Case BriefsHigh Courts

Patna High Court: Birendra Kumar, J., addressed the instant petition against the order of State whereby the petitioner’s application for voluntary retirement was treated as an application for resignation.

On 31-10-2005 the petitioner filed an application to the Secretary, Health Department, stating therein that due to certain personal and family reasons the petitioner was not in a position to discharge his official duty with responsibility. Hence, he may be permitted to retire voluntarily with effect from 01-02-2006. Since, the petitioner had not completed 20 years of service for retiral benefit, the petitioner made further prayer in the said application that the intervening period between 01-11-2005 to 31-01-2006 be treated as a period spent on extra-ordinary leave.

The technical difficulty in allowing voluntary retirement was that the petitioner had not completed 30 years qualifying service or attained 50 years of age on the date of application for voluntary retirement as required by Rule 74(b) of the Bihar Service Code. The respondent initiated a departmental proceeding against the petitioner on the ground that the petitioner was absent from duty without any permission of the authority and was reportedly engaged in services of some other State. Consequently, the respondent treated the application of the petitioner as an application of resignation without any rhyme or reason or any such averment in the application.

Noticing that the authorities did not take any decision on the prayer of the petitioner for voluntary retirement made in the year 2006 till 2013 and in 2013 the petitioner was fulfilling the conditions for voluntary retirement as per Rule 74(b) of the Bihar Service Code and had already completed 50 years of his age for qualifying to make prayer for voluntary retirement., the Bench stated,

“Either the authorities should have accepted the prayer of the petitioner or would have rejected the same in toto but they could not have treated the same as application of resignation.”

Therefore, it was held that the act of respondent suffered from arbitrariness and takes away the valuable legal right of the petitioner which made it unsustainable in law.  Hence, the impugned order was quashed. The respondents were directed to treat the prayer of the petitioner as prayer for voluntary retirement with all the retiral benefits according to law which would be effective from the date of the impugned order, i.e., 02-01-2013. [Vinoy Singh v. State Of Bihar, CW No. 1556 of 2019, decided on 19-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Murali Purushothaman (ii) Ziyad Rahman Alevakkatt Abdul Rahiman (iii) Karunakaran Babu and (iv) Dr. Kauser Edappagath, to be Additional Judges of the Kerala High Court.

Read more about Judges:

Murali P., LL.B., was enrolled as an Advocate on 09.03.1991. He has 28 years of experience, practicing in High Court of Kerala from 11.03.1991 to 16.07.2019 in Election Law, Family Law, Labour Law, Cooperative Society Law, Contract Law, Constitutional Law and Service Law. He has specialisation in Election and Service Law. He was Standing Counsel for the State Election Commission, Delimitation  Commission of Kerala, Admission and Fee Regulatory Committee for Self Financing Professional Colleges and as Government Pleader in the High Court of Kerala in 2001.

Ziyad Rahman A.A, BA, LL.B., has 22 years of experience, practicing in the High Court of Kerala and also appeared before in Subordinate Courts, Tribunals in Constitutional, Civil, Land Laws, Electricity Criminal, Banking, Motor Vehicles, Insurance, Labour, Company, Consumer, Administration, Municipality, Taxation, Rent Control law matters and has specialisation in Electricity Laws, Motor Vehicle Laws, Insurance Act, Employees Compensation Act, Constitutional matters.

Shri K. Babu, M.A (Economics), LL.B, LL.M., joined Judicial Service on 21.05.2009 as Additional District Judge-I and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District Judge, Thiruvanthapuram in addition appointed as Chairman of the Administrative Committee of Sree Padmanabha Swamy Temple by the Hon ‘ble Supreme Court of India w.e.f. 19.11.2018.

Dr. Kauser Edappagath, BA (Law), LL.B, LL.M, Ph.D., joined Judicial Service on 21.05.2009 as Additional District and Sessions Judge and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District and Sessions Judge/ State Transport Appellate Tribunal, Ernakulum since 08.01.2018.

Link to the notification: Order of Appointment


Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Jasmeet Singh and (ii) Amit Bansal, to be Judges of the Delhi High Court.

Shri Jasmeet Singh, B.Com (Hons), LL.B, has 27 years of experience, practicing Delhi High Court and Subordinate Courts from 1992 onwards. He has been practising in Constitutional, Civil, Labour, Service, and Matrimonial covering all branches of Law. He has specialization in Service and Civil Law.

Shri Amit Bansal, B.Com. (Hons), LL.B, LL.M, has specialization in Education Laws, Arbitration Laws, Indirect Taxes Law, Service Law. He served as Senior Standing Counsel, Central Board of indirect Taxes and Customs, Standing Counsel and Legal Advisor, Central Board for Secondary Education (CBSE) from 2004, National Testing Agency (NTA), Additional Standing Counsel, University of Delhi, in the Delhi High Court from 2008 and Additional Standing Counsel, NDMC from 1999-2005.

Link to the notification: Order of Appointment


Ministry of Law and Justice

Notification dt. 22-02-2021

Appointments & TransfersNews

President appoints Justice Puligoru Venkata Sanjay Kumar, Judge of the Punjab and Haryana High Court, to be the Chief Justice of Manipur High Court.

NOTIFICATION


Ministry of Law and Justice

[Notification dt. 12-02-2021]

Appointments & TransfersNews

President appoints Pushpa Virendra Ganediwala, to be an Additional Judge of the Bombay High Court for a period of 1 year with effect from 13-02-2021.

Notably, Justice Ganediwala authored the following two controversial Judgments:

 

NOTIFICATION


Ministry of Law and Justice 

[Notification dt. 12-02-2021]

Op EdsOP. ED.

I. Introduction

The judgment of the Supreme Court in Rojer Mathew v. South Indian Bank Ltd.[1] and the nomination of Justice Gogoi to the Rajya Sabha again brought into sharp focus the post-retiral appointments of retired Judges. Such appointments warrant an exhaustive consideration because they impact one of the bedrocks of our democracy, the independence of judiciary, which refers to independence as a system and also independence of individual Judges.[2] Fixed tenure and service conditions have been considered to be among the most important features to ensure a Judge’s independence.[3]

A recent study has concluded that “pro-government” judgments being used as a means to increase the likelihood of getting prestigious government jobs is a “rational behavioural response” to alleviate career concerns.[4]  This is bound to raise questions on the independence of Judges and of the judiciary. The same risk also arises when Judges, who regularly decide cases involving companies, are subsequently appointed as office-bearers of these companies or when retired Judges resume practice and are engaged by parties who may have been involved in litigation before the said Judge while he was in office.

The Constituent Assembly Debates reveal that even though the concept of a life tenure – as in the United States of America – was mooted and rejected, there was an apprehension that retiring Judges at a fixed age may lead to twofold problems ― firstly, the judiciary may lose out on an experienced and fit adjudicator merely because he had reached the age of 65 and secondly, such Judges would then be forced to look for employment opportunities, which “may not be compatible with a judicial mentality, or which may not be in tune with their perfect independence and integrity”.[5] Dr B.R. Ambedkar also agreed that since “65 cannot always be regarded as the zero hour in a man’s intellectual ability”, Article 128 of the Constitution of India (then Article 107) could be invoked under which retired Judges could be reappointed to hear cases.[6]

Several Law Commission Reports have dealt with the issue of post-retirement opportunities for retired Judges. The 14th Report[7] advocated a ban on further employment of Supreme Court and High Court Judges, as in the case of the Chairman of the Union Public Service Commission[8] and the Comptroller and Auditor General.[9] The Report described Article 128 as the only post-retirement avenue which could be provided to a retired Supreme Court Judge.[10]

The interplay between retirement age and post-retirement opportunities is the focus of the present issue. It is proposed herein that the retirement ages of the Judges be increased to 70. There should be a ban on practice by the retired Judges. There should also be a ban on any executive appointment of retired Judges for a duration of five years from their date of retirement. Instead, as recommended by the 124th and 125th Law Commission Reports, Article 128 and Article 224-A should be frequently resorted to under which retired Judges should be reappointed to decide cases. Legal education is an area which could benefit immensely from the participation of retired Judges. They could greatly contribute towards designing the curriculum and in teaching the procedural subjects which could aid in a long due overhaul of the legal education system. Various jurisdictions have similarly utilised the judicial talent[11] and it is time we did too.

