Anand
Kumar Vs. Sri Kattali Bhaskaran & Ors [1988] INSC 16 (19 January 1988)
Sen,
A.P. (J) Sen, A.P. (J) Venkataramiah, E.S. (J) Sharma, L.M. (J)
CITATION:
1988 SCR (2) 728 1988 SCC (2) 50 JT 1988 (1) 154 1988 SCALE (1)120
ACT:
Constitution
of India, 1951) Articles 74. 217(3)-
Determination of age of Chief Justice or Judge of High Court to be decided by
the President of India as a constitutional functionary in consultation with the
Chief Justice of India- Such a question is beyond the reach of Council of
Ministers.
HEAD NOTE:
% The
appellant raised the question as regards the determination of age of the Chief
Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed
against the Judgment and order of the Andhra Pradesh High Court dismissing in limine
the Writ Appeals against the order of dismissal of the Writ Petitions by a
Single Judge of the High Court.
ln the
course of the proceedings, this Court, on January 8, 1988, made certain queries to which the
Additional Solicitor General furnished information broadly on the following
lines:
That a
view in the matter will be taken by the President of India after the advice of
Chief Justice of India is made available, and that all relevant files have been
submitted to the Chief Justice of India along with the opinion as to the effect
of the judgment pronounced by the Andhra Pradesh High Court.
In
view of the information made available, this Court dismissed the Special Leave
Petitions and, ^
HELD:
1. The matter as to the age of the retired Chief Justice or a sitting Judge of
a High Court is a judicial function of the President of India, which has to be
discharged in accordance with the special provisions made under Article 2l7(3)
of the Constitution. [730C-D]
2.
Such a question as to the age of the Chief Justice or a Judge, under Article
217(3) of the Constitution, is beyond the reach of the Council of Ministers
under Article 74 of the Constitution. [730D-E] Union of India v. Jyoti Prakosh Mitter,
[ 197 l ] 3 SCR 483, followed.
729
3.
Since the President of India, in compliance with Article 2l7(3), has referred
the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra
Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of
Mandamus can lie. [730B]
4. The
President of India as a constitutional functionary has
discharged his duties under Article 217(3) and the decision must rest on the
advice of the Chief Justice of India and not the Council of Ministers. [730C]
CIVIL
APPELLATE JURISDICTION: Special Leave Petition (Civil) Nos. 12-12A of 1988.
From
the Judgment and order dated 18.12.1987 of the Andhra Pradesh High Court in
W.A. Nos. 1649 and 1650 of 1987 P.N. Lekhi, M.K. Garg and Lokesh Kumar for the
Petitioner.
Kuldeep
Singh, Additional Solicitor General and Mrs. A. Subhashini for the Respondents.
The
following order of the Court was delivered:
O R D
E R In response to the queries made by this Court by its order dated January 8,
1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the
relevant information as under:
(1) In
the matter of the age of Shri Justice K. Bhaskaran, Chief Justice of the Andhra
Pradesh High Court, the advice and comments of the Chief Justice of India were
sought in terms of Articles 217(3) of the Constitution of India. The files
containing all the relevant papers were referred to the Chief Justice of India
on 28th September, 1987.
(2)
The Chief Justice of India on 29th December, 1987 desired to have an opinion as to the effect of the
judgment pronounced by the Andhra Pradesh High Court concerning the matter of
the age of the Chief Justice Bhaskaran. The opinion was made available to the
Chief Justice of India on 6th January, 1988.
The Chief Justice of India on 11th January, 1988 indicated further course of action in the matter. The file has been
resubmitted to 730 the Chief Justice of India on 16th January, 1988 for his further advice.
(3) A
view in the matter will be taken by the President of India after the advice of
the Chief Justice of India is made available.
In
view of the foregoing, it is clear that the President of India in compliance
with Article 217(3) of the Constitution of India has referred the question as
to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High
Court to the Chief Justice of India for his opinion. That being so, no writ of
mandamus can lie. The President of India as a constitutional functionary has
discharged his duties under Article 217(3) of the Constitution and the decision
must rest on the advice of the Chief Justice of India and not the Council of
Ministers. As laid down in the Union of India v. Jyoti Prakash Mitter,.
[1971]
3 SCR at 503 & 504, the matter as to the age of the Chief Justice or a
sitting Judge of a High Court is a judicial function of the President of India,
which has to be discharged in accordance with the special provisions made under
Article 217(3) of the Constitution. Such a question as to the age of the Chief
Justice or a Judge under Article 217(3) of the Constitution is beyond the reach
of the Council of Ministers under Article 74 of the Constitution.
J.C.
Shah, C.J., speaking for the Constitution Bench has laid down the law in these
words:
It is
necessary to observe that the President in whose name all executive functions
of the Union are performed is by Art. 217(3)
invested with judicial power of great significance which has bearing on the
independence of the Judges of the Higher Courts. The President is by Art. 74 of
the Constitution the Constitutional head who acts on the advice of the Council
of Ministers.... " The question as to the age of Shri K. Bhaskaran, the
Chief Justice of the Andhra Pradesh High Court must, therefore, be decided by
the President of India on the advice of the Chief Justice of India as enjoined
by Article 217(3) of the Constitution in the light of the principles laid down
by this Court in Jyoti Prakash Mitter's, case.
The
High Court, in our considered opinion, should have thrown out the petition
under Art. 226 of the Constitution at the very threshold because the President
of India was seized with the question under Article 217(3) of the Constitution.
Indeed, it appears from the judgment of the 731 High court that when the
learned counsel for the Union of India A informed the Court that the President
of India is seized with the question, the counsel for the appellant conceded
that the writ of quo warranto is not maintainable.
The
special leave petitions are accordingly dismissed.
G.N.
Petitions dismissed.
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