* THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR + WRIT PETITION No. 24035 of 2010 % Dated: 16-12-2010 # R. Chandrashekar Reddy Petitioner VERSUS $ Union of India & another. Respondents ! Counsel for the petitioners: Sri R.Chandrashekar Reddy Party-in-Person ^ Counsel for respondents : Sri Ponnam Ashok Goud Asst. Solicitor General of India <GIST: > HEAD NOTE: ? Cases referred 1 (2004) 3 SCC 363 2 AIR 1978 SC 694 THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR Writ Petition No.24035 of 2010 Between R. Chandrasekhekar Reddy ……………. Petitioner Vs. Union of India and another …………… Respondents THE HON’BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON’BLE SHRI JUSTICE VILAS V. AFZULPURKAR Writ Petition No.24035 of 2010 JUDGMENT: (Per Hon’ble the Chief Justice Shri Nisar Ahmad Kakru) *** 1. Unbelievable but a hard fact, that this Writ Petition filed in furtherance of an endeavour to show the door to Sri Justice C. V. Nagarjuna Reddy, a Judge of this Court, originates from anger and annoyance of the Petitioner- Advocate, arising out of refusal by the Judge to be contributory to a call of boycott of the Courts, given by Telangana Advocates Joint Action Committee on 13-09- 2010, in support of demand for 42% of total number of posts in the Government services including appointments of Law Officers in the Courts for Telangana-ites. The grouse so registered is reflected by the writ petitioner in the writ petition itself, relevant paragraph whereof is extracted hereunder: “ 4) It is submitted that on 13th September 2010 Telangana Advocates started an agitation with regard to 42% of posts existing in judiciary to be given to regional Telangana Advocates………..They continued their fast un-to death …………………… the Telangana Advocates called for boycott of the Court and also the Court proceedings. So most of the Hon’ble Judges left their benches and stop the Court proceedings in respective Courts. But the Hon’ble Mr. Justice C.V. Nagarjuna Reddy continued his bench without listening to appeal of the Telangana Advocates. Aggrieved by the act of Justice C.V. Nagarjuna Reddy, Telangana lawyers started sloganeering in the Court hall … (emphasis supplied by us) “September 17, 2010: News items published in THE HINDU JUSTICE NAGARJUNA REDDY RESIGNS Hyderabad: Justice C.V. Nagarjuna Reddy of the High Court on Thursday reportedly put in his papers …………. He expressed deep anguish over the state of affairs wherein innocent advocates and the institution could not be protected. For the last three days his court was targeted by some advocates who were angered that he continued to hear the cases in spite of their call to boycott courts…….” (emphasis supplied) 2. To enforce the strike, protestors-Advocates resorted to vandalism, coercing well-meaning Advocates interested in peaceful functioning of the courts to boycott the courts, damaged the files, furniture fittings and every thing, harassed and abused the Judges and all those who came in their way, apparently derogatory to the Constitution and the laws, incapacitating the judge even to protect the law abiding Advocates and litigants who appeared in his court despite call for boycott and targeted the court of Sri Justice C. V. Nagarjuna Reddy for three days consecutively. Office of the Registry was also damaged. Code of conduct was flagrantly violated. 3. Despite revelation of shocking and horrifying events by none other than the petitioner himself in this writ petition and those mentioned in the news reports relied upon by him, coupled with a series of events detailed in the report of the Registrar General High Court of Andhra Pradesh, the judge stood by interests of justice and left no stone unturned to discourage unethical and illegal omissions and commissions of violators of law so as to restore normalcy in the court, yet petitioner, a practicing Advocate of the Supreme Court, has no regrets to express on the role of some of the Advocates who rendered the dignity and independence of the Bar and Bench a casualty. What an apathy qua the interests of the institution on the part of the petitioner, who being a practicing Advocate is not expected to be oblivious of the law laid down by the Supreme Court, inter alia, prohibiting the Bar Council/Bar Association from convening meetings, even to consider giving a call for boycott of the courts and commanding the Advocates not to abide by any call of strike, yet, petitioner pleads for discontinuation of the judge, impliedly because he rejected the request of protestors in the robes of Advocates to sympathies with them by conceding to their demand to stop the proceedings of the court. Whether this kind of approach of the petitioner amounts to misconduct of an Advocate, we refrain from expression of opinion, leaving it open to be embarked upon by the Bar Council of India or the State Bar council, as the case may be. 4. We cannot resist an expression here that this writ petition, wishing a quick exit of Sri Justice C. V. Nagarjuna Reddy on the basis of a news report is filed in hot haste, even without ascertaining the true facts, the most important one being, that the letter of resignation had not at all commenced its journey to the President of India. Could petitioner in such circumstances sustain his writ petition on a news report, guidance is readily available from the judicial decision of the apex court in B. Singh (Dr.) v. Union of India[1] and paragraph 3 being relevant is extracted hereunder: “It is too much to attribute authenticity or credibility to any information or fact merely because it found publication in a newspaper or journal or magazine or any form of communication, as though it is a gospel truth. It needs no indication that newspaper reports per se do not constitute legally acceptable evidence.” 