II.Increasing the retirement age of Judges

Increasing the retirement age would reduce the chances of retired Judges looking for other opportunities.[12] Presently, the Supreme Court Judges retire at the age of 65[13] while the High Court Judges retire at 62.[14] This seems arbitrary and unjust in light of the fact that the retirement age of Chairpersons/Presidents in various Tribunals, which positions are statutorily occupied by retired Judges, is 70. The retirement age for the Supreme Court and High Court Judges should be at par with that of the Tribunal President/Chairperson. This would prevent the Tribunals from becoming “havens of retired persons”.[15]

The joint memorandum submitted to the Constituent Assembly by a Conference of Judges of the Federal Court and Chief Justices of many High Courts recommended a difference in the ages of retirement of the Supreme Court and High Court Judges to ensure that the Chief Justice of a High Court or a senior puisne Judge would have “sufficient inducement to accept a puisne judgeship in the Supreme Court”.[16] Being a Judge in the old and reputable High Courts may have been preferable to the relatively new Supreme Court at that time but the same no longer holds true as the Supreme Court has become an extremely prestigious and powerful institution.[17] The 58th Law Commission Report[18] also recommended that both the High Court and Supreme Court Judges retire at 65. The Constitution (114th Amendment) Bill, 2010 had been introduced with the aim of increasing the age of retirement of the High Court Judges to 65. However, it lapsed with the dissolution of the 15th Lok Sabha. As per its Statement of Objects and Reasons, the Central Pay Commission had recommended an increase in the retirement ages of government employees on the basis of “global practices, increase in life expectancy, improved health standards, need for utilisation of experience and wisdom of senior employees”, etc. The same grounds could apply to the Judges also.

Justice Bhandari, a former Judge of the Supreme Court, has been re-elected to the International Court of Justice for a second term of nine years effective from 6-2-2018. He would thus continue to be a Judge when he is 79 years old. It is therefore evident that the current retirement ages should be increased, and it is proposed that the retirement age of the Judges of the higher judiciary should be fixed at 70.  Similarly, the retirement age of District Judges should be fixed at 68 (elaborated upon in Section IV, below). Such an increase in retirement ages would help reduce the vacancies in the Courts and in dealing with pendency.

III. Bar on practice

Article 124(7) of the Constitution states:

“No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”

Thus, there is an absolute embargo on a Supreme Court Judge’s return to practice. The corresponding provision for the High Court Judges is Article 220, which provides that a person who has held office as a permanent Judge of a High Court “shall not plead or act in any court or before any authority in India except the Supreme Court and the other High Courts”. Article 220 in its present form was brought in vide 7th Amendment Act, 1956. As per the original Article 220, there was a complete embargo on the right to practice of retired High Court Judges. The article was amended because the complete bar was affecting the selection of Judges from the Bar,[19] though the 14th Law Commission Report had criticised the said amendment.[20] A further amendment was proposed stating that after passage of a certain period of time, retired High Court Judges could practice in their own State. This was rejected by the 72nd Law Commission Report as there was plenty of scope for abuse which would negatively impact the dignity of the office as well as the independence of judiciary.[21]

It is proposed that retired High Court Judges should not be permitted to practice as was the case prior to the 7th Amendment. Former Judges practicing law may raise questions of “actual or perceived compromise of judicial independence, impartiality, and integrity.”[22] There could be doubts as to whether the courtrooms would be used as business opportunities when Judges may start looking for prospective clients.[23] Similarly, retired District Judges should also not have the right to practice.

To ensure that the loss of the option to resume practice does not act as a deterrent for prospective Judges, it is proposed that the complete bar on practice should be effective only after a period of two years from the date of the Judge’s appointment. Thus, if a Judge, who has been on the post for a maximum of two years, resigns, he will have a right to practice, albeit a limited one. In such cases, a District Judge who resigns would be able to practice in a High Court, in District Courts in other States and the Supreme Court. Similarly, a High Court Judge who resigns would be able to practice in the other High Courts where he has not held a judicial post, as well as the Supreme Court.

IV. Appointing retired Judges

In Rojer Mathew[24], Gogoi, J.  lamented upon the fact that the Supreme Court is unable to hear important constitutional matters due to the burgeoning cases. He states that “cases heard by the Constitution Bench, which comprises five or more Judges, have fallen from over 15% in the 1950s to a mere 0.1-0.2% during the last two decades”. Articles 128 and 224-A of our Constitution provide for retired Judges of the Supreme Court and the High Courts respectively to be requested to hear and decide cases. These provisions should be frequently invoked to remedy the increasing pendency. Dr B.R. Ambedkar had stated that these provisions were the only provisions compatible with the bar on practice imposed on the Judge post-retirement.[25] However, the said articles have been rarely resorted to. Appointment of retired Judges as “ad hoc Judges” was suggested in 2016[26] and  Gogoi, J.  had inter alia suggested resorting to Articles 128 and 224-A to tackle the increasing pendency.[27]

  1. 128. Attendance of retired Judges at sittings of the Supreme Court.– Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

224-A. Appointment of retired Judges at sittings of High Courts.– Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.

The meaning ascribed to the clause “previous consent of the President” in Article 128 is clear from the relevant Constitutional Assembly Debates. Shri T.T. Krishnamachari, who had moved the amendment, reasoned that since the executive is involved during the appointments, it should also be involved in the appointment of ad hoc Judges to prevent any bias by the Chief Justice in the selection process.[28] Elucidating further, he had stated:

Of course, there are administrative and financial problems that might arise by the Chief Justice making a request to any of the High Court Judges of any State to cooperate with him in this manner, and even the propriety of the occasion demands that the Chief Justice should not act except in consultation with the head of the executive.

Article 124(2) and Article 217(1) specify the procedure for appointments to the higher judiciary. The provisions also use the term “consultation” which term has been the subject-matter of a number of judgments, the most recent being  Supreme Court Advocates-on-Record Assn. v. Union of India.[29] The existing system for appointing Judges by the collegium has been upheld in the said judgment and it has been conclusively held that the judiciary has primacy in matters of appointment. This principle would also apply with respect to appointments under Articles 128 and 224-A.

It is interesting to note that Article 224-A (then Article 200) had been adopted in the Assembly and was originally enacted as Article 224, but was substituted by the present Article 224 on the ground that the provision was neither adequate nor satisfactory.[30] The provision was again brought in as Article 224-A vide 15th Amendment Act, 1963. It is not the provision which is inadequate or unsatisfactory, but its implementation.

