The main legal point established in the judgment is the impermissibility of a sitting Judge of the High Court holding another regular post under the control of the Executive and continuing to discharge functions of a High Court Judge, as it undermines the independence and credibility of the judiciary, violating the Constitutional Scheme of separation of Powers and Independence of Judiciary.

JUDGMENT :

S. Muralidhar, J.

The appeal raises the question whether a sitting Judge of the High Court can accept office of another regular post under the control of the Executive and continue to discharge functions of a High Court Judge while holding such office.

2. The Petitioners submit that such functioning is impermissible under the Constitutional Scheme of separation of Powers and Independence of Judiciary, which is a basic structure of the Constitution, as is demonstrated below.

3. The question in this case arose in the context of a Judge of the Madras High Court, who after having accepted the post of President of the Pondicherry State Consumer Disputes Redressal Commission continued to function 15th as a High Court Judge and as President of the Consumer Commission. The post of President of the State Consumer Commission was to be held from 21.5.1999 for a period of five years up to 21.5.2004. The learned Judge was appointed as Judge of the Madras High Court on 19.12.1996 and was due to retire on 15.12.2003 on attaining the age of 62 years. Thus the office of President of the Consumer Commission was not a temporary one, but a regular one with a long tenure and with all the attendant trappings of a regular post. It is submitted that reference has been made to the facts relating to the Learned Judge only to give the background to the issue in this case.

4. The consequence of such an appointment to a Statutory Judicial post is that while functioning as a Judge of the High Court, the Judge concerned is also subject to controls by the State Government under the relevant statute, i.e., the Consumer Protection Act, 1986. Not only is the appointment made by the State Government as per Section 16 of the Act, he is also removable by the Government under Section 10(2) read with Rule 3(5) of the Pondicherry Consumer Protection Rules, 1987 on grounds of conviction, incapacity or abuse of position as to render his continuance in office prejudicial to public interest. Further, such removal has to be on an enquiry by the Government.

5. It is submitted that such removability by the Government is wholly antithetical to the concept of independence of judiciary, to preserve which this Hon'ble Court has held in the Judges' case (1993 (4) SCC 441 & 1998 (7) SCC 739) that the entire control over appointment/transfer and other such terms during the tenure of a Judge of a High Court or the Supreme Court vests only with the Judiciary and not with the Executive.

6. The contention of the 1st respondent that such removal is a necessary concomitant of any office, is no answer. The consequence of such removal by the 181 Executive on the ground of being unfit to hold a statutory office "as being against public interest" would be to undermine the authority of the judge in the eyes of the public and erode his legitimacy as judge of the High Court, which has been so zealously sought to be preserved by insulating the judiciary from executive pressures and providing Constitutional safeguards. The eventuality of such a removal may not be there in any particular case is not a relevant factor to determine the correctness of the action under the Constitutional scheme, for the interpretation cannot vary from individual to individual.

7. This Hon'ble Court in L. Chandra Kumar v. Union of India, (1997 (3) SCC 261) upheld the contention that the various Tribunals under Articles 323-A & 323-B cannot be to the exclusion of the High Court. The main reasons was that the Tribunals were no substitute for the High Court on various grounds. This Hon'ble Court noted that while the practical difficulty of mounting arrears in courts necessitated the continuance of the Tribunals, the reality also was that the Tribunals were subject to executive Interference as the members were subject to executive controls & proximity. Most importantly, this Hon'ble Court noticed the fact that Executive retained the power to remove the members or even to abolish the Tribunals. The Court observed that t