Case BriefsSupreme Court

Supreme Court: Activating the “dormant” Article 224A of the Constitution, the 3-judge bench of SA Bobde, CJ and Sanjay Kishan Kaul and Surya Kant, JJ has issued some general guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent.

While the discretion of the Chief Justice of the High Court under Article 224A is not, the Court stated that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments.

GUIDELINES

i. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where the it arises

  1. If the vacancies are more than 20% of the sanctioned strength.
  2. The cases in a particular category are pending for over five years.
  3. More than 10% of the backlog of pending cases are over five years old.
  4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
  5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

ii. Embargo Situation:

If recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise.

As per data, there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021; seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline.

“Thus, the parameter we have adopted is that, at least, the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A.”

iii. Pre-recommendation process:

  1. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog.
  2. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.

iv. Methodology of Appointment:

Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution must be followed to see the progress made and impediments, if any. However, since the Judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period.

v. Time to complete the process:

The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. Since there are a number of aspects not required to be adverted to for appointment under Article 224A, a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance for such appointment.

vi. Tenure of Appointment:

The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed, generally the appointment should be for a period between two to three years.

vii. Number of Appointments:

At least, for the time being dependent on the strength of the High Court and the problem faced by the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.

viii. Role of ad hoc Judges:

  • More than five year old cases to be assigned to the ad hoc Judges so appointed. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, keeping the primary objective to deal with long pending arrears in mind.
  • A division bench of ad hoc Judge and sitting Judge in matters to be heard by Division Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them.
  • Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration or appearance.

ix. Emoluments and Allowances:

For all practical purposes the ad hoc Judge would receive the same emoluments, allowances and benefits as are admissible to the permanent/additional Judges.”

  • The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension.

“This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines.”

  • Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances.

“… it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in, the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually results in the savings for the State Government(s), which would otherwise be amount expended as their allowances and perks.”

  • All allowance/perks/perquisites as are admissible to the permanent/additional Judge(s) would be given to the ad hoc Judge(s).
  • As far as housing accommodation is concerned, either the rent-free accommodation should be made available or the housing allowance should be provided on the same terms and conditions.

The Court concluded with the following words,

“We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring/retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise, we will endeavour to iron them out.”

[Lok Prahari v. Union of India, WRIT PETITION (C) NO. 1236 OF 2019, decided on 22.04.2021]

Case BriefsSupreme Court

Supreme Court: Taking note of the existing 220 vacancies in the High Courts, the 3-judge bench of SA Bobe, CJ and SK Kaul and Surya Kant, JJ stressed upon the importance of the Chief Justices of the High Courts making recommendations in time and said that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The Court noted that the vacancies are known and the norms permit making recommendations up to six months in advance. However, even recommendations for 220 existing vacancies appear not to have been made much less for vacancies, which are going to arise in the next six months.

We, thus, once again, emphasise the requirement and desirability of the Chief Justices of the High Courts, who will make endeavour to recommend vacancies as early as possible even if they are not made at one go. We may add that even in the earlier orders we have noted the apparent hesitation of some High Courts to recommend names when the earlier list(s) is in the pipeline. We have opined that there is no such impediment to initiate a new process without waiting for the result of the earlier recommendations.

The pendency at the end of the Government: 

  • 45 names recommended from the High Courts pending with the Government for more than six months reached the Collegium in the last couple of weeks.
  • 10 recommendations from the list of old proposals in pipeline pending with the Government of India for considerable period of time.

“On the last date of hearing, the learned Attorney General had made a statement that a decision would be taken in this behalf within the next three months.”

  • 6 names reiterated by the Supreme Court Collegium a second time, are also awaiting appointment.

While the Attorney General KK Venugopal did not differ with the requirement of time bound schedule for filling the vacancies at every stage, he emphasised that the trigger for filling up of the vacancies is the recommendations made by the Chief Justices of the High Courts.

