2009(3) CPR 399 (SC)
SUPREME COURT OF INDIA
S.B. Sinha & Dr. Mukundakam Sharma, JJ.
N. Kannadasan — Appellant
versus
Ajoy Khose and others — Respondents
Civil Appeal No. 7360 of 2008
with
Civil Appeal No. 7368 of 2008
with
Civil Appeal No. 7371 of 2008, 7372 of 2008
Decided on : 06-05-2009

IMPORTANT POINTS
(1) An Additional judge holding a tenure post stricto sensu does not retire. He cannot be equated with a sitting judge.
(2) In the concept of Independence of judiciary key note is judiciary and not the Judge.
(3) A person unfit for re-appointment as a High Court Judge, will be ineligible for appointment as the President of the State Commission.
(4) 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 a Judge of the High Court’.
(5) Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away.

Headnote:(i) Constitution of India,1950—Article 217—Additional Judge like a permanent judge, may also resign his office, or be removed therefrom by the President—His tenure, of course, would be unlike the permanent Judge—Unlike permanent Judge, again, there is no ban on practice by Additional Judge on demitting the office—However, he would be at par with permanent Judge in matters of salary, emoluments, powers, functions and transfer. (Paras 27 to 29)

        (ii) Constitution of India,1950—Article 217—Additional Judges appointed for two years, while entering into the High Court judiciary had a legitimate expectation that they would not have to go back on the expiration of their term—They also had legitimate expectation 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 Government could not drop an additional Judge at its sweet will. (Para 40)

        1981 Supp. SCC 87—Relied upon.

        (iii) Constitution of India,1950—Article 217—Procedure for appointment of Additional Judges—Role of Collegium—These matters are not justiciable except on the ground of consultation with the names constitutional functionaries. (Para 43)

        (1993) 4 SCC 441; (1985) 4 SCC 417—Relied upon.

        (iv) Judicial Review—Having a plurality of judges in the formation of opinion provides sufficient safeguards and that there are sufficient checks against arbitrariness in the decision making process. (Para 44)

        (1998) 7 SCC 739—Relied upon.

        (v) Consumer Protection Act, 1986—Section 16—A sitting judge may not be recommended for appointment as a president of a state commission—“Has been a judge” means a judge who retired without a blemish—The expression does not include merely a person who ‘has been a judge’. (Paras 46 and 47)

        (2002) 6 SCC 184; (1996) 3 SCC 145—Relied upon.

        (vi) Constitution of India,1950—Article 217—An Additional judge holding a tenure post stricto sensu does not retire—He cannot be equated with a sitting judge. (Para 48)

        (vii) Constitution of India,1950—Article 50 r/w Chapter IV, Part V and Chapters V and VI, Part VI—Scheme of the Constitution envisages an independent judiciary—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 High Court, he could not be recommended for appointment to a statutory post like Chairman of the State Commission. (Para 56)

        (viii) Constitution of India,1950– Article 368—In our constitutional scheme, the judge made law becomes a part of the Constitution. (Para 59)

        (2006) 8 SCC 212—Relied upon.

        (ix) Consumer Protection Act, 1986—Section 16—Interpretation—If a person has made himself disqualified to hold the post of a judge, recommending his name for appointment to a statutory post would be impermissible. (Paras 60 and 61)

        (x) Consumer Protection Act, 1986—Section 16—If a person was not found to be fit for re-appointment as a High Court Judge, he will be ineligible for appointment as the President of the State Commission. (Para 63)

        (xi) Purposive interpretation—Well-settled that although plain meaning should be given their ordinary meaning, with a view to give complete and effective meaning to a statutory provision, some words can be read into; and some words can be subtracted as well—Provisions of a statute can be read down, although sparingly and rarely—If by literal interpretation several vital considerations, which must always be borne in mind would be ignored, it should be ignored. (Paras 64, 66)

        (1975) 2 SCC 791; (1981) 4 SCC 173; (1969) 2 SCC 481; (1988) 4 SCC 284; (2003) 4 SCC 712; (2008) 3 SCC 279; (2008) 7 SCC 502; [2003] UKHL 13; [2007] HCA 57; (2002) 3 SCC 722; (1979) 4 SCC 93—Relied upon.

        (xii) Constitution of India,1950—Article 217—For eligibility of a Judge of a High Court purposive interpretation is required to be resorted to. (Para 76)

        (2005) 7 SCC 484—Relied upon.

        (xiii) Consumer Protection Act, 1986—Section 16(1)(a), Proviso and 20(1)(a)—Requirement of consultation with the Chief Justice is similar to that of Article 217, Constitution of India—Similar procedure has to be followed. (Para 78)

        (1996) 3 SCC 145; (2005) 2 SCC 104—Relied upon.

        (xiv) Consumer Protection Act, 1986—Section 16 r/w Article 217, Constitution of India—A person lacking probity would not be fit for appointment as a High Court Judge—An Additional Judge who was not found fit for appointment as permanent judge despite there being a vacancy cannot be appointed as Chairman of a State Commission. (Paras 81 to 83)

        (2009) 1 SCC 657—Distinguished.

        (xv) Consumer Protection Act, 1986—Section 16—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 a Judge of the High Court’. (Para 86)

        (2002) 5 SCC 1; 2008 (13) SCALE 84; (2001) 7 SCC 231—Relied upon.

        (xvi) Consumer Protection Act, 1986—Section 16—Consultation—Consultation with the Chief Justice would not mean the consultation with the Collegium of the High Court—Proposal for such appointment must be initiated by the Chief Justice—The manner of initiation of proposal for consultation need be as laid down in Ashok Tanwar. (Para 93)

        (2005) 2 SCC 104; (2005) 5 SCC 284; (1977) 4 SCC 590; (1977) 4 SCC 193—Relied upon.

