T. FENN WALTER AND ORS. versus UNION OF INDIA AND ORS.

Citation: [2002] SUPP. 1 S.C.R. 134 · Decided: 12-07-2002 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Disposed off

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Judgment (excerpt)

A 
T. FENN WALTER AND ORS. 
v. 
UNION OF INDIA AND ORS. 
JULY 12, 2002 
8 
[8.N. KIRPAL CJ., Y.K. SABHARWAL AND K.G. BALAKRISHNAN, JJ.] 
Superior judiciary-Sitting Judge-Appointment to Commissions and 
Tribunals-Validity of-Held, such appointment valid-But in view of 
C constitutional position of such Judge and in the interest of independence of 
judiciary, guidelines formulated as to manner of appointment to Commission 
or Tribunal~onstitution of India, 1950-Artic/es 124 and 217. 
The question for consideration in this case was whether sitting Judges 
of High Court appointed to various Commissions and Tribunals can still 
D discharge the duties as sitting Judges. 
The issue arose when a sitting Judge of High Court was appointed 
as President of State Consumer Disputes Redressal Commission, a group 
of advocates filed a writ petition alleging that after such appointment the 
sitting Judge ceased to be a Judge. The writ petition was dismissed by the· 
E High Court. 
In appeal to this Court, appellant contended that Judge of a High 
Court occupies a high constitutional post and therefore he should not be 
expected to hold a post under any other authority; that in the instant case 
a sitting Judge was appointed to a full time post under the Government 
f 
and on such appointment there came into existence a relationship of master 
and servant between the Government and the Judge and under Rule 6(5) 
of the Rules framed under the Consumer Protection Act, 1986, that 
Government can remove the President for any of the reasons mentioned 
therein and thus these provisions would make serious inroads into the 
G independence of the judiciary; that members and the Chairman of the 
Commission cannot claim to be equal to a Judge of the High Court and 
that superior courts are vested with the power of judicial review to 
determine the Segality of executive action and the validity of the legislation 
passed by the Legislature and that being the solemn duty of the judiciary, 
the appointment of High Court Judges in various independent posts may 
H 
134 
T. FENN WALTER v. U.O.I. 
135 
create embarrassing situation. 
A 
Respondent contended that the situation contemplates that a Judge 
of a High Court may perform such other functions as he may be assigned 
at the request of the President; and that it may not be practicable to 
provide an inflexible guideline that a sitting Judge should never hold 
another whole time office;. and that all possible contingencies which may B 
occur in future cannot be anticipated. 
Disposing of the appeal, the Court 
HELD: I. There are ever so many Statutes enacted by the Parliament 
which provide for a sitting Judge of the High Court to be appointed either C 
as the President, Chairman, or Vice Chairman of any Tribunal or 
Commission. Under the Consumer Protection Act, 1986, under Section 
16A, a person who is or has been a Judge of a High Court is eligible for 
being appointed as the President or Member of the State Consumer 
Disputes Redressal Forum. The Administrative Tribunals Act, 1985; D 
Railway Claims Tribunal Act, 1987; Special Courts (Trial of Offences 
relating to Transactions in Securities) Act, 1992; National Commission for 
Backward Class Act, 1993 are some of the enactments which contain 
similar provisions where the Chairman, Member or President shall be 
either a sitting or a retired Judge of a High Court. Therefore it cannot be 
said that sitting Judge of a High Court shall neither be appointed to any E 
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 F 
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. [144-E-H; 145-Af 
2. Under the Constitution of India, security of judicial tenure has G 
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 Ch

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