SC recommends drawing up of definitive timelines for appointment of HC judges

As reported here, the Supreme Court has held that retired judicial officers can be appointed as High Court judges under Article 217(2)(a) of the Constitution.

The Supreme Court in Sunil Samadria v. Union of India and Others also recommended that definitive timelines be drawn up for appointment of judges to the High Court.

The petitioner, a practicing advocate of the Rajasthan High Court, challenged the appointment of Additional Judges of the Rajasthan High Court. The appointments were challenged by the part in person on two grounds viz.,

1. The appointment of the additional judges were made for a period of less than two years and that the same violates Article 224 of the Constitution of India. Reliance was placed on S.P.Gupta vs. Union of India and Another, 1981 Supp SCC 87.

2. The second contention was that since on the date of notification, the judges had already retired, they were not members of the Judicial Service of the State and hence they were not eligible for appointment under as Additional Judges Article 217(2)(a). Reliance was placed on Shri Kumar Padma Prasad vs. Union of India and others 1992 (2) SCC 428.

The Additional Solicitor General of India, Maninder Singh, contended that the appointments were fully in accordance with the provisions of the Constitution and that the appointees having held Judicial Office for a period of 10 years were fully eligible to be appointed as Additional Judges of the Rajasthan High Court. The maximum period of appointment of Additional Judge of the High Court under Article 224 clause (1) being two years, the appointees who were attaining the age of superannuation of 62 years before expiry of a period of two years, there is no illegality in their appointment.

The bench of Justices AK Sikri and Ashok Bhushan, after referring to the judgment of the Court in S.P Gupta found no merit in the contention of the petitioner regarding the short tenure and observed,

“14. …Before the Constitution Bench, the question as to when remaining tenure of a person to be appointed as Additional Judge is less than two years, whether such appointment is in conformity with Article 224 or not, was neither gone into nor any opinion was expressed whereas an observation was made in paragraph 32 which supports the view that in a case where Additional Judge has been appointed for a period of two years, he would cease to be a Judge if he attains the age of 62 years prior to the expiration of his term of two years. This clearly supports that the tenure of appointment of Additional Judges who have less than two years to retire is not contrary to Article 224
Regarding the second contention that on the date of the notification, the appointees had already retried from Judicial Service and did not hold a subsisting judicial office, the Court stated,

“24. The word ‘held’ as used in Article 217(2)(a) indicates that what is prescribed is qualification for appointment of a Judge of the High Court is that a person has for at least 10 years held a judicial office in the territory of India. Use of word ‘held’ in the above clause does not indicate that qualification is also meant that apart from holding 10 years a judicial office, the incumbent should also be holding the judicial office at the time notification under Article 224 is issued.

26. A plain reading of eligibility as provided under Article 217(2)(a) does not make the respondent Nos.2 and 3 ineligible for appointment as Additional Judges of the Rajasthan High Court. This Court’s judgment in Shri Kumar Padma Prasad (supra) does not support the submission which is pressed by the petitioners before us.”

The bench, taking note of the enormous delay in judicial appointments which frustrates the purpose and object for which Article 224(1), observed,

“28. In Supreme Court Advocates on Record Association and Others v. Union of India, (1993) 4 SCC 441, this Court expressed in categorical terms that the process of appointment must be initiated at least one month prior to the date of an anticipated vacancy. It was done to achieve an ideal situation, namely, to ensure that the post is filled up immediately after the occurrence of the vacancy so that no time is lost. Unfortunately, it still remains a far cry. In the first instance, names are not forwarded by the High Court in time. What to talk of sending the names one month before the occurrence of an anticipated vacancy, names are not forwarded even much after the vacancy has occurred. It is also seen that once the names are forwarded, they remain pending at the Executive level for unduly long time, before they are sent to the Collegium of the Supreme Court for approval along with the inputs of the Executive. Even after the clearance of the names by the Collegium, these remain pending at the level of the Executive.”

The Bench thereafter recommended that definitive timelines have to be drawn up for each stage of the process of appointment so that the process of appointment is accomplished in a time bound manner.

Read the judgment below:



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