Madras High Court
Logeshwar vs 4 Mr. M.K.Stalin on 27 April, 2021
W.P.No.3387 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.3387 of 2021
Logeshwar ... Petitioner
Vs
1 State of Tamil Nadu rep. By its
Chief Secretary to Government,
Public (Human Rights) Department
Fort St.George Chennai 600 009
2 The Secretary
Tamil Nadu State Human Rights Commission
143 P.S.Kumarasamy Raja Salai
Raja Annamalaipuram Chennai 28
3 Mr. Justice S.Baskaran (Retd.)
Chairperson, T.N.State Human Rights Commission
143 P.S.Kumarasamy Raja Salai,
Raja Annamalaipuram Chennai 28
4 Mr. M.K.Stalin
Dravida Munnetra Kazhagam
Leader of Opposition Party
Tamil Nadu Legislative Assembly
369 Anna Salai Anna Arivalayam
Teynampet Chennai 17 ... Respondents
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W.P.No.3387 of 2021
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration declaring the G.O.(Ms.) No.701 dated
30.12.2020 issued by the 1st respondent appointing the 3rd respondent
to the post of chairperson in the 2nd respondent commission as null and
void, unconstitutional, illegal and arbitrary exercise of powers on the
part of the 1st respondent and consequently direct the 1st respondent
to invite all eligible and suitable persons to offer their candidature and
consider their merit on a rational basis and appoint the most suitable
person.
For Petitioner : Mr.A.Sirajudeen, Senior Counsel,
for Mr.K.Jaisankar
For Respondents : Mr.Vijay Narayan,
Advocate-General
for respondents 1 and 2
Assisted by
Mr.V.Jayaprakash Narayanan,
State Government Pleader
ORDER
(made by the Hon'ble Chief Justice)
The writ petition is utterly misconceived and no further time be
wasted thereon. These frivolous matters tend to take up substantial
Court time and, more often than not, counsel furthering hopeless
causes tend to dilate and seek to rely on judgments that may have no
bearing on the issue at hand.
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W.P.No.3387 of 2021
2. The petitioner says that the office of the Chairman of the
State Human Rights Commission is an office under the State within the
meaning of Article 16(1) of the Constitution. The petitioner asserts that
to fill up such post, all eligible persons should have been given an
opportunity to apply therefor and should have been considered on
merits.
3. Under the Protection of Human Rights Act, 1993, Chairpersons
of State Human Rights Commissions were usually retired Chief Justices
of High Courts, but pursuant to an amendment effected on August 2,
2019, the Chairperson of a State Human Rights Commission may now
be a Chief Justice or a Judge of a High Court. It is not necessary that
the Chairperson of the State Human Rights Commission must have
been a Chief Justice or Judge of that State itself.
4. The key provision pertaining to the appointment of the
Chairperson and the Members of the State Commission is Section 22 of
the Act of 1993. Section 22(1) mandates that the Selection Committee
for the purpose of selecting the Chairperson and the members of the
State Human Rights Commission would be the Chief Minister, Speaker
of the Legislative Assembly, the Minister in-charge of the Department
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W.P.No.3387 of 2021
of Home in that State and the Leader of the Opposition in the
Legislative Assembly. However, if a State has a Legislative Council, the
Chairperson of such Council and the Leader of the Opposition in the
Council are also ex-officio members of the Selection Committee. The
Chief Minister of the State is the Chairperson of the Selection
Committee.
5. Thus, the process of appointment involves consultation
between the members of the Selection Committee and the majority
decision of the Selection Committee will prevail as long as the person
appointed fills the eligibility criteria indicated in Section 21 read with
parts of Section 22 of the Act.
6. Loosely speaking, a Chairperson maybe a Chief Justice or a
Judge of any High Court and may also be appointed before he has
demitted office as Judge, subject to the permission of the Chief Justice
of the relevant High Court being obtained. However, such provision
does not imply that a sitting Judge of a Court continues to remain a
sitting Judge of such Court while taking up duties as the Chairperson
or a member of a State Human Rights Commission. What the relevant
provision means is that at the time of appointment, if the relevant
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W.P.No.3387 of 2021
person is a sitting Judge, he may be appointed with the permission of
his Chief Justice. The Act is silent as to the assumption of office in the
Human Rights Commission by a sitting Judge; but it goes without
saying that a person cannot be a High Court Judge and the
Chairperson or a Member of the Human Rights Commission
simultaneously.
7. The principal grievance of the petitioner appears to be that
the post was not advertised. Apart from the fact that the statute does
not require any advertisement, in this case, there is an exalted
Selection Committee which is ordained by the statute and it is not an
ordinary process of selection. The Chief Minister of a State, in
consultation with the Speaker of the Legislative Assembly, the Minister
of Home and the Leader of the Opposition would choose an appropriate
person to be appointed as Chairperson or others as Members of the
State Commission. As long as the appointee fulfils the eligibility
criteria, that would suffice. This is because unlike ordinary
appointments, these are crucial posts where appointments are
primarily made by invitation. The Selection Committee may discuss
such names as they may choose and even if there is no advertisement
issued, the process cannot be flawed. From the counter-affidavit of
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W.P.No.3387 of 2021
the State, it appears that the selection was made from a list of two
retired Chief Justices and 39 retired Judges of this Court, all of whom
fulfilled the eligibility criteria.
8. Since the best arguable case of the petitioner appears to be
contrary to the provisions of Section 21 and 22 of the Act of 1993, the
present incumbent need not be disturbed as he has not been issued
notice. The State is represented and learned Advocate-General has
justified the appointment challenged by the petitioner.
9. W.P.No.3387 of 2021 is dismissed. W.M.P.Nos.3866, 3869
and 10335 of 2021 are closed. There will be no order as to costs.
(S.B., CJ.) (S.K.R., J.)
27.04.2021
Index : no
tar
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W.P.No.3387 of 2021
To:
1 The Chief Secretary to Government,
Public (Human Rights) Department
Fort St.George Chennai 600 009
2 The Secretary
Tamil Nadu State Human Rights Commission
143 P.S.Kumarasamy Raja Salai
Raja Annamalaipuram Chennai 28
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W.P.No.3387 of 2021
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(tar)
W.P.No.3387 of 2021
27.04.2021
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