        (xvii) Consumer Protection Act, 1986—Section 16—Appointment to the post of President of a State Commission must satisfy not only the eligibility criteria of the candidate but also undertaking of the process of consultation. (Para 101)

        (xviii) Constitution of India,1950—Article 217—Appointment of a Judge of a Supreme Court in effect and substance is merit based—Only because for one reason or the other a High Court CJ has not been elevated to Supreme Court would not make him unfit for appointment on any other post—Such non-elevation to Supreme Court has nothing to do with eligibility or suitability for any other post. (Para 111)

        (xix) Judicial Review—Judicial review is a part of the basic structure of the Constitution - Therefore decisions arrived at by the Executive or the Judiciary are subject to judicial review—An appointment to a statutory post is an administrative decision—The act of consultation is an executive act—Both these acts therefore are amenable to judicial scrutiny. (Paras 117 and 120)

        (1993) 4 SCC 441—Relied upon.

        (xx) Administrative Law—Well settled that the doctrine of error of law apparent on the face of the record would take within its umbrage a 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. (Para 118)

        (xxi) Consumer Protection Act, 1986—Section 16, Proviso—The proviso appended to Section 16 of the Act is imperative in nature—Therefore an appointment made without consulting the Chief Justice being wholly without jurisdiction would be void ab initio—Such consultation must be an effective and informed one. (Para 118)

        (xxii) Constitution of India,1950—Article 226—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. (Para 119)

        (xxiii) Consumer Protection Act, 1986—Section 16—Recommendation of the CJ regarding appointment to the office of President State Commission may be arrived at on the basis of his subjective satisfaction—This however must be based on objective criteria—Ordinarily a judicial review shall not lie against such recommendation/appointment—Nonetheless such appointment must be made keeping in view the independence of judiciary; as the incumbent of the post would discharge judicial functions of grave importance. (Paras 123, 124)

        (xxiv) Consumer Protection Act, 1986—Section 16—If no former Judge of the High Court of the State is suitable for the post of President, judge of another High Court can be recommended. (Para 129)

        (1950) SCR 621; AIR 1967 SC 295; (1974) 1 SCC 68—Relied upon.

        (1969) 1 SCC 325—Referred.

        AIR (36) 1949 PC 136—Distinguished.

        (xxv) Judicial Review—Judicial review does nor concern with the decision, but decision making process—If decision making process has not been adhered to, judicial review would lie. (Para 136)

        (xxvi) Judicial review—Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. (Para 139)

        (2007) 9 SCC 625—Relied upon.

        (xxvii) Constitution of India,1950—Article 226—Writ of Quo Warranto would lie if the holder of a public office was not eligible for appointment; or the processual machinery was not fully complied. (Para 143)

        (xxviii) Constitution of India,1950—Article 226—Writ of quo warranto—Scope and ambit of this high prerogative writ discussed. (Paras 145 to 159)

        (2003) 4 SCC 712; (1993) 4 SCC 119; (2002) 6 SCC 269; (1998) 7 SCC 273; (1992) 2 SCC 428; (2006) 1 SCC 779—Relied upon.

        (xxix) Consumer Protection Act, 1986—Section 16—State Government requesting for a panel of eligible judges for appointment as Chairman State Commission—The process adopted as impermissible—The process was to be initiated by the CJ and only one name was to be recommended and not a panel—Executive Government of the State cannot have any say whatsoever in the matter. (Para 178)

        (1996) 3 SCC 145; (2005) 2 SCC 104; (2005) 5 SCC 284—Relied upon.

        (xxx) Consumer Protection Act, 1986—Section 16—Chief Justice of the High Court having primacy in the matter of appointment of President of State Commission, ‘Consultation’ shall mean ‘Concurrence’. (Para 179)

        (xxxi) Constitution of India, 1950– Article 50—Sending a panel to State Govt. to make a selection and appointment of judges thereby giving ultimate authority to the Executive is impermissible. (Para 180 and 183)

        AIR 1975 SC 1925; (2005) 2 SCC 104; (2005) 5 SCC 284; (2006) 1 SCC 779—Relied upon.

       Facts of the case :

        1. The appellant was an Advocate practicing in the Madras High Court.

        2. He was appointed as an Additional Judge of the said Court for a period of two years on or about 6th November, 2003. However, he was not appointed as a Permanent Judge, as a result whereof he demitted his office on 5th November, 2005 and resumed practice in Madras High Court.

        3. The Government of India by its letter dated 29th March, 2007 opined that he be treated at par with the retired Judges of the High Court for the purposes of obtaining medical benefits but he would not be entitled to any pensionary benefits.

        4. In the meantime on or about 6th November, 2006 he was appointed as an Additional Advocate General of the State of Madras. His name was included in the list of retired Judges of the Madras High Curt by a Resolution adopted in that behalf by the Full Court on 11th July, 2008.

        5. The Government of Tamil Nadu appointed Shri Kannadasan as the president of the Commission by issuing G.O. Ms. No.144 on 26th July, 2008 treating him as a retired Judge.

        6. Justiciability of the recommendations of the Chief Justice of Madras High Court for appointment of Shri N. Kannadasan (the appellant) as the President of the State Consumer Disputes Redressal Commission in terms of Section 16 of the Consumers Protection Act, 1986 is the question involved herein.

       Finding of the Court :

        There is no merit in the appeals.