Krishangopal v. Prakashchandra[31] clarified that in matters related to jurisdiction, power and privilege, the position of the retired Judge appointed under Article 224-A would be akin to that of a High Court Judge. The 124th[32] and 125th[33] Law Commission Reports exhaustively dealt with the implementation of Article 224-A and Article 128. The Reports suggested that:

  1. The appointees be allotted long pending matters for final disposal.
  2. The regular pay and dearness allowance would be payable in such cases.
  3. The salary and pension both would be payable as an incentive.
  4. The said articles should also be utilised to deal with vacancies which arise when a Judge is retiring and no successor has been appointed. The Chief Justice could apply for the requisite consent 6 months before a Judge is due to retire and the retired Judge could continue on the post till his successor is appointed.
  5. Such retired Judges be reappointed within 1-3 years from their retirement date to ensure continuity.[34]

Regarding reappointment of retired District Judges, the Supreme Court, in the following two cases, has provided certain avenues which ought to be explored:

  1. In All India Judges’ Assn. v. Union of India,[35] it was opined that judicial officers who retire at the age of 60 may be reappointed till the age of 62 against vacancies in the cadre of the District Judge,
  2. In Sunil Samdaria v. Union of India,[36] it has been held that retired District Judges may be appointed as additional High Court Judges under Article 224.

Thereafter, once the retirement age of District Judges is increased to 68 as proposed herein, they would have the option to be reappointed in the District Judge cadre or as an Additional Judge of the High Court till they are 70.

At one end, we have steadily increasing pendency and on the other, we have a pool of skilled and experienced adjudicators who have retired merely because they have attained a certain age. Often retired Judges may want to continue working and hence would be constrained to look for opportunities elsewhere. It is imperative that the skills of the retired Judges be utilised to resolve the pendency issues and they be provided enhanced opportunities which enable them to contribute to a betterment of the judiciary.

V. Appointments by the Executive

1. Political appointments

The Constituent Assembly Debates regarding the issue of post-retiral appointments make for an interesting read. Most of the members agreed that there was a possibility of executive interference in the judiciary if the Judges were to look for an executive appointment post-retirement. Therefore an embargo on such appointments was proposed,[37] which was rejected by Dr Ambedkar on the ground that there would be very few disputes between the private parties and the Government and thus, the executive would rarely have any chance to influence the judiciary.[38] However, now that the Government has emerged as the biggest litigant, such appointments need to be reconsidered.

Dr Ambedkar had further reasoned that putting such restrictions on post-retiral appointments would be a great burden on the Judges who are required to retire at sixty with a very “meagre pension”.[39] Perusal of the salaries and pension regulations of the Supreme Court[40] and High Court[41] makes it evident that there has been an improvement in this regard. The retirement age too has since been increased and with a further increase as proposed in this article, the aforesaid reasons by Dr Ambedkar for not putting an embargo on post-retiral appointment would be negated.

Retired Judges have often been appointed as Governors or as members of a political party. To ensure that the possibility of such an executive appointment does not interfere with the discharge of the Judge’s duties, it is proposed that retired Judges be not permitted to take up any government or constitutional post or employment, up to at least five years from their retirement. Justice Lodha had also advocated a “cooling off” period of two years although subsequently the Supreme Court dismissed a petition which sought for directions regarding the fixing of such cooling off period for retired Judges.[42]

2. Appointments to Tribunals

The judgments in SCAORA[43] and Rojer Mathew[44] have struck down attempts of executive interference in the judicial and Tribunal appointments respectively. It was conclusively held that the Judiciary would play the primary role in matters of judicial appointments to maintain its independence. In Rojer Mathew[45], a Constitution Bench struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (“the 2017 Rules”) on the ground inter alia that the Rules gave the executive the upper hand in the appointments as well as in determining the service conditions. It is evident that the executive power in appointments to the various Tribunals and Commissions is sought to be weeded out with various judicial pronouncements stressing on the need to give primacy to the judiciary in such matters instead. This is to ensure that the independence of judiciary is not compromised since, as  Gupta, J.  observes in Rojer Mathew[46] “one cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post-retiral sinecures.” Since the 2017 Rules were struck down, the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2020 (“the 2020 Rules”) were brought in and their validity was adjudicated upon in Madras Bar Assn. v. Union of India[47]. The 2020 Rules were upheld subject to certain amendments to minimise executive interference in the appointments.

In his concurring judgment in Roger Mathew[48], Gupta, J. has criticised the post-retiral appointments of Judges to head the Tribunals and has suggested that objective criteria, such as the method of written tests, be used instead. He has recommended the establishment of Tribunal Services for appointments to the Tribunals rather than appointing retired Judges. The Vidhi Legal Report has extensively dealt with reforms required in the Tribunal system and has suggested that the appointments be made either by an interview or an examination of the eligible candidates rather than by appointing retired Judges. It proposes that the eligibility criteria could specify that the candidate should be aged between thirty five and fifty years and have at least seven years of practice as a lawyer for judicial members and ten years of work experience for technical members.[49] Adopting such an appointment process will ensure that there is no scope for executive interference and that the independence of judiciary is preserved.

VI. Cross jurisdictional analysis

1.United Kingdom (UK)

In UK, Judges retire at the age of 70, which is proposed to be increased to 72[50], although the services of certain individual Judges can be extended till they are 75 beyond which the person cannot hold any judicial office.[51] Retired Judges can be requested to act as Judges, though not beyond the age of 75.[52] Chapter 9 of the Guide to Judicial Conduct imposes a ban on practice.[53] However, even though the Government’s attempt to relax the convention of not resuming practice after retirement was rejected, an increasing number of Judges are taking up the position of a legal consultant to firms and chambers post-retirement.[54] This causes speculation as to whether the Judges had started to lobby for such positions while they were on the bench, which is similar to the problem faced in India.

2. United States of America (USA)

USA has life tenure for its Judges wherein they can voluntarily retire. In USA, judicial retirement ages have been described as an instance of “arbitrary age discrimination” since it is a debatable issue as to whether it is “morally right, socially profitable, economically wise or constitutionally sound to declare that a professional’s useful life is completed merely because they have reached an arbitrarily designated age”.[55] However, life tenures have been seen as problematic because of the slow development of law, abuse of office by the Judges, and fear of mental “decrepitude” among the older Judges.[56] 28 US Code § 371 and 28 US Code § 294 are the relevant provisions regarding retirement of Judges. Once the “Rule of 80”[57] is satisfied, a US Article III Judge (which refers to the Judges of the Supreme Court, Circuit Courts and District Courts) can retire, receive an annuity equal to their last salary and resume law practice.[58]

The other option, which is relevant for the present article, is that Judges retire as “Senior Judges” and their successor is appointed. The “Senior Judges” are then assigned work they are willing to undertake, which may comprise judicial and/or administrative work,[59] and receive the judicial salary with regular increments. There has been an increasing tendency to retire as “Senior Judges”[60] as the Judges are able to remain working as part of the legal system. Senior Judges are considered “critical” to the US judiciary as they mitigate the problems arising out of increasing workload and judicial vacancies.[61] The non-Article III Judges (which refers to bankruptcy Judges, Magistrates, Judges of the US Court of Federal Claims, etc.) may also be called upon after their retirement.[62]

3. California

Retired Judges become private Judges or join the assigned Judges program (AJP). In private judging, the retired Judges are “Judge pro tempore” i.e. temporary Judges, and are selected by counsels to hear and decide civil and family matters and are compensated by both the parties. The cases are heard in private though the courts maintain a supervisory role such as formally appointing the Judge and providing him with copies of the documents which are filed in the court. The system of private judging is considered an extremely lucrative option although it has been criticised on the ground that it gives the wealthy an easier access to justice.[63] Furthermore, the possibility of being engaged as a private Judge by a party may also motivate the Judge’s conduct and judgment while he is on the Bench. Instances in India, where sitting Judges refer matters for arbitration/mediation to retired Judges, is definitely a step above the system of private judging.