5. On the strength of the mandate of the judgment supra, it would have been permissible for us to dismiss the writ petition because of absence of legal evidence, yet, in the larger interests of the institution, we thought it appropriate to obtain a detailed report from the Registrar General about the events relevant to the controversy which forms part of the writ record, reference whereof is relevant enough, but at the outset, let us examine the cause in the light of the averment made in the writ petition, that the resignation of a judge takes effect and attains completion, the moment it is sent and received in the office of the President, even if intended to take effect from a future date. Whether letter of resignation was sent to the President will be addressed a bit later. Proceeding on the assumption that the resignation was sent by the judge to the President intended to be effective from a future date, a short but important question would arise as to whether it is permissible in law to withdraw the resignation before the date, it is proposed to take effect? The question is no longer res integra, having become the subject matter of an earlier judicial pronouncement handed down by the apex court in Union of India v. Gopal Chandra Misra & ors.[2] and is completely answered at paragraphs 34 and 51 therein which may be noticed: “34. Thus considered, it is clear that merely by writing the letter to the President on May, 7, 1977, proposing to resign with effect from August 1, 1977, the Judge had not done all which he was required to do to determine his tenure, of his own volition, under proviso (a) to Article 217 (1). He had not, as yet, resigned his office on May 7, 1977, itself he had not done everything, which was necessary to compete the requirement of the expression “resign his office “ . He had not relinquished his office and thus delinked himself from it. He had not — as the learned Judges of the High Court have erroneously assumed — crossed the Rubicon — Rub icon was still afar, 85 days away in the hazy future. At any time, before that dead-line (August 1, 1977) was reached the Judge could change his mind and choose not to resign, and withdraw the communication dated May 7, 1977.” 51. ……….In the case of a Judge of the High Court who is constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the constitution does not bar such withdrawal.” (emphasis supplied by us) 6. Reverting to the facts of the case on hand, it emerges that the judge had opted for resignation vide his letter of resignation dated 16.09.2010 to be effective from 20.09.2010 which was withdrawn by him on 18.09.2010, apparently two days before arrival of prospective date on which he intended it to take effect i.e. 20th September 2010. Thus on the ratio laid down by the majority of the Constitution Bench, there is no scope for an argument that the resignation sent to the President cannot be withdrawn before the prospective date on which it was intended to be effective and the withdrawal of “prospective resignation” before the arrival of the effective date is constitutionally valid. 7. Aiming at the relinquishment of office by the Judge the petitioner has pleaded public interest and public policy against the permissibility of withdrawal of resignation letter by the judge. What is in the public interest whether ouster or continuation of the judge? For answer of the question reference to the available material becomes imperative. To begin with, let us glance at the case set out by the petitioner which makes it crystal clear that vandalism had become order of the day in the courts for three consecutive days. Despite that, the judge did not leave the chair, proved true to his oath, stood by interests of justice and left no stone unturned to discourage unethical and illegal omissions and commissions of violators of law but the Advocates having refused to accept the reason, the judge opted for resignation as is evident from the reasons spelt out by him in his letter dated 16-09-2010, addressed to the Chief Justice for its onward transmission to Her Excellency, which reads: “I am unable to continue as a Judge of this High Court in view of my inability to protect the Institution and the innocent Advocates from the onslaught of antisocial elements holding sway over the Institution for the last three days. I am, therefore, sending my resignation letter addressed to Her Excellency the President of India, to be effective from 20.09.2010, in a separate envelop, a photocopy of which is enclosed for your kind perusal. I will be grateful if the same is forwarded to Her Excellency”. 9. In the factual background of this case, is there any scope for the petitioner to advance public interest and public policy against continuation of the judge, advantageous it is to extract paragraphs 35, 37, 38 and 39 of the judgment in Union of India v. Gopal Chandra Misra & ors. (supra): “35. We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of a communication to resign from a future date, addressed by a Judge to the President, before it becomes operative. Could he than be debarred from doing so on the ground of public policy? 37. The contention appears to be misconceived. 