1. High Court judge vacancies and the appointment process under Articles 217, 224, and 224A of the Constitution of India. (Para 1 , 2 , 3 )
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2021 Supreme(SC) 223
SUPREME COURT OF INDIA
S.A.BOBDE, CJI., SANJAY KISHAN KAUL, SURYA KANT, JJ.
M/S. PLR PROJECTS PVT. LTD. – APPELLANT
VERSUS
MAHANADI COALFIELDS LTD. & ORS. – RESPONDENTS
TRANSFER PETITION (CIVIL) NO.2419 OF 2019
Decided on : 20-04-2021
Advocates Appeared:
For the Petitioner(s):Kaushik Poddar, Advocate
For the Respondent(s):K K Venugopal, Ld. AG Gurmeet Singh Makker, Ankur Talwar, Chinmayee Chandra, Shyam Gopal, Sibo Sankar Mishra, Ashok Kumar Singh, Umakant Mishra, Rajiv Sinha, Kunal Chatterji, Maitrayee Banerjee, Pravar Veer Misra, Kedar Nath Tripathy, Preetika Dwivedi, S. N. Bhat, V.N. Raghupathy, Shibashish Misra, Dhananjai Jain, Gautam Narayan, Shantanu Sagar, Sunil Kumar, Sr. Adv. Himanshu Shekhar, Jamnesh Kumar, K. Enatoli Sema, Amit Kumar Singh, Apratim Animesh Thakur, Prachi Hasija, Ravindra Shrivastava, Sr. Adv. Arjun Garg, Shrutika Garg, Arjun Garg, Gopal Jha, Shreyash Bhardwaj, Renuka Sahu, Abhimanyu Tewari, Naresh K. Sharma, Aniruddha P. Mayee, Vikas Singh, Sr. Adv. Mahalakshmi Pavani, Senior Adv. Shobha Gupta, Sneha Kalita, Prerna Kumari, Bristi Rekha Mahanta, Sudha Pal, Mansa Singh, Bhakti Pasrija Sethi, Priyanka S. Mathur, Deepika Kalra, Preeti Singh, Reena Rao, Ruchi Khurana, Sakie Jhakaria, Savita Singh, Shobha, Swati Jindal, Yugandhara Pawar Jha, Priyanka Das, Ritu Bharadwaj, Manjula Gupta, Madhumita Bhattacharjee, Subra Saha, Neka Tandon Phookan, Inklee Roy Baruah, Maheravish Rein, Supriya Jain, Jessy Kurian, Medha, Rashmi Singhania, Nanda Devi Deka, K. Enatoli Sema, Arjun Garg, Gopal Jha, Renuka Sahu, Abhimanyu Tewari, Sneha Kalita, Sibo Sankar Mishra, Kunal Chatterji, Kedar Nath Tripathy, Preetika Dwivedi, S. N. Bhat, V. N. Raghupathy, Dhananjai Jain, Gautam Narayan, Shantanu Sagar, Himanshu Shekhar, Advocates
For the Petitioner(s):Kaushik Poddar, Advocate
For the Respondent(s):K K Venugopal, Ld. AG Gurmeet Singh Makker, Ankur Talwar, Chinmayee Chandra, Shyam Gopal, Sibo Sankar Mishra, Ashok Kumar Singh, Umakant Mishra, Rajiv Sinha, Kunal Chatterji, Maitrayee Banerjee, Pravar Veer Misra, Kedar Nath Tripathy, Preetika Dwivedi, S. N. Bhat, V.N. Raghupathy, Shibashish Misra, Dhananjai Jain, Gautam Narayan, Shantanu Sagar, Sunil Kumar, Sr. Adv. Himanshu Shekhar, Jamnesh Kumar, K. Enatoli Sema, Amit Kumar Singh, Apratim Animesh Thakur, Prachi Hasija, Ravindra Shrivastava, Sr. Adv. Arjun Garg, Shrutika Garg, Arjun Garg, Gopal Jha, Shreyash Bhardwaj, Renuka Sahu, Abhimanyu Tewari, Naresh K. Sharma, Aniruddha P. Mayee, Vikas Singh, Sr. Adv. Mahalakshmi Pavani, Senior Adv. Shobha Gupta, Sneha Kalita, Prerna Kumari, Bristi Rekha Mahanta, Sudha Pal, Mansa Singh, Bhakti Pasrija Sethi, Priyanka S. Mathur, Deepika Kalra, Preeti Singh, Reena Rao, Ruchi Khurana, Sakie Jhakaria, Savita Singh, Shobha, Swati Jindal, Yugandhara Pawar Jha, Priyanka Das, Ritu Bharadwaj, Manjula Gupta, Madhumita Bhattacharjee, Subra Saha, Neka Tandon Phookan, Inklee Roy Baruah, Maheravish Rein, Supriya Jain, Jessy Kurian, Medha, Rashmi Singhania, Nanda Devi Deka, K. Enatoli Sema, Arjun Garg, Gopal Jha, Renuka Sahu, Abhimanyu Tewari, Sneha Kalita, Sibo Sankar Mishra, Kunal Chatterji, Kedar Nath Tripathy, Preetika Dwivedi, S. N. Bhat, V. N. Raghupathy, Dhananjai Jain, Gautam Narayan, Shantanu Sagar, Himanshu Shekhar, Advocates
IMPORTANT POINT
Appointment of ad hoc Judges in High Courts – Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from date of recommendation of High Court Collegium, to Central Government.
Headnote:
Constitution of India – Article 224A – Appointment of ad hoc Judges in High Courts – Intelligence Bureau (IB) should submit its report/inputs within 4 to 6 weeks from date of recommendation of High Court Collegium, to Central Government – It would be desirable that Central Government forward file(s)/recommendations to Supreme Court within 8 to 12 weeks from date of receipt of views from State Government and report/input from IB – It would be for Government to thereafter proceed to make appointment immediately on aforesaid consideration – If Government has any reservations on suitability or in public interest, within same period of time it may be sent back to Supreme Court Collegium with specific reasons for reservation recorded – If Supreme Court Collegium after consideration of aforesaid inputs still reiterates recommendation(s) unanimously (Cl. 24.1), such appointment should be processed and appointment should be made within 3 to 4 weeks. (Para 11)
Facts of the case:
High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength. 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.
Findings of Court:
We are conscious that the aforesaid exercise is collaborative in nature and we