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Supreme Court of India
B.N. Kirpal, Y.K. Sabharwal & K.G. Balakrishnan, JJ.
T. FENN WALTER & ORS.—Appellants
versus
UNION OF INDIA & ORS.—Respondents
Civil Appeal No. 3993 of 2000 from Judgment & Order dated
12.1.2001 of Madras H.C. in W.P. No. 7842 of 2000—Decided on 12.7.2002
(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 of 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 consequently 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 a 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.
K.G. Balakrishnan, J.—Leave granted.
1. A group of Advocates practising 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.
2. 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 Government 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 Government 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.
3. We heard Mr. F.S. Nariman, learned Senior Counsel for the appellants and Mr. 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 Government of Pondicherry and on such appointment, there came into existence a relationship of master and servant between the Pondicherry Government 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 Government and that under Rule 6(5) of the Rules framed under the Consumer Protection Act, 1986, the Government 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
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