38. The argument assumes that a tender of prospective resignation is always motivated by sinister considerations and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede this as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of motives. A Judge renowned for his conscientiousness and forensic skill may send an intimation under his hand to the President proposing to resign from a future date, 2 months away, covering this interregnum by two months 'leave due to him, in the belief, founded on his Doctor's advice, that he is stricken with a malady which will progressively render him deaf in two months' time. The motive behind the tender is that Judge feels that he will no longer be able to discharge his official duties to the entire satisfaction of his conscience. But before the date on which the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignation. Will not such withdrawal be in the interest of the public and justice to the Judge? Conversely, will not refusal of such withdrawal deprive the public of the benefit of his forensic talents in exposition of law and at the same time work hardship and injustice to the Judge? 39. It must be remembered that the doctrine of public policy is only a branch of the common law, and its principles have been crystallised and it scope well delineated by judicial precedents. It is sometimes described as "a very unruly horse." Public policy, as Burroughs, J. put it in Fauntleroy's case, "is a restive horse and when you get, astride of it, there is no knowing where it will carry you." Public policy can, therefore, be a very unsafe, questionable and unreliable ground for judicial decision and courts cannot, but be very cautious to mount this treacherous horse even if they must. This doctrine, as pointed out by this Court in Gherulal Parakh's case (ibid), AIR 1959 SC 781 can be applied only in a case where clear and undeniable harm to the public is made out. To quote the words of Subba Rao, J. (as he then was): "Though theoretically it may be permissible to evolve a new head (of public policy) under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days. " There are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelled.” 8. As noticed this petition is filed in the guise of public interest and the judgment supra has addressed the impact of public interest on the resignation of a judge, therefore to appreciate its application to the facts of this petition, it would be appropriate to reproduce the contents of the letter of withdrawal of resignation: “To The Honourable Sri Justice Nisar Ahmad Kakru, Chief Justice, High Court of A.P., Hyderabad. Dear Sir, Let me at the outset convey my gratitude for the way in which you have responded to my offer of resignation. The unflinching commitment to the cause of this great Institution has made me take the hard and extreme decision to quit the Constitutional office which I believe I have served to the best of my ability, true to the Constitutional oath I have taken to discharge my duties without fear or favour and affection or ill will. If my parents are responsible for my birth, it is this Institution which nurtured and elevated me to this position of great respect. Therefore it is but natural that I have developed unflinching commitment and loyalty to the institution perceived as my mother. I have always felt that no living being on this earth has the right to bring down the dignity and honour of this institution in any situation. As your Lordships are well aware of the happenings, since you have taken the reins of this great institution, I do not wish to specifically recount on them. But I would like to remind myself that what little efforts I have made for restoration of the sagging image of the institution on account of the invasions by miscreants did not yield much results. The happenings that have taken place in your absence from 14.09.10 to 16.09.10 are like the worst of the nightmares, which has brought down the pristine glory of this Institution to an unimaginable extent. Being the loyal son of this Institution, it was next to impossible for me to bear this humiliation caused by the vested interest. Though I have valiantly tried to prevent these designed attacks for three days, at the end I realized that it is beyond my capacity to succeed in my earnest attempts in this regard. I thought that somebody should be prepared to sacrifice his personal interests to restore the dignity and reputation of the Institution, at least to some extent. It is in this hapless situation that I have ventured to resort to the extreme act of sacrificing my office for the sake of my mother Institution. One thing I did not make a proper assessment, which I realized soon after my tendering resignation, was that the hopes and aspirations of the people of the State on me were so overwhelming that I cannot keep up my commitment of parting with this noble office despite my strongest attempts to persist with my resolve to quit. Added to this, the spontaneous reaction from a teaming well wishers all over the State of Andhra Pradesh and elsewhere in the country, which include your Lordship, have rendered me helpless in pressing for my resignation. All of you have made me realized that my continuance in office would help me serve the institution better than going out of it to salvage its lost glory. On a deep contemplation for nearly 36 hours and considering the unanimous opinion expressed by everyone who came in contact with me either directly or indirectly, I realized that the very cause for which I offered to quit would be better served by my being in office rather than quitting.