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Shri Hans Raj Gupta was initially working as an Upper Division Clerk-cure-Head Clerk. Thereafter, he worked from January 14, 1947 to October 19, 1954 as the Registrar to the Pensions Appeals Tribunal, Jullundur Cantonment. After relinquishing that post, he was reverted as an Upper Divi- sion Clerk-cum-Head Clerk, which office he held till Febru- ary 17, 1957. Subsequentiy, he was appointed as an Assistant Settlement officer in which post he worked fill September 1962. It is obvious, and requires no clever argument to show, that Shri Gupta was holding clerical posts which, with some courtesy may be described as posts calling for and furnishing administra- tive experience. As an Upper Division Clerk, even if the duties of that post were combined with those of the Head Clerk, Shri Gupta was nowhere in the shadow of a judicial office. As a Registrar of the Pensions Appeals Tribunal, Jullundur Cantonment, he was admittedly discharging adminis- trative functions. A circumstance which seems to have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a judicial or quasi- judicial body and since Shri Gupta was closely associated with it, does not matter in what capacity, he could be said to hold a judicial office. Administrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office. This was a wholly misconceived approach to a matter of some moment for, were it so, many a judicial clerk would be qualified to be appointed to a judicial office. Having never held any judicial office, Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court. His appointment was therefore illegal and his award without jurisdiction. We are happy to note that the State Government did not take the time of the DiVision Bench of he High Court and of this Court in arguing an impossible proposition. Nevertheless, the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on the Plea that Shri Gupta's appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award. Reliance is placed in support of this submission on the following passage in Cooley's "A Treatise on the Constitutional Limitations"

Equally strong reliance was placed by the State Govern- ment on a decision of the Ontario Supreme Court in Rs Toronto N. Co. City of Tornoto (1) in which, after an exami- nation of several American and other decisions, Meredith, C.J.O., observed:

"That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." (PP. 551-552) Learned counsel for the State, Shri Naunit Lal, further drew our attention to a decision of the High Court of Tra- vancore-Cochin in Bhaskera Pillai and Ant. rs. State(2) which, relying upon the passage in Cooley's Constitutional Limitations and the Canadian case, held that the appoint- ment of the Chief Justice of that Court could not be ques- tioned collaterally in a proceeding for leave. to appeal to the Supreme Court against the decisions rendered by him. Some sustenance was also sought to the same argument from a decision of a Full Bench of (1) 46 Dominion Law Report 547.

Considering the nature and course of proceedings in the instant case, it seems to us impossible to hold that the challenge to Shri Gupta's appointment was made in a collat- eral proceeding. That Shri Gupta's appointment was not challenged in the very proceeding before him does not meet the point and in any case, if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto, the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer. The 1st respondent, the Haryana Co-operative Transport Ltd., against whom Shri Gupta gave the award, filed a writ peti- tion in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and, there- fore, the award given by him was without jurisdiction. The challenge to Shri Gupta's appointment having been made by a writ petition under arts. 226 and 227 of the Constitution, to which Shri Gupta was impleaded as a partyrespondent, the challenge was made directly in a substantive proceeding and not collaterally. The writ petition was filed mainly with a view to challenge Shri Gupta's appointment on the ground that he was not qualified to fill the post to which he was appointed. Having been impleaded to the writ peti- tion he had a clear and rightful opportunity to defend his appointment. The proceedings by way of a writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so-called judicial decision, but the proceed- ing was taken principally and predominantly for challenging the appointment itself. None of the decisions, nor indeed the passage in Cooley's Treatise, is therefore, any answer to the prayer that the award be declared to be ultra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given.

The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justi- fy the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award. Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award (3) I.L.R. 16. All. 136.

4---1546 SCI/76 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose func- tions the award was rendered by him. The relief of certio- rari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direc- tion as it deemed fit and proper in the circumstances of the case. There is no magic in the use of a formula. The facts necessary for challenging Shri Gupta's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualified to hold the post of a Judge of the Labour Court.