However, once the recommendations are made, there are two stages at which the matter rests with the Government – the first when the Ministry processes the names; and the second post the Collegium of the Supreme Court taking a call in recommending such of the names as are approved by the Collegium.

Insofar as the Judiciary is concerned, the second stage after the recommendations are made by the Collegium of the High Courts is the time period taken by the Collegium of the Supreme Court in consulting the consultee Judge(s) to take a call on those names.

As per the Memorandum of Procedure finalised by the Supreme Court Collegium on 10.3.2017:

  1. States may take not more than six weeks to send their views.
  2. The Central Government can presume no objection of the State Government, if their views are not received within six weeks.
  3. No timeline prescribed for the Central Government to forward recommendations.
  4. The Chief Justice of India to send recommendations/advise to the Law Minister within four weeks.
  5. The Law Minister to put up the proposal to the Prime Minister within three weeks for advise of the President.

In order to facilitate timely appointment, the Court advised to follow the following timelines in addition to the aforesaid:

i. The Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from the date of recommendation of the High Court Collegium, to the Central Government.

ii. It would be desirable that the Central Government forward the file(s)/recommendations to the Supreme Court within 8 to 12 weeks from the date of receipt of views from the State Government and the report/input from the IB.

iii. It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded.

iv. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously, such appointment should be processed and appointment should be made within 3 to 4 weeks.

[PLR Projects Pvt. Ltd v. Mahanadi Coalfields Ltd., 2021 SCC OnLine SC 332, order dated 20.04.2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench of SA Bobde, CJ and AS Bopanna and S. Ramasubramanian, JJ has ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020. For the conduct of Madhya Pradesh HJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 , the Court has asked the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination.

High Court of Calcutta

The High Court of Calcutta has approached the Court seeking a modification of the timeline fixed by this Court in Malik Mazhar Sultan vs. U.P. Public Service Commission, (2008) 17 SCC 703 for filling up of vacancies of judicial officers for the year 2020. As per the Malik Mazhar case, the schedule is to commence with the notification of the number of vacancies being issued by the 31st March every year and the whole process coming to an end with the issuance of appointment letters by 30th September indicating the last date of joining as 31st October, 2020.

Admittedly, even the first step namely that of notifying the vacancies, has not been taken due to the announcement of lock down by 24.03.2020.

Therefore, the Court ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020 as follows:

High Court of Madhya Pradesh

High Court of Madhya Pradesh approached the Court seeking deferment of MPHJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 till the Examination Committee finds it suitable to conduct the examination. The notification for recruitment was published on 16.01.2020 and preliminary examination was fixed to be held on 16.03.2020. However, the examination got postponed due to the current Pandemic. On 24.08.2020, a new notification was issued fixing the date of preliminary examination as 30.09.2020. But due to the increase in the number of persons affected by Covid-19, a request was received from the MP High Court Bar Association on 29.08.2020 seeking postponement of the examination.

A total of 3113 candidates are likely to appear for the examination and out of them 1942 candidates belong to other States. The examinations are to be conducted at Bhopal, Indore, Gwalior and Jabalpur.

During the period from 25.03.2020 to 08.08.2020, 8 judicial officers, 52 judicial employees, and 46 Advocates tested positive for Corona. Therefore, the Court directed the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination. The first of such review shall be conducted in the first week of November, 2020.

The Court said that the the High Court may endeavour to hold the above examination as soon as the situation becomes conducive and the time-schedule shall stand extended accordingly.

[Malik Mazhar Sultan v. U.P. Public Service Commission,  2020 SCC OnLine SC 764, order dated 22.09.2020]

Hot Off The PressNews

Supreme Court: The Court has directed all States, Union Territories (UTs) and the High Courts to apprise it on the status of vacancies of judicial officers as on June 30 and sought personal appearance of all State Law Secretaries and the Registrar Generals of HCs before it on July 31.