The Assigned Judges Program (AJP) in California is akin to the “Senior Judges” in USA. The Presiding Judges can put in requests for judicial assistance and the Chief Justice can then issue judicial assignment orders to the retired or active Judges who are a part of the AJP, based on the recommendation by the AJP staff. The assigned Judges are reviewed by the Presiding Judge of their Court and in case of any complaint, the AJP staff submits the investigation report to the Chief Justice for appropriate actions which may even result in removal of the Judge from the program.[64]

VII. Conclusion: Ensuring accountability

A former Judge is still considered as a representative of the judiciary.[65] Thus, retired Judges should only take up roles “which do not present the same potential for actual or apparent partiality or compromise of independence or integrity as does representing parties and interests”.[66] As Justice Posner has pertinently observed:

“Judges are less likely to decide cases with a view toward maximising their future career opportunities, and are therefore more likely to decide cases impartially, the less of a future they have. We want judging to be a terminal job rather than a springboard to another career.”[67]

Increasing retirement ages and reappointment of retired Judges, as has been proposed in the present article, have been used in various countries to utilise the skills of experienced adjudicators in dispensing justice. However, these proposals can only be beneficial in the presence of a robust evaluation and accountability procedure. Increase in retirement age could mean long service tenures for Judges who are not up to the mark.[68] It is thus imperative that a system of judicial performance evaluation (JPE) be introduced to maximise efficiency both pre and post-retirement.

 In India, the lower judiciary has the system of annual confidential reports (ACRs), wherein the judicial officers are assessed on several wide-ranging criteria, including his conduct and the quality of judgments passed. Such assessments determine the officer’s career advancement.[69] The Supreme Court has mandated that the performance of judicial officers be assessed before they reach 58 years of age to decide whether the judicial officer should continue to serve till the age of 60 since “the benefit of increased superannuation age shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system.”[70] If the assessment is unsatisfactory, the judicial officers are compulsorily retired.[71] Similar forms of JPE should be mandatory in the higher judiciary to ensure the suitability of Judges to continue on the bench and to be reappointed post-retirement. NITI Aayog is working on an annual performance review system for the judiciary[72] but excluding the higher judiciary from its purview makes it a futile exercise. Highlighting the need for an accountability system, Shah, J. has pertinently observed that Judges must be constantly reminded of what is appropriate behaviour so that their role of administering impartial justice is never compromised.[73]


Practising Advocate in Delhi, graduate from NALSAR University of Law, Hyderabad, e-mail: guptaankita.advocate@gmail.com.

†† 2nd year student pursuing BCom LLB (Hons.), Gujarat National Law University, Gandhinagar, e-mail: dgupta60d@gmail.com.

[1] (2020) 6 SCC 1.

[2] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

[3] Ibid.

[4]Madhav S. Aney, Shubhankar Dam and Giovanni Ko, Jobs for Justice(s): Corruption in the Supreme Court of India (2017) accessed on 15-6-2020.

[5] Constituent Assembly Debates (Proceedings) – Vol. VIII  (24 May, 1949).

[6] Ibid.

[7]14th Law Commission Report on  Reform of Judicial Administration (1958), accessed on 28-6-2020.

[8] Constitution of India, Art. 319(a).

[9] Constitution of India, Art. 148(4).

[10] 14th Law Commission Report.

[11] Julie Roncinske, From Court to the Classroom: Two Retired Judges Teach “Judicial Process” (Rutgers University– Camden, 23-12-2013), accessed 14-6-2020.

[12] T. R. Andhyarujina, The Age of Judicial Reform (The Hindu, 1-9-2012) accessed 20-6-2020

[13] Constitution of India, Art. 124(2).

[14]Constitution of India, Art. 217(1) as amended by the Constitution (Fifteenth Amendment) Act, 1963.

[15] Rojer Mathew, supra Note 1.

[16] Abhinav Chandrachud, The Need to Have a Uniform Retirement Age for Judges, (2012) 47 (46) Economic and Political Weekly 24.

[17] Ibid.

[18]58th Law Commission Report on Structure and Jurisdiction of the Higher Judiciary (1973).

[19] The Constitution (7th Amendment Act), 1956.

[20] 14th Law Commission Report, supra Note 7.

[21] 72nd Law Commission Report on Restriction on Practice after being a Permanent Judge (1978).

[22] Mary L. Clark, Judicial Retirement and Return to Practice, (2011) 60 Cath U L Rev 841.

[23] Maura Dolan, Retired Judges Must Choose between Public, Private Jobs (Los Angeles Times, 31-12-2003) <https://www.latimes.com/archives/la-xpm-2003-jan-31-me-judges31-story.html> accessed 14-6-2020.

[24] (2020) 6 SCC 1.

[25] Constituent Assembly Debates  – Vol. VIII (7 June, 1949).

[26] Raghav Ohri, Appointing Retired Judges as Ad Hoc Hailed Revolutionary (The Economic Times, 27-4-2016) <https://economictimes.indiatimes.com/news/politics-and-nation/appointing-retired-judges-as-ad-hoc-hailed-revolutionary/articleshow/52001042.cms?from=mdr> accessed 14-6-2020.

[27] CJI Writes to PM, Seeks Increase in Number of Supreme Court Judges (22-6-2019, The Hindu Business Line, 22-6- 2019) <https://www.thehindubusinessline.com/news/cji-writes-to-pm-seeks-increase-in-number-of-supreme-court-judges/article28110035.ece> accessed 24-6-2020.

[28] Constituent Assembly Debates  – Vol. VIII (27th May, 1949).

[29] (2016) 5 SCC 1.

[30] 7th Amendment Act, supra Note 19.

[31] (1974) 1 SCC 128.

[32] 124th Law Commission Report on  The High Court Arrears – A Fresh Look (1988).

[33]125th Law Commission Report on The Supreme Court – A Fresh Look (1988). <https://lawcommissionofindia.nic.in/101-169/Report125.pdf> accessed 24-6-2020.

[34]79th Law Commission Report on Delay and Arrears in High Courts and other Appellate Courts (1979).

[35] (2002) 4 SCC 247.

[36] (2018) 14 SCC 61.

[37] K.T. Shah proposed addition of Cl. (2-A) to the then Art. 103 – “Any person who has once been appointed as Judge of any High Court or Supreme Court shall be debarred from any executive office under the Government of India or under that of any unit, or, unless he has resigned in writing from his office as Judge, from being elected to a seat in either House of Parliament, or in any State Legislature.

[38] Supra Note 5.

[39] Supra Note 25.

[40] The Supreme Court Judges (Salaries and Conditions of Service) Act, 1958.

[41] The High Court Judges (Salaries and Conditions of Service) Act, 1954.

[42] Can’t Fix Cooling Off Period for Judges: SC (The Hindu, 8-10-2014) <https://www.thehindu.com/news/national/cant-fix-cooling-off-period-for-judges-sc/article6481718.ece> accessed on 14-6-2014.

[43](2016) 5 SCC 1.

[44] (2020) 6 SCC 1.

[45] Ibid.

[46] Ibid.

[47] 2020 SCC OnLine SC 962.

[48] (2020) 6 SCC 1.

[49] Arijeet Ghosh and others, Reforming the Tribunals Framework in India: An Interim Report, (2018) Vidhi Legal Policy <https://vidhilegalpolicy.in/wp-content/uploads/2019/05/8thJuneFinalDraft.pdf> accessed on 15-6-2020.

