IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-12-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P.Nos.18731, 21495 & 21504 of 2008 and M.P.NOs.1 to 7, 1, 2, 1 to 5 of 2008 W.P.No.18731 of 2008 1. Anna Mathew 2. D. Hariparanthaman 3. Sudha Ramalingam 4. K.M. Ramesh 5. S.S. Vasudevan 6. C. Vijayakumar 7. Dr.V. Suresh 8. Balan Haridas 9. S.T. Varadarajulu 10. S. Sathiachandran 11. D. Geetha ..Petitioners Vs. 1. N. Kannadasan Presiding Officer, Tamil Nadu State Consumer Disputes Redressal Commission, Old No.39, New No.41, Gangai Street, Kalakshetra Colony, Chennai 600 092. 2. The Government of Tamil Nadu, Rep. by its Secretary, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai 600 009. 3. The Union of India, Rep. by its Secretary, Ministry of Law, Justice and Company Affairs, New Delhi 110 001. https://hcservices.ecourts.gov.in/hcservices/ 4. The Registrar General, High Court, Madras, Chennai 600 104. ..Respondents W.P.No.21495 of 2008 1. R. Jaikumar 2. P. Pugalenthi 3. P. Vijendran 4. S. Rajanikanth 5. S. Sengodi 6. T. Maheshkumar 7. P. Kalyani 8. K. Thilakeswaran ..Petitioners Vs. 1. High Court of Judicature at Madras, Rep. by the Registrar General, High Court, Madras, Chennai 600 104. 2. N. Kannadasan Presiding Officer, Tamil Nadu State Consumer Disputes Redressal Commission, Old No.39, New No.41, Gangai Street, Kalakshetra Colony, Chennai 600 092. ..Respondents W.P.No.21504 of 2008 1. Ajoy Khose 2. M. Muthupandian 3. R. Kamatchi Sundaresan 4. V. Porkodi ..Petitioners Vs. 1. N. Kannadasan Presiding Officer, Tamil Nadu State Consumer Disputes Redressal Commission, Old No.39, New No.41, Gangai Street, Kalakshetra Colony, Chennai 600 092. 2. The Hon'ble Chief Justice of the Madras High Court, Madras High Court, Chennai 600 104. https://hcservices.ecourts.gov.in/hcservices/ 3. The Government of Tamil Nadu, Rep. by its Secretary, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai 600 009. 4. The Union of India, Rep. by its Secretary, Ministry of Law, Justice and Company Affairs, New Delhi 110 001. 5. The Registrar General, High Court, Madras, Chennai 600 104. ..Respondents W.P.No.18731 of 2008 has been filed under Article 226 of the Constitution of India for the issuance of Writ of Quo Warranto against 1st respondent requiring him to show his authority to hold the office of President, Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, and consequently declare G.O.Ms.No.144 dated 26.7.2008, issued by the 2nd respondent, as illegal and unconstitutional resulting in the said office remaining vacant. W.P.No.21495 of 2008 has been filed under Article 226 of the Constitution of India for the 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 the 2nd respondent, a former additional judge, as a retired judge is unconstitutional and non-est in law. W.P.No.21504 of 2008 has been filed under Article 226 of the Constitution of India for the issuance of Writ of Declaration declaring G.O.Ms.No.144, Co-operation, Food an Consumer Protection (H1) Department) dated 26.7.2008, issued by 3rd respondent as illegal and ultra vires of the Constitution of India. For Petitioners in W.P.Nos.18731 & : Ms.R. Vaigai 21495/2008 For Petitioners in WP.No.21504/2008 : Mr.T. Mohan For Respondent-1 in WP.Nos.18731 & : Mr. Ranjeet Kumar 21504/2008 & R-2 Senior Counsel for in WP.No.21495/08 Mr. Sathish Parasaran https://hcservices.ecourts.gov.in/hcservices/ For Respondent-3 : Mr.P.S. Raman in WP.Nos.18731 & Addl. Advocate General 21504/2008 Assisted by Mr.M. Dhandapani For Respondent-4 in WP.Nos.18731 & : Mr.A.S. Vijayaraghavan, ACGSC 21504/2008 For Respondent-5 : Mr.R. Muthukumarasamy in WP.Nos.18731, Senior Counsel for 21504/2008 & R-1 Mr.A. Jeenasenan in WP.No.21495/2008 COMMON JUDGMENT P.K. MISRA, J W.P.No.18731 of 2008 has been filed by several Advocates for issuing a Writ of Quo Warranto questioning the legality and validity of the appointment of Respondent No.1 as the President of the State Consumer Disputes Redressal Commission. Initially in such writ petition, the Honourable the Chief Justice of the Madras High Court, was impleaded as Respondent No.2, but, at the time when the matter was taken up for admission, counsel for the petitioners deleted the Honourable the Chief Justice from the array of the respondents. 2. W.P.No.21495 of 2008 has been filed by some other Advocates for issuing a writ of Declaration that the decision taken by the Full Court of the Madras High Court on 11.7.2008 is unconstitutional and non-est. 3. W.P.No.21504 of 2008 has been filed by some other practicing Advocates for issuing a writ of Declaration that G.O.Ms.No.144 dated 26.7.2008, appointing Respondent No.1 as the President of the State Consumer Disputes Redressal Commission as illegal and unconstitutional. 4. All these writ petitions have been heard together and shall be disposed by the present common judgment. The primary question is relating to validity of appointment of Respondent No.1 as the President of the State Consumer Disputes Redressal Commission (hereinafter referred to as the “Commission”). 