“The authorities shall indicate the total strength of each cadre; the number of posts in different cadres actually filled up; the number of posts in each cadre lying vacant; the number of posts in respect of which selection is presently going on and the stage of the said process of selection, and finally, the number of posts in different cadres for which the process of selection is yet to be initiated,”

The Court had, on October 22 last year, taken note of over 5,000 vacant posts of judicial officers in lower courts across the country and sought information from all the 24 High Courts as also states.

The bench of Ranjan Gogi, CJ and Deepak Gupta and Aniruddha Bose, JJ said,

“Regarding the issue of filling up of the vacancies in different cadres of the District and subordinate judicial services of the states and UTs, the concerned authority of the state governments/UTs and also the Registrar Generals of the jurisdictional High Courts shall inform the Secretary General of this court the position with regard to filling up of the vacancies in the judicial services in each state,”

The Law Secretaries of each State and the Registrar Generals of each High Courts shall be personally present in court on July 31, it said.

The bench also took note of a report dealing with the central funding on infrastructure of subordinate judiciary.

“Solicitor General (Tushar Mehta) is granted time until July 31 to interact with the concerned officials of the Union of India and to lay before the court the views of the Union of India with regard to the suggestions made by the Amicus Curiae (on infrastructure of lower courts),”

Earlier, the Court had termed the extent of vacancies in lower judicairy as “wholly unacceptable” and sought information from all the 24 High Courts on it. It had said there were 22,036 posts of higher and lower judicial officers in lower courts in the country and, as on date, 5,133 posts are vacant.

(Source: PTI)

Hot Off The PressNews

On 03.10.2017, the Chief Justice of India, Justice Dipak Misra along with Justice J. Chelameswar, Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Joseph passed a resolution stating that all the decisions taken by the Collegium, indicating the reasons, will be uploaded on the website of the Supreme Court. The Resolution was passed in order to ensure transparency and yet maintain confidentiality in the Collegium system.

The recommendations sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, will also be uploaded of the website because on each occasion the material which is considered by the Collegium is different.

The ‘Collegium Resolutions’ tab that was added to the Supreme Court website on 06.10.2017, displays the following recommendations and resolutions till date:

Hot Off The PressNews

On 09.08.2017, a ‘concept note’ on a Central Selection Mechanism (CSM) for the lower judiciary was notified on the Supreme Court website afterthe 3-judge bench of JS Khehar, CJ and AK Goel and AM Khanwilkar, JJ, on 04.08.2017, asked the Registry to prepare and send the note to the Registrars of all the High Courts. The said direction was given after the Court initiated suo motu proceedings after a letter dated 28.04.2017 was written by the Secretary of the Department of Justice, Ministry of Law & Justice (Government of India), to the Supreme Court of India.

According to the ‘Concept Note’, under CSM, the candidates will write a single common examination, namely the District Judges Recruitment Examination (DJURE), and be considered for selection in all the States for which they fulfill the eligibility criteria. Here are the key points from the Concept Note

Why a Central Selection Method?

  • Conducting DJURE would mean having a consistent and rigorous selection process
  • Fixed time-table of holding such examinations will enable an advocate who is unsuccessful in a given year, to try harder and make further attempts in a planned manner for the subsequent years.
  • More candidates will appear for the examination, of which the best eventually make the grade and qualify as central service officers.
  • CSM will provide a regular pool of meritorious candidates to recruitment and selection bodies for State Judicial Services across India.
  • District Judges Recruitment Examination (DJRE) will eradicate uncertainty and irregularity by providing fix syllabus and schedule of examination.

