'Surrenders Right Of Judiciary In Making Appointments To Judicial Tribunals To Executive': Lawyer's Plea In Kerala HC Challenges Section 6(4) Administrative Tribunal Act

A writ petition has been filed before the High Court of Kerala challenging the constitutional validity of Section 6(4) of the Administrative Tribunal Act, on the ground that it is violative of basic structure of the Constitution of India. The writ petition filed by Advocate Shamem M.S. contends that this provision surrenders the right of judiciary in making appointments to judicial tribunals entirely to the executive.

Section 6(4) of the Act provides that the Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State. However Section 6(3), the Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President.

The petitioner points out that no role is given or attributed to the judiciary in the matter of appointment of Chairman of members of State Administrative Tribunal and therefore it is violative of the basic structure. The petitioner relies on the observations made in NJAC Case and Madras Bar Association case and contends that there should be some mechanism for a High Court like Showing results for collegium in the matter of appointment to tribunals also.

The petitioner contends that there is stiff opposition to the very concept of retired judges securing re-employment after retirement. "The choice by the executive of retired judges may depend on personal predilections, preferences and even political consideration. This is not conductive to the maintenance of the independence, impartiality and credibility required of a judicial office.", reads the petition settled by Senior Advocate K. Ramakumar.  Advocate BN Shiv Shanker is the counsel appearing for the petitioner.

The petitioner,  also seeks a direction not to make any appointment to the posts of KAT. The lawyer also submits, through his petition, that he is very seriously affected by rush of retired judges to corner plum posts after retirement by keeping pleased the executive which commands exclusive power in the matter of appointments to State Administrative Tribunal. 

The petition also quotes from the retirement speech made by Justice Kemal Pasha who remarked that the judges should not have an expectation of post-retirement government jobs as government is a major litigant and then judges do not dare to invite government displeasure. "When a judge is expecting a post-retirement job from the government, normally he will be in a position not to invite displeasure from the government at least in the year of his retirement. There is a common complaint that such judges are not dared to invite displeasure from the government by expecting post-retirement jobs," he had said while recollecting the words of Justice S H Kapadia and Justice TS Thakur that any judge should not accept any salaried job under any government at least for a cooling period of 3 years from his or her retirement.

The writ petition may be listed for admission after the Court reopens after Onam Holidays. 

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