is of grave
importance" (SCC p. 267). The learned Judge proceeded
B to add (SCC p. 267): "Therefore, it follows that the
President must communicate to the Chief Justice all the
material he has and the course he proposes. The Chief ir

Justice, in turn, must collect necessary information through f..
responsible channels or directly, acquaint himself with the
c requisite data, deliberate on the information he possesses
and proceed in the interests of the administration of justice
to give the President such counsel of action as he thinks

•D
will further the public interest, especially the cause of the
justice system." These observations apply with equal force
to determine the scope and meaning of "consultation"
within the meaning of clause (2) of Article 124 and clause
) -
-
(1) of Article 217. Each of the constitutional functionaries
required to be consulted under these two articles must
have for his consideration full and identical facts bearing
upon appointment or non-appointment of the person
E concerned as a Judge and the opinion of each of them
taken on identical material must be .considered by the .
C~ntral Government before it takes a decision whether or
notto--appoint the person concerned as a Judge."
. ,

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

"... If the facts necessary to arrive at a proper conclusion
are not made available to the Chief Justice, he must ask
·for them because, in casting on the President the obligation
H
*** *** **?

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

(7) After the data, facts or materials are placed before the
H
724 SUPREME COURT REPORTS [2009] 7 S.C.R.

...
A consulate and the consultee, there should be a full and
complete application of minds in respect of the subject to
"
enable them to reach a satisfactory conclusion. In other
words, the two minds must be able to confer and produce
a mutual impact on the identical facts which would
B constitute both the source and the foundation of the final
decision.
Ir
(8) The C.J.I. owes a corresponding duty both to the
,._
President and to the Judge who is proposed to be
transferred to consider every relevant fact before tendering
c h[s opinion to the President."

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

Indisputably, the decision by the Chief Justice must be an
informed one with respect to the post of a Chairman of a State
E Commission, keeping in view the importance thereof having
regard to the fact that the Commission is required to perform
judicial functions, both the Chief Justice as also the ~tate
1
Government were required to be duly informed about the person )'
who is going to be appointed. With a view to fulfill the -
F constitutional obligations as to whether he is a fit person, it is
absolutely essential that all relevant information should be placed
before the consulter as also the consultee. As far as the proviso
appended to Section 16 of the Act is concerned, keeping in
view the constitutional post held by a Chief Justice, there cannot
G be an iota of doubt that the recommendations made by him
shall carry great weight. Save and except for very cogent -.- ".
reasons, his recommendation must be accepted.
The Constitution Bench of this Court in Supreme Court
Advocates-on-Record Association (supra) and in the
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 725
[S.B. SINHA, J.]
.__,,
Presidential Reference, SpeCial Reference No.1 of 1998 A
(supra) laid down the law that consultation would mean
'concurrence' wherefor the primacy has been shifted to the
Collegium which provision in turn being applicable to the case
of appointment of a Chairman of a State Commission in terms
of Section 16 of the Act, save and except for the difference that B
recommendation, instead and in place of the Collegium, would
.. be that of the Chief Justice alone. We have no doubt in our mind
that he is bound to take into consideration all facts relevant
--4
therefor and must eschew irrelevant facts.
=>
As suitaoility of a person, in view of S.P Gupta (supra), c
depends upon several factors which are necessary to be
considered for re-appointment and or making Additional Judge
a permanent one, there does not exist any reason whatsoever
•,
why the same shall not be considered to be a relevant factor for
recommending the name of a person who would hold such a D
--i..-
high office. It has not been denied or disputed that for one reason
·.Qr the other the Chief Justice of the High Court did not have the
occasion to go through the said file. The ·original record
maintained by the High Court as also by the Central Government

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

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

interest must be made. Thus, institution as also public interest
must be uppermost in the mind of the court. When such factors F
are to be taken into consideration, the court may not insist upon
a proof. It would not delve deep into the allegations. The court
must bear in, mind the limitations in arriving at a finding in regard
to lack of integrity against the person concerned. As has been
noticed in S.P Gupta (supra), the test which must be applied G
'~ for the purpose of assessing the suitability of a person for
appointment as a Judge must be whether the Chief Justice of
the High Court or for the matter of that, any other constitutional <.

authority concerned in the appointment is satisfied about the
integrity of the person under consideration and, thus, if he does H
726 SUPREME COURT REPORTS (2009] 7 S.C.R.

,A •
A not enjoy good reputation, it would not be possible for the Chief •
Justice of the High Court to say that he is satisfied about the
integrity of such person and in such an event he would be justified
in not recommending him for appointment and in fact it would
be his duty not to recommend his name.
8 We may notice that recently a Division Bench of this Court
of which one of us (Or. Justice Mukundakam Sharma) was a
member in Shanti Bhushan and Another v. Union of India and •
Another(supr.a) referring to S.P Gupta (supra}, Supreme Court ~

c
Advocates-on-Record Association (supra) and other decisions,
noticed: -
"9.Pathak, J (as the Hon'ble Judge then was) had· I-
expressed similar opinion by observing that in following
the procedure of Article 217(1) while appointing an
Additional Judge as a Permanent Judge there would be
D -
reduced emphasis with which the consideration would be ~

exercised though the process involves the consideration
of all the concomitant elements and factors which entered
into the process of consultation at the time of appointment
earlier as an additional Judge. The position was.succinctly
E stated by observing that there is a presumption that a
person found suitable for appointment as an Additional
Judge continues to be suitable for appointment as a
Permanent Judge, except when circumstances or events '
-
1
arise which bear adversely on the mental and physical
F capacity, character and integrity or other matters rendering
it unwise to appoint him as a permanent Judge. There
must be relevant and pertinent material to sufficiently
convince a reasonable mind that the person is no longer
suitable to fill the high office of a Judge and has forfeited
G his right to be considered for appointment."
-...-- y

It was furthermore opined:
"15.As rightly submitted by learned Counsel for the Union
of India unless the circumstances or events arise.
H subsequent to the appointment as an Additional Judge,
N. KANNADASAN
'
V. AJOY KHOSE
.
AND OTHERS 727
[S.B. SINHA, ,J.]