Effect on existing structure of Judiciary

  • DJURE would not compromise the autonomy of the States in regulating the terms of recruitment or the conditions of service. All existing rules regarding reservation, eligibility and service conditions in the States would continue to be in force.
  • DJURE will neither recruit, nor appoint candidates as District Judges. It will merely present a pool of candidates from whom judges can be recruited, after an interview with the selection authority. The actual prerogative of appointment of any judges to State Judicial Services would remain with the Governor of a State, as prescribed under the Constitution of India.
  • DJURE will not alter the existing eligibility criteria in different States. The eligibility criteria and the rules/regulations for reservation prevalent in the States will remain intact. Specific requirements of each State in terms of testing knowledge in local laws or local language will also be protected.

Structure of DJURE: DJURE will be split into 4 law papers and interview.

Authority conducting DJURE

  • 5-member Central Selection Committe consisting of one chairperson and four other members, all nominated by the CJI, and may include sitting or retired judges. The four members shall preferably represent each of the four regions of the country.
  • Secretariat for conducting the DJURE written exams, and constituting Interview Boards for conducting interviews for different state judicial services
  • Interview Boards solely responsible for conducting the interviews of candidates who have qualified on the basis of the National and State ranks

Funding: CSM will be funded by the Central Government, keeping in mind the all India nature of the examination.

Bi-annual DJURE: Concept Note suggests that the timeline of the DJURE should begin by Intimation of Vacancies by the High Court to the Secretariat on March 15 every year and should conclude with the publication of results on August 31. The 6-month timeline will allow CSC to conduct DJURE twice a year.

To read the full ‘Concept-note’, click here.

Hot Off The PressNews

On 04.08.2017, the 3-judge bench of JS Khehar, CJ and AK Goel and AM Khanwilkar, JJ indicated that the Court was inclined to go ahead with a proposal for a centralised selection mechanism for appointment of judicial officers in the subordinate judiciary even if there was no amicable consensus among various the high courts and the states. The Court said that  it wanted professional people to come into the judiciary so that they could do something for the institution. The matter was taken up suo motu by the Court after a letter was written to the Secretary General of the Supreme Court by Secretary (Justice) Snehlata Shrivastava at the Centre.

Stating that citizens should have confidence in the judiciary, the Court said that no country can progress if there is no functional and effective judiciary. No person from abroad would like to come to India and contest his case for 15 years. The Court said that, if required, it will have a day-long hearing on the issue on August 22 to resolve the objections of various States and High Courts to the proposal.

CJI said that the Court was inclined to pass an order after reaching an amicable consensus but if the objections persist, it may still pass the orders. Asking the Registry to send a “concept note” of the proposal allaying the objections to all the registrars general of the High Courts and the Secretaries of the Law Ministries of all the States, the Court said that the High Courts and the Secretaries of the Law Ministries of all the States should put the concept note on their websites to seek suggestions from the public and after analysis forward it to the apex court before August 17.

Solicitor General Ranjit Kumar presented 4 suggestions of the Union of India:

  • Examination should have a commercial law paper along with other subjects.
  • There should be a test to check the technology proficiency of the candidate
  • The Union Public Service Commission (UPSC), being a professional independent body having experience, should conduct the examination.
  • The cost should be shared by the Centre and the States on a fifth-fifty basis.

The bench, however, disagreed with this suggestion of the solicitor general, saying it would amount to interfering in the federal structure as the syllabus for the exam was a State subject. These change of papers, marks, syllabus are small changes which could be given effect by modifying the order, when the need arises.

On 28.07.2017, the Court had asked Senior advocate Arvind Dattar, assisting the court as an amicus curiae, to prepare the concept note on the proposal after Andhra Pradesh, Kerala, Uttarakhand and Calcutta high courts raised their objection on account of language and reservation criteria. The bench had assured the States that the centralised process would not affect their rules, reservation or language and it would be like a UPSC examination.

According to a report earlier issued by the Supreme Court –‘Indian Judiciary Annual Report 2015-2016’, 2.8 crore cases were pending in the district courts across the country which were short of nearly 5,000 judicial officers. The report had suggested increasing the judicial manpower “manifold” at least seven times to overcome the crisis by appointing about 15,000 more judges in the coming years.

Source: PTI