S.N. Andley, C.J.
(1) These four writ petitions were heard together. Substantially, they raise the same questions. Primarily the writ petitioners have prayed for a writ of quo warranto to challenge the appointment on April 25, 1973 with effect from April 26, 1973 of Justice A. N. Ray, one of the respondents herein. Judge of the Supreme Court of India, as the Chief Justice of India on the retirement of Justice S. M. Sikri, the then Chief Justice of India. The respondents to the petitions are the Union of India; Mrs. Indira Gandhi (Prime Minister of India) ; Mr. H. R. Gokhale (Minister of Law and Justice) and Justice A. N. Ray. Counter affidavits have been filed by and on behalf of the Union of India and Mr. H. R. Gokhale. Originally, Mr. Kumaramanglam, the then Minister of Steel and Mines, was also in the array of respondents but his name was deleted on his demise.
(2) The counter affidavits have replied to the facts relating to the merits of the petitions and at the same time contain demurrers, speaking generally to the jurisdiction of this Court to issue the writ and to the maintainability of the petitions and for that reason it was thought proper to first hear three of the preliminary objections as they were stated to go to the root of the matter.
(3) It is necessary to state the facts shortly to furnish a backdrop for the discussion particularly because, admittedly, preliminary objections have to be decided on the assumption that the facts alleged by the petitioners are correct. I would like to emphasize this aspect of the matter because my opinion is not to be taken to be a finding as to the truth or correctness or otherwise of the facts alleged. A further fact may also be stated here, namely, that Justice A. N. Ray was appointed the Chief Justice of India by a warrant under the hand and seal of the President of India in pursuance of clause (2) of Article 124 of the Constitution.
(4) I state the facts alleged in the petition of P. L. Lakhanpal, petitioner in Civil Writ Petition No. 671 of 1973 as representative of the facts in all these petitions; On April 25, 1973, All India Radio announced the appointment of Justice A. N. Ray as the Chief Justice of India and a communique was issued from Rashtrapati Bhavan to the following effect :-
'THEPresident is pleased to appoint Mr. Justice Ajit Nath Ray to be Chief Justice of India with effect from April 26, 1973 on the retirement of Mr. Justice S. M. Sikri.'
(5) Justice A. N. Ray was sworn in on and has since April 26, 1973 held the office of the Chief Justice of India. According to the established practice of appointing the senior-most judge of the Supreme Court as the Chief Justice of India which has the force of law and inheres in Article 124(2) of the Constitution, 'Mr. Justice J. M. Shelat was entitled to appointment as the Chief Justice of India and after his retirement on July 16, the office was to devolve on Mr. Justice K. S. Hegde and after his retirement in June, 1974 upon Mr. Justice A. N. Grover who would have continued as such a few days after the retirement of Mr. Justice A. N. Ray on January 29, 1977'. Chief Justice S. M. Sikri was not only not consulted but was not even informed that the Government planned a change in the practice. The decision to recommend the appointment of Justice A. N. Ray was taken by the Political Affairs Committee of the Cabinet, which has no standing in the eye of law, and conveyed to the President by the Prime Minister on the morning of April 25, 1973 when she personally called upon him. Mr. H. R. Gokhale also met the President on the same day. After the aforesaid appointment, Justice J. M. Shelat, K. S. Hegde and A. N. Grover resigned their office as Judges of the Supreme Court with effect from April 30, 1973 in the case of Justices Shelat and Hegde and May 31, 1973 in the case of Justice Grover. Mr. H.R. Gokhale told the Lok Sabha on April 26, 1973 that the Government had accepted the recommendations of the Law Commission made in 1960 that in the appointment of Chief Justice seniority should not be the sole basis since the Chief Justice should not only be a Judge of experience and ability but also a competent administrator. Mr, Gokhale also said that the appointment of Justice A. N. Ray had been made to 'ensure that a machinery is provided to the Supreme Court where there is a certain degree of stability required in order that the law of the land may be settled. In order that there should be no uncertainty, we will have a Supreme Court which will know its mind and give a clear verdict so that we know what the law of the land is.' Justice Hegde told a Press Conference at which the petitioner, P.L. Lakhanpal was personally present, that the Prime Minister was personally piqued with him for his decision in her election appeal and that Mr. Kumaramangalam had differences with him which were fundamental and deep-rooted. Certain other quotations from Justice Hegde's statement are given. Mr. Kumaramangalam said in the Lok Sabha on May 2, 1973 that the Government wanted to appoint as Chief Justice a person who would 'help in ending confrontation between the judiciary and Parliament, one who would appreciate the winds of change sweeping the country and one who will help us in Court.' He also said that the appointment was made 'in the interest of certainly about the state of law and a stable relationship between the court and ourselves.' The appointment of Justice A. N. Ray as the Chief Justice of India was politically motivated and malafide. The independence of the judiciary forms part of the basic structure and frame-work of the Constitution and the appointment of Justice A. N. Ray as the Chief Justice of India in supersession of three Judges senior to him was designed to undermine the independence of the udiciary and make it a subordinate wing of the Government and that 'what has obviously weighed with the Government is the fact of his decisions in favor of the Government in three crucial cases namely the Bank Nationalisation case, the Privy Purses case and the Fundamental Rights case.' On these grounds, it is prayed, inter alias that a writ, order or direction in the nature of quo warranto declaring that the appointment of Justice A. N. Ray as the Chief Justice of India was illegal, mala fide and unconstitutional and ousting him from the office with immediate effect be issued. In sum, the case of the petitioners is that the appointment of Justice A. N. Ray as the Chief Justice of India by the President of India was in violation of the provisions of Article 124(2) of the Constitution as the mandatory consultation comprehended was not made and as the rule of seniority which inheres in this Article was not followed and that the appointment is mala fide.
