Está en la página 1de 9

The Indian Jurist | www.theindianjurist.

com

*IN THE HIGH COURT OF JUDICATURE AT HYDERABAD


FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA
PRADESH

* HONBLE SRI JUSTICE V.RAMASUBRAMANIAN


AND
* HONBLE SRI JUSTICE M. GANGA RAO

+W.P.(SR).NO.208510 of 2017

%Date: 21-11-2017

#Between:
1. U.D. Jai Bhima Rao, S/o. U.K. Rao, Advocate, R/o. H.No.13-5-
431/5/C1, Tallagadda, Hyderabad.
2. M. Chalapathi, S/o. M. Kotaiah, Advocate, R/o. H.No.38-16-103/C,
Shivanagar Colony, Sainikpuri x Roads, Secunderabad-500 094.
3. T.V. Ramesh, S/o. T.V. Ramana, Advocate, R/o. H.No.4-6-355/A/1,
Esamia Bazar, Koti, Hyderabad 500 027.

.. Petitioners
And

1. Union of India, Rep. by its Secretary to the Honorable President of


India, New Delhi.
2. High Court of Judicature at Hyderabad for the State of Telangana
and the State of Andhra Pradesh, rep. by its Registrar General,
High Court Buildings, Hyderabad.
3. Mr. Justice D.V.S.S. Somayajulu, Judge of High Court of Judicature
at Hyderabad, for the State of Telangana and the State of Andhra
Pradesh, Hyderabad.
. Respondents

! Counsel for the Petitioner : Mr. T. Kumar Babu

^ Counsel for Respondent No.1 : Mr. K. Lakshman ASG

<GIST:
> HEAD NOTE:
? Cases referred
The Indian Jurist | www.theindianjurist.com
2 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

HONBLE SRI JUSTICE V. RAMASUBRAMANIAN


AND
HONBLE SRI JUSTICE M. GANGA RAO

WRIT PETITION (SR) No.280510 of 2017

ORDER: (Per VRS,J)

This (mis)adventurous litigation is taken up by three advocates

practicing on the file of this Court, seeking the issue of a writ of quo

warranto as against the 3rd respondent herein, who was appointed by a

Presidential Notification, after being recommended by the Collegium of

this Court and accepted by the Collegium of the Supreme Court.

2. Heard Mr. T. Kumar Babu, learned counsel for the petitioners.

3. The short ground on which the petitioners have come up with

the above writ petition is that the 3rd respondent herein did not practice at

any point of time on the file of the High Court of Judicature at Hyderabad

and that he had always been a practitioner of law in the Muffasil Courts.

Therefore, the petitioners contend that the 3rd respondent did not satisfy

the eligibility criteria prescribed in Article 217 (2)(b) of the Constitution to

be elevated as a Judge of this court.

4. At first blush, we thought that the writ petition could have been

filed out of ignorance of law, since the issue raised by the petitioners has

already been settled by the decisions of atleast 2 Constitution Benches of

the Supreme court and it is no longer res integra. But a perusal of the

affidavit filed in support of the writ petition shows that it was not out of

ignorance, but out of something else, that the petitioners have come up

with such a stand. It is quite unfortunate that despite knowing the law

declared by the Supreme Court in a catena of judgments, a group of

lawyers should muster the courage to come up with this vexatious

petition, contending not only that the appointment of the 3rd respondent
The Indian Jurist | www.theindianjurist.com
3 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

was contrary to law, but also contending that all the decisions of the

Supreme Court in this regard with respect to the interpretation of Article

217(2)(b) of the Constitution are illegal.

5. As a matter of fact, way-back in the year 1968 a Constitution

Bench of the Supreme Court held in O.N Mohindroo v. Bar Council of

Delhi1, that the object of the Advocates Act, 1961 was to constitute one

common Bar for the whole country. In paragraph-10 of its decision in O.N.

Mohindroo, the Constitution Bench of the Supreme Court pointed out that

once a person is enrolled in any one of the State Bar Councils, he

becomes entitled to practice in all Courts including the Supreme Court.

The Constitution Bench further observed that all those who have been

enrolled have the right to practice in the Supreme Court as well as in the

High Courts.

6. In Prof. Chandra Prakash Agarwal v. Chaturbuj Das

Parikh2, another Constitution Bench of the Supreme Court was concerned

with a petition seeking the issue of a writ of quo warranto challenging the

appointment of the 1st respondent therein, as a Judge of the Allahabad

High Court. The basis on which the challenge to the appointment of the

1st respondent before the Supreme Court was made, was that he was not

an Advocate of a High Court within the meaning of Article 217 (2) (b) of

the Constitution.

