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Article 217(3) in The Constitution Of India 1949
Article 226 in The Constitution Of India 1949
Article 329 in The Constitution Of India 1949
Article 136 in The Constitution Of India 1949
Jyoti Prokash Mitter vs Honble Mr. Justice Himansu Kumar ... on 9 November, 1964

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Madras High Court
G. Vasantha Pai vs Sri S. Ramachandra Iyer Now ... on 20 March, 1967
Equivalent citations: (1967) 2 MLJ 151
Author: P Ramakrishnan



ORDER
 

P. Ramakrishnan, J.

1. The petitioner in this case, G. Vasantha Pai, has filed this writ petition under Article 226 of the Constitution seeking for the issue of a writ of quo warranto against the respondent Shri S. Ramachandra Iyer "now holding the office of the Honourable the Chief Justice of Madras."

2. The allegations in the affidavit in support of the petition can be summarised briefly thus:

The respondent became the Chief Justice of the Madras High Court in May, 1961. Under Article 217 of the Constitution of India, before it was amended by the Fifteenth Amendment in October, 1963, a Judge holds office until he attains the age of 60 years. According to the petitioner, the respondent was born on 1st October, 1901. He referred for this purpose in paragraphs 3 and 4 of the affidavit to certain data whose correctness, for reasons I shall presently state, it is not necessary to go into, for the disposal of this petition. The petitioner states that he filed a petition before the Honourable the President of India for the determination of the age of the respondent under Article 217(3) of the Constitution on 13th May, 1964, making request that the President should take up the enquiry immediately. The petitioner did not get any reply from the President for nearly two months. In the meantime the Chief Justice of India paid a visit to Madras, and the petitioner had an interview with him on 1st July, 1964, but the Chief Justice of India informed him that he was not aware of the petitioner's petition to the President. The petitioner then applied on 7th July, 1964, to the President of India for interlocutory directions and for fixing a date for the enquiry. He was informed by the Home Ministry, Government of India, that there were no special rules and regulations framed, for the purpose of holding an enquiry under Article 217(3) of the Constitution. On 12th August, 1964, the petitioner received a letter from the Secretary to the Government of India, Ministry of Home Affairs directing him to produce the documents in his possession. He applied for copies of certain documents to the Registrar of High Court, Madras. On 17th August, 1964, the petitioner was informed by the Registrar that the relevant papers were being despatched direct to the Government for reference, and, therefore, it would not be possible to supply the petitioner with copies. When the petitioner pressed his request for inspection of the records, he was informed on 20th August, 1964 that the records had been despatched to the Government. Even though five months had passed since the question was raised by the petitioner about the age of the respondent, the petitioner alleged in paragraph 8 of his affidavit that the President of India has not held the enquiry, and the petitioner apprehended that the respondent was mustering to his advantage, his high position, political and other influences. On 24th August, 1964, the petitioner sent copies of the documents in his possession to the President of India. The petitioner, when he went to New Delhi, was informed-the affidavit does not state by whom- that the Law Ministry was considering the question as to what would happen to the judgments pronounced by the respondent since 1st October, 1961 if a decision adverse to the respondent was given (by the President). Such considerations, according to the petitioner, would be irrelevant for the enquiry by the President. The petitioner alleged that the further continuance of the respondent in his office would create several problems for the litigant public, as all his judgments would be a nullity if pronounced after his attaining the age of superannuation. The petitioner submitted that by the delay in making the enquiry, the "Constitutional machinery" had failed and, therefore, he had the right to move the High Court for relief under Article 226 of the Constitution for determination. The petitioner went on to state that if the High Court were to feel that it should await the decision of the Honourable the President, the petitioner had no objection to the enquiry by the President in consultation with the Chief Justice of India, being expeditiously held. The petitioner further alleged that he is an advocate of this High Court, that he is the General Secretary of the Bar Association of India, the Secretary of the Madras High Court Advocates' Association and a Member of the State Bar Council, and that he is interested in the administration of justice, especially since the matter is one of considerable public importance. On these allegations the petitioner based his prayer, that a writ in the nature of quo warranto should issue against the respondent to show cause and furnish information by what manner of lawful authority he claims to use, perform and enjoy the rights, duties and privileges of the office of the Chief Justice of the Madras High Court.