(6) Broadly speaking, three preliminary objections have been raised on behalf of the appearing respondents on the assumption-without admitting them-that the allegations are correct. Says the Attorney General: A writ of quo warranto is a writ of technical nature. It is in the discretion of Court to refuse or grant it according to the facts and circumstances of the case. The Court will refuse to grant it if it will be futile in its result as the Court, in the exercise of its discretion, would doubtless reject the writ petition, if the alleged irregularity or defect (which is denied) could be cured by the immediate re-appointment of Justice A. N. Ray as Chief Justice of India and that this was the position even at the time when the writ petitions were filed and the writ petitions are an abuse of the process of Court. The Solicitor General has urged that in effect a writ of quo warranto issued against the Chief Justice of India would be a writ against the Supreme Court itself as the Supreme Court functions with and not without the Chief Justice of India, that such a writ will, in effect, amount to issuing a writ of certiorari, mandamus or prohibition with respect to matters which are being heard by the Supreme Court and writs cannot be issued to superior Courts. As a subsidiary point it is urged that if the appointment of the Chief Justice of India is set aside by a writ of quo warranto, the Supreme Court will not be able to hear any appeal against the orders of this Court in these petitions in the absence of the Chief Justice of India. The Additional Solicitor General has urged that no Court has any jurisdiction to issue a writ of quo warranto against any Judge of the Supreme Court or the Chief Justice of India or against any Judge of a High Court including its Chief Justice who is appointed by the President by warrant under his hand and seal. The issue of such a writ would involve the ouster or, in other words, removal from office which can be done only in the manner prescribed by clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge of the Supreme Court or the Chief Justice of India and Article 218 read with clauses (4) and (5) of Article 124 of the Constitution in the case of a Judge or Chief Justice of a High Court.
(7) Before I deal with the points raised, I will state what I understand to be the scope and ambit of a writ of quo warranto. A writ of quo warranto poses a question to the holder of a public office. In plain English language, the question is 'where is your warrant of appointment by which you are holding this office? ' In its inception in England such a writ was a writ of right issued on behalf of the Crown requiring a person to show by what authority he exercised his office, franchise, or liberty. Webster's Third New International Dictionary, Volume Ii, describes it as 'a legal proceeding that is brought by the state, sovereign, or public officer, has a purpose similar to that of the ancient writ of quo warranto, is usually criminal in form and sometimes authorizes the imposition of a fine but is essentially civil in nature and seeks to correct often at the relation or on the complaint of a private person a usurpation, misuser, or nonuser of a public office or corporate or public franchise, and may result in judgments of ouster against individuals and of ouster and seizure against corporations.'
(8) HALSBURY'S Laws of England, Third Edition, Volume 11, Para 281 (1) contains a summary of the decisions of English Courts with regard to the discretion of the Court in issuing a writ of quo warranto. It is said:-
'ANinformation in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case........... the Court might in its discretion decline to grant a quo warranto information where it would be vaxatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective.'
(9) The leading case on the subject of quo warranto from which many of the statements are derived is R. v. Speyer : (1916) 1 K.B. 595. Lord Reading, Chief Justice has observed:-
'If the irregularity in the appointment of an office held at pleasure could be cured by immediate reappointment, the Court in the exercise of its discretion would doubtless refuse the information.'
. Lush, J. expressed the view that the Court would not make an order ousting the holders of public offices from their office if the existing defect, if there is one, could be cured, and they could be reappointed. Rex v. Stacey : 99 Engl Rep 938 holds that writ of quo warrant, is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford : The Rev. Thomas Thellusson Carter : 5 AC 214 (3) also states that the issue of writ of quo warranto is in the discretion of a Court. The Canadian view as stated in The King exrel Boudret v. Johnston : (1923) 2 DLR 278 is that the Court has to take into consideration public interest, the consequences to follow the issue of a writ of quo warranto and all the circumstances of the case. These general propositions have been accepted in America as appears from the statements contained in sections 5, 9, 10 and 18 in American Jurisprudence, Second Edition, Volume 65.
(10) The above views and statements indicate and reflect the principles which have guided courts outside our country in issuing writs of quo warranto. There is abundant authority that these principles have been accepted and applied in this country. University of Mysore and another v. C. D. Govinda Rao and another : : 4SCR575 affirms some of these principles. One is that a writ of quo warranto is a writ of technical nature. The following statement in Halsbury's Laws of England, Third Edition, Volume Ii, page 145 is quoted with approval :- 'An information in the nature of a 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 inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.' It is then stated:- 'Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds 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, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.'
(11) The other cases cited hereafter affirm and apply some other principles.