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

- It was observed:
'

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

suitable for being appointed as a permanent Judge, should
not be given extension as an Additional Judge unless the
same is occasioned because 9f non availability of the
vacancy. If a person,·as rightly contended by the petitioners, D
is unsuitable to be considered for appointment as a
permanent Judge because of circumstances and events
which bear adversely on the mental and physical' capacity, .
character and integrity or other relevant matters rendering
it unwise for appointing him as a permanent Judge, same E
yardstick has to be followed while considering whether
any extension is to be given to him as an Additional Judge.
A person who· is functioning as an Additional Judge cannot
be considered in such circumstances for re-appointment
as an Additional Judge. If the factors which render him F
unsuitabJe for appointment as a permanent Judge exist, it
would not only be improper but also undesirable to continue
him as an Additional Judge."
Mr. Venugopal, however, has drawn our attention to S.P. G
Gupta (supra) so far as it while dealing with the case of Shri
O.N. Vohra was concerned to contend-that as he had accepted
"the decision of the President bf India not to extend his term and
indeed as a person concerned should not litigate his claim to
this high office which would lower itsdignltyby making it subject
H
728 SUPREME COURT REPORTS [2009] 7 S.C.R.

_,.... '
A matter of litigative controversy, even refused to look into the •
correspondences exchanged between the Law Minister, the
Chief Justice of Delhi and the Chief Justice of India as being
not relevant to the issues arising for determination in the writ
petition holding that the Union of India could not be required to
B disclose it.
While saying so, the court while considering the case of
S.N. Kumar who had claimed relief from the court in regard to ~

his continuance as an Additional dudge not only looked into the ~

c
files but made a deep probe in the matter. The court further noticed
the opinion of the Chief Justice of India in that behalf, holding :
"526. At any rate, without going into further details as
-
several constitutional functionaries were involved, two facts
emerge:
"(1) That C.J., Delhi who had undoubtedly a better chance
D
of observing the performance and the functioning of Justice
Kumar, was in a position to get first hand knowledge of his
*-
reputation, has honestly believed that Kumar's reputation
of integrity was doubtful. He has not revealed the sources
from which he came to know about the reputation of Justice
E Kumar. The C.J.1., however, took a contrary view but he
has also not disclosed the names of the lawyers or Judges t:
who had given him a contrary version.
In my opinion both of them did not disclose the names ~
•
because the Judges or the lawyers concerned must have
F given the information in confidence and they would have
been seriously embarrassed if their names were
disclosed.
(2) These views were put before the Central Government
and it was open to the President to accept one view or the
G
other. The President chose to accept the view taken by
y ..
the C.J., Delhi more particularly because he was in a
position to have firsthand information both regarding the
reputation and working of the Additional Judge."
*** *** ***
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 729
[S.B. SINHA, J.]
.;.
'.4 528. I might just state that even if the documents were not A
disclosed, the conclusion would have been the same

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

" Chairman of various statutory authorities may be treated to be
incompetent. F
Appointment of a Judge of a Supreme Court in effect and
substance is merit based. Only because for one reason or the
other he has been overlooked, the same, by itself, in our opinion,
would not make him unfit for appointment on any other post.
G
The same has nothing to do with eligibility or suitability.
"* -"(
We agree with Mr. Venugopal that ordinarily it might not
have been necessary for the Chief Justice of the High Court to
call for such a file as the same would be a well-known fact. The
Chief Justice of the High Court had joined sometime in May, H
730 SUPREME COURT REPORTS [2009] 7 S.C.R.

....
A 2008. The letter of the State Government was received in July,
2008. Prior thereto, as noticed hereinbefore, pursuant to a
•
resolution adopted by a Full Court, the name of the appellant
~
was put on the register of retired Judges. The materials brought
r
on records before this Court clearly demonstrate that no other
B fact was brought to his notice.
. S.P. Gupta (supra), Supreme C~JUrtAdvocates-on-Record
Association (supra) and other decisions to which we have ~

adverted to hereinbefore in no uncertain terms lay down the law ;._
that the reason for non-appointment of an Additional Judge
... ..;
'J
keeping in view the materials on the basis whereof the
constitutional functionary, viz., the Chief Justice of the High Court,
the State Government, the collegium of the Supreme Court as
also the Central Government and ultimately the President of India
had arrived at a decision would be a relevant factor.
D
We have noticed hereinbefore that the ,integrity of the ~~-

holder of a high office plays an important role. It was, thus, a ...
factor which was required to be taken into consideration not
only by the Chief Justice of the High Court but also by the State.

E The consultative process brings within its ambit a heavy
duty so as to enable the holder of a high office like Chief Justice
to know the same. It must be shown that he had access and in
fact was aware of the fact that the appellant had not been made
a Permanent J\Jdge. The matter might have been different if •
f
F such a fact had been taken into consideration. If a decision for
the purpose of making a recommendation in terms of proviso_
appended to Section 16 of the Act necessitates looking into all
relevant materials, non-consideration of such a vital fact, in our
opinion, cannot be ignored as the opinion is a subjective one
and not based on objective criteria. We are more than sure that
G
had the records been brought to his notice, the Chief Justice
would not have made the recommendation. y ...

JUDICIAL REVIEW
21. Judicial review in our constitutional scheme itself is a
H
,. N: KANNADASAN V. AJOY KHOSE AND OTHERS 731
[S.B. SINHA, J.]
~
part of its basic structure. Decisions whether arrived at by the A
••
Executive or the Judiciary are subject to judicial review.

The Chief Justice of a High Court, while making such
recommendations, exercises statutory functions. While it is
incumbent upon the State Government to consult the Chief
Justice, keeping in view a large number of decisions of this B
Court we have referred to hereinbefore, indisputably the Chief
Justice of the High Court would have a heavy burden on his
()
'.. shoulder to recommend the name of a person who would be
suitable therefor. We are not oblivious of the fact that no court
- howsoever high would have any power of judicial review in ('
relation thereto. Power of judicial review, although is very
restricted, cannot be denied to be exercised when relevant fact
is not considered. It .is now a well settled principle of
Administrative Law that the doctrine of error of law apparent on
the face of the record inter alia would take within its umbrage a D
i -~ case where statutory authority in exercising its discretionary
jurisdiction did not take into consideration a relevant fact or
based its decision on wholly irrelevant factors not germane for
passing the order. What is not the subject matter of judicial
review is the opinion of the Chief Justice .touching upon the merit E
of the decision but the decision making process is subject to
judicial review. It stands conceded t/;Jat the proviso appended
.. ~·
to Sectien 16 of the Act is imperative in nature. An appointment
made without consulting the Chief Justice being wholly without
jurisdiction would be void ab initio. If the State is bound to consult F
the Chief Justice, we reiterate, such consultation must be an
effective and informed one .. Both the State Government as also
the Chief Justice before forming opinion must have access to
all relevant informations. Application of mind orrihe part of
consultant and consulttee on such relevant information was, in
G
our considered opinion, absolutely imperative.
'
""~ Indisputably, a writ petition even at the instance of a busy
body for issuance of a writ of quo warranto questioning the
appointment of Chairman of a State Commission made in terms
of Section 16 of the Act would be maintainable. H
732 SUPREME COURT REPORTS [2009] 7 S.C.R.

