Civil Appeal Nos. 7360 and 7372 of 2008. Case: 1. N. Kannadasan, 2. Government of Tamil Nadu rep. by its Secretary Vs 1. Ajoy Khose and Ors., [Alongwith Civil Appeal Nos. 7368 and 7371 of 2008], 2. Anna Mathew and Ors.. Supreme Court

Parts:1. N. Kannadasan, 2. Government of Tamil Nadu rep. by its Secretary Vs 1. Ajoy Khose and Ors., [Alongwith Civil Appeal Nos. 7368 and 7371 of 2008], 2. Anna Mathew and Ors.
Issuing Organization:Supreme Court
Resolution Date:May 06, 2009
Case:Civil Appeal Nos. 7360 and 7372 of 2008
Ley aplicable:Consumers Protection Act, 1986 - Sections 2, 3, 6, 6(7), 7, 9, 16, 16(1), 16(1A), 17 and 20(1); Narcotic Drugs and Psychotropic Substances Act - Section 37; High Court Judges (Salaries and Conditions of Service) Act, 1954; Government of India Act, 1915; Government of India Act, 1935 - Section 220; Constitution (Seventh Amendment) Act, 1956; ...
Judges:S.B. Sinha and Mukundakam Sharma, JJ.
 
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Judgment:

S.B. Sinha, J.

INTRODUCTION

1. 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 (`the Commission') in terms of Section 16 of the Consumers Protection Act, 1986 (`the Act') is the question involved herein.

BACKGROUND FACTS:

2. The said question arises in the following factual matrix.

3. The appellant was an Advocate practicing in the Madras High Court. He was appointed as an Additional Judge of the 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 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;

(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

(B) Adverse reports from intelligence agencies.

4. 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 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 pensionary benefits.

5. 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 General of the Madras High Court on 24th May, 2008. Indisputably his name was included in the said list by a Resolution adopted in that behalf by the Full Court on 11th July, 2008.

PROCEEDINGS FOR APPOINTEMNT

6. Before the post of President of the Commission fell vacant, the Government of Tamil Nadu by a letter dated 30th 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 vacant only on 5th July, 2008.

7. A note prepared by the Registry of the said Court as contained in Roc.341/2008 dated 14th July, 2008 refers to the letter of the Government dated 30th May, 2008.

8. Upon quoting Section 16 of the Act, it proceeds as follows:

In view of the above, if your Lordship is so pleased, 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 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. 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.

As directed by your Lordship, the said matter was placed before the full court which was held on 11th July, 2008 and minuted as follows:

Considered the representation of Hon'ble Thiru Justice N. 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

It is resolved that the name of Hon'ble Thiru Justice N. 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:

1. Hon'ble Thiru Justice T.V. MASILAMANI (Chairman DRAT) - 29.05.2006 Chairman, DRAT

2. Hon'ble Thiru Justice A.R. RAMALINGAM - 12.11.2006 - 2007

1. Hon'ble Thiru Justice M. HANIKACHALAM, (Admission Committee) - 07.03.07

2. Hon'ble Thiru Justice J.A.K. SAMPATHKUMAR (Chairman, Human Rights Commission, Puducherry) - 05.05.2007

3.Hon'ble Thiru Justice R. BALASUBRAMANIAN (Advisor, State Legal Services Authority) - 15.08.2007

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 the age of 67 years.

In this connection, it is respectfully submitted for consideration and orders.

Whether:

the list of retired Hon'ble Judges except Hon'ble Thiru Justice T.V. MASILAMANI (Chairman DRAT) and including 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/- 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

2. Justice M. Thanikachalam

3. Justice N. KANNADASAN
Sd/- CJ
16.06.2008

9. 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.

WRIT PROCEEDINGS

10. Three writ petitions were filed by some Legal Practioners before the Madras High Court.

11. Writ Petition No. 18731 of 2008 was filed by one Anna 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.

12. 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.

13. Writ Petition No. 21504 of 2008 was filed by Ajoy Khose and three others for issuance of a writ of declaration declaring G.O. Ms. No. 144 dated 26th July, 2008 issued by the Government of Taml Nadu as illegal and ultra vires of the Constitution of India.

14. The Chief Justice of the High Court initially was impleaded as a party in the said proceedings but later on his name was deleted.

15. By reason of the impugned judgment dated December 12, 2008 Writ Petition Nos. 18731 of 2008 and 21504 of 2008 have been allowed while Writ Petition No. 21495 of 2008 has been dismissed.

16. Before the High Court averments touching 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 necessary to consider them in detail.

QUESTIONS BEFORE THE HIGH COURT:

17. Before the High Court, the writ petitioners-respondents raised the following questions:

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 and the Collegium of the Supreme Court and of the Central 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 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 requirements to be a Judge, be considered again for any other judicial office?

iii) If the Government considers and appoints such a person to any judicial office, would it not amount to interfering with the independence of the judiciary contrary 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 unsuitability to hold a judicial office?

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?

18. The High Court inter alia formulated the following three questions for its consideration:

(1) Whether Respondent No. 1 was ineligible to be appointed as the President of the State Consumer Disputes Redressal Commission?

(2) Whether the requirement of consultation with the 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?

FINDINGS OF THE HIGH COURT

Re: Question No. 1

19. Upon considering a few decisions of this Court as also the provisions of the Constitution of India vis-`-vis Section 16 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 Additional 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 S.P. Gupta v. Union of India AIR 1982 SC 149 may lead to the conclusion that an additional judge would be deemed to be a judge of the High Court...

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