(12) Now, one of the main heads in the contention of the Attorney General, as is pointed out later, is based on R v. Speyer (supra) and it is that a writ of quo warranto will not issue if it is found that the issuance of such a writ will be futile where the alleged usurper could be immediately re-appointed to the very post. It is contended on behalf of the petitioners that this principle has not been accepted in this country, that the limitations mentioned for the issue of a writ of quo warranto are not applicable here and that the scope of quo warranto as also of other writs which can be issued by the High Courts and the Supreme Court is wider in view of the words 'in the nature of' appearing in Articles 32 and 226 of the Constitution. These words do not justify the argument because these very words preface the words 'a Quo Warranto' as is apparent from para 273 at page 145 of Halsbury's Laws of England, Third Edition, Volume II. Certain cases have been cited to support this proposition. I do not think any of them supports it. The first case is Statesman (Private) Ltd. v. H. R. Dev and others: : 3SCR614 . The question in this case was whether a Sub-Deputy Collector vested with magisterial powers could be said to have held a judicial office within the meaning of section 7(3)(d) of the Industrial Disputes Act, 1947 so as to make him eligible for appointment as the Presiding Officer of a Labour Court. The case started by way of a writ of certiorari under Article 226 of the Constitution against the order of the Presiding Officer. It was held that a Magistrate holds a judicial office. Sub-section (1) of section 9 of the Act conferred finality to orders constituting Boards etc. It was in the context of this section that a passing observation was made by the Supreme Court that 'although the provisions of s. 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes of a writ of quo warranto but at least in an unclear case the intent of the legislature is entitled to great weight .................. The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.' In effect, these observations are no different than those in University of Mysore and another v. C. D. Govinda Rao and another, (supra). It was further observed that it may be open in a quo warranto proceeding to challenge the appointment of persons employed on multifarious duties and in addition performing some judicial functions on the ground that they do not hold essentially a judicial office because they primarily perform other functions. This case is not relevant to the argument of the wider scope of writs issuable under Articles 226 of the Constitution. It was a case to which the principle 'could be re-appointed' would not apply. In Mrs. Priti Prabha Goel v. Dr. C. P. Singh and others: (1969) 2 Lab Indu Cas 913 the appointment of the respondent as Professor in the University of Jodhpur was challenged on the ground that such an appointment could be made by the Syndicate only on the recommendation of the selection committee and in the absence of such recommendation, the Syndicate is incompetent and has no power to appoint any one as a teacher in the University. It was held by the Rajasthtan High Court that there is a public policy behind the salutary provision of selection committee prescribed in the Statutes and as the University is a State under Article 12 of the Constitution, every citizen has a right to be considered for these posts if he is duly qualified as otherwise there will be violation of Article 16 of the Constitution. No argument of futility of the writ was advanced in this case because it was irrelevant. In M. S. Mahadeokar v. The Chief Commissioner, Union Territory, Chandigarh and others: (1973) 1 SLR 1042 the appointment of two of the respondents was challenged by a writ of quo warranto. One of the respondents did not fulfill the qualifications under the service rules and was not eligible for the posts while the other was junior to the petitioner. A contention was raised by the respondents that a writ of quo warranto cannot be issued if the defect can be remedied by the authority who committed the mistake by amending the rules with retrospective effect. The principle of 'could be reappointed' is entirely different. It does not contemplate a change in the existing law. It proceeds on the basis that there is no legal impediment to a re-appointment according to the law as it stands. A possibility of change in the law with retrospective effect, as suggesed in this case, would not come within the principle of futility of the writ. By reason of lacking in qualifications or being junior, there was an existing legal impediment to re-appointment. The next case relied upon is Prabhudutt Sharma v. State of Rajasthan and others: 1971 Lab Indu Cas 556. This case, rather than support the petitioners, goes against their contention. It is clearly stated that the conditions for the issue of a writ of quo warranto are similar to those for laying an information in the nature of a quo warranto in England. Then it specifies the four requisites for a writ of quo warranto namely, (1) the office must be held under the State or have been created by a statute, (2) it should be an office of a substantive character, (3) its duties must be of a public nature and (4) it should have been usurped by some person. Then it proceeds to state what is more important that even when these requirements are fulfilled, it is in the discretion of the Court to refuse or grant the writ after taking into consideration the circumstances of the case and the consequences which would follow if it is allowed and that it should be in the public interest to grant the writ. These are some of the limitations which obtained in England as to a writ of quo warranto. In fact, this case refers to and relies on R v. Speyer (supra) and the statements made in paragraph 281, Volume Ii in the Third Edition of Halsbury's Laws of England which have been already quoted. In this case it was alleged that the appointments of two of the respondents were in violation of the statute as they were ineligible for appointment as they did not posses the necessary qualifications. The Rajasthan High Court found as a fact that the two holders of the office lacked the essential qualifications and were not eligible for appointment. If the holder of a public office is ineligible for appointment to that office and remains ineligible up to the date of the hearing of the writ petition, he is undoubtedly a usurper and the application of the principle of futility of writ by re-appointment or of in the circumstances of the case or of the discretion of the Court would not arise. It is, thereforee not, possible to see how this case advances the contention of the petitioners that the scope of a writ of quo warranto in India is wider than that in England. In fact, in Hari Shankar Prasad Gupta v. Sukhdeo Prasad and another : Air 3954 All 227 R v. Speyer (supra) was referred and the principle of futility of issue of a writ of quo warranto was applied. The writ of quo warranto was refused as the holder of the office though not qualified on the date of his appointment thereto acquired the necessary qualification during the pendency of the petition. With respect, I agree with this view rather than with the view expressed in Govinda Panicker v. K. Balakrishna Marar and another : Air 1955 TC 42. If the view of the Travancore-Cochin High Court is to be accepted, it will mean that the principle 'could be re-appointed' does not apply. In my view it does. In Narayan Keshav Dandekar v. R. C. Rathi and another: : AIR1963MP17 . Apart from holding that the appointment was in violation of the provisions of a statute, it was held that the appointment had been made contrary to Article 16 of the Constitution as before making the appointment, the post was not regularly advertised nor were any applications invited from persons qualified to hold the post. No argument of futility was addressed in this case possibly because the appointment was held to be in violation of Article 16 of the Constitution thereby depriving other person from applying for the post. This case can, thereforee, be no authority for the proposition now being considered. In Puranlal Lakhanpal v. Dr. P. C. Ghosh and others: : AIR1970Cal118 the question was whether a writ of quo warranto should issue to a person who had resigned from his office. I do not at all see the relevancy of this case to the contention being discussed now. None of these cases, thereforee, supports the argument that scope of Articles 32 and 226 is wider in so far as the writ of quo warranto is concerned.