3. The above petition was presented in the office of the High Court on 24th September, 1964 and was also admitted on the same date and rule nisi was issued to the respondent. But no counter-affidavit was filed by the respondent upto the present moment either admitting or denying the allegations of the petitioner. But on 6th March, 1967 Sri P.S. Srisailam, an Advocate of this High Court having obtained a vakalat from the respondent, filed a counter-statement on behalf of the respondent. That counter-statement urged that there were substantial preliminary objections for entertaining this petition. The jurisdiction and power to determine the question of the age of a Judge of a High Court are vested exclusively in the President of India under Article 217(3) of the Constitution, as amended by the 15th Amendment, and that question has to be determined only by the President, and in the manner prescribed therein. This Court has no jurisdiction to deal with or determine such a question. On this ground alone the writ petition was liable to be dismissed in limine. The counter-statement went on to urge that the respondent was no longer in office, and for this reason also the present petition for the issue of a writ of quo warranto had become infructuous and could not be prosecuted any further. The counter-statement added that the respondent would be prepared to state his objections on the merits of the allegations on the petitioner's affidavit if necessary, after this Court had given a decision on the aforesaid preliminary objections.

4. The petitioner G. Vasantha Pai filed an elaborate answer to the above counter-statement on 10th March, 1967. In that answer, the petitioner alleged that the writ petition could not be disposed of piecemeal. The petitioner also alleged that he had interviewed the Union Home Minister in connection with the enquiry, and he was informed that the President, on the advice of the Chief Justice of India, had dropped the enquiry, holding that as the respondent had since resigned, the provisions of Article 217(3) of the Constitution which would apply only to sitting Judges would not apply to him. When certain members of Parliament asked questions of the Honourable Minister for Home Affairs in the Parliament a reply was given that the respondent having resigned, his resignation was a bar to the enquiry. The Bar Association of India had also passed a resolution that the President and the Chief Justice of India should be requested to proceed with the enquiry under Article 217(3) of the Constitution expeditiously. The answer also stated that it was only after all the petitioner's efforts had failed in getting the matter enquired into by the President under Article 217(3) of the Constitution that he filed the present writ petition. It was alleged that the President had dropped the enquiry due to "Executive and other interested pressure". The petitioner further alleged that since his resignation, the respondent was in receipt of a pension of Rs. 500 per month as a perquisite to the office, that if he had really retired on 1st October, 1961, under the relevant pensionary rules for High Court Judges, he would not be entitled to the pension. The fact of his receiving such pension since his retirement as a perquisite to the office, will give this Court jurisdiction to dispose of this writ petition on merits. The petitioner also stated that since the resignation of the respondent had not been accompanied by a disclaimer, the fact of resignation, would not make this writ petition for the issue of a writ of quo warranto, infructuous.

5. I heard the preliminary objections raised by the respondent's learned Counsel to the maintainability of the writ petition, and the issue about the want of jurisdiction of this Court to decide it.

6. Taking up first the issue of want of jurisdiction, learned Counsel Sri K. Rajah Iyer, who appeared for the respondent at the time of hearing, urged that Article 217(3) of the Constitution introduced by the 15th Amendment, imposes an absolute prohibition on this Court's jurisdiction, to deal with this petition. Since thereunder the President of India is alone constituted the authority for deciding the question of the correct age of a High Court Judge whenever it is raised. The language of Article 217(3) of the Constitution is explicit in this connection, and it reads thus:

If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India, and the decision of the President shall be final.

7. Though the above amendment came into force on 5th October, 1963, Section 4(b) of the Amendment Act provided that the above clause shall be inserted and shall be deemed always to have been inserted in the Constitution. It is clear that the amendment is retrospective in its operation.

