The issue of a writ of quo warranto will be futile if the alleged usurper could be immediately re-appointed to the very post.

( 1 ) THESE four writ petitions were heard together. Substantially, they raise the same questions. Primarily the writ petitioners have prayed for a writ of quo warranto to challenge the appointment on April 25, 1973 with effect from April 26, 1973 of Justice A. N. Ray, one of the respondents herein. Judge of the Supreme Court of India, as the Chief Justice of India on the retirement of Justice S. M. Sikri, the then Chief Justice of India. The respondents to the petitions are the Union of India; Mrs. Indira Gandhi (Prime Minister of India) ; Mr. H. R. Gokhale (Minister of Law and Justice) and Justice A. N. Ray. Counter affidavits have been filed by and on behalf of the Union of India and Mr. H. R. Gokhale. Originally, Mr. Kumaramanglam, the then Minister of Steel and Mines, was also in the array of respondents but his name was deleted on his demise.

( 2 ) THE counter affidavits have replied to the facts relating to the merits of the petitions and at the same time contain demurrers, speaking generally to the jurisdiction of this Court to issue the writ and to the maintainability of the petitions and for that reason it was thought proper to first hear three of the preliminary objections as they were stated to go to the root of the matter.

( 3 ) IT is necessary to state the facts shortly to furnish a backdrop for the discussion particularly because, admittedly, preliminary objections have to be decided on the assumption that the facts alleged by the petitioners are correct. I would like to emphasize this aspect of the matter because my opinion is not to be taken to be a finding as to the truth or correctness or otherwise of the facts alleged. A further fact may also be stated here, namely, that Justice A. N. Ray was appointed the Chief Justice of India by a warrant under the hand and seal of the President of India in pursuance of clause (2) of Article 124 of the Constitution.

( 4 ) I state the facts alleged in the petition of P. L. Lakhanpal, petitioner in Civil Writ Petition No. 671 of 1973 as representative of the facts in all these petitions; On April 25, 1973, All India Radio announced the appointment of Justice A. N. Ray as the Chief Justice of India and a communique was issued from Rashtrapati Bhavan to the following effect :-

"the President is pleased to appoint Mr. Justice Ajit Nath Ray to be Chief Justice of India with effect from April 26, 1973 on the retirement of Mr. Justice S. M. Sikri. "

( 5 ) JUSTICE A. N. Ray was sworn in on and has since April 26, 1973 held the office of the Chief Justice of India. According to the established practice of appointing the senior-most judge of the Supreme Court as the Chief Justice of India which has the force of law and inheres in Article 124 (2) of the Constitution, "mr. Justice J. M. Shelat was entitled to appointment as the Chief Justice of India and after his retirement on July 16, the office was to devolve on Mr. Justice K. S. Hegde and after his retirement in June, 1974 upon Mr. Justice A. N. Grover who would have continued as such a few days after the retirement of Mr. Justice A. N. Ray on January 29, 1977". Chief Justice S. M. Sikri was not only not consulted but was not even informed that the Government planned a change in the practice. The decision to recommend the appointment of Justice A. N. Ray was taken by the Political Affairs Committee of the Cabinet, which has no standing in the eye of law, and conveyed to the President by the Prime Minister on the morning of April 25, 1973 when she personally called upon him. Mr. H. R. Gokhale also met the President on the same day. After the aforesaid appointment, Justice J. M. Shelat, K. S. Hegde and A. N. Grover resigned their office as Judges of the Supreme Court with effect from April 30, 1973 in the case of Justices Shelat and Hegde and May 31, 1973 in the case of Justice Grover. Mr. H. R. Gokhale told the Lok Sabha on April 26, 1973 that the Government had accepted the recommendations of the Law Commission