(13) On the other hand, in Janardan Reddy and others v. The State of Hyderabad and others: 1951 Supreme Court Reports 344 (14) it has been observed that the power given to it under Part Iii of the Constitution is not wider than it is in England and courts in this with well established principles. In T. C. Basappa v. T. Nagappa and another: : 1SCR250 the same principle has been repeated but it has been clarified that the procedural technicalities of the English law do not apply. These cases help me to re-affirm the view that the scope of the power of the High Court to issue a writ of quo warranto under Article 226 of the Constitution is not wider than it is in England and courts in this country have followed the principles including the limitations which have been well established in England. In fact, in University of Mysore and another v. C. D. Govinda Rao and another (supra), the Supreme Court has observed that a writ of quo warranto is a writ of technical nature and has approved the statements made in Halsbury's Laws of England in that behalf.
(14) I now deal with the points urged by the Attorney General. Relying upon the petitioners' own case that the convention of appointing the senior-most puisne Judge of the Supreme Court as the Chief Justice of India since the establishment of the Supreme Court is a rule of law and inheres in Article 124(2) of the Constitution, he contends that the issue of a writ of quo warranto by this Court will be futile because as a result of the resignations of Justices Shelat, Hegde and Grover, who were senior to him, Justice A. N. Ray became the senior-most puisne Judge and not only could be re-appointed but would be entitled to be re-appointed as Chief Justice of India. This contention would not have been available to the respondents if the three Judges who were senior to Justice A. N. Ray had not vacated their office by resignation but now it is. The contention is countered by Mr. Lakhanpal, who appeared in person, by arguing that if the appointment of Justice A. N. Ray as Chief Justice of India is set at nought by a writ quo warranto, then he will automatically cease to be a Judge of the Supreme Court because on his appointment as Chief Justice of India, the warrant of his appointment as a Judge of the Supreme Court automatically ceased to exist or to have any validity or effect.
(15) I find a fallacy in the counter argument. Either the warrant of appointment of Justice A. N. Ray as Chief Justice of India is a good, valid and legal warrant and exists in fact and in the eye of law or it is bad, invalid and illegal and does not exist in the eye of law though it exists in fact. In the former case, a writ of quo warranto cannot issue and it gives good, valid and legal title to Justice A. N. Ray to function as Chief Justice of India- In the alternative and converse case, having no existence, validity or effect in the eye of law, it cannot affect the continued existence, validity or effect of the first warrant of appointment as a Judge of the Supreme Court.
(16) Mr. Lakhanpal further contends that the two offices, namely, (1) Judge of the Supreme Court and (2) Chief Justice of India, cannot vest in the same person at the same time. In other words, the contention is that the Chief Justice of India is not a Judge of the Supreme Court. Otherwise, says he, the Chief Justice of India will be entitled to draw salary as such as also as a Judge of the Supreme Court under Article 125(1) of the Constitution. The language of this Article is, I am clear, destructive of the argument. This Article says that there shall be paid to the Judges of the Supreme Court such salaries as are specified in the Second Schedule. Chief Justice of India is not mentioned herein. Item 9(1) in the Second Schedule Part D also starts with the words 'There shall be paid to the Judges of the Supreme Court. . . . . ' and then specifies the salary of the Chief Justice and the salary of any other Judge. thereforee, Chief Justice of India is included in the expression 'Judges of the Supreme Court'. A Judge of the Supreme Court does not cease to be a Judge on his appointment as Chief Justice. Some other Articles in the Constitution point to the same conclusion. Article 124(2) does not talk of the Chief Justice of India except in the first provio. It talks only of the appointment of 'Every Judge of the Supreme Court' by the President by warrant under his hand and seal in the manner prescribed and further provides that every such Judge shall hold office until he attains the age of sixty-five years. Chief Justice of India must, as a matter of contraction, be included in the expression 'Every Judge of the Supreme Court.' Otherwise, one startling result would be that the Chief Justice of India may not be appointed by the President by warrant under his hand and seal and can continue to hold office even after he attains the age of sixty-five years. The second result would be that the second proviso to Article 124(2) providing for resignation by 'a Judge' and removal of 'a Judge' from his office in the manner provided in Article 124(4) would not be applicable to the Chief Justice of India. Similarly, the age of the Chief Justice of India will not be determinable as provided by Article 124(2A) because this Article also talks only of 'a Judge of the Supreme Court'. Nor would Article 124(3) relating to qualifications of 'a Judge of the Supreme Court' apply to the Chief Justice of India leading to another startling result that a person appointed as Chief Justice of India need not be a citizen of India and he need not possess any of the qualifications mentioned. Again, a person appointed as Chief Justice of India need not, before he enters upon his office, make or subscribe the prescribed oath because Article 124(6) talks only of 'a Judge of the Supreme Court.' The words 'other Judge' occurring after 'Chief Justice of India' in clauses (1) and (2) of Article 146 also contain a pointer to the conclusion that Chief Justice of India is a Judge of the Supreme Court.