8. Sri Rajah Iyer contends that the jurisdiction thus conferred on the President to determine the age of a Judge of High Court is exclusive and cannot be exercised by any Court in the land including High Court and the Supreme Court, even if they were called upon to exercise the writ provisions embodied in the Constitution. A similar question came before the Supreme Court for decision in Jyoti Prokash Mitter v. Chief Justice, Calcutta A.I.R. 1956 S.C. 961. At page of 966 of the report the Supreme Court observed:

This provision vests the jurisdiction to determine the question about the Judge's age exclusively in the President, and so it follows that in the presence of this provision, no Court, can claim jurisdiction to deal with the said question. It is true that before this provision Was inserted in the Constitution, the question about the age of a sitting Judge of a High Court could have been theoretically brought before the High Court in a proceeding by way of a writ for quo warranto under Article 226. But now there can be no doubt that the question about the age of a Judge of a High Court has to be determined only in one way, and that is the way prescribed by Article 217(3).

9. This considered pronouncement of the Supreme Court on the scope of Article 217(3) of the Constitution, clearly indicates that a question like the one raised by the petitioner in the present case, is for the exclusive determination of the President, and this Court in exercise of its writ jurisdiction under Article 226 of the Constitution, cannot go into it.

10. Sri Vasantha Pai tried to meet the objections against the maintainability of the writ petition by urging two grounds. One is that he did in fact file a petition before the President for making the necessary enquiry on 13th May, 1964, and he had also supplied copies of the documents in his possession called for by the President, on 24th August, 1964. But after that date he had not been intimated by the President of the date of the enquiry. The reason why he came to Court thereafter by presenting this petition a month later, on 24th September, 1964, was, according to the petitioner's affidavit, to which I have already made reference, that he had reason to apprehend that the President was delaying the enquiry because "of political and other influences which the respondent had been able to muster to his advantage". But from the averments in the affidavit of the petitioner it is clear that he had filed the necessary petition before the President on 13th May, 1964, and that on the date when the present writ petition was filed, the President had full seisin of the matter and had not disposed of the enquiry. The averment in the answer statement of the petitioner, where he makes a reference to certain replies given to interpellations in Parliament, by Shri Hathi, the Minister in the Home Ministry, on 24th February, 1965, would show that Sri Vasantha Pai's petition to the President was submitted on 13th May, 1964, that the President received copies of documents in support of the petition on 31st August, 1964, that the President received a memorial from certain members of Parliament on 23rd September, 1964 and that the respondent resigned his office on 1st November, 1964. From the above sequence of dates, it is clear that on 24th September, 1964 when the present writ petition was presented, that matter was still pending the consideration of the President, and the enquiry had not concluded. The abovesaid reply of the Honourable Minister to the interpellations in Parliament contains the additional information, that the resignation of the respondent was considered as a bar to proceeding further with the enquiry under Article 217(3) of the Constitution. Sri K. Rajah Iyer submits, and in my opinion rightly, that so far as the present writ petition is concerned, the crucial date for the purpose of determination of jurisdiction, is the date of the presentation of this petition, namely, 24th September,. 1964, and on that date, the respondent was a sitting Judge of this Court, that the President had seisin of an enquiry under Article 217(3) of the Constitution regarding the respondent's age and that enquiry had not concluded. Therefore on the date when the present writ petition was presented, this Court has clearly no jurisdiction to entertain it. Even if it has been taken on file and numbered the respondent on his appearance in response to notice, can contend at the time of the hearing that the petition at its inception itself was without jurisdiction. The fact of its having been taken on file and numbered would be no bar to the determination of the question of its maintainability at the stage of contest.