~
A For the aforementioned purpose the eligibility criteria as ~-

laid down in Section 16 of the Act as also the question as to
whether in making such an appointment the State consulted the
Chief Justice of High Court as envisaged under the proviso
appended thereto would fall for consideration. An appointment
B to a statutory post is an administrative decision. The act of
consultation is an executive act.

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

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

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

and except for cogent reasons, would lead to an appointment.
H Indisputably, his opinion is final and, thus, for all intent and purport,
N. KANNADASAN V AJOY KHOSE AND OTHERS 733
[S.B. SINHA, J.]
... ... decisive. The recommendations made, thus, may be arrived at A
on the basis of his subjective satisfaction, but it must be based
on objective criteria. Such subjective satisfaction must be
arrived at on consideration of all relevant criteria. When
recommendation of a Former Judge of a High Court is made
for appointment as Chairman of the State Commission ordinarily B
a judicial review shafl not lie. It is true that recommendation would

•-" be as a result of due application of mind. He is r~quired to ·
recommend the name of one of the former Judges of the said ·
Court. All relevant facts leading to formation of an opinion as
regards suitability of the person would presumably be known to c
him. But a Chief Justice coming from outside may not know the
former judges of the concerned High Court. He may not consult
his brother judges keeping in view the element of confidentiality
attached to such recommendation.
It may be true that the statute does not lay down an objective D
- ~
criterion. Such objective criteria cannot also be laid down
keeping in view the status of the parties. Such appointment,
however, must be made keeping in view the independence of
judiciary; as the incumbent of. the post would discharge judicial
functions of grave importance. E
Mr. Venugopal submits that the reaso·n for non-
reappointment of the Additional Judge concerned need not be
•~ ascertained by the Chief Justice. But the fact that he was not
found fit therefor should have been made known to him. The
High Court noticed that apart from placing the records to which' F
reference has been made in its judgment, no other material was
brought before the High Court to establish that the Chief Justice
was aware of the said fact.
We are not in a position tp persuade ourselves that the
G
opinion of the Collegium that the appellant was not found fit to
~·-(
be continued as a judge was not relevant. The opinion of the
collegium is based on certain material. It might have been arrived
at without giving an opportunity of hearing to the Judge
concerned. What is relevant is the availability of materials on
H
734 SUPREME COURT REPORTS (2009] 7 S.C.R.

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

"44. The questions posed by the Reference are now
.....
y
answered, but we should emphasise that the answers
c should be read in conjunction with the body of this opinion:
)()()( :xxx xxx
2. The transfer of puisne Judges is judicially reviewable
only to this extent: that the recommendation that has been
made by the Chief Justice of India in this behalf has not
D -4 •
been made in consultation with the four seniormost puisne
Judges of the Supreme Court and/or that the views of the
Chief Justice of the High Court from which the transfer is
to b~ effected and of the Chief Justice of the High Court
to which the transfer is to be effected have not been
E obtained."
The High Court in a case of this nature could have peeped
into consultative process vis-a-vis eligibility of the candidate
through a narrow hole. Howsoever limited be the field of judicial ~

F review, it cannot, in our opinion, be held to be beyond its pale.
While we say so, we are not oblivious of the fact that the
recommendations are required to be made from amongst the
limited category of High Court Judges who were former Judges
of that court. However, the Chief Justice may even recommend
G the Judge of another High Court. There is no constitutional bar
that only a Judge of the High Court of that State in which the )"'
post has fallen vacant must be recommended.
We have noticed hereinbefore that the Madras High Court
maintains a register of retired Judges. Attention of the Chief
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 735
[S.B. SINHA, J.]
~~
Justice was drawn only to the said register. Names of five A
Judges were proposed.
Mr. Venugopal has placed strong reliance on a judgment
of the Privy Council in The Hubli Electricity Co. Ltd. v. The
Province of Bombay [AIR (36) 1949 PC 136], wherein it was
held: 8

~
"21. Their Lordships now turn to the question of
construction of s.4(1 )(a). Their Lordships are unable to
~
see that there is anything in the language of the sub-section
or in the subject-matter to which it' relates upon which to c
found the suggestion that the opinion of the Government
is to be subject to objective tests. In terms the relevant
..
I matter is the opinion of the Government- not the grounds
on which the opinion is based. The language leaves no
room for the relevance of a judicial examination as to the
D
- )r sufficiency of the grounds on which the Government acted
in forming an opinion."
In that case the question which arose for consideration
was as to whether in view of Section 4(1)(a) of the Indian
Electricity Act, 1910, the licence for generation of electricity could E
be revoked where the licensee in the opinion of the Provincial
Government makes willful and unreasonably prolonged default
,. in doing anything required of him by or under the Act. Section
~ 4(1 )(a) of the Electricity Act underwent an amendment. Even in
Province of Bombay v. Kusaldas S. Advani and Others reported F,
in [1950 SCR 621] this Court referred to The Hubli Electricity
Co. Ltd. (supra) to opine that objective criteria were, in fact, laid
-1 down in the relevant provisions of the therein. It was, however,
observed:
" ... It is abundantly clear from the authorities cited above G
':'. -~ that questions of fact such as the existence·of a public
purpose or the interest of the public safety or the defence
of the realm or the efficient prosecution of the war, or the
maintenance of essential supplie~ and the like may well
be and, indeed, are often left to the subjective opinion or H
736 SUPREME COURT REPORTS [2009] 7 S.C.R

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

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

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

"20. The power to revoke the licence is a drastic power.
E
The revocation of licence results in severe abridgement
of the right to carry on business. Having in mind the
requirements of Article 19(1 )(g). Parliament has, it seems
to us, prescribed certain conditions to prevent the abuse
of power and to ensure just exercise of power. Clauses
.•
F (a) to (d) of Section 4 prescribe some of the conditions
precedent for the exercise of power. The order of
revocation, in breach of any one of those conditions, will •·
undoubtedly be void. The clause "if in its opinion the public /-

interest so requires" is also a condition precedent. On a
G successful showing that the order of revocation has been
made without the Government applying its mind to the )-- ("'
aspect of public interest or without forming an honest /

opinion on that aspect, itwill, we have no doubt, be void.
The phrase "after consulting the State Electricity Board" is
H sandwiched between the clause "if in its opinion the public
N. KANNADASAN V AJOY KHOSE AND OTHERS 737
[S.B. SINHA, J)
"I ,
~
interest so requires" and clauses (a) to (d). In this conte~<t A
it appears to us that consultation with the Board is also a
condition precedent for making the order of revocation.
Accordingly the breach of this condition precedent should
also entail the same consequence as the breach of the
other conditions referred to earlier. It may be observed B
that the phrase "after consulting the State Electricity Board"
~ did not find place in Section 4 as it stood originally. It was
,J introduced in Section 4 in 1959 by an amendment. It seems
to us that it was introduced in Section 4 with the object of
,,
providing an additional safeguard to the licensee ... c
In Rohtas Industries v. S.D. Agarwal and Others [{1969) 1 ·
SCC 325], it was categorically held that the Judieial Committee
was considering a pre-constitutional provision which was not
subject to the mandate of Article 19(1 )(g) of the Constitution of
~ ~ India. D
While exercising the power of judicial review in a case of
this nature, the court would not be concerned with the merit of
the decision but with the decision making process. If it is found
that the decision making process has not_ been adhered to,
indisputably, judicial review would lie. E

