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2002(4) Supreme 577
SUPREME COURT OF INDIA
(From Madras High Court)
B.N. Kirpal, CJ., Y.K. Sabharwal and K.G. Balakrishnan, JJ.
T. Fenn Walter & Ors. -Appellants
versus
Union of India & Ors. -Respondents
Civil Appeal No. 3993 of 2002
(Arising out of SLP (C) No. 7482 of 2001)
Decided on 12-7-2002
Counsel for the Parties :
For the Appellants : F.S. Nariman, Sr. Advocate, Subhash C. Sharma, Ms. R. Vaigai, S. Vallinayagam and S. Muralidhar, Advocates.
For the Respondents : K. Parasaran and R. Mohan, Sr. Advocates, V. Balachandran, V.G. Pragasam, V. Balaji, P.N. Ramalingam, S. Wasim A. Quadri and Ms. Anil Katiyar, Advocates.
Held : It cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation. Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the Constitutional position being occupied by the Judge. Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior court. However, the appointment of Judges to head or chair a commission of inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these commissions takes considerable time and there are several instances where the work of the commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior courts, it would be difficult to lend services of a Judge for such commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt. In some matters, when political issues are also involved, even impartiality and objectivity of the court may sometimes be questioned due to some extraneous and oblique motives. The public image and prestige of the Court as guardian of the Constitution and rule of law has to be maintained. It is desirable that the Judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission. The image and the authority of the Court, which is of utmost importance, has to be upheld. Justice Harlan F. Stone in a letter as far back as in 1953 wrote : "It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court." (Harvard Law Review (Vol. 87 1953-54). Keeping in view all these aspects, the appointment of a sitting Judge as a commission of Inquiry has to be made only on rare occasions if it becomes necessary for the paramount national interest of the country. When a sitting Judge is appointed to another post, which is whole-time and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way. (Paras 12, 13, 14 & 15)
(ii) Broad guidelines as to the matter in which the appointment of a sitting Judge of a High Court to a commission should be dealt with.
Held : (1) Appointment of a sitting Judge to the following offices may not be objectionable :
(a) As a commission of inquiry under the Commissions of Inquiry Act.
(b) Judicial office which is of such a high character and where it has to be filled up by a sitting Judge to fulfil the requirement of law, e.g. under Article 262 of the Constitution of India which provides for adjudication of any dispute with respect to the use, distribution or control of water or any inter-State river or river-valley, read with Inter State Water Disputes Act, 1956.
(c) Where expertise and experience of a sitting Judge is required to discharge the functions, a sitting Judge may be appointed, for example, as a Member of the Finance Commission or Law Commission.
(2) Appointment of sitting Judge to a Tribunal is not desirable where the adjudicating members are composed of other members who are not Judges or qualified to be appointed as Judges, such as bureaucrats, revenue officials, etc.
(3) So also, appointment of sitting Judge to a Judicial Tribunal is not desirable where the statute or the rules and regulations framed therein contemplate provisions for removal from such office or other disciplinary action by any authority.
(4) When a sitting Judge is appointed to a post or Tribunal, he shall be amenable to the disciplinary jurisdiction only in the manner provided for in Article 124(4) of the Constitution of India if he is a Judge of the Supreme Court or in the manner provided for in proviso (b) to Article 217(1) read with Article 124(4) of the Constitution of India if he is a Judge of a High Court.
(5) Where the post may not be a whole time post but the nature of duties are such that his order as a Tribunal or Commission would be subjected to the supervisory jurisdiction of the High Court under Article 226, 227, a sitting Judge of the High Court may not be appointed to such post, but if the sitting Judge concerned has only a short period to retire from service, he may be appointed, but after accepting the full-time post, he shall not sit as a Judge and discharge duties and functions [both judicial and administrative] as a sitting Judge of High Court, even though he may not demit office consequent on his appointment to a full-time post.
(6) When the Chief Justice of a High Court is consulted for appointment of a sitting Judge as Member, Chairman, Vice Chairman or President of any Court, Commission or Tribunal and it is a whole time post, the Chief Justice shall bear in mind the relevant circumstances and shall not compromise the dignity of the office of the sitting Judge and shall strive to preserve the independence of judiciary.
(7) When a sitting Judge who has only a short period to retire from service is appointed to a post, he shall express his willingness to relinquish the remaining tenure as a Judge and then only his service shall be made available for such post. (Para 16)
JUDGMENT
K.G. Balakrishnan, J.-Leave granted.
2. A group of advocates practicing in the High Court of Madras filed a writ petition alleging that a sitting Judge of that High Court ceased to be a Judge as he was appointed as President of the State Consumer Disputes Redressal Commission, Pondicherry, (for short the State Commission ) and prayed for an appropriate writ or other directions. The writ petition was dismissed by a Division Bench of the Madras High Court and aggrieved by the same, the present appeal is filed.
3. The post of the President of the State Consumer Disputes Redressal Commission at Pondicherry was being manned by a retired High Court Judge. After the completion of his term of office, nobody else was willing to be considered for appointment as President of the State Commission. Pondicherry being a small Union Territory with limited financial resources could not afford to have a full-time President for the State Commission. The post was lying vacant for a considerable period. The correspondence produced in this case would show that a Judge of the Madras High Court, who was the administrative Judge for Pondicherry, was requested by the then Chief Justice of the High Court to take up the post of President of the State Commission at Pondicherry. As the Hon ble Judge was willing to be the President of the State Commission, Pondicherry, his name was recommended by the Chief Justice and, the High Court, by D.O. letter dated 25.11.1998, informed the Pondicherry Govt. to initiate the process of appointment. It was pointed out that Section 2(1)(c)(i) of the High Court Judges (Conditions of Service) Act, 1954 necessitates the concurrence of the President of India in the appointment of a sitting Judge of the High Court. The Govt. of Pondicherry on 21.5.1999 issued a Notification appointing the sitting Judge of the Madras High Court as President of the State Commission. A communication also was issued from the Ministry of Law, Justice and Company Affairs, that the President of India was pleased to request the Judge to function as President under the Consumer Protection Act and that the time spent by him in the performance of the above functions would be counted as "Actual Service" within the meaning of Para 11(b)(i) of Part-D of the Second Schedule to the Constitution of India read with Section 1(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act, 1954. While the Judge was continuing as President of the State Commission, the present writ petition was filed and the Judge resigned from the post of President of the State Commission. We are no longer concerned with the reliefs sought for in the writ petition; however, the matter is of some constitutional importance, as sitting Judges are quite often appointed to various posts and Tribunals and whether they can still discharge the duties as sitting Judges is a vexed question.
4. We heard Shri F.S. Nariman, learned Senior Counsel for the appellants and Shri K. Parasaran, learned Senior Counsel who appeared for the respondent. Learned Counsel for the appellants submitted that the Judge of a High Court occupies a high constitutional post and therefore, he shall not be expected to hold a post under any other authority. It was pointed out that in the instant case, a sitting Judge was appointed to a full-time post under the Govt. of Pondicherry and on such appointment, there came into existence a relationship of master and servant between the Pondicherry Govt. and the Judge who held the post of Chairman. It was argued that the State Commission is a regular statutory body and the Chairman of the State Commission was holding a post under the Govt. and that under Rule 6(5) of the Rules framed under the Consumer Protection Act, 1986, the Govt. can remove the President for any of the reasons mentioned therein. The counsel for the appellants contended that these provisions will make serious inroads into the independence of the judiciary. It was also contended that memb
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