5. Bereft of unnecessary and sordid details, the main allegations made in W.P.No.18731 of 2008, seeking for the issuance of a writ of Quo Warranto are to the effect that Respondent No.1 was appointed as Additional Judge for a period of two years, there was no confirmation or further extension and, therefore, in the context of the decision of the Supreme Court in S.P. Gupta v. Union of India https://hcservices.ecourts.gov.in/hcservices/ ([1981] Supp. SCC 87), the first respondent's continuance as a Judge was considered to be against public interest on the tests of intellectual and moral requirement. Since Respondent No.1 had not challenged his non-appointment as Judge after 5.11.2005, the opinion expressed by the Chief Justice of India and the Collegium of the Supreme Court had become final. Under the above circumstances, the petitioners have raised several contentions regarding the legality and validity of the appointment of Respondent No.1 as President of the Commission by posing specifically 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 Art.50 of the Constitution of India ? iv) Whether the expression "is or has been a Judge of the High Court" in Sec.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 ? In such writ petition, various averments have been made touching upon the alleged lack of integrity and honesty on the part of Respondent No.1, but we do not think it is necessary to recount those allegations in detail. 6. The allegations in W.P.No.21504 of 2008, filed by a different set of practising Advocates, are substantially similar, https://hcservices.ecourts.gov.in/hcservices/ but the prayer is slightly different in the sense that instead of praying for issuance of a writ of Quo Warranto, the prayer is for declaration that G.O.Ms.No.144, dated 26.7.2008, is illegal and ultra vires of the Constitution of India. 7. In these two writ petitions, the appointment of the first respondent has been challenged on the ground that the first respondent is ineligible to be considered. The legality of the recommendation made by the Honourable the Chief Justice has also been questioned by alleging that an Additional Judge, who has not been confirmed, particularly on the basis of allegations touching upon the integrity and honesty, cannot be considered as eligible to hold any other post requiring exercise of judicial or quasi-judicial power. In this context, it is also contended that an Additional Judge, who had demitted the office because of the expiry of the term, cannot be considered as "retired Judge" so as to become eligible. It is further stated that the Honourable the Chief Justice's recommendation has been very much clouded by the resolution of the Full Court and amounts to abdication of statutory and constitutional duties. The non-compliance with the provisions contained in the Consumer Protection Act is also highlighted. 8. The allegations in W.P.No.21495 of 2008 are to the effect that the question as to whether Respondent No.1 could be considered as a retired Judge was not a matter required to be placed before the Full Court and, therefore, the resolution of the Full Court must be taken to be non-est. The prayer is to quash such resolution. 9. A counter affidavit has been filed by Respondent No.1 in W.P.No.18731 of 2008. Even though no separate counter affidavits have been filed in the two writ petitions, which had been filed subsequently, since all the matters have been taken together and the allegations are substantially similar, it can be assumed that Respondent No.1 did not have any further counter affidavit to be filed in the two connected writ petitions. 9.1 In the counter affidavit filed on behalf of Respondent No.1, the contentions raised by the petitioners have been refuted. It has been indicated that the petitioners in W.P.No.18731 of 2008 have an axe to grind against Respondent No.1, as the latter, while he was an Advocate for Chennai Corporation and Tamil Nadu Housing Board, had made sincere efforts to defend many cases, which was not to the liking of the petitioners, who were the Advocates in those cases, and because of such past animosity such writ petition has been filed. 10. As already noticed, the Honourable the Chief Justice, even though originally arrayed as Respondent No.2 in W.P.No.18731 of 2008, has been subsequently deleted from such array. However, in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.21504 of 2008, the Honourable the Chief Justice has been arrayed as Respondent No.2. 10.1 Papers containing the recommendation as well as the relevant papers relating to Full Court's resolution have been produced through Mr. Muthukumaraswamy, Senior Counsel, appearing for the Registrar General of the High Court. However, no formal counter has been filed by the Registrar General. 11. Counter affidavit has been filed on behalf of the State Government (Respondent No.3 in W.P.No.21504 of 2008) and papers relating to correspondence with the High Court have also been produced. 