(17) In support of his contention, Mr. Lakhanpal first relies on Kashi Nath Misra v. University of Allahabad and others: : AIR1967All101 where after discussing some Articles of the Constitution pertaining to the High Court, namely, Article 216 comparable to Article 124(1), Article 217 comparable to Article 124(2), Article 219 comparable to Article 124(6), Article 220 comparable to Article 124(7), Article 221 comparable to Article 125(1), Article 222 and Article 223 comparable to Article 126, the Division Bench expressed the view that,-
'THESEprovisions and many others in the Constitution clearly show that the office of the Chief Justice is a distinctly different office from that of a Judge and normally a Chief Justice of a High Court is called Chief Justice of that Court and not a Judge of that Court.'
This observation does not mean that the Chief Justice of a High Court ceases to be a Judge of that Court. All that is meant is that the office of the Chief Justice of a High Court is an office different from the office of a Judge of the High Court and the former is normally called the Chief Justice of that Court and not a Judge of that Court. It does not mean that the Chief Justice of a High Court is not and cannot be properly called a Judge of that Court. The difference in the office of a Judge of the High Court and that of the Chief Justice of that Court lies only in the duties and functions to be performed by each of them. The Chief Justice of a High Court has duties which are additional to his duties as a Judge of that Court. But that does not mean that the Chief Justice of a High Court ceases to be or is not a Judge of that Court. In fact in paragraph 19 of the report there is a clear statement that 'for judicial work the Chief Justice is a Judge of the Court'. This case is, in fact, against the contention of the petitioners.
(18) The next case on which reliance is placed is State of Mysore v. R. V. Bidap : : (1973)IILLJ418SC . The respondent was appointed as a member of the State Public Service Commission on March 20, 1967. The term of such a member is by Article 316(2) a term of six years from the date on which he enters upon his office or until he attains the age of sixty years whichever is earlier. On February 15, 1969 while the respondent was still a member, he was appointed Chairman of the Commission. The State took the view that the term of the respondent would expire on March 19, 1973 on the expiry of six years from the date of his appointment as a member. The contention of the respondent was .that inasmuch as he was appointed as the Chairman of the Commission on February 15. 1969, he would be entitled to continue for a period of six years reckoned from this date. Now, Article 316(1) opens with the words 'The Chairman and other members of a Public Service Commission.............. Clause (1A) provides for appointment of a member as Chirman on the office of Chairman becoming vacant etc. Clauses (2) and (3) provide for the term of office etc. and mention only 'a member'. On these provisions, the Supreme Court held that a Chairman is also a member though the office and duties attached to each are different. This case again is against the contention of the petitioner. I, thereforee, conclude that on his appointment as Chief Justice of India, a Judge of the Supreme Court does not cease to be a Judge of the Supreme Court. thereforee, even if Justice A. N. Ray is ousted from his office as Chief Justice of India by a writ of quo warranto, he, as the senior-most puisne Judge of the Supreme Court, will be entitled to be appointed as the Chief Justice of India if the contention that the convention of seniority is a rule of law and is inherent in Article 124(2) of the Constitution be correct. I make it clear that what I have said is not to be taken to be the expression of an opinion either that there is such a convention or that it has such effect. thereforee, not only being eligible for reappointment as Chief Justice of India but being entitled to be so reappointed, a writ of quo warranto ousting Justice A. N. Ray from the office of the Chief Justice of India will be futile and such a writ cannot be issued.
