N. KANNADASAN v. AJOY KHOSE AND OTHERS

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

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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

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,.. 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

1Copy pinpoint1. Hon'ble Thiru Justice T.V. MASILAMANI

(Chairman DRAT) c 29.05.2006 Chairman, DRAT •

2Copy pinpoint2. 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

3Copy pinpoint3. 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

4Copy pinpoint4. 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

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" ,. 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 :

5Copy pinpoint5. 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

6Copy pinpoint6. 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

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,, ,.... 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~

7Copy pinpoint7. 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

8Copy pinpoint8. 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

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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 :

10Copy pinpoint10. 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

11Copy pinpoint11. 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

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, 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 the Commission shall lie only before the National Commission. Section 20(1)(a) provides that the National Commission shall consist of a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President, provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India. )-- ,. INTERPRETATION OF CONSTITUTIONAL PROVISIONS IN REGARD TO THE STATUS OF AN ADDITIONAL JUDGE

12Copy pinpoint12. 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

13Copy pinpoint13. 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

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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 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 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 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 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 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

14Copy pinpoint14. This Court in Supreme Court Advocates-on-Record H

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~ 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

15Copy pinpoint15. 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

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,. 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

16Copy pinpoint16. 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 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 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 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 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 question of his appointment in the said capacity, in our opinion, ... - it is possible to take somewhat different view having regard to his present status, viz., an advocate or a district judge, as the case may be. He despite being a former Judge is entitled to practice in the same High Court, which other Judges are not permitted to do so. He may appear before the Tribunal and subordinate courts. A person for the aforementioned purpose must answer the test of his being qualified to be a Judge. For the purpose of Section 16 of the Act, he must be equated with a sitting Judge of a High Court. In other words, he could, but for .." 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, between an individual & the State or between different States. In this scheme of things, Supreme Court has been assigned the duty of being the final arbiter, including on the question of interpretation of the Constitution & the laws. It is the majesty of the institution that has to be maintained and preserved in the larger interest of the rule of law by which we are governed. It is ---~- .....,..-· the obligation of each organ of the State to support this important .... institution. Judiciary holds a central stage in promoting and strengthening democracy, human rights and rule of law. People's faith is the very foundation of any judiciary. Injustice anywhere is H

p. 704

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 being not satisfied certainly is relevant. ~ Question is not whether he is a former judge or not. ": Question is whether he was eligible for appointment, having not been found fit for re-appointment. If he was ineligible for being recommended, that is the end of the matter. PURPOSIVE INTERPRETATION 17.Acase of this nature is a matter of moment. It concerns public interest. Public information about independence and 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

p. 706

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 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 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

p. 708

.. )'- 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

p. 710

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 generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt."

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

18Copy pinpoint18. 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 these agencies is primarily the adjudication of consumer disputes and, therefore, a person from the judicial branch ....- - is considered to be suitable for the office of the President. The appointment to the office of the President of the State Commission is to be made "only after consultation with the Chief Justice of the High Court" and to the office of the

N. KANNADASAN V. AJOY KHOSE AND OTHERS 713 [S.B. SINHA, J]

President of the National Commission "after consultation with the Chief Justice of India". Such a provision requiring prior consultation with the Chief Justice is obviously for the reason that he is the most suitable person to know about the suitability of the person to be appointed as the President of the Commission .... The expression "after consultation with the Chief Justice of the High Court" and "after consultation with the Chief Justice of India" must be construed in the same manner as the expression "after consultation with the Chief Justice of India, ... the Chief Justice of the High Court" in Article 217 of the Constitution 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 necessary to maintain independence of the judiciary and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment.. .. The requirement of consultation with the Chief Justice in the proviso to Section 16(1 )(a) and Section 20(1 )(a) of the Consumer Protection Act being similar to that in Article 217, .the principles enunciated in the majority opinion in the Judges-II case must apply, as indicated earlier, even for initiating the proposal. The executive is expected to approach the Chief Justice when the appointment is to be made for taking the steps to initiate the proposal, and the procedure followed should be the same as for appointment of a High Court Judge. That would give greater credibility to the appointment made. H

p. 714

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 inter alia on the premise that an appointment was required to be made by a sitting or a retired judge whose antecedents are known to the Chief Justice stating :- "19. It is thus clear that the expression "consultation" used in Article 217 of the Constitution in relation to appointment of High Court Judges cannot be read in the same way into "consultation" as contemplated under Section 16 of the Act in the light of what is stated above in Supreme Court Advocates-on-Record Assn. The meaning of the word "consultation" must be given in the context of an enactment. 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 should be made with other constitutional functionaries as contemplated under Article 217 of the Constitution .. including the Chief Justice of India. Hence insistence on "consultation" by the Chief Justice of a High Court with his two seniormost colleagues in the High Court for the purpose of Section 16 of the Act, in our view, is unwarranted." CONSTITUTIONAL INTERPRETATION

19Copy pinpoint19. 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

p. 716

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 thought it fit to permit the Counsels for the contesting parties to peruse such papers, because, in our considered opinion, it would open a collateral battle on the question • relating to confirmation of Respondent No. 1, which is not and cannot be an issue. Moreover, it is not for us to decide about the suitability of Respondent No. 1 for the post of President of the Consumer Commission as that was a· matter for the State Government to decide in consultation with the Chief Justice. If the appointment of a person is. - otherwise legal, the Judiciary may not be justified in interfering with such appointment on the ground that it is· against public interest. As already noticed, .the sentiment ... expressed in R.K. Jain case is clear on this aspect." We have perused the records ourselves. We are satisfied that it was necessary for the Chief Justice of the High Court to apprise himself the reasons with reference to the backdrop of events as to why the collegium of the Supreme Court of India · · did not find the appellant to be a fit person for re-appointment or made a Permanent Judge. Names of eight persons w~re recommended together. A large number of vacancies existed. 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

p. 718

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 -~

20Copy pinpoint20. 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

p. 720