Mr. Venugopal would submit that such an interpretation
... would open a floodgate. We do not think so. We even wish no
·~
occasion like the present one arises in future before the Superior
Courts for their consideration. F
Even otherwise, the floodgate argument does not appeal
to us.
In Coal India Ltd. and Others v. Saroj Kumar Mishra,
((2007) 9 SCC 625], this Court held:
G
;. .... ,~- "19. The floodgate argument also does not appeal to us.
The same appears to be an argument of desperation.
Only because there is a possibility of floodgate litigation,
a valuable right of a citizen cannot be permitted to be
taken away. This Court is bound to .determine the H
738 SUPREME COURT REPORTS (2009) 7 S.C.R.

~·
,.
A respective rights of the parties. [See Zee Telefilms Ltd. v.
Union of India and Guruvayoor Devaswom Managing
Committee v. C.K. Rajan)"
It will also not be correct to contend that as non-
appointment of the appellant did not cast a stigma, such a fact
B was not necessary to be noticed. We have noticed S.P Gupta
(supra) that where facts are brought to the notice of the court, ,
whether by way of affidavit by the constitutional authorities or by
~
placing before the court the entire material, it is permissible to
delve deep into the matter.
c
Once, thus, decision making process had been undergone
in terms of the constitutional scheme in its correct perspective,
judicial review may not be maintainable.
QUO WARRANTO
D
22. Respondents herein filed the writ petitions inter alia ~ -
for issuance of a writ of Quo Warranto. A Writ of Quo Warranto
can be issued when the holder of a public office has been
appointed in violation of constitutional or statutory provisions.
Section 16 of the Act lays down the qualifications inter alia for
E appointment of the Chairman of the State Commission. Clause
(a) of sub-section (1) of Section 16 provides that the candidate
must be 'is' or 'has been a Judge'. The proviso appended
thereto, however, mandates consultation by the State
•
Government with the Chief Justice of the concerned High Court.
F
Concedingly, judicial review for the purpose of issuance
of writ of Quo Warranto in a case of this nature would lie :-
(A) in the event the holder of a public office was not
eligible for appointment ;
G
(B) Processual machinery relating to consultation was ,._ ........ -::
not fully complied.
The writ of quo warranto proceedings affords a judicial
remedy by which any person who holds an independent
H substantive public office is called upon to show by what right he
N. KANNADASAN V. AJOY KHOSE AND OTHERS 739
[S.S. SINHA, J.]

holds the same so that his title to it may be duly determined and A
in the event it is found that the holder has no title he would be
directed to be removed from the said office by a judicial order.
The proceedings not only give a weapon to control the executive
from making appointments to public office against law but also
tend to protect the public from being deprived of public office to B
which it has a right.
.. It is indisputably a high prerogative writ which was reserved
for the use of Crown.
The width and ambit of the writ, however, in the course of c
practice, have widened and it is permissible to pray for issuance
• of a writ in the nature of quo warranto.
In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14],
'Quo Warranto' is defined as under : '
D
"Quo warranto, or a proceeding in the nature thereof, is a
proper and appropriate remedy to te&t the right or title to
an office, and to remove or oust an incumbent.
It is prosecuted by the state against a person who unlawfully
usurps, intrudes, or holds a public office. The relater must E
establish that the office is being unlawfully held and
exercised by respondent, and that realtor is entitled to the
office." ·
'
In the Law Lexicon by J.J.S. Wharton, Esq., 1987, 'Quo
Warranto' has been defined as under: F
"QUO WARRANTO, a writ issuable out of the Queen's
Bench, in the nature of a writ of right, for the Crown, against
him who claims or usurps any office, franchise, or libert}',
to enquire by what authority he supports his claim, in order G
to determine the right. It lies also in case of non-user, or
long neglect of a franchise, or mis-user or abuse of it;
'
being a writ commanding the defendant to show by what
warrant he exercises such a franchise having never had
any grant of it, or having forfeited it be neglect or abuse." H
740 SUPREME COURT REPORTS [2009] 7 S.C.R.