(19) Then I deal with the other facet of this preliminary objection which arises out of the averment that the requirement of consultation under Article 124(2) of the Constitution is mandatory. The Attorney General presses for acceptance of the argument of futility even if it be so. The Atterney General does not dispute that if an order is passed in violation of or contrary to the mandatory provisions of a statute or of the Constitution, it would be illegal and void and as such will not have any existence in the eye of law. He, however, says that the question for determination is whether Justice A.N. Ray could be re-appointed if the mandatory requirement is fulfillled. He emphasizes the word 'could'. In other words, the question is whether Justice A. N. Ray is disentitled by lacking in the necessary qualifications or by reason of any legal impediment to be re-appointed as the Chief Justice of India. Indisputably, Justice A. N. Ray does not lack in the qualifications mentioned in Article 124(3). Nor do I find any legal impediment in the sense of a statutory disability in the matter of his personal qualifications in the way of his re-appointment. If in an information in the nature of quo warranto, the holder of the office suffers from such personal disqualification which has not been removed or is irremovable, a writ of quo warranto must follow. As I have stated, Justice A. N. Ray indisputably possesses and possessed the qualifications prescribed by Article 124(3) of the Constitution. But the inquiry in an information in the nature of quo warranto to ascertain whether there is any legal impediment in re-appointment does not end with the examination of the question whether there is any such personal disqualification or, in other words, ineligibility. The inquiry extends to ascertainment of the fact whether the holder of the office has been appointed in accordance with law or not : see University of Mysore and another v. C. D. Govinda Rao and another (supra). If the law requires that the appointment is to be made after fulfillling certain conditions, and if such conditions are incapable of being fulfillled there is no option or alternative but to issue a writ of quo warranto. It is only in a case where the requirement of law is capable of being fulfillled and there is no legal impediment in the way of such fulfillment that the principle of futility of the writ on the ground that the holder of the office could be imediately re-appointed is attracted. There can be no doubt that the requirement of consultation contemplated by Article 124(2) of the Constitution even if it be mandatory can be fulfillled by having the requisite consultation. There is no legal impediment in the way of such consultation being held. That being so, the question for consideration is whether after such consultation Justice A. N. Ray could be re-appointed. The answer can only be in the affirmative because the relevant question is not whether he 'would' be re-appointed but whether he 'could' be re-appointed after such consultation. The answer as stated by me is as it is because normally it is only the alleged usurper holding the office who is the only necessary party to an information in the nature of quo warranto. The appointing authority is not a necessary party: see Ashgar Ally v. Dr. Birendra Nath Dey : : AIR1945Cal249 where Gentle, J. was considering the question whether in the information by way of quo warranto at the instance of a relator before him, the Government or the Corporation were proper parties. He held that the relator being the only party, the absence of the Government or of the Corporation from the array of parties could not prevent relief being granted. Whichever way the matter is looked at, I have to conclude that Justice A. N. Ray 'could' be re-appointed by the appointing authority by going through the process of consultation as envisaged by Article 124(2) of the Constitution.
(20) I may here notice another argument on behalf of one of the petitioners. The argument is that the principle of futility of the writ applies only if (1) the appointment is at pleasure and (2) if there can be immediate re-appointment without having to comply with any conditions or formalities in the law before making the re-appointment. The first reason is untenable in view of Ex Parte Richards : (1878) 3 QBD 368 (19) where the appointment was in exercise of statutory power just as the appointment of the Chief Justice of India is in exercise of a constitutional power. In R v. Speyer (supra), Lord Reading has not differentiated between an appointment at pleasure and an appointment of a permanent character for the purpose of quo warranto. Most of the cases in this country where writs of quo warranto have been issued were cases of substantive appointments under statutes or bye-laws. The second reason is equally unacceptable. In R v. Speyer (supra) the re-appointment it was held, could be made even though Speyer had to obtain a certificate of naturalisation under a statute to which he was held to be entitled. It was still held that he was entitled to be re-appointed. So, in R v. Speyer (supra) a legal requirement had to be complied with just as in the case before me the mandatory requirement, assuring it to be so, of consultation under Article 124(2) had to be complied with. No significance can be attached to 'immediate' in the context of re-appointment. There necessarily had to be an interregnum between Speyer having to vacate the office and his re-appointment. thereforee, 'immediate' has reference not to any point of time but to the existance of power in the appointing authority to re-appoint. The circumstance that the appointing authority has to comply with a condition or with a statutory provision before making the re-appointment does not justify the assertion that in such a case it will not be an immediate reappointment or that such a re-appointment could not be made. To report, the real question in this behalf is whether Justice A. N. Ray. could be re-appointed. My answer is that he could be re-appointed as the Chief Justice of India. The issue of a writ of quo warranto would, thereforee, be futile. I find substance in this contention of the Attorney General.