[50] Monidipa Fouzder, Judicial Retirement Age Rise being “Positively Considered” (The Law Society Gazette, 31-10-2019) <https://www.lawgazette.co.uk/news/judicial-retirement-age-rise-being-positively-considered/5101994.article> accessed on 29-6-2020.

[51] The Judicial Pension and Retirement Act, 1993, Sections 26(5), (6) and (7).

[52] The Senior Courts Act, 1981, Section 9.

[53]Judiciary of England and Wales, Guide to Judicial Conduct 2013, (2013) <https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_conduct_2013.pdf> accessed 19-6-2020 (Guide to Judicial Conduct).

[54] Clark, supra Note 22.

[55] Leslie L. Anderson, Age Discrimination: Mandatory Retirement from the Bench, (1974) 20 Loy L Rev 153.

[56] Clark , supra Note 22.

[57] 28 USC, § 371(c).

[58] 28 USC, § 371(a).

[59] 28 USC, §§. 371(b), (d).

[60]Albert Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure, (2005) 2 J Empirical Legal Stud 495.

[61] David R. Stras and Ryan W. Scott, Are Senior Judges Unconstitutional?, (2007) 92 Cornell L Rev 453.

[62] 28 USC, §§. 178, 371(c) and 375.

[63] Anne S. Kim, Rent-a-Judges and the Cost of Selling Justice, (1994) 44 Duke LJ 166.

[64]Judicial Council of California, Fact Sheet – Temporary Assigned Judges Program (2020) <https://www.courts.ca.gov/documents/Assigned_Judges_Program.pdf> accessed on 23-6-2020.

[65] Guide to Judicial Conduct, supra Note 53.

[66] Clark, supra Note 22.

[67] Richard A. Posner, Aging and Old Age (University of Chicago Press 1995).

[68] Andhyarujina, supra Note 12.

[69] Medha Srivastava, Shalini Seetharam, Sumathi Chandrashekaran, Development and Enforcement of Performance Standards to Enhance Accountability of the Higher Judiciary in India (2017), Vidhi Legal Policy <https://doj.gov.in/sites/default/files/document%282%29.pdf> accessed on 17-6-2020.

[70] All India Judge’s Assn. v. Union of India, (1993) 4 SCC 288.

[71] Ibid.

[72] NITI Aayog, India 3 Year Action Agenda 2017-2018 to 2019-2020 (2017) <http://niti.gov.in/writereaddata/files/coop/IndiaActionPlan.pdf> accessed on 19-6-2020.

[73] Ajit Prakash Shah, Judging the Judges: Need for Transparency and Accountability (2019), 100 India International Centre <https://iicdelhi.in/sites/default/files/2020-12/OP_100_final.pdf> accessed on 29-6- 2020.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra* and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

On 02-06-2016, government of Maharashtra issued a requisition to the MPSC to conduct the Limited Departmental Competitive Examination (“LDCE”) for selection of candidates to the post of Police Sub Inspector. The Home Department had notified 828 vacancies, out of which 642 were from the open category and 186 were from various reserved categories for promotion to the post of Police Sub-Inspector. MPSC recommended the names of 828 candidates, out of which 642 were from the open category, who had secured 253 marks and above; and 186 candidates were from the various reserved categories, who had secured 230 marks and above in departmental examination.

Meanwhile, government vide G.R. dated 22-04-2019 took a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination which was objected by MPSC, contending that,

“As per Article 320 of the Constitution, the MPSC has the power to appoint candidates to various posts in the State. The government had taken the decision without consulting MPSC, which was a serious irregularity, and would hamper the functioning of the Commission.”

Relevant rules governing promotion and recruitment were Rule 4 and 5 of Police Sub-Inspector (Recruitment) Rules, 1995:

Rule 4: Appointment to the post of Police Sub- Inspector by promotion, selection on the basis of limited departmental examination and nomination shall be made in the ratio of 25:25:50.

Rule 5: Notwithstanding anything contained in these rules, if in the opinion of Government, the exigencies of service, ‘so requires, Government may with prior consultation with MPSC make appointment to the post of Police Sub-Inspector in relaxation of the ratio prescribed for appointment by promotion selection on the basis of limited departmental examination or nomination.”  

In the above background, various Original Applications were filed by candidates to challenge the Policy decision dated 22.04.2019 on the ground that the additional 636 candidates who were directed to be accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distorting the ratio for recruitment through the Limited Departmental Examination. The Tribunal vide interim Order directed that Status Quo be maintained with respect to the 636 additional candidates which was vacated by the Tribunal on the request of respondents.

Aggrieved by the order of the Tribunal, the appellants approached Bombay High Court in writ jurisdiction. The High Court, however rejected the petition and  issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period.

Observing Rule 5 of Recruitment Rules, 1995, the Bench stated that, government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power, which may be resorted to only in rare and exceptional circumstances. The Bench further observed,

The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27-06-2016 which is violative of Arts. 14 and 16 (1) of the Constitution. The Bench held,

“Promotional prospects of the appellants would be seriously prejudiced; if a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the appellants.”

Hence, the Court directed that G.R. dated 22-04-2019 would remain stayed during the pendency of proceedings before the Tribunal. The order of the Tribunal whereby it had vacated the interim Order 18-10-2019, and order of the High Court was set aside. The Tribunal was further directed to decide the pending O.A. within a period of six months at the same time to ensure that the additional 636 candidates were given notice of the pending O.A., to enable them to appear and participate in the proceedings.

[Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together 

*Judgment by: Justice Indu Malhotra

Appearances before the Court by

For appellant: Senior Advocate Vinay Navare

For State: Advocate Sachin Patil

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a writ petition which was filed seeking for a writ of certiorari to quash the impugned orders passed by respondent 2 and 3 respectively, and to issue a writ of mandamus directing the respondents to give the appointment to the petitioner on the post of Sub Inspector under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (the 1974 Rules), as applicable in Uttarakhand.

The earlier petition was disposed of by a Coordinate Bench of this Court with a direction to the respondents to consider the case of the petitioner for appointment to the post of Sub-Inspector. By the impugned order respondent 2 had rejected the claim of the petitioner on the ground that the dependents of the deceased employee cannot claim appointment on a particular post as according to the judgment in State of Haryana v. Ankur Gupta, (2003) 7 SCC 704.

The Court observed that order passed by respondent 2 was passed by ignoring the directions issued by this Court in the earlier Writ Petition and the authority concerned had tried to sit over the judgment of this Court and had acted as an appellate authority, then the Court had directed to ensure the presence of the Inspector General of Police.

The Court while allowing the appeal held that in view of the provisions of Rule 8 of the 1974 Rules, the petitioner was entitled to appointment under the said Rules as per his qualification and the reasons shown by the respondents denying the claim for appointment to the petitioner on the post of Sub-Inspector were unsustainable in the eyes of law and as far as the criteria of age from 21 years to 28 years was concerned, it was made clear that the same was not applicable while giving appointment under the 1974 Rules.[Anuj Kumar Saini v. State of Uttarakhand,  2021 SCC OnLine Utt 129, decided on 06-01-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary J., while setting aside the impugned order, reiterated, “…once the institute is recognized as a minority institution, its minority status would entitle the managing committee of the institution to make appointment of teachers against the vacancies subject to satisfying the condition of eligibility prescribed for such appointments under the relevant provision”

The present appeal was moved challenging the order dated 14-08-2018 passed by the writ court in WP(S) No. 1122 of 2011, whereby a direction was issued to the respondents for considering the case of the writ petitioner for permanent absorption on vacant and sanctioned post of teacher in Sanskrit subject, in the respondent’s school. It is to be noted that the writ court while passing the aforesaid direction has recorded that the case of petitioner fits into the eligibility condition for consideration for permanent absorption in view of the fact that the petitioner has rendered 14 years service on the date of advertisement having possessed the requisite qualification.