~
~
A Indisputably a writ of Quo Warranto can be issued inter
alia when the appointmen! is contrary to the statutory rules as
ha& been held by this Court in High Court of Gujarat v. Gujarat
Kishan Mazdoor Panchayat, (supra) and R.K. Jain v. Union of
India and, [ (1993) 4 SCC 119 ]. See also Mor Modem Coop.
B Transport Society Ltd. v.. Financial Commr. & Secy [(2002) 6
sec 269].
,
In Dr. Duryodhan Sahu and Others v. Jitendra Kumar
Mishra and Others [(1998) 7 SCC 273], this Court has stated •
that it is not for the court to embark upon an investigation of its
c own to ascertain the qualifications of the person concerned. [See
also Arun Singh alias Arun Kr. Singh v. State of Bihar and
Others (2006) 9 sec 375]
We may furthermore notice that while examining if a person
holds a public office under valid authority or not, the court is not
D
concerned with technical grounds of delay or motive behind the "' ~
challenge, since it. is necessary to prevent continuance of
usurpation of office or perpetuation of an illegality. [See Dr.
Kashinath G Jalmi and Another v. The Speaker and Others
(1993) 2 sec 703].
E
Issuance of a writ of quo warranto is a discretionary remedy.
Authority of a person to· hold a high public office can be
questioned inter alia in the event an appointment is violative of
any statutory provisions.
'
F There concededly exists a distinction in regard to issuance
of a writ of quo warranto and issuance of a writ of certiorari. The
scope and ambit of these two writs are different and distinct.
Whereas a writ of quo warranto can be issued on a limited
ground, the considerations for issuance of a writ of certiorari
G are wholly different.
In Dr. Kashinath G Jalmi (supra), it was held that even the
)-- ..
motive or conduct of the appellants may be relevant only for
denying them the costs even if their claim succeeds but it cannot
be a justification to refuse to examine the merits of the question
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 741
[S.B. SINHA, J]
... -4
raised therein, since that is a matter of public concern and relates A
to good governance of the State.
In Shri Kumar Prasad v. J,Jnion of India and Others [(1992)
2 SCC 428), this Court held:
"22. It is in the above context that we have to interpret the B
meaning of expression "judicial office" under Article
'Ii 217(2)(a) of the Constitution of India. The High Court
,!
Judges are appointed from two sources, members of the
Bar and from amongst the persons who have held "judicial
office" for not less than ten years. Even a subordinate c
judicial officer manning a court inferior to the District Judge
can be appointed as a Judge of a High Court. The
expression "judicial office" in generic sense may include
wide variety of offices which are connected with the
administration of justice in one way or the other. Under the
D
-+ Criminal Procedure Code, 1973 powers of judicial
Magistrate can be conferred on any person who holds or
has held any office under the Government. Officers holding
various posts under the executive are often vested with
the Magisterial powers to meet a particular situation. Did
the .framers of the Constitution have this type of 'offices' in E
mind when they provided a source of appointment to the
high office of a Judge of High Court from amongst the
•-" holders of a "judicial office". The answer has to be in the
negative. We are of the view that holder of "judicial office"
under Article 217(2)(a) means the person who exercises F
only judicial functions, determines causes inter-partes and
renders decisions in a judicial capacity. He must belong
to the judicial service which as a class is free from executive
control and is disciplined to uphold the dignity, integrity
and independence of judiciary." G
--4
It was held that the Law Secretary although was holder of
a judicial office but being not a judicial officer was not qualified
to be appointed as a Judge of the High Court and, thus, his
appointment was quashed.
H
742 SUPREME COURT REPORTS (2009] 7 S.C.R.

A In B.R. Kapur v. State of TN. and Another (supra), the
question which arose for consideration was as to whether the
Chief Minister of a State, who having been convicted in a
criminal case, disqualified herself to become a member of a
Legislative Assembly in terms of Article 191 (1) of the
-
B Constitution of India could be appointed as the Chief Minister
for a period of six months in terms of Article 164 thereof. This
Court having regard to Article 164(4) of the Constitution of India ,
opined that if a person is disqualified to become a member of
the legislative assembly, he cannot be inducted into the Council
C of Ministers for a short term which would extend beyond a period
of six months.
It was held that a Writ of Quo Warranto can be issued even
when the President or the Governor had appointed a person to
a constitutional office. It was furthermore held that the
D qualification of that person to hold that office can be examined
in a quo warranto proceedings and the appointment can be
quashed.
In R.K. Jain (supra), consultation by the executive which
Chief Justice having found to be not necessary, it was held that
E no case tor issuance of writ of quo warranto has been made
out, stating :
"73. Judicial review is concerned with whether the
incumbent possessed of qualification for appointment and
F the manner in which the appointment came to be made or
the procedure adopted whether fair, just and reasonable.
Exercise of judicial review is to protect the citizen from the
abuse of the power etc. by an appropriate Government or
department etc. In our considered view granting the
compliance of the above power of appointment was
G
conferred on the executive and confided to be exercised
wisely. When a candidate was found qualified and eligible
and was accordingly appointed by the executive to hold
an office as a Member or Vice-President or President of
a Tribunal, we cannot sit over the choice of the selection,
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 743
[S.B. SINHA, J]
... -4
but it be left to the executive to select the personnel as per A
law or procedure in this behalf ... "
In that case, it was held that no case for issuance of a writ
of certiorari had been made out as a third party had no locus
standi to canvass the legality or correctness of the action seeking
for issuance of a writ of certiorari. Only public law declaration B
would be made at the behest of the appellant who was a public
.. spirited person.
We may incidentally place on record that a declaratory
relief had also been prayed for in the writ petitions filed by the c
respondents.
Reliance has also been placed on a decision of this Court
in Union of India and Others v. Kali Dass Batish and Another
[(2006) 1 sec 779] wherein it was held:
D
"... Even assuming that the Secretary of the department
concerned of the Government of India had not apprised
himself of all necessary facts, one cannot assume or
impute to a high constitutional authority, like the Chief
Justice of India, such procedural or substantive error. The E
argument made at the Bar that the Chief Justice of India
might not have been supplied with the necessary inputs
has no merit. If Parliament has reposed faith in the Chief
Justice of India as the paterfamilias of the judicial hierarchy
in this country, it is not open for anyone to contend that the
Chief Justice of India might have given his concurrence F
without application of mind or without calling for the
necessary inputs. The argument, to say the least, deserves
summary dismissal."
(Emphasis supplied) G
· - -4 The decision in that case was rendered in the factual matrix
obtaining therein. Noticing that where members of the bar were
required to be considered for important judicial posts, their
antecedents are verified through the Intelligence Bureau and a
report is obtained from it. H
744 SUPREME COURT REPORTS [2009] 7 S.C.R.

A It was noticed that the Secretary (Personnel) had forwarded
all necessary papers including the IB Report and sought for
concurrence of the Chief Justice with regard to the names
recommended by the Central Government. In that case, as
concurrence to the proposal of the Chief Justice of India was
B obtained after consideration of all the material, it was held:
" ... It must be remembered that a member of an ,
Administrative Tribunal like CAT exercises vast judicial
powers, and such member must be ensured absolute
judicial independence, free from influences of any kind
c likely to interfere with independent judicial functioning or
militate thereagainst. It is for this reason, that a policy
decision had been taken by the Government of India that
while considering members of the Bar for appointment to
such a post, their antecedents have to be verified by IB.
D The antecedents would include various facts, like
association with antisocial elements, unlawful
organisations, political affiliations, integrity of conduct and
moral uprightness. All these factors have necessarily to
be verified before a decision is taken by the appointing
E authority to appoint a candidate to a sensitive post like
member of CAT. In Delhi Admn. v. Sushil Kumar1 this
Court emphasised that even for the appointment of a
constable in police services, verification of character and
antecedents is one of the important criteria to test whether
F the selected candidate is suitable for a post under the
State. Even if such candidate was found physically fit, had
passed the written test and interview and was provisionally
selected, if on account of his antecedent record, the
appointing authority found it not desirable to appoint a
person of such record as a constable, the view taken by
G
the appointing authority could not be said to be }--- .
unwarranted, nor could it be interdicted in judicial review.
These are observations made in the case of a constable,
they would apply with greater vigour in the case of
appointment of a judicial member of CAT. It is for this
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 745
[S.B. SINHA, J.]