7. After pointing out that there is a great deal of difference

between the words an Advocate of a high court appearing in Article

217(2) (b) of the Constitution and the words practised as an Advocate,

the Supreme court took note of the language employed in various statutes

such as the Legal Practitioners Act, 1879, the Indian Bar Councils Act,

1
AIR 1968 SC 888
2
AIR 1970 SC 1061
The Indian Jurist | www.theindianjurist.com
4 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

1926 and The Government of India Acts of 1915 and 1935 and rejected

the very same contention as is sought to be raised in this writ petition.

8. Interestingly, history shows that the legal position even before

the advent of the Advocates Act, 1961, was just the same as it stands

today. This can be seen from what transpired in the Madras High court in

the case of one A.Alagiriswamy. He was enrolled as an Advocate in the

year 1936 but practiced only in the muffasil courts at Madurai, forming

part of the erstwhile Madras Presidency, till 1941. He was then appointed

as a District Munsif in 1941 and he continued to serve as such till 1947.

From 1947 till 1959, he occupied several non judicial posts. Suddenly he

was appointed as the Government Pleader in the High Court of Judicature

at Madras on 1-7-1960, patently with a view to pave the way for his

eventual elevation to the Bench of the High Court. First his appointment

as the Government Pleader itself was challenged before a Division Bench

of the Madras High court. Though the challenge was rejected by the

Bench, one of the Honble Judges constituting the Bench opined that the

Government misused their power and that the apparent suitability of Sri

Alagiriswami to be appointed Government Pleader really concealed the

true intention of the Government to confer a qualification on Sri

Alagiriswami to be considered for the post of a Judge of the High Court in

the future. After the dismissal of the writ petition challenging the

appointment of Sri Alagiriswami as the Government Pleader of the Madras

high court, the Government proceeded with its original plan and elevated

him to the High Court. Immediately a quo warranto was filed challenging

his appointment. It was argued in the said writ petition that Article 217

(2) (b) should be construed to be referring only to an Advocate actually

practicing in the High court and that such a view is warranted by the
The Indian Jurist | www.theindianjurist.com
5 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

different sets of expressions used in Article 217(2)(b) and Article 233 (2).

But the Madras High court rejected those contentions in a judgment

reported in V.G.Row vs. A.Alagiriswami3 and the rest is history (Justice

A.Alagiriswami went on to become a Judge of the Supreme court and

retired).

9. In fact, the decision of the Madras High court in V.G.Row was

cited with approval by the Constitution Bench in Prof. Chandra Prakash

Agarwal.

10. Similarly, another person by name N. Krishnaswamy Reddy,

who was a Public Prosecutor in the District Court was brought to the

Madras High court and appointed first as the Public Prosecutor in 1964,

later as an Advocate General for a brief period of time before being

elevated to the Bench of the Madras High Court, in 1966. The same came

to be challenged in a writ of quo warranto but the challenge was rejected

by a Division Bench of the Madras High Court. Thereafter, a spate of

appointments from the Muffasil Bar took place in the Madras High court,

notable among them being that of Justice K.A. Sengottuvelan (from the

Coimbatore Bar), Justice K.M.Natarajan and Justice V.Kanagaraj (both

from the Salem Bar). Therefore, it is too late in the day for the petitioners

to grind the very same flour in the very same machine.

11. The interpretation given to Article 217 (2)(b) of the Constitution

Bench in Prof. Chandra Prakash Agarwal, came to be reiterated by the

Supreme Court even as late as in 2009 in Mahesh Chandra Gupta v.

Union of India4 In the said decision, the Supreme Court quoted

passages both from the decision in O.N. Mohindroo as well as the decision

in Prof. Chandra Prakash Agarwal and reiterated the same view.


The Indian Jurist | www.theindianjurist.com
6 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

12 After referring to all the aforementioned decisions of the

Supreme Court whereunder the issue has already received approval in a

particular way, the learned Counsel for the petitioners raised three

contentions before us, namely, (1) that the interpretation given in those

cases were a dishonest interpretation of law; (2) that a dishonest

interpretation of the Constitution cannot be taken to be law; and (3) that

in any case, such a dishonest interpretation cannot be taken to be a

binding precedent.

13. At least till about 10 years ago, no member of the Bar would

have ventured to advance such unpalatable arguments. At any rate, no

Bench would have tolerated such an argument to be made across the Bar

in those days. But today, we have come to reconcile ourselves to several

such things, since people now believe that the level of maturity of a

person is measured by the thickness of his skin.

