University of Kerala Vs.
Council, Principals' Colleges, Kerala & Ors  Insc 375 (9
Dr. ARIJIT PASAYAT & D.K. JAIN
I.A. NO. 6 OF 2007 IN SPECIAL LEAVE PETITION (CIVIL) 24295 OF 2004 Dr.
ARIJIT PASAYAT, J.
The State of Orissa has filed this I.A. for modification of the Order dated
27.11.2006. By the said order, this Court had directed that in no case a
sitting Judge of any High Court shall continue as a Commission. It was however
made clear that the order shall not operate in cases where the inquiry is at
the fag end, i.e. only where the report is to be submitted.
In support of the application, learned counsel for the State submitted that
a sitting Judge was appointed at the request of the State Government
considering the "serious problem" highlighted in the letter of the
Chief Minister addressed to the Chief Justice of the High Court. Though
initially Chief Justice of the High Court had not acceded to the request of the
State Government to appoint a sitting Judge as a Commission, purportedly
considering the "seriousness of the problem" he suggested name of a
sitting Judge to act as a Commission. It was, however, stated that the
Commission shall hold sittings and enquiries only on Saturdays and Sundays and
other High Court's holidays without interference with the normal work of the
High Court. Accordingly, Justice A.S. Naidu was appointed as the Commission. It
was submitted that the Commission was expected to throw light on various
aspects which would help the State Government to address to the larger issues
on industrialization, displacement and rights of citizens, in particular
Mr. Gopal Subramanium , learned A.S.G. submitted that the State Government's
application is clearly not acceptable, it is thoroughly misconceived. This
Court in its order dated 27.11.2006 clearly indicated as to why sitting Judges
should not act as Commission.
At this juncture it would be appropriate to take note of what has been
stated by this Court in T.Fenn Walter and Others v. Union of India and Ors.
(2002 (6) SCC 184).
Though learned counsel for the applicant - State submitted that in terms of
paragraph 16(1) of the judgment, appointment of a sitting Judge as Commission
is permissible, it has to be noted that the same has to be read along with
paragraph 14 of the judgment. The said paragraph reads as follows:
"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 a 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
Government. 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 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." [ 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
(underlined for emphasis) From a reading of the letters of the Chief
Minister and the Chief Justice it no where appears that either the State
Government or the Chief Justice considered the matter to be of "paramount
national interest" to warrant appointment of a sitting Judge of a High
Court as Commission. All that has been stated by the Chief Minister and the Chief
Justice is about the "seriousness of the problem".
Even the notification dated 4th February, 2006 does not indicate it to be of
paramount national interest. It only states as follows:
"The Orissa Gazette Extraordinary Published by Authority No. 127,
Cuttack, Thursday, February 9, 2006/Magha 20, 1927 HOME (SPECIAL SECTION)
DEPARTMENT NOTIFICATION The 4th February 2006 S.R. No. 20/2006Whereas it has
been reported to the State Government that there had been a police firing on
the 2nd January 2006 at Kalinga Nagar, Jajpur district, leading to the death of
One Police Hawaldar had also died otherwise.
2. And whereas the State Government are deeply concerned about the incident
of firing and are of the opinion that, this being a matter of public
importance, should be inquired into by a Commission of Inquiry under the
Commission of Inquiry, Act, 1952.
3. Now therefore, in exercise of the powers conferred by section 3 read with
sub-section (1) of section 5 of the said Act, the State Government do hereby
appoint a Commission of Inquiry consisting of Hon'ble Shri Justice A.
Suryanarayan Naidu, a sitting Judge of Orissa High Court, to inquire into and
report in respect of the following matters, within six months from the date of
publication of this notification in the Orissa Gazette, namely :- (i) Analysis
of the Sequence of events and circumstances leading to the police firing at
Kalinga Nagar on the 2nd January 2006.
(ii) Whether the measures taken, the quantum of force used in anticipating,
preventing and handling situations were adequate, inadequate or in excess of'
requirement and the responsibility for such acts of commission or omission.
(iii) The role, conduct and responsibility of the organizations, group of
individuals or reasons if any, in influencing, precipitating or escalating the
incident; and (iv) Any other matter connected with or incidental thereto as the
Commission may consider appropriate .
4. Further, the State Government are of the opinion that having regard to
the nature of inquiry to be made and the other circumstances pertaining to the
incident, it would be appropriate that the provisions of sub-sections (2), (3),
(4) & (5) of Section 5 of the said Act should apply to the conduct of this
inquiry, by the Commission. Therefore, the State Government directs that the
aforesaid provisions shall apply, accordingly.
5. The headquarters of the Commission shall be at Cuttack. However the
Commission may hold the inquiry in Kalinga Nagar or any other place also as may
be considered necessary by them for the purpose.
(No. 632/C) By order of the Governor SANTOSH KUMAR Principal Secretary to
Though it was strenuously urged by the learned counsel for the applicant -
State that the Commission was only permitted to work on holidays that really is
of no consequence.
As noted in T. Fenn Walter's case (supra) the considerations have to be of
several aspects including the determinative "paramount national
interest" angle. That does not appear to be a factor considered when the
request was made for appointment of a sitting Judge as the commission and the
reply of the Chief Justice of the High Court accepting the prayer. It could not
be shown to us as to how the issues being enquired into by the Commission are
of paramount national interest. Further the stand that the Commission was
required to give recommendation on various other aspects like industrialization
etc. is really of no consequence. It is not known as to on what basis a sitting
Judge appointed as a Commission, can throw light on the broader issues like
industrialization etc. In any event, the parameters of enquiry do not include
The I.A. is sans merit, deserves dismissal, which we direct.