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

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

( . ~
Our attention
,_ has furthermore been drawn to a decision of
this Court in High Court of Gujarat and Another v. Gujarat Kishan
Mazdoor Panchayat and Others (supra) wherein, one of us was F
a member. Therein the question which arose for consideration
..... was as to whether without appointing the members, the
President of the Industrial Court, which was to consist of three
or more members out of which one may be a President, could
have been appointed straightway without appointing him as a
G
member.
, -4
It has, however, been contended that disqualification
cannot be read into or implied into th.e wording of a section .
.Reliance in this behalf has been placed on Manohar
H
746 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Nathurao Samarth v Marotrao and Others [(1979) 4 SCC 93]
wherein it has been held that Regulation 25 of the Life Insurance
Corporation of India (Staff) Regulations 1960 framed under the
Lif~ Insurance Corporation Act, 1956 and read with Section
15(g) of the City of Nagpur Corporation Act, 1948 provided for
s disciplinary action and not disqualificatory, observing:
"11 ... No ground rooted in public policy compels us to
magnify the disciplinary prescription into a •
disenfranchising taboo. To revere the word to reverse the
sense is to do injustice to the art of interpretation. Reed
C Dickerson quotes a passage from an American case to
highlight the guideline:
"The meaning of some words in a statute may be enlarged
or restricted in order to harmonize them with the legislative
intent of the entire statute .... It is the spirit ... of the statute
D
which should govern over the literal meaning".
*** *** ***

13. It is quite conceivable, if the legislature so expresses
itself un-equivocally, that even in a law dealing with
E disciplinary control, to enforce electoral disqualifications
provided the legislature has competence. The present
provision does not go so far.
••
14. Even assuming that literality in construction has
F tenability in given circumstances, the doctrinal development
in the nature of judicial interpretation takes us to other
methods like the teleological, the textual, the contextual
and the functional. The strictly literal may not often be logical
if the context indicates a contrary legislative intent. Courts
are not victims ofverbalism but are agents of the functional
G
success of legislation, given flexibility of meaning, if the
law will thereby hit the target intended by the law-maker.
Here the emphasis lies on the function, utility, aim and
purpose which the provision has to fulfil. A policy-oriented
understanding of a legal provision which does not do
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 747
[S.B. SINHA, J]

violence to the text or the context gains preference as A
against a narrow reading of the words used. Indeed, this

• approach is a version of the plain meaning rule, and has
judicial sanction. In Hutton v. Phillips the Supreme Court of
Delaware said:
"(Interpretation) involves far more than picking out B
dictionary definitions of words or expressions used.
Consideration of the context and the setting is
indispensable property to ascertain a meaning. In saying
that a verbal expression is plain or unambiguous, we mean
little more than that we are convinced that virtually anyone C
competent to understand it, and desiring fairly and
impartially to ascertain its signification, would attribute to
the expression in its context a meaning such as the one
we derive, rather than any other; anq would consider any
different meaning, by comparison, strained, or far-fetched, D
..i.. + or unusual, or unlikely."
The said decision, thus, is an authority that in a given case,
the disciplinary prescription may be magnified to. a
disenfranchising taboo, if any ground rooted in public policy is
found therefor. Emphasis has been laid on policy oriented E
understanding of a legal profession and not the strict literal
--- meaning which may not often be logical if the context indicates
• a contrary legislative intent.
-1.
We have found hereinbefore that the appellant was not
eligible for appointment of a public office and in any event the F
Processual machinery relating to consultation was not fully
complied.
WRIT OF DECLARATION
23. In this case, moreover, a writ of declaration was sought G
for. This Court in Shri Kumar Padma Prasad (supra) issued a
writ of declaration although a writ of quo warranto was sought
for. Declaring that the appellant therein was not qualified to be
appointed as a Judge of the High Court, a consequential order
directing him not to appoint was also issued. H
748 SUPREME COURT REPORTS [2009] 7 S.C.R.

I"
A PANEL ~·

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

c
the Madras High Court while intimating that a vacancy had arisen
in the post of President, State Commission, made a request to
him to send a panel of eligible names of retired High Court
-
Judges after approval by Hon'ble the Chief Justice of the High
Court of Madras for its consideration therefor.
'
Pursuant thereto or in furtherance thereof, the Chief Justice
D
only forwarded a panel of three Judges. The Executive ~,..

Government of the State made a final choice therefrom.
The process of selection in view of the decisions of this
Court in Ashish Handa (supra) and Ashok Tanwar (supra) and
E National Consumer Awareness Group (supra) must be initiated
by the High Court itself. Having regard to the fact that the Chief
Justice has the primacy as regards recommendations of the
name for appointment to the post of Chairman of the State
Commission, the method adopted herein, in our considered ~
•
F view, is impermissible in law. For the said purpose only one
name must emanate from the Chief Justice ; only one name
can be recommended by him and not a panel of names. Having
regard to processual mandate required for the purpose of
appointment to the post of Chairman, State Commission, the
Executive Government of the State cannot have any say
G
whatsoever in the matter. The process for preparation of a panel
)c• ,
requested by the Executive Government of the State and
accepted by the Chief Justice of the High Court, in our opinion,
was impermissible in law. If the State is granted a choice to
make an appointment out of a panel, as has been done in the
H
- N. KANNADASAN V. AJOY KHOSE AND OTHERS
[S.B. SINHA, J.]
749

instant case, the primary of the Chi.ef Justice, as opined by this A
Court in the aforementioned decisions, would stand eroded. It
will bear repetition to state that ever, <or the said purpose the
procedure laid down by this Court in Supreme Court Advocates-
on-Record Association (supra) as also the Special Reference,
for recommendation of the name of-the High Court ~udge, as· B
contained in Article 217 of the Constitution of India, should be. ·
followed. It is accepted at the Bar that by reason of judicial
constitutional interpretation of Articles 217 and 124 of the
Constitution of India, the procedures laid down thereunder has

-
..... undergone a drastic change. A recommendation instead and in C
place of Chief Justice of India must emanate from the Collegium.
However, for the purpose of making recommendation in terms
of Section 16(1) the opinion of the Chief Justice alone shall
prevail.

It is difficult to accept the submission of Mr. K.K. Venugopal_ D
that such 'consultation' would not be 'concurrence' as like the
Collegium in the matter of making recommendation for
appointment of Judges of the Supreme Court and the High
Courts where the view of he Collegium shall have the primacy.
For appointment as President of the State Commission, the E
Chief Justice of the High Court shall have the primacy and thus

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

It is true that if a panel of names is suggested ana the
s, State makes an appointment of one out of the three, the question F
of meeting of mind between the Chief Justice and the Executive
would not arise but there cannot be any doubt whatsoever that
by reason thereof the ultimate authority to appoint would be the
Executive which in view of the decisions of this Court would be
impermissible. G·
_.. _~

Mr. Venugopal would contend that for the aforementioned
purpose the principle of purposive interpretation may be
resorted to hold that the' Chief Justice by sending a panel of
Judges is merely recommending the names of the Judges, who H
750 SUPREME COURT REPORTS [2009] 7 S.C.R.