(21) Another facet of the preliminary objection relates to the allegations of mala fide made in the petition. It will bear repetition to state that the preliminary objection is on the assumption and not admission that the appointment of Justice A. N. Ray is mala fide. It is indisputable that mala fide action is no action in the eye of law. But to my mind, the mala fide of the appointing authority or, in other words. the motives of the appointing authority in making the appointment of a particular person are irrelevant in considering the question of issuing a writ of quo warranto. It is a writ, as I have stated, of a technical nature. It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office. What works in the mind of the appointing authority in appointing a particular person is irrelevant and does not fall to be considered in a proceeding of quo warranto and in determining the title of the person who has been appointed. Otherwise, the alleged usurper will be at a great disadvantage. He is, normally, the only party to the petition. He could certainly be called upon to show his authority or warrant to hold the office. He can also be called upon to show whether he possesses the necessary qualifications prescribed for that office. He can be asked even whether his appointment was made in accordance with law or not. He can further be asked whether the authority or warrant which he produces is by the person who is authorised to make an appointment to the office which he holds. He is expected to give an effective answer by producing the authority or warrant of his appointment, by showing that he possesses the necessary qualifications, by demonstrating that there is no legal impediment in the way of his appointment to the office and by slowing that the person who issued the authority or warrant of his appointment is authorised by law to do so. In the very nature of things, he would not know what considerations or motives entered the mind of the appointing authority in appointing him to the office. If it is held that it is the obligation of the alleged usurper to demonstrate and prove the bona fides of the appointing authority, the holder of the office, even though duly and properly appointed, may be at the mercy of the appointing authority itself because it will be open to the appointing authority to say if asked by the Court that it was actuated by mala fides in making the appointment in a case where the appointing authority finds that the alleged usurper has not come up to its expectations. thereforee, to my mind, the question of mala fides of the appointing authority is completely irrelevant in a matter relating to a writ of quo warranto. I am not alone in taking this view. In A. Ramachandran v. A. Alagiriswami : : AIR1961Mad450 , Balakrishna Ayyar, J. talking of Government declarations said :-
'THEYsay in effect that when they have to make the appointment of a Government Pleader they would act in the manner specified in the rules. But there are no legal sanctions behind them, and, in such situations, the only safeguards must be the sense of responsibility, the respect for propriety, the regard for decorum and the obligation to behave fairly, and beyond all else, to behave honestly which must actuate and bind the holders of every public office of whatever consequence. It follows, that against unhappy adventures like the present, adventures in the dispensation of Government patrfonage, courts can give no worthwhile relief. The corrective must be applied, in the first instance, by those in administrative or operational control, and ultimately by a resentful and uncompromising public opinion.'
Jagadisan, J. was more direct. He said :-
'I am of opinion that questions of alleged motive and purpose supposed to constitute the background for the order of appointment of the first respondent are wholly foreign to the scope of the present proceedings before us. As observed by Lord Denning in his Hamlyn Lectures on Freedom under the Law: 'No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do.' Act of favortism by way backdoor appointment and deviation from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction of the courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Prerogative writs which this court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to. The province of this Court in a quo warranto proceeding is to determine whether there has been usurpation of a public office and not to search the conscience of the appointing authority to ascertain his motive. It is, thereforee, not necessary for me to say anything more than that the impugned order of the appointment of the first respondent has not transgressed any rule, regulation or law to afford a foundation for the issue of relief in a quo warranto proceeding.'
To the same effect is the statement in Volume 74, Corpus Jurisdiction Secundum at page 265 that,-
'SO,also, where respondent's title rests on an appointment, the court will not go back of the power of appointment to inquire into..................... his reasons and motives for making the appointment...'
To say that mala fide is a relevant consideration in an information in the nature of a quo warranto, the petitioners rely first on the Queen v. Ward : 1873 LR 8 QB 210. In this case, at the election of a local board of health, the respondent who was the Chairman, being about to go out of office, another person was appointed to act as returning officer in case of the respondent being nominated for re-election. Nomination papers were sent in due course to the respondent and amongst them was one nominating him as a candidate. The respondent nevertheless continued to receive the nomination papers and when all had been delivered prepared the voting papers, inserting therein the names of the persons nominated as required by the relevant statutory provision. He did not further act as returning officer and was returned as re-elected. There was nothing to show that the names were inserted in the voting papers otherwise than in their proper order, or that the result of election had been in any way affected by the voting papers having been prepared by the respondent instead of by the person appointed to act as returning officer. Blackburn, J. held that asuming the Chairman's conduct to have been an irregularity, the Court in its discretion ought not to allow an information to be filed against his election, no mischief having been done. He further observed that if, in any future case, it should appear that the Chairman willfully and contumaciously acted at all in his own election, the Court might well, in its discretion, order the filing of an information in order to check such a practice. This is not a case where the motive of the appointing authority in making the appointment came for consideration. It was only said that if it is found in future that the Chairman who was the holder of the office acted willfully and contumaciously in his own election, the Court might, in its discretion, order the filling of an information in order to check such a practice. This case does not support the petitioners. In Mahabir Prasad Sharma v. Prafulla Chandra Ghose and others : : AIR1969Cal198 , the petition for a writ of quo warranto came up for admission and it was dismissed in liming. The learned Judge observed at that stage that the impugned orders of the Governor could not be said to be tainted with mala fide. The question whether the motive of the appointing authority is relevant in a petition for a writ of quo warranto was neither raised nor decided. This case cannot, thereforee, be an authority for the proposition. It is then contended that the view expressed by the Madras High Court in A. Ramachandran v. A. Alagiriswami (supra) with regard to the irrelevancy of the motives or mala fides of the appointing authority has been impliedly over-ruled by the observation of Supreme Court in University of Mysore and another v. C. D. Govinda Rao and another (supra) that proceedings by way of quo warranto 'also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy.' I disagree. The Supreme Court was not considering the question or relevancy of mala fides. It is only stated as a matter of fact that there is no allegation about mala fides against the experts who constituted the Board. This statement cannot be said to be the expression of an opinion that the question of mala fides is relevant. The last case on which the petitioners rely is in re : Banwari Lal Roy and others : (1943-44) 48 Calcutta Weekly Notes 766(23). On June 9, 1944, the Governor passed a composite. order in purported exercise of powers under sub-rule (6) and sub-rule (7) (b) of Rule 5 If of the defense of India Rules. This order recited that the Governor was of the opinion that it was necessary to supersede the Commissioners of the Howrah Municipality for ensuring the due maintenance of the vital services of the said local authority in the event of hostile attack. Under sub-rule (6), he superseded the Commissioners of the Howrah Municipality for a period of one year with effect from the date of the order. Under sub-rule (7) (b) he directed that Nomani, a Deputy Magistrate, shall exercise and perform all the powers and duties which may, by or under any law for the time being in force, be exercised and performed by or on behalf of the Chairman and the Commissioners of the Municipality during the period of supersession. Five persons who were all rate-payers of the Municipality three of whom were also Commissioners thereof filed an information in the nature of quo warranto impleading only Nomani. The reliefs claimed were for Nomani to show cause by what authority he was exercising and performing or claimed to exercise or perform the powers and duties which may be performed or exercised by the Chairman and the Commissioners of the Municipality, why he should not forbear from acting upon or giving effect to the aforesaid order dated June 9, 1944 and why the same should not be recalled or cancelled and injunction issued restraining him from taking any action founded on the said order. Later, the petitioners applied for impleading the Province of Bengal as a party and an order to that effect was made. The primary attack was on that part of the order made under sub-rule (6) whereby the Municipality was superseded and the attack was that the alleged opinion of the Provincial Government that it was necessary to supersede the Commissioners for ensuring the due maintenance of the vital services in the event of hostile attack was not an honest and bona fide opinion but had been procured by one Pain who was the Chairman of the Municilapity. There was no attack on the appointment of Nomani being mala fide. That is the essential difference between that case and the case before me. In the case .before me, there is no order of supersession as such which could be set aside as having been passed for a collateral purpose resulting inevitably in the order of appointment being rendered of no effect. The order of supersession in that case was held to be mala fide and, thereforee, automatically the position in law would be that the Municipality was not superseded and its Commissioners including the Chairman would continue to exercise the powers and perform the duties which they were exercising and performing before the order of supersession. This situation would inevitably result in the order appointing Nomani being rendered of no effect. The real question is whether mala fide of the appointing authority in making the appointment of the particular person who has been appointed is relevant. Such situation did not arise in the case of the Howrah Municipality because any other person could equally have been appointed in place of Nomani. There must be a personal connection between the person appointed to an office and the motive of the appointing authority in appointing him. Such connection was lacking and absent in that case and I, thereforee, do not think it to be an authority for the proposition that the motives of the appointing authority in appointing a particular person are relevant in an information in the nature of quo warranto which is a writ of a technical nature.
(22) The last contention of the Attorney General is that disastrous consequences will follow in the circumstances of this case if a writ of quo warranto is issued. This contention is based on the facts stated in the affidavit of P. P. Nayyar, Joint Secretary to the Government of India, filed during the course of the hearing of these petitions. He states that after the appointment of Justice A. N. Ray as the Chief Justice of India and up to December 31, 1973, 10,958 cases including admission and/or motion matters were disposed of by the Supreme Court and out of this number, 3,025 including regular appeals, writ petitions and admission and/or motion matters were heard and dispossed by the Bench presided over by Justice A. N. Ray as Chief Justice of India. It is further stated that during the aforesaid period, four Judges were appointed to the Supreme Court and thirty-eight Judges were appointed to various High Courts in the country. The Attorney General contends that if Justice A. N. Ray is ousted from his office as Chief Justice of India by issue of a writ of quo warranto, disastrous consequences would follow and all these decisions and appointments would be rendered mullities. I do not wish to give my opinion on the question whether any such disastrous consequences will follow because it is not necessary, in view of the opinion expressed by me already on other points, to decide this question. At the conclusion of his argument in rejoinder, the Attroney General himself stated that if the preliminary objection urged by him found favor with this Court, the preliminary objections urged by the Solicitor General and the Additional Solicitor General need not be decided. I think in a case of this nature, the prayer is as it should be because this appears to me to be a case where only so much and not more than is necessary for the disposal of the petitions should be decided. I, thereforee, conclude :- (1) The question of the motives of the appointing authority in appointing Justice A. N. Ray as the Chief Justice of India is irrelevant in an information in the nature of quo warranto like in the present case. (2) On the contention of the petitioners that the rule of seniority is a rule of law and inheres in Article 124(2) of the Constitution, any writ that may be issued by this Court, will be futile as he would be entitled to immediate re-appointment on the basis of this rule. (3) Even assuming the consultation contemplated by Article 124(2) of the Constitution to be mandatory, the issue of a writ of quo warranto will be futile as Justice A .N. Ray could be immediately re-appointed as the Chief Justice of India as he possesses the qualifications prescribed by Article 124(3) of the Constitution and there is no legal impediment in the way of his re-appointment. For these reasons, I dismiss the writ petitions. The arguments in this case have been comprehensive and the questions involved are purely legal. In these circumstances, I do not think it will be proper to make any orders as to costs and I do not make any such orders. Jagjjt SINGH. J. I agree. S. N. Shankar, J. I agree. V. S. Deshpande, J. I agree. Prakash Narain, J. I agree.