11.1 In the counter affidavit filed by the State, it has been indicated that on the basis of the recommendations made by the Honourable the Chief Justice, Respondent No.1 has been selected and appointed as it had been found that Respondent No.1 alone could have served the entire tenure of five years inasmuch as other two persons included in the panel of recommendation of the Honourable the Chief Justice having already crossed the age of 62, would have continued only for a lesser period. 12. A reply affidavit has been filed in W.P.No.18731 of 2008 reiterating the contentions. Subsequently, a further affidavit has been filed touching upon the notes prepared by the Registry for sending the panel. 13. On the basis of the averments made in the various writ petitions and the counter affidavits and the files produced by the State Government and the High Court, the following undisputed facts can be culled out. 14. Respondent No.1 was appointed by the President of India as an Additional Judge of the Madras High Court in exercise of power conferred under Article 224(1) of the Constitution of India for a period of two years from the date of assumption of office. Respondent No.1 assumed office on 6.11.2003. Since there was non- extension of his term, Respondent No.1 ceased to be an Additional Judge with effect from 6.11.2005. Subsequently, Respondent No.1 apparently renewed his licence as an Advocate and thereafter appointed as Additional Advocate General of the State Government with effect from 5.11.2006. Since there was some doubt in the Registry of the Madras High Court as to the entitlement of Respondent No.1 regarding pensionary and other benefits available to a retired Judge, a query had been made on 5th April, 2006. It appears that the Government of India by its letter dated 29.3.2007 indicated that Respondent No.1 was not entitled to pension since he was only an Additional Judge of the High Court. However, it was indicated that he would be entitled to medical benefits as per the https://hcservices.ecourts.gov.in/hcservices/ relevant rules as applicable to any retired Judge of the High Court. On the question as to whether Respondent No.1 was eligible for being appointed as Presiding Officer/ Chairman of the Commission / Tribunal, the letter indicated that such aspect would depend upon the provisions contained in a particular statute. On 24.5.2008, Respondent No.1 made a representation to the Registry with reference to the Central Government letter dated 29.3.2007, by stating that "his name may be included in the list of retired/former Judges of Madras High Court, so as to enable him for being considered for appointment to the post of Presiding Officer / Chairman of Commissions / Tribunals, etc". On 30.5.2008, Respondent No.3, the State Government, wrote a letter to Respondent No.5, the Registrar General of the Madras High Court, to forward a panel of eligible names of the retired High Court Judges, after the approval by the Honourable the Chief Justice for being considered for the office of the President of the Commission. Subsequently, a reminder was received on 19.6.2008. 14.1 In the meantime, the letter of request sent by Respondent No.1, on the basis of the endorsement made by the Honourable the Chief Justice, on 14.6.2008, was placed before the Full Court of the High Court as Subject No.6 "for inclusion of N. Kannadasan's name in retired Judges' panel". The Full Court minutes indicate as against the said subject as "Discussed and noted". On 19.6.2008, a further reminder came from the State Government and, subsequently, on 2.7.2008, a similar reminder came relating to sending of the panel. On 11.7.2008, the Full Court of the Judges sitting at the Principal Bench of the Madras High Court at Madras was apparently convened and the minutes of such Full Court indicate "resolved to include N. Kannadasan as one of the retired Judges of the High Court and in the records of the Registry". 14.2. The Registry prepared a note for the purpose of sending the names for appointment as the President of the State Consumer Disputes Redressal Commission. It appears that the Section Officer prepared a note on 14.7.2008 and the Registrar Administration endorsed the same. However, the date put by the Registrar Administration on such note is 15.6.2008. The Honourable the Chief Justice in his own hand had made a note to the following effect :- "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" The date put under the signature is 16.6.2008. [It may be that wrong dates have been inadvertently put by the Registrar Administration as well as the Honourable the Chief Justice and the correct dates should be treated as "15.7.2008 and 16.7.2008" respectively instead https://hcservices.ecourts.gov.in/hcservices/ of "15.6.2008 and 16.6.2008". At any rate, Ms. Vaigai, the learned counsel for the petitioners has fairly stated that there must have been an inadvertent mistake while appending the date below the signature]. The recommendation made by the Honourable the Chief Justice was sent on 16.7.2008 to the State Government, which in its turn selected Respondent No.1 for appointment as the President of the State Consumer Disputes Redressal Commission and G.O.Ms.No.144, dated 26.7.2008, was issued. It is also not in dispute that Respondent No.1 assumed the office as the President of the Commission on 28.7.2008. 