A is his opinion, are independent and fit persons to be appointed.
~
•
We are not in a position to accept the same.
For the aforementioned purpose the Court must bear in
mind that the constitutional scheme of independence of the
judiciary embodied in Article 50 of the Constitution of India
B should by no means be allowed to be eroded.

In A. Pandurangam Rao v. State of Andhra Pradesh and
others [ AIR 1975 SC 1925 ] this Court has held that the • r"'
procedure adopted by the High Court by sending list of all the ..
c candidates for appointment to the post of District Judge so as
;;.
enable the State to appoint the selectees out of the said panel
is illegal stating :-
"9. The recommendation of the High Court for filling up
the six vacancies was contained in its letter dated July 13,
D 1973. Government was not bound to accept all the
recommendations but could tell the High Court its reasons ~-
for not accepting the High Court's recommendations in
regard to certain persons. If the High Court agreed with
the reasons in case of a particular person the
E recommendation in his case stood withdrawn and there
was no question of appointing him. Even if the High Court

F
did not agree the final authority was the Government in the
matter of appointment and for good reasons it could reject
the High Court's recommendations. In either event it could
ask the High Court ·to make more recommendations in
~
-
•
'

place of those who have been rejected. But surely it was
wrong and incompetent for the Government to write a letter
like the one dated July 26, 1973 inviting the High Court's
attention to Instruction 12(5) of the Secretariat instructions
and on the basis of that to ask it to send the list of persons
G
whom the High Court considered to have reasonable claims
to the appointment. On the basis of the furore created by ).. .,, .--
the two Bar Associations of Hyderabad and the High
Court's letter dated July 26, 1973 written in reply to the
Government's letter dated July 24, 1973 no person's
r
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS ·. 751
[S.B. SINHA, J.]
...,
.,j
candidature recommended by the High Court had been A
rejected when the letter dated·Juiy 26, 1973 was written
by the Government. Even after rejection the Government
could not ask the High Court to send the list of all persons
whom the High Court considered to have reasonable claim
to the appointment. We feel distressed to find that instead B
of pointing out the correct position of law to the Government
'I' and itself acting according to it, a letter like the one dated
August 1, 1973 was sent by the High Court in reply to the
+-
Government's letter dated July 26, 1973. It is not clear
from this letter whether it was written under the directions c
of Chief Justice and the other Judges of the High Court as
in the case of the letter dated July 13, 1973. But surely it
was very much wrong _on the part of the High Court to
forward the entire list of the candidates interviewed with
the marks obtained by them and adding at the same time
..,. D
(-
that the High Court had no further remarks to offer. We
could not understand the reason for writing such a letter by
the High Court. But ifwe may hazard a surmise it seems
to have been written in utter disgust at the Government's
unreasonable attitude displayed in its letter dated July 26,
1973. By no means could it be, nor was it, a E
recommendation by the High Court of all ·the 263
candidates interviewed, that all of them had a reasonable
~
claim, or in other words, were fit to be. appointed District
1
Judges. We must express our displeasure at and
disapproval of all that happened between the Government F
and the High Court- in the former writing the letter dated
July 26, 1973 and th~ latter sending the reply dated August
1, 1973.
10. Then comes the letter dated November 30, 1973.After
G
tracing the history of the recommendations made by the
--·"' . High Court in its letter dated July 13, 1973 and "int.he light
of further information about these candidates as required
from High Court", Government decided to select the six
candidates mentioned therein including Respondents 3
H
752 SUPREME COURT REPORTS [2009] 7 S.C.R.

to 6 as 1f they were from "the list recommended by the
High Court". It was further stated in this letter "Reasons for
not selecting candidates placed by the High Court higher
than those now selected are given in the annexure enclosed
to this DO letter." The High Court, to be more accurate, the
B Chief Justice to whom the letter dated November 30, 1973
was addressed seems to have not resented or protested
against the selection so made by the Government in clear ..
violation of Article 233 of the Constitution. We find it
intriguing that the letter written by the Registrar to the High
c Court on August 1, 1973 was treated as a recommendation
of all the 263 candidates as having been found fit for
appointment as District Judges. By no means could it be
so. It was not so. And yet the High Court or the Chief
Justice did not object to the appointment of Respondents
3 to 6 as District Judges. They were not eligible to be so
D
appointed as their names had never been recommended."

In Ashok Tanwar (supra) it was held :-

"6. On 7-3-2000 the Registrar General of the High Court
addressed a letter to the Financial Commissioner-cum-
E Secretary (F&S) of the State Government conveying
recommendation of the Chief Justice for appointment of
Mr Justice Surinder Swaroop, a sitting Judge of the High
Court, as President of the State Commission holding
additional charge of the post. In the said letter it was also
F stated that steps could be taken for appointment of Mr
Justice Surinder Swaroop (Respondent 3 herein) as
President of the State Commission in accordance with
the law and rules. Thereafter, a notification dated 13-3-
2000 was issued by the Governor, Himachal Pradesh,
G appointing Justice Surinder Swaroop as President of the
State Commission.

xxx xxx xxx
9. The High Court, after consideration of the respective
H contentions advanced on behalf of the parties and in the
N. KANNADASAN V. AJOY Kf-IOSE AND OTHERS 753
[S.B. SINHA, J.] ,-_-~

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

Respondent 2 could not be saj~ to be contrary to law or ·
the directions issued by this Court in the·case of Ashish
Handa. Consequently the writ petition was dismissed.
Hence, this appeal."
E
In National Consumer Awareness Group (supra) this Court ·
has held:- ·

"7. Justice Amarjeet Chaudhary, the then incumbent, was
to demit his office on 4-9-2003 on completion of his term ·
as President of the Haryana State Consumer Disputes F
Redressal Commission (hereinafter referred to as "the
State Commission"). On 25-8-2003 the Chief Minister of
Haryana addressed a letter to the Chief Ju~tice bf the
Punjab and Haryana High Court drawing his attention to
the vacancy that was likely to arise on 5-9-2003, and G
expressed his view that Justice R.S. Mongia, retired Chie(
Justice of the Gauhati High Court, would be a befitting
incumbent to be appointed to the said post and requested
for communication of th'e views of the Chie(Justice of the
Punjab and Haryana High Court. By a communication dated~H
754 SUPREME COURT REPORTS [2009] 7 S.C.R.

