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A RECENT decision of the Supreme Court has laid down a few broad guidelines on how to go about the appointment of a sitting Judge of a High Court to a Commission.

What's okay: Appointment of a sitting Judge to the following offices may not be objectionable: As a commission of inquiry under the Commissions of Inquiry Act; 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, for example, 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; or where expertise and experience of a sitting Judge is required to discharge the functions, for example, as a Member of the Finance Commission of Law Commission.

Not okay: 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, and so on.

Avoid: 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.

Disciplinary jurisdiction: 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.

Cease to sit: 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 of the High court may not be appointed to such post. 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.

Dignity and independence: When the Chief Justice of a High Court is consulted for the 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.

Leave one for the other: 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.

(Civil Appeal No. 3993 of 2002 T. Fenn Walter and Others vs Union of India, decided on July 12, 2002)

D.M.

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