11. The next line of approach by Sri Vasantha Pai to meet the argument about the non-maintainability of this petition, was that the above cited decision of the Supreme Court in Jyoti Prokash Mitter's case A.I.R. 1965 S.C. 961, at page 967, has laid stress on the fact that Article 217(3) will apply to a sitting Judge of a High Court. It is urged that the respondent resigned on 1st November, 1964, and that thereafter the High Court will not be fettered by Article 217(3) of the Constitution, and will be able to exercise its jurisdiction for adjudicating upon the question raised about the age of the respondent. Secondly, it is alleged by the petitioner that the respondent is in receipt of a pension which is a perquisite of his former office, and that as long as he is in receipt of pension, a writ of quo warranto would lie for the purpose of knowing under what authority the respondent is enjoying the perquisites of an office. The learned Counsel also attacked the award of the pension itself, because if the period of the respondent's service after his alleged attainment of superannuation on 1st October, 1961 is, excluded from service counting for pension, he would not be entitled to any pension at all, under the relevant rules. The argument stated in this form calls for an entirely different line of enquiry from the one indicated in the writ petition. It will necessitate a determination as to whether a pensioner can be considered to be in enjoyment of an office. A proper view on that question will be that a pensioner is not the holder of an office of any kind, and what he receives by way of pension is a payment of a sum which the Government has fixed in accordance with certain rules, taking into account the past service of the Government servant. But the Government has got a discretion in the matter of fixing the pension; they have even got the right to cut down a portion of the pension for misconduct, etc. The payment of pension is not a quid pro quo for continuing service done by a Government servant, it is more a payment made in the discretion of the Government in recognition of his past services, but there are rules for the guidance of the Government as to how the amount of pension should be calculated. The respondent had performed valuable services, which he was legally entitled to perform in any event up to 1st October, 1964, even if it is found that he had attained the age of superannuation on 1st October, 1961, that fact cannot do away with the circumstances that till 1st November, 1964 he had in any event de facto discharged the duties of the Chief Justice and that the Government had utilised his services. My attention was drawn to a recent judgment of Venkatadri, J., in Kannabiram v. The Labour Court, Madras and Anr. C.M.P. No. 3404 of 1966 in W.A.No. 174 of 1963 wherein the validity of the judgments rendered by the respondent subsequent to 1st October, 1961 was questioned on the assumption that it was given at a time after he had become superannuated. The learned Judge dismissed the claim and extracted the following observations from Cooley's Constitutional Limitations, 8th Edition, page 1357, Volume II:

The acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.

It was, therefore, open to the authorities in their discretion to take the entire period of his service, for calculating his pension. It appears to me that the fact that the respondent is to-day in receipt of a pension is no ground for the issue of a quo warranto as he has ceased to hold any office. In this connection, one can refer to the well-known English decision Rex v. Speyer L.R. (1916) 1 K.B. 595, which at page 627 contains the following relevant observations:

There was no doubt a time at which the old writ of quo warranto was used exclusively in order to prevent encroachment on the King's prerogative. But as times changed the nature and scope of the writ became enlarged, and even before the case of Darley v. The Queen 12 C.I. and F. 520, the proceeding by way of information in the nature of quo warranto which had taken the place of the older writ had come to have a far-wider application. It is the process by which persons who claim to exercise public functions of an important and substantive character by whomsoever appointed, can be called to account if they are not legally authorised to exercise them.

Further, the circumstance that the respondent is in receipt of pension at the present moment is wholly irrelevant for deciding the question about the jurisdiction of this Court to entertain the present writ by way of quo warranto on 24th September, 1964, the date when it was presented, when the respondent was a sitting Judge, and when admittedly the President had seisin of the enquiry under Article 217(3) of the Constitution, and had not disposed it of.

12. It is not necessary to indicate in this judgment what the petitioner's remedy would have been, if there was unconscionable delay on the part of the President in disposing of the enquiry under Article 217(3) of the Constitution or had declined to hold the enquiry. But it is certain that a writ of quo warranto will not be the remedy. One may also observe, taking into account the sequence of the date's mentioned above that on 24th September, 1964, which was a date less than a month after the petitioner has supplied the records in his possession to the President there was little room to hold that an unconscionable time was being taken by the President for dealing with the matter.