..
A 26-8-2003, the Chief Justice of the Punjab and Haryana
High Court drew the attention of the Chief Minister to the
decision of this Court in Ashish Handa v. Chief Justice of
~

-
>

High Court of Punjab & Haryana1 and took the stand:
(SCC p.148, para 3)
B ... even for initiation of the proposal ... the executive is
expected to approach the Chief Justice when the
appointment is to be made for taking the steps to initiate "
the proposal, and the procedure followed should be the -1
same as for appointment of a High Court Judge. That
c would give greater credibility to the appointment made.

He, however, postponed a decision, as the seniormost
Judge of the collegium was out of station. By a confidential
i:;ommunication dated 27-8-2003, the Chief Justice
informed the Chief Minister that the collegium of the High
D
Court had met and considered the names of several
persons, and unanimously decided to recommend Justice
x--
R.C. Kathuria (retired) of the Punjab and Haryana High
Court as most suitable and fit for appointment as President
of the State Commission. A copy of the relevant resolution
E was forwarded for information. The resolution took note of
the credentials of the three retired Judges, whose suitability
was conside~ed, and decided to recommend Mr Justice
R.C. Kathuria as most suitable and fit for appointment. , A

Jµstice R.S. Mongia was also one of the three retired
.F Ju(jges, whose suitability was considered by the said
resolution.
8. By a letter dated 29-10-2003 the Chief Minister, Haryana,
raised certain objections to the proposal made by the
Chief Justice. The collegium of the High Court considered
G
the letter dated 29-10-2003 of the Chief Minister, Haryana '). .r.,
· and reiterated its earlier recommendation. By a letter of
1-12-2003 the Chief Minister drew the attention of the
Chief Justice to what he considered were the deficiencies
in the candidature of the learned Judge, whose name was
H
N. KANNADASAN V. AJOY KHOSE AND OTHERS 755
[S.B. SINHA, J.]

proposed by the High Court. Once again, the High Court A
after calling for several records and considering various
other aspects of the matter reiterated its stand that there
was no reason to recall the earlier recommendations to
appoint Justice R.C. Kathuria (retired) as the President of
the State Commission. By another letter dated 7-1-2004, · B
the Chief Minister of Haryana drew the attention of the
Chief Justice of the Punjab and Haryana High Court to the
newly introduced Section 16(1-A), vide (Amendment) Act
62 of 2002, and stated that since the post of the president
of the State Commission was vacant at the moment, an c
Hon'ble sitting Judge of the Punjab and Haryana High
Court was required to be nominated to act as Chairman
of the Selection Committee to be constituted under Section
16(1-A). There was certain other correspondence about
certain representations made, which is not material.
D
xxx xxx
18. We are unable to accept this contention of the learned
counsel fo'r the Union of India. It is inconceivable that sub-
section (1-A) is intended for appointment of the President
of the State Commission itself. In the first place, we cannot · E
accede to the contention that the Chairman of the State
Commission, who is or has been a Judge of the High
Court, can be selected by a Selection Committee
comprising two Secretaries of the State Government
Nothing could be more erosive o(judicial independence F
than such interpretation of sub-section (1-A). This
conclusion of ours is driven home by the proviso to sub-
section (1-A). This proviso is intended to take care of a
contingency where there exists a President of the State
Commission, who is unable to chair the Selection G
Committee meeting because of absence or other similar
reasons. It is only in such a situation, that the State
Government may request the Chief Justice of the High
Court to nominate a sitting Judge to act as Chairman of
the Selection Committee. If the argument of the learned H
756 SUPREME COURT REPORTS [2009] 7.S.C.R.

A counsel of the Union of India and the construction • !"

canvassed by him is admitted, it would mean that even
where the President of the State Commission is appointed
for the first time, the procedure would be that. he would be
appointed by a Committee of which two Secretaries would
B be members. That would be obviously destructive of ,
judicial independence.
y

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

this Court held :-
c
" .... Consequently, Parliament has taken great care to
enact, vide Sections 6 and 7 of the Act, that no appointment
of a person possessing the qualifications prescribed in
the Act as a member shall be made, except after
consultation with the Chief Justice of India. The consultation
D 41' .....
with the Chief Justice of India is neither a routine matter,
nor an idle formality. It must be remembered that a member
of an Administrative Tribunal like CAT exercises vast
judicial powers, and such member must be ensured
absolute judicial independence, free from influences of
E any kind likely to interfere with inde_pendent judicial
functioning or miHtate thereagainst."
We have, therefore, no he.sitation in holding that the ..
process adopted by the High Court and the Chief Justice in •
F asking for a panel of name and sending ·the same was not legally
·
permissible.
CONCLUSION
25. The summary of our aforementioned discussions is
as under: ·
G
; (i) Judicial review although has a limited application ._ '.,
but is not beyond the pale of the superior judiciary in _.

a case of this nature.
(ii) The superior courts may not only issue a writ of quo """""'
H
N. KANNADASAN V. AJOY KHOSE AND·-OTHERS 757
[S.B. SINHA, J.]

warranto but also a writ in the nature of quo warranto. A
It is also entitled to issue a writ of declaration which
would achieve the same purpose.
(iii). For the purpose of interpretation of Constitution in
regard to the status of an Additional Judge, the word
"has been" would ordinarily mean a retired Judge 8
and for the purpose of examining the question of
eligibility, not only his being an Additional judge but
also a qualification as to whether he could continue
in the said post or he be appointed as an acting or
adhoc judge, his suitability may also be taken into C
consideration.
(iv) Section 16 of the Act must also be given a contextual
meaning. In a case of this nature, the court having
regard to the wider public policy as also the basic
0
feature of the Constitution, viz., independence and
impartiality of the judiciary, would adopt a
rule of
purposive interpretation instead of literal
interpretation.
(v) Due consultative process as adumbrated by this E
Court in various decisions in this case having not
. been complied with, appointment of Shri Kannadasan
was vitiated in law.
(vi) The Government of the State of Tamil Nadu neither
could have asked the High Court to send a paneLof F
names of eligible candidates nor the Chief Justice
of the High Court could have sent a panel of names
of three Judges for appointment to the post of
Chairman, State Commission.
G
Before parting, however, we would place on record that
Mt. Ramamurthy, learned counsel on 5.5.2009 filed a
memorandum before us stating that the appellant Shri N.
Kannadasan has_ submitted his resignation. It is, however, not
· stated that the said offer of re~ignation has been accepted.by . H
758 SUPREME COURT REPORTS [2009] 7 S.C.R

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

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

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

G.N. Appeals dismissed.