Case: State of Haryana Vs. Haryana Co-Operative Transport Limited and Others

suitable writ, order or direction as it deemed fit and proper in the circumstances of t he case. There is no magic in the use of a formula. The facts necessary for challenging Shri Guptas appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court.9. It must be mentioned that in the Canadian case of re Toronto vs. City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of s. 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created. This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.10. In the Travancore Cochin case the Chief Justice whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60. The question really turned on the construction of art. 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before t he commencement of the Constitution may continue to hold that office. Besides, the Chief Justices appointment was challenged collaterally in applications for leave to appeal to the Supreme Court against the judgments pronounced by him.The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court. Delivering the judgment of the Court, Edge, C.J. observed at page 157:"Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re-butted. This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appointment of one of its acting Judges, but our lack of necessary information, ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other."11. Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not qualified under s. 7(3) of the Act to be appointed as a Judge of the Labour Court. Reliance is placed in support of this argument on s. 9(I) of the Act which reads thus:"9. Finality of orders constituting Boards, etc.--(1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall b e called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court."12. It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appointment to the particular posts therein mentioned. But it is impossible to construe the provision as in derogation of the remedies provided by arts. 226 and 227 of the Constitution. The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act. The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to. bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to entertain a challenge to appointments mentioned in the sub-section. The High Court of Assam (Bozbarua (G.C.) v. Sate of Assam----1954 Assam 161.), Bombay (lagannath Vinayak Kale v. Ahmedi--(1958) II L.L.J. 50 (Bom.)) and Rajasthan(Mewer Textile Mills Ltd. v. Industrial. Tribunal-A.I.R. 1951 Raj. 1961) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts. The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The rights conferred by arts. 226 and 227 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in s.9( 1 ) of the Act. Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal. If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under arts. 226 and 227.In the result we affirm the judgment of the High Court and dismiss this appeal. We are thankful to Shri Wad for assisting the Court as amicus.