14. Quoting a passage from H.M. Seervai in his Book

Constitutional Law of India the learned counsel for the petitioners

contended that the whole theory of precedents proceeds on the basis that

the judgments become binding precedents, only if they had been

delivered honestly. The passage that is relied upon by the learned Counsel

for the petitioners reads as follows.

The whole theory of precedents proceeds on the basis


that judgments binding as precedents have been delivered
honestly. And the same holds good when earlier decisions
of Constitution Benches of the Supreme Court are
interpreted by smaller benches as binding precedents.
Standard textbooks on precedents proceed on the basis
that judges deliver their judgments honestly.
Consequently, those textbooks contain no guidance as to
what is to happen when it can be demonstrated that in
interpreting earlier judgments, judges have acted
dishonestly (i.e. not honestly). In my submission, it is
obvious that judgments delivered dishonestly (not
honestly) cannot lay down the law or create a binding
precedent. The power of Judges to interpret earlier
judgments of larger benches of the Supreme Court is a
power to ascertain whether those judgments lay down the
The Indian Jurist | www.theindianjurist.com
7 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

law, i.e. the principles which would be binding on all courts


in India. Having ascertained those provisions, Judges must
decide whether they apply to the facts of the case before
them. Dissenting judgments in a number of Supreme Court
and High Court show that judges may honestly express
different opinions on the provisions of the law or of the
Constitution which they have to interpret. However, the
power to interpret does not include the power deliberately
to misinterpret. For example, no power is given to a court
to say that black is white.

15. There are two mischiefs in the above argument. The first is that

an interpretation that has survived for 5 decades (from the decision in

V.G.Rows case rendered in 1967 until now) cannot be painted as a

dishonest interpretation. The second mischief is that the petitioners are

calling upon the High court to declare as illegal, the decisions of two

Constitution Benches of the Supreme Court which were followed later by a

two Member Bench of the Supreme Court.

16. In fact the main plank of the submission of the learned counsel

for the petitioners is that the Constitution is supreme and that the

interpretation of law made by Courts cannot go beyond the Constitution.

But unfortunately for the petitioners it is very same Constitution which has

taught us that the law laid down by the Supreme Court is binding upon

everyone, including the High Courts.

17. Drawing our attention to the decision of a 3 Member Bench of

the Supreme Court in Deepak Aggarwal v. Keshav Kaushik5, it was

contended by the learned counsel for the petitioners that the

interpretation given by the Supreme Court in Prof. Chandra Prakash

Agarwal and Mahesh Chandra Gupta would not hold water any more. But

the said contention is also completely misconceived. Deepak Aggarwal

arose out of the litigation that concerned appointment to the judicial

service. The decision in Deepak Aggarwal revolved around the meaning of

expression the service in Article 233 (2) of the constitution and the
The Indian Jurist | www.theindianjurist.com
8 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

expression advocate or pleader appearing in Article 233 (2). The

interpretation of Article 217(2)(b) did not fall for consideration in Deepak

Aggarwal and the decision in Deepak Aggarwal is not to the effect that the

two earlier Constitution Benches were completely wrong in their

interpretation of Article 217(2)(b).

18. The learned counsel for the petitioners also invited our

attention to several quotable quotes from eminent men such as Dr. B. R.

Ambedkar, Sir John Panrell et al, to buttress his contention as to how law

is to be interpreted. But judicial discipline demands that we follow judicial

precedents and not proverbs and quotations, irrespective of the wisdom

found in those quotes and irrespective of the greatness of people who

said them.

19. In fine, we find that the writ petition is mischievous and

completely devoid of merits. The contention that this Court should declare

the decisions of two Constitution Benches of the Supreme Court as illegal,

is abhorring, atrocious and obnoxious. Therefore, this writ petition is

dismissed as not maintainable.

As a sequel, miscellaneous petitions pending in this writ petition, if

any, shall stand closed. There shall be no order as to costs.

______________________
V. RAMASUBRAMANIAN, J.

_______________
M. GANGA RAO, J.
21st November, 2017
Js.
The Indian Jurist | www.theindianjurist.com
9 VRS,J & MGR,J.
W.P.(SR).No.280510/2017

HONBLE SRI JUSTICE V. RAMASUBRAMANIAN


AND
HONBLE SRI JUSTICE M. GANGA RAO

WRIT PETITION (SR) No.280510 of 2017

21st November, 2017


Js.