Placing reliance on findings of the Supreme Court in determining the validity of Bihar Non-Government Secondary Schools (Taking over of management and control) Act 1981, Court said, “…the right of the managing committee of a recognized minority school to appoint a person of their choice has been held to be a constitutional right under Article 30 of the Constitution of India and the School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. This power has been held to be regulatory in nature in order to ensure educational excellence in the minority school and at the same time the right of the managing committee of a recognized minority school to appoint a person of their choice as teacher/non-teaching staff has been preserved in the light of Article 30 of the Constitution of India.”  [Reference was drawn to Sindhi Education Society, (2010) 8 SCC 49 and Chandana Das v. State of West Bengal, (2015) 12 SCC 140]

Court further observed that the writ court before issuing directions for absorption, failed to appreciate the fact that the respondent school is a minority institution enjoying protection under Article 29 and 30, and therefore, has a fundamental right to manage its affairs without any undue interference. It was said, “… admittedly in the instant case, the name of the writ petitioner was never recommended by the respondent-minority school either for regularization or for appointment pursuant to advertisement issued in the year 2010 and accordingly, a direction for absorption/regularization of the writ petitioner in the services of the minority school in the vacant sanctioned post would amount to giving a complete go by to the right of the respondent-minority educational institution to get a person appointed on the basis of recommendation to be made by the Managing Committee of the minority school. The learned single judge has ignored the distinction between a Government School and a Minority School receiving aid by way of salary to the teachers appointed against the sanctioned post.”

Setting aside the decision of the writ Court, it was conclusively held that the direction issued for absorption of the writ petitioner, in spite of his name having been rejected by the Managing Committee of the respondent minority school in the selection process would bear serious implications upon the right of the respondent Minority School to appoint teachers of their choice subject to the regulatory provisions contained in the Act of 1981. Further, the impugned direction of the writ court will amount to denial of the right conferred under Article 30 of the Constitution of India upon the respondent minority school to administer the minority institution and amounts to curtailment of the right of the respondent minority school to appoint teachers of their choice through appropriate selection process amongst those who possess the eligibility and qualification prescribed.[State of Jharkhand v. Subhadra Jha, 2021 SCC OnLine Jhar 64, decided on 19-01-2021]


Sakshi Shukla, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan J., dismissing the present petition, reiterated the finding of Supreme Court, in the words, “if a person belonging to Scheduled Caste category or may Scheduled Tribe category, is in a position to gain employment on his own merit by scoring marks at level with persons belonging to General category candidates, then such a candidate has to be offered a post belonging to General category so that other Scheduled Caste/Tribe candidates can be appointed against the posts which are reserved for that particular category.”

 Himachal Pradesh Staff Selection Commission, Hamirpur invited applications for appointment against various posts, dated 28-12-2019. This included the post of Technician Electrical on contract basis. In terms of the advertisement, four posts of Technician Electrical were advertised. Two were advertised under the category of General, one under the category of EWS and one under the category of Scheduled Caste. The petitioner had applied to be considered for appointment against the post in issue as a General Category candidate. The grievance of the petitioner is that the private respondent stands appointed to the post in issue meant for General category, though the private respondent had applied to be considered for the post in issue under the Scheduled Caste Category.

While dismissing the petition, Court observed, “It is settled law of the land that a person belonging to Scheduled Caste category, if on merit, performs better than General category candidates, then he has to be offered appointment against a post meant for General category and he cannot be pushed down so as to occupy a post reserved for Scheduled Caste category only.”[Deepak Kumar v. Himachal Pradesh Staff Selection, 2021 SCC OnLine HP 138, decided on 14-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Op EdsOP. ED.

This article attempts to analyse and examine the applicability of the law of limitation to proceedings under the Arbitration and Conciliation Act, 1996, vis-à-vis two aspects in particular. The first of these aspects being the limitation as applicable to the initiation of arbitration, be it by reference to arbitration by the court or by filing an application of appointment of an arbitrator in court, and the second being the limitation as applicable to the substantive claims in arbitration.

The law of limitation and the statutory regime for applicability of limitation to arbitration

The law of limitation is essentially a statute in the civil law system, which prescribes a maximum period, after the happening of an event, in which legal action can be commenced. The happening of this event, is often called the cause of action, which means the bundle of facts which constitute to establish the infringement of right. In India, the law of limitation is governed by the Limitation Act, 1963 (hereinafter referred to as “the Limitation Act”), and Section 3 of the Limitation Act of bars the remedy of filing of suits, appeals and applications, after prescribed period of time.1 Thus, an action cannot be initiated by a party if the prescribed time has passed after accrual of cause of action on the basis of which the action has been initiated.

The law of limitation is based on the following maxim[1], vigilantibus non dormientibus jura subveniunt which means “laws serve the vigilant, not those who sleep.” Additionally, Halsbury’s Laws of England[2], states the objectives of the law of limitation as follows:

“The Courts have expressed at least three different reasons supporting the existence of statutes of limitation i.e.―

(a) that long dormant claims have more of cruelty than justice in them;

(b) that a defendant might have lost the evidence to dispute the State claim; and

(c) that persons with good causes of actions should pursue them with.”

Similarly, the Delhi High Court in Satender Kumar v. MCD[3] (Satender Kumar), while highlighting the objectives of law of limitation stated that due to long passage of time vital evidence which would be the defence of the opposite party is bound to get lost or misplaced. Therefore, seeking adjudication of claims preferred after long lapse of time would cause more injustice than justice.

Arbitration is not an exception to this principle, and the law of limitation also applies to it. Section 43(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”)[4] states that “the Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in court”.

Applicability of the Limitation Act for initiation of arbitration

The question now arises as to when does the cause of action to initiate arbitration arise, and when does it stop. In this part, we go on to see the application of the law of limitation vis-à-vis initiation of arbitration. Broadly speaking arbitration can be initiated by means of three methods:

(i) By sending a notice of invocation to the other party within the meaning of Section 21 of the Arbitration Act. This is also the point of commencement of an arbitration proceeding.

(ii) By filing an application under Section 11 of the Arbitration Act. This section provides that a party can approach the Court for appointment of arbitrator, if both parties fail to appoint an arbitrator, either under an agreed procedure as per the agreement between the parties, or upon notice of invocation of arbitration.

(iii) By filing an application under Section 8 of the Arbitration Act. Section 8 empowers a party to apply, to a Court before which an action may have been brought in a case where an arbitration agreement exists, to refer the parties to arbitration. Therefore, in a case where an arbitration agreement exists between the parties, and one party has still brought a civil action before the court or judicial authority, the opposing party can approach the court by filing an application under Section 8 praying for the matter to be referred to arbitration.

The question now to be analysed is what the time period for initiation of arbitration is, and when does the limitation for this begin. One of the early judgments which sets the law in this regard is the judgment of Inder Singh Rekhi v. DDA[5] (“Inder Singh Rekhi”), the Court observed that:

“… in order to be entitled to an order of reference under Section 20 (Section 11 of the Arbitration Act, which was previously Section 20 of the Arbitration and Conciliation Act, 1940) it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applies. The existence of a dispute is, therefore, essential for appointment of an arbitrator under Section 8 or a reference under Section 20 of the Act.”

