# N. KANNADASAN v. AJOY KHOSE AND OTHERS

- **Citation:** [2009] 7 S.C.R. 668
- **Court:** Supreme Court of India
- **Decided:** 2009-05-06
- **Case number:** Civil Appeal No. 7360 of 2008
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-kannadasan-v-ajoy-khose-and-others-25992
- **Pages:** 91

## Headnote

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
0 - On appeal, Held: If a person does not have qualification to
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.
G
Constitution of India, 1950:
Articles 32, 226 - Writs - Writ of Quo Warranto and Writ
of certiorari - Scope and ambit of - Discussed.
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 8
three persons including the appellant was sent to the State
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
F
.....
others v. Union of India, (1993) 4 SCC 441; 'Ashok Kumar
"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 rea

## Text

_Characters 0–39,045 of 174,022. This is a partial read: ask again with offset=39045 for what follows._

A
B
[2009] 7 S.C.R. 668
N. KANNADASAN
v
AJOY KHOSE AND OTHERS
Civil Appeal No. 7360 of 2008
MAY 6, 2009
(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
0 - On appeal, Held: If a person does not have qualification to
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.
G
Constitution of India, 1950:
Articles 32, 226 - Writs - Writ of Quo Warranto and Writ
of certiorari - Scope and ambit of - Discussed.
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 8
three persons including the appellant was sent to the State
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
F
.....
others v. Union of India, (1993) 4 SCC 441; 'Ashok Kumar
"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.
'
7 .1 A case of this nature is a matter of moment. It D
-.j_
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
E
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.
{
[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,
D clearly held that the consultation process in terms of
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
E that an appointmentwas required to be made by a sitting
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 constitutional 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
the power of both the State as also the Chief Justice in
-
D 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.
E
Indisputably, a person having doubtful integrity should
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 recommendations made, thus, may be arrived at on the basis of his
subjective satisfaction, but it must be based on objective
G 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 a judicial review shall not lie. It is true that
H recommendation would be as a result of due application
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 nonappointmenf 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 undergone in terms of the constitutional scheme in its correct
perspective, judicial review may not be maintainable. [Para G
,-J
21) [738-B-C]
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 discretionary remedy. Authority of a person to hold a high public
C office can be questioned inter alia in the event an appointment is violative of any statutory provisions.[Para 22)
[740-E-F]
12.2 There concededly exists a distinction in regard
0 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 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
(1996) 3 .~cc 145
relied on
Para 16
E
(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
referred to
Para 19
-
(2005) 5 sec 284
relied on
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
E
(1974) 1 sec 68
relied on
Para 21
(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
G
(1993) 2 sec 103
referred to
Para 22
(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.
~ i
INTRODUCTION
'
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.
,..,..,~
BACKGROUND FACTS :
G
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 :
B
(A) (i)
several orders had been passed by him granting
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.
D
-.
KANNADASAN, Former Judge, who has completed 2
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,
B
retired during 2006 and 2007 is submitted below 2006:
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,
D
(Admission Committee) - 07.03.07
~
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 of a writ of declaration declaring
.
th
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.
B
The Chief Justice of the High Court initially was impleaded
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
+
F
Government that a person should not be considered as a
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
H
found wanting in the necessary intellectual and moral
.
...
N. KANNADASAN V. AJOY KHOSE AND OTHERS
687
[S.S. SINHA, J.]
'
requirements to be a Judge, be considered again for any A
. -.j
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
B'
to Article 50 of the Constitution of India?
•
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
D Judge yesterday, is eligible today for being appointed as adhoc 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
G
all considering the background as available in the High
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
H
appointed for a particular post as that is a matter for the
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 nonconsideration 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
-t
claimed, the High Court did not think it fit to permit the counsel
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.
(C) The recommendations. made by the Chief Justice of G
.. ~
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
B
was, however, dismissed.
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.