15. On the basis of the averments made in the petition and the counter affidavits and on the basis of the submissions made by the counsels appearing at the time of hearing, the following main questions arise for 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? (4) Whether the resolution of the Full Court resolving that Respondent No.1 may be considered as a retired Judge is legal and valid ? QUESTION NO.1 - Regarding Eligibility 16. The first writ petition, namely, W.P.No.18731 of 2008, is for issuing a writ of quo warranto. The other connected writ petition, namely, W.P.No.21504 of 2008, is filed as a public interest litigation for declaring G.O.Ms.No.144, dated 26.7.2008, as illegal and ultra vires of the Constitution and the Consumer Protection Act. Though prayer in such writ petition is couched differently, essentially such writ petition can also be construed as a writ of quo warranto or any other appropriate writ similar to a quo warranto. Therefore, before delving into the questions raised in these writ petitions, it may be appropriate to examine the scope of such proceedings. 17. A writ of quo warranto is issued against a holder of a public office to show under what authority such public office is held by the person concerned. It is a judicial remedy against an intruder or usurper of such public office which raises the question to such person "where is your warrant of appointment by which you https://hcservices.ecourts.gov.in/hcservices/ are holding this office?" In Corpus Juris Secundum, "Quo warranto" is defined as : "Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right." In Halsbury's Laws of England, the scope of quo warranto has been explained thus :- "An information in the nature of quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." 18. Though initially a writ of quo warranto was being issued by Chancery Court as a matter of right in favour of the Crown against an usurper of public office, in course of time, its scope has widened and in appropriate cases such writ has been issued at the instance of the person who is a rival claimant for a public office and even at the instance of a third party or a member of the public. Since a writ of quo warranto is an extra-ordinary remedy and considered to be a high prerogative writ, it is expected to be exercised sparingly with utmost care, caution and circumspection. Though the locus of the petitioner in such a writ is not examined as minutely as in some other writs, the court is expected to inquire into the motives and conduct of the applicant and the question of public interest likely to be served or damaged by granting or refusing the prayer. The above seems to be the traditional view of a quo warranto as applicable as a common law remedy as enforced in United States of America and England. 19. There is some controversy relating to width and amplitude of the quo warranto so far as the Indian Courts are concerned. Some High Courts have taken the view that the scope of issuing a writ of quo warranto or a writ in the nature of quo warranto may be wider in the Indian context, keeping in view the width of and the language contained in Article 226 of the Constitution of India. 20. For the purpose of the controversy now raised, we would prefer to travel a middle path by observing that the Indian Courts need not follow the very narrow and technical meaning adopted by the American and British Courts by following all the procedural technicalities. In this connection, it is appropriate to notice the decision of the Supreme Court in AIR 1954 SC 440 (T.C. Basappa v. T. Nagappa), wherein it has been observed as follows :- https://hcservices.ecourts.gov.in/hcservices/ "6. The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." 21. AIR 1965 SC 491 (University of Mysore v. Govinda Rao), Justice Gajendragadkar succinctly explained the underlying object of quo warranto by observing as follows :- "6. . . . Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. . ." 22. In B.R. Kapur v. State of Tamil Nadu [(2001) 7 SCC 231: AIR 2001 SC 3435], it was laid down as follows :- "79. . . . A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfil the required https://hcservices.ecourts.gov.in/hcservices/ qualifications or suffers from any disqualification, which debars the person to hold such office. . . ." 23. In (2006) 11 SCC 731 (B. SRINIVASA REDDY v. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMPLOYEES' ASSN.), pressed into service by the counsel for Respondent No.1, it was observed :- "49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be