- Furthermore, the immediate changes your Lordship have brought about on your reaching Hyderabad on 16.09.2010 which immediately resulted in the smooth functioning of the Courts on 17.09.2010 has rekindled hopes in me that the glory of the Institution can soon be restored to its rightful place. With this fond hope and with all humility, I hereby withdraw my resignation with a promise that I rededicate myself to the cause of this Institution till the last second of my being in this great office. (emphasis supplied) Before parting, I once again deeply thank your Lordship for the unstinted support you have given to me when it was badly needed. With warm regards, Yours sincerely, Dt.18.09.2010. (C.V.NAGARJUNA REDDY)” 10. Letter of withdrawal of resignation would show that the resignation was withdrawn by the Judge inter alia due to a subsequent event and subsequent event was exactly the cause in the judgment supra, that is the recovery of the judge therein from ailment whereas in the present case, subsequent event is inter alia traceable to the measures taken by the Chief justice to prevent recurrence of the ugly events. Another similarity is that in both the cases, resignations had to take effect from future dates and both the resignations emanated from dictates of conscience which influenced their minds. Taking that into account the Supreme Court in the judgment ruled that letter of withdrawal of resignation by the appellant can neither be said to be against the public interest nor against the public policy. Similar approach is inevitable in this case also because withdrawal of resignation by the judge was because of his satisfaction about the effective measures taken by the Chief Justice to prevent disturbance in the functioning of the courts, coupled with the restoration of normalcy. That apart, by his conduct, it is manifest, that in him is a judge having deep commitment to the institution, therefore, by no stretch of imagination acceptance of his resignation can be said to be in the public interest. 11. The petitioner seeks a writ of quo warranto on the ground that the resignation has become effective and complete. Essentially, the writ petition is founded on the averment that the judge has conveyed his decision to quit the office to his fellow judges and it is not his case that the resignation was submitted by the judge to the President and fact of the matter is that at no point of time the judge submitted his resignation in terms of Article 217 (1) (a) of the Constitution of India to the President of India, therefore, his legal entitlement to hold the office of a Judge cannot be questioned, obviously, writ petition is both misconceived and incompetent. 12. The facts of the case reveal that the Judge routed letter of his resignation through the Chief Justice but was not forwarded to the President of India at all and instead, the Chief Justice closed the matter at his level by an administrative order which is reproduced in verbatim: “This evening on my arrival in my office, directly from the Airport, to preside over a meeting of the Full Court, the resignation letter addressed to the President of India by Sri Justice C. V. Nagarjuna Reddy, Hon’ble Judge of this court was presented before me for its onward transmission to Her Excellency the President of India but I have failed to persuade myself to forward it, fo r, Article 217(1 )(a) postulates the termination of the office of Judge of the High Court by resignation given under the Judge’s writing addressed to the President and not to the Chief Justice. In the constitutional scheme of things, the resignation need not be routed through proper channel, therefore, the Chief Justice has no role to play. The Hon’ble Judge has been informed accordingly, telephonically. However, I have requested him not to submit his resignation and have apprised him of the measures I have taken on my arrival. I have assured him restoration of normalcy in the court rooms. He has agreed to reconsider his decision. Be that as it may the Chief Justice being unknown to the process of termination of the office of a Judge by resignation, let it be consigned to records. Sd/-CJ 16-9-2010.” 13. What was the effect of the conversation, reflected by the Chief Justice in his endorsement extracted above, can be well appreciated from report of the Registrar General, relevant portion whereof, reads: “Hon’ble Chief Justice persuaded Hon’ble Sri Justice C.V.Nagarjuna Reddy to withdraw his resignation in the larger interest of public and institution. His Lordship was personally brought to the High Court by Hon’ble Chief Justice on 17-09-2010 at about 10 a.m. After a brief stay in the Court, Hon’ble Sri Justice C.V.Nagarjuna Reddy left the court without presiding over the same. His Lordship submitted leave letter to the Hon’ble Chief Justice availing casual leave on 17-09-2010 and left the premises……….Hon’ble Chief Justice successfully persuaded Hon’ble Sri Justice C.V.Nagarjuna Reddy to withdraw his resignation. His Lordship ultimately withdrew his resignation on 18.9.2010 and attended court as usual on 20-09-2010…..” 14. The report of the Registrar General makes it clear that the Judge accompanied the Chief Justice on the next day viz., 17th September 2010 to the High Court and after staying in the court for sometime he proceeded on casual leave for 17th through a written letter dated 17th September which may be noticed: “Dear Sir, I am availing casual leave on 17-9-2010. This is for your Lordship’s kind information. With regards, Yours sincerely, Dt.17-9-2010. (C.V.NAGARJUNA REDDY)