13. In another line of argument adopted by the petitioner, to meet the plea about want of jurisdiction, he attempted to draw a distinction between the provisions in Article 217(3) of the constitution on the one hand and Article 329 of the Constitution on the other. In Article 329 of the Constitution where exclusive jurisdiction is given to Electoral Tribunals to decide election disputes the non-obstante clause "notwithstanding anything in this Constitution" is used. Sri Vasantha Pai urged that this clause is used whenever the Constitution-makers intended to confer exclusive jurisdiction on a Tribunal and to exclude remedies like writ, under other provisions of the Constitution. Learned Counsel urged that in the absence of the user of a non-obstante clause in Article 217(3) of the Constitution, an inference could not be drawn about the exclusion of jurisdiction of the High Court under Article 226 of the Constitution. He referred to the decision of the Supreme Court in Ponnuswami v. Returning Officer, Namakkal (1952) 1 M.L.J. 775 : (1952) S.C.J. 100 : (1952) S.C.R. 218, to support the interpretation given to Article 329 of the Constitution for inferring an exclusive jurisdiction where a non-obstante clause is used. He referred also to the decision of the Supreme Court in Raj Krustna Bose v. Binod Kanungo (1954) 1 M.L.J. 489; (1954) S.C.J. 286. at p. 289 : (1954) S.C.R. 913, where at page 289 of the report, it is stated that a provision in an enactment that the orders of a Tribunal shall be conclusive and final (Section 105 of the Representation of the People Act (XLIII of 1951) will not have the effect of taking away or whittling down the powers conferred on the Supreme Court under Article 136 of the Constitution or on the High Courts under Article 226 of the Constitution). The short answer to this line of argument is that conferring of exclusive jurisdiction on a particular body or authority to decide a particular matter under a particular provision of the Constitution so as to exclude jurisdiction under other enactments as well as other provisions in the Constitution can be effected not merely by the device of using a non-obstante clause but also by using other appropriate provisions. To find out if such an object had been expressed the language of the particular provision should be construed for determining whether it brings about a total exclusion, or leaves open the jurisdiction under Article 226 of the Constitution or under Article 136 of the Constitution. In the case of Article 217(3) of the Constitution which is the relevant provision to be considered in this case, even though a non-obtante clause is not used, the use of the clause "shall be decided by the President" is sufficiently peremptory in character to support an inference of the conferment of exclusive jurisdiction on the President and the exclusion of all other jurisdictions including that of a writ under Article 226 of the Constitution. The view of the Supreme Court in Mitter's case A.I.R. 1965 S.C. 961, above cited, supports such a view about the exclusive jurisdiction being vested in the President for holding the enquiry, and the total bar of the jurisdiction of the High Court or any other Court to deal with the matter under Article 226 of the Constitution, or under any other enactment.

14. In view of the foregoing discussion, it is really not necessary to go into the alternative argument of Sri Rajah Iyer about the effect of the respondent's subsequent resignation from his office and the propriety of the issue of a writ of quo warranto, against him after his retirement. But I shall refer briefly to the arguments for and against this proposition, since they were also raised before me. Sri Rajah Iyer referred to the form used in the Appellate Side Rules of the High Court (Form No. 10) viz., To show cause by what authority he claims to have, use, enjoy and perform the rights, duties, privileges of the office of this Court doth order and direct that the said... the respondent herein do not intermeddle in any manner with the said office and this Court doth further order and declare that the said office of... is vacant.

Learned Counsel urged that such a form cannot be used in reference to a person who had resigned from office or who is no longer holding an office. Sri Vasantha Pai tried to meet this argument by urging first of all that the fact that the respondent is in receipt of a pension would show that he is still enjoying a perquisite of the office, and therefore a writ of quo warranto would lie. I have already dealt with this argument, based on the enjoyment of a pension, and over ruled it. Secondly, he urged that the respondent had not filed a counter affidavit by way of disclaimer, that he cannot rely upon the counter-statement filed by an advocate and that even though the respondent has resigned the office, in the absence of a disclaimer, a writ of quo warranto can still issue. He relies for this view on the decision of the Queen's Bench reported in The Queen v. Blizard (1866) L.R. 2 Q.B 55. But Sri Rajah Iyer is right when he contends that the observations in the above decision were made in the context of the circumstances of that particular case, where the relator had a specific interest in the respondent vacating his office, because it was a case of election, and the relator on the success of his petition would be enabled to claim the office to which he asserted that he had been elected in lieu of the respondent. But no such situation has arisen in the present case, which is clearly distinguishable.

15. For the aforesaid reasons, this writ petition is dismissed. There will be no order as to costs.