The Court’s reading was in respect of Section 20 of the Arbitration and Conciliation Act, 1940 (hereinafter referred to as “the old Act”) which is essentially Section 11 of the Arbitration Act, and the element of dispute is contained in Section 21 of the Arbitration Act. Therefore, even under the Arbitration Act, in order to get a dispute referred under Section 11 of the Arbitration Act, the necessary ingredients are the existence of a dispute, and the second ingredient being the existence of an arbitration agreement.

The Court also went on to define that “A dispute arises where there is a claim and a denial and repudiation of the claim.”

Further, even R.S. Bachawat’s Law of Arbitration[6] defines the word dispute in following terms:

“…there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. Whether in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case.”

The Court then went on to hold that the starting point for the cause of action for determining the limitation for a Section 20 petition or a Section 8 application would be the point from when the dispute arose, by observing that:

“4. In order to be entitled to ask for a reference under Section 20 of the Act there must not only be an entitlement to money but there must be a difference or dispute must arise. … when the assertion of the claim was made on 28-2-1983, and there was non-payment, the cause of action arose from that date.”

 The observation of the Supreme Court was in view of the applicability of Article 137 of the Limitation Act to a petition under Section 11 (Section 20) or a petition under Section 8. Article 137 is the article which applies to any petition which is filed in court, which reads “Three years from when the right to apply accrues”. Therefore clearly, the “right to apply” for a petition under Section 8 or Section 11 would accrue only once the dispute has accrued, and therefore the starting point for limitation of an application under Section 8 or Section 11 would be the accrual of the dispute.

Even before the judgment of Inder Singh Rekhi8, the Supreme Court of India had clarified that Article 137 (erstwhile Article 181) of the Limitation Act, 1963, would be applicable to petitions moved before the Court, even if they are moved under the Arbitration Act. This was the observation in Wazir Chand Mahajan v. Union of India9, which laid down that Article 181 of the old Limitation Act, 1908 would be applicable to applications filed under Section 20 of the old Act.

There could also be other instances where a dispute could arise. A dispute could also arise when one party gives a notice of invocation/appointment of arbitrator to the other party, and the other party either fails to do so, or fails to agree on an appointment10. The limitation would then start from that date, for the purpose of filing a petition under Section 11 or Section 8.

In view of the above discourse, it is evident, that the starting point of limitation for initiation of arbitration, is from the date when the dispute arose, and the stopping point is the giving of the notice of invocation, or the filing of the Section 11 or Section 8 petition.

Applicability of the Limitation Act to substantive claims in arbitration

The next question which arises is how to judge when the limitation for the substantive claim starts, and when does it stop. While in the previous section we discussed what is the right time period to initiate arbitration, we contrast this section by analysing the prescriptive time period for a substantive claim within the arbitration. Therefore, this section deals with the cause of action for a claim, and not the cause of action for an arbitration.

One such question arose for consideration in Panchu Gopal Bose v. Board of Trustees for Port of Calcutta11 (“Panchu Gopal”). In this case, the petitioner had made its claim for the first time in the year 1979. Thereafter no payment was forthcoming towards this claim. However, the petitioner thereafter failed to take any follow-up action, up until November 1989, that means well over 10 years. In November 1989 the petitioner sent a notice of invocation for appointment of arbitrator to the respondent, where after the respondent immediately refuted it.  In this case, the Court held that the cause of arbitration arises when the claimant becomes entitled to raise the question, that is, when the claimant acquires the right to require arbitration. The Court therefore observed that “the limitation would run from date when the cause of arbitration would have accrued, but for the agreement”. Therefore, the Court found that in this case the cause of arbitration had accrued back in 1979, when it became entitled to payment, and not in 1989 when the dispute arose. Therefore, the claim of payment was held to be hopelessly barred by limitation.

Similarly, even in J.C. Budhraja v. Orissa Mining Corpn. Ltd.12 (“J.C. Budhraja”), where it was the petitioner’s contention that the limitation for the claims would begin to run from the date on which the difference arose between the parties, the Court refuted the contention and observed to the contrary. In this case the Court took notice that the notice for invocation of arbitration was served on 4-06-1980, and it had to be seen whether on that date, the claims were barred. The Court then went on to observe that that claim arose on 14-4-1977 when the final bill was prepared, and not on 4-6-1980, when the notice invoking arbitration was sent.

The Delhi High Court, in Satender Kumar13 observed that limitation for filing a petition for appointment of an arbitrator would be different from the limitation for a claim and the accrual/arising of cause of action for a claim would vary as per the facts and circumstances of each case, and the nature of jural relationship between the parties. In this particular case, the Court held that Article 18 of the Limitation Act would be applicable, and the cause of action arose in that particular case upon completion of work. Similarly, in MCD v. Gurbachan Singh and Sons14 (“Gurbachan Singh”) it was observed that a claim pertaining to work completed in 1994 for which the claim was filed only in the year 2000, was barred by limitation, as the cause of action arose in the year 1994.

Therefore, what becomes apparent from this discourse is, that as far as the starting of limitation period for a substantive claim is concerned, the instance where the cause of action arises, depends on the facts and circumstances of each case, and is not merely the point where the dispute arises.

As far as the stopping of the period of limitation of a claim or a counterclaim is concerned, the Supreme Court’s judgment in State of Goa v. Praveen Enterprises15 makes the law very clear. In respect of claims in arbitration, the Court clarifies by a combined reading of Section 21 of the Arbitration Act, and Section 3 of the Limitation Act, 1963, the following aspects:

  1. A claim for which a notice invoking arbitration is given, the date of stopping of limitation, is the date when a notice invoking arbitration is given.
  2. In case of the claims, where there is no notice of invocation given, and they are added directly in the statement of claim, then the date of filing of the statement would be the relevant date when the limitation stops to run.
  3. In the case of a claim, for which neither a notice of invocation is given, nor they were contained in the original statement of claims, the relevant date for stopping of the limitation period would be, the date on which the amendment in the original statement of claims, incorporating this new claim is filed.
  4. In the case of a claim in the nature of a set-off, the same above rules being Rules 1, 2 and 3 would apply. That means the date of stopping of limitation would be the date when either the main claim is invoked, or filed in the statement of claims, or incorporated by way of an amendment, respectively.
  5. In the case of a counterclaim, ordinarily, the date when the counterclaim is filed would be the date relevant for determining the date of stopping of limitation period.
  6. However, in the case of a counterclaim, where before filing the counterclaim, the counter claimant has, by way of a separate notice of invocation, invoked the counterclaim, then that would be the date relevant for the stopping of the limitation period.

Court’s view on the difference between the period of limitation for a claim and for filing of a petition

The Courts in India have time and again reiterated that there is a marked difference between the limitation period for filing a petition under Section 11 or Section 8, and the limitation period for a claim to be raised in arbitration.

The Supreme Court has in J.C. Budhraja16 cautioned that “the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim”. In this case the Court had highlighted the error made by the arbitrator while confusing both issues.

In Union of India v. L.K. Ahuja and Co.17, an application was made to the Court for the appointment of arbitrator in year 1976 after the denial of the request by respondent in the same year. However, the claim which anticipated to be referred to the arbitration was pertaining to the work completed in the year 1972. The Supreme Court observed that:

“8. In view of the well-settled principles we are of the view that it will be entirely a wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an order under Section 20 of the Arbitration Act, to be barred by limitation.”

Apart from the key difference of the limitation period itself, the difference also exists in the stage when the limitation aspect of both issues can be looked into by a Court or an arbitrator. While the limitation period for filing a petition for appointment of an arbitrator or reference of disputes to arbitration is to be seen by the Court, the limitation aspect of the substantive claims is looked into by the Arbitral Tribunal and not the Court. The only exception to this rule is if the claims to be referred to arbitration are hopelessly barred by limitation, which is apparent from admitted facts and documents.

The Delhi High Court explained this distinction in Satender Kumar18, by observing:

 “The limitation for filing a petition, seeking reference of disputes to arbitration, is different than the period of limitation for the subject claims as such. Meaning thereby, that the petition may be within limitation because, it may be filed within three years of arising of disputes, however the main claims are time barred or not is an issue on merits to be decided in arbitration proceedings The second aspect, and which is in fact is the more important aspect, is that, if on admitted facts, the claims are clearly barred by limitation at the time of passing of the order under Section 20 of the Arbitration Act, 1940, then there need not be reference of the disputes to arbitration because there is no entitlement to money, and therefore a dispute or difference with respect to the same, once the same are clearly time barred.

Another instance where the Court refused to refer dead claims to arbitration is in Progressive Constructions Ltd. v. National Hydroelectric Power Corpn. Ltd.19, wherein it was been held that claims which are ex facie barred by limitation need not be referred for decision in the arbitration proceedings. Further, even in National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd.20, it has been held that dead claims (long barred) need not be referred to arbitration.

Since these judgments, there has been a slight evolution in law, in terms of the amendment brought in Section 1121, where the Court, while considering an application for appointment, now needs to confine itself to the question whether the arbitration agreement exists or not, and need not go into any other aspects. However, despite this marked change in law, it can still be argued, that in the case of dead claims, which are hopelessly barred by limitation, there is nothing to be referred to arbitration, and thus the Court may still refuse an appointment on this ground.

Conclusion

Applicability of the law of limitation to arbitration proceedings is much more similar to its applicability to a suit initiated under the Code of Civil Procedure, 1908. However, the difference arises with respect to the date on which the dispute arises and the date on which request for arbitration has been made to the respondent. As these dates decide the validity of application made to the court, with respect to the law of limitation.

Ultimately, the Courts are empowered to dismiss the application even if it is within time, in case where substantive claim is time barred on admitted facts. As, it would save the party from the cost of arbitration, especially in case where the arbitrator could erroneously hold the time-barred claim as claim within time, ultimately leading to a failure in being able to enforce such a claim.


Working with Adwitya Legal LLP as Partner, Arbitration and Dispute Resolution, e-mail: gunjan@adwlegal.co.in.

Author is grateful to Mr. Akash Kishore, who is currently interning with Adwitya Legal LLP, for his research inputs.

1 Provided under First Schedule to the Limitation Act, 1963.

[1] Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4.

[2] Fifth Edn. (2008).

[3] 2010 SCC OnLine Del 424.

[4] S. 37 of the Arbitration Act, 1940.

[5] (1988) 2 SCC 338.

[6] Wadhwa and Co. (2005).

[8] (1988) 2 SCC 338.

[9] (1967) 1 SCR 303.

[10] State of Orissa  v. Damodar Das, (1996) 2 SCC 216.

[11] (1993) 4 SCC 338.

[12] (2008) 2 SCC 444.

[13] 2010 SCC OnLine Del 424.

[14] 2014 SCC OnLine Del 19.

[15] (2012) 12 SCC 581.

[16] (2008) 2 SCC 444.

[17] (1988) 3 SCC 76.

[18] 2010 SCC OnLine Del 424.

[19] 2009 SCC OnLine Del 2199.

[20] (2009) 1 SCC 267.

[21] By way of the Arbitration and Conciliation (Amendment) Act, 2015, S. 11(6-A) was inserted which reads, “The Supreme Court or, as the case may be, the High Court, while considering any application under sub-s. (4) or sub-s. (5) or sub-s. (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement.”

Legislation UpdatesNotifications

The term of office of Justice (Retd.) Bansi Lal Bhat, Member (Judicial) as officiating Chairperson, National Company Law Appellate Tribunal (NCLAT) extended for a period of three months w.e.f. 01-01-2021 or till the appointment of regular Chairperson in NCLAT or until further orders, whichever is the earliest.

NOTIFICATION


Ministry of Corporate Affairs

[Notification dt. 15-01-2021]

Case BriefsHigh Courts

Calcutta High Court: Ashis Kumar Chakraborty, J., while allowing the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 appointed former judge of the present High Court, Sahidullah Munshi as the sole arbitrator in the present matter.

In the present application under Section 11(6) of the Arbitration and Conciliation Act, 1996, petitioner made a prayer for appointment of a sole Arbitrator to adjudicate the disputes arisen between the parties relating to the agreement dated 16-05-2013 (hereinafter referred as “the said contract”) entered into between the parties herein. By the said contract the respondent inducted the petitioner as the contractor to carry out development work of surrounding areas of Platinum Jubilee Building, terms and conditions of which were specified in the contract. Clause 8 of the said contract contemplated that all disputes arising between the parties shall be referred to the sole arbitrator appointed by the Director, Indian Statistical Institute.

It is the case of the petitioner that since the respondent wrongfully reclaimed its various claims, disputes have arisen which are required to be adjudicated through arbitration. Accordingly, by a dated 9-06-2017, the petitioner invoked the arbitration agreement and requested the respondent to refer the dispute to arbitration by considering provisions contained in Section 12(5), read with fifth and seventh schedule to the Act of 1996. The respondent, however, by their letter dated 12-07-2017, sought to refer certain disputes which had arisen between the parties relating to another contract for construction of the said building. The petitioner by further letter dated 16-07-2018 addressed to the respondent for appointment of an Arbitrator to adjudicate the disputes between the parties relating to the contract with no response from the respondents. Thus, the petitioner has filed the present application praying for relief mentioned above.

Court observed, “In view of the incorporation of the provisions of sub section (5) of Section 12 and the fifth and seventh schedule to the Act of 1996 and the decisions of the Supreme Court in the case of Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation Limited, (2017)4 SCC 665 and TRF Limited v. Energo Engineering, (2017)8 SCC 377, the Director of the respondent cannot appoint an Arbitrator.” Further, allowing the present petition, Court-appointed former judge, Mr Sahidullah Munshi as the sole arbitrator in the present matter.[Paul Builders Pvt. Ltd. v. Indian Statistical Institute, 2021 SCC OnLine Cal 21, decided on 11-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Appointments & TransfersNews

Central Government revises the tenure of Justice (Retd.)Bansi Lal Bhat and Justice (Retd.) A.I.S. Cheema as Judicial Member, National Company Law Appellate Tribunal (NCLAT) for a period till their attaining the age of 67 years, or until further orders, whichever is earlier.

NOTIFICATION


Ministry of Corporate Affairs

[05-01-2021]

Appointments & TransfersNews

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Justice Sudhanshu Dhulia was enrolled as an Advocate on July 07, 1986, and practiced in the Allahabad and Uttarakhand High Courts in Civil, Constitutional, Service, and Labour matters and has specialized in Service and Constitutional matters. He was appointed as Permanent Judge of the Uttarakhand High Court on November 1, 2008.


Ministry of Law and Justice

[Press Release dt. 07-01-2020]

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ORDER


Ministry of Law and Justice

Case Briefs

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ORDER


Ministry of Law and Justice

Appointments & TransfersNews

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Ministry of Law and Justice

Appointments & TransfersNews

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ORDER


Ministry of Law and Justice

Appointments & TransfersNews

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ORDER


Ministry of Law and Justice