S. N. Andlay, C.J.
(1) This petition is for grant of certificates of fitness under Articles 132 and 133 of the Constitution of India against the judgment dated February 15, 1974 of a Special Bench of this Court.
(2) The writ petition filed by the petitioner was heard by the Special Bench Along with three similar writ petitions challenging the appointment on April 25, 1973 with effect from April 26, 1973 of Justice A. N. Ray, one of the respondents herein, then a Judge of the Supreme Court of India, as the Chief Justice of India. Counter affidavits were filed on behalf of some of the respondents which raised certain preliminary objections to the maintainability of the writ petition. Merits of the contentions were not examined and the writ petition was dismissed because we upheld three of the preliminary objections whereupon our conclusions were expressed thus:
'(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 warrante 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 the 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.'
(3) On the first question this Court found support from the decisior of the Madras High Court in A. Ramachandran v. A. Alagiriswami : : AIR1961Mad450 . We also examined Queen v. Ward: 1873 Law Reports 8 Queen's Bench 210(2) and re: Banwari Lal Royy and others: (1943-44) 48 Calcutta Weekly Notes 766(3) which, in the opinion of this Bench did not support the petitioner.
(4) There is no authority of the Supreme Court on this question which, to our mind, is undoubtedly a substantial question of law of general importance as it is likely to arise in many writs in the nature of quo warranto. The learned Additional Solicitor General who has appeared to oppose the grant of the certificate submits that even if it be so, the question is not such as needs to be decided by the Supreme Court because firstly there can be no doubt in the matter nor was any expressed by the Special Bench and secondly because the issue of a writ is a matter of discretion. This approach to our mind is not relevant when considering the question of grant of a certificate. Whether the Court hearing a matter is in doubt about its conclusion or not is not a requirement of Article 133. It first requires a substantial question of law of general importance as admittedly the question is. To the extent to which the Special Bench has expressed its opinion, there are not many decisions barring, perhaps, the afore said Madras decision. On the question of exercise of discretion it cannot, we think, be laid down as a general proposition that questions involving matters of discretion cannot qualify for a certificate. The issue of writs under Article 226 of the Constitution is a matter of descretion with the High Court. It cannot be said as a general rule that the High Court should not certify any question under Article 133(1) of the Constitution merely because it arises in a writ petition under Article 226 of the Constitution. It depends upon the substantial nature of the question raised and the need of such question being decided by the Supreme Court in the opinion of the High Court. The question is one which is likely to arise in many cases and, thereforee, it is, in our opinion, a question that needs to be decided by the Supreme Court so that the law in this country is known and settled. We, thereforee, think that the first question mentioned above qualifies for the grant of a certificate under Article 133(1) of the Constitution.
(5) The second and the third questions mentioned above relate to the principle of the futility of issuing a writ of quo wrarranto where the holder of the public office is entitled to immediate re-appointment there being no legal impediments in the way of such re-appointment. These two questions were decided on the assumption that Article 124(2) of the Constitution contains a rule of law as to the appointment of the Chief Justice of India by the rule of seniority amongst the Judges of the Supreme Court. We have not given our view on the construction of Article 124(2) of the Constitution. thereforee, no question of interpretation of this Article arises so as to entitle the petitioner to a certificate under Article 132 of the Constitution. However, the principle of futility which was recognized in the leading case of R v. Speyer : (1916) 1 K.B. 595 has been applied in this country by various High Courts as will appear from the various judgments which have been mentioned by us. The only dissenting note is in Govinda Panicker v. K. Balakrishna Marar and another: Air 1955 TCin 42 Though technically there may be said to be divergence of opinion even amongst the High Courts in this country, by and large the principle of futility has been accepted and applied by the various High Courts. Nevertheless, there is no decision of the Supreme Court as to whether this principle is applicable or should be applicable in this country. Undoubtedly, again, the questions are substantial questions of law of general importance and in our opinion, they need to be decided by the Supreme Court. The second and the third questions, thereforee, also qualify for a certificate under Article 133(1) of the Constitution.
(6) The petitioner contends that another question which qualifies is the question that on his appointment as Chief Justice of India, Justice A. N. Ray must be deemed to have demitted his office as a Judge of the Supreme Court 'by accepting the impugned warrant, relinquishing his chair, allowing it to be occupied by another and acquiescing in the act particularly so when all the 13 other offices of judges of Supreme Court stood filled before the death of Mr. Justice Mookerjee. Since the number of judges is fixed under statute Mr, Ray had no lien on it once he moved to the office of Chief Justice and thus ceased to be a puisne judge of the Supreme Court. The petitioner's contention was that Chief Justice was a judge of the Supreme Court in his capacity as the Chief Justice but not a puisne judge.' We have rejected this contention holding, after an examination of the various provisions of the Constitution, that even on appointment as such, the Chief Justice of India or the Chief Justice of a High Court continues to be a Judge of the respective Court. We do not find any substance in the contention of the petitioner and even though reference has been made to some provisions of the Constitution in coming to our conclusion, we are unable to certify that this question is either a substantial question of law as to the interpretation of the Constitution within the meaning of Article 132(1) of the Constitution or a substantial question of law of general importance which needs to be decided by the Supreme Court within the meaning of Article 133(1) of the Constitution. We are, thereforee, unable to grant any certificate in respect of this question.
(7) In the result, we certify that the first three questions mentioned in the opening part of this order qualify for a certificate under Article 133(1) of the Constitution and we certify the case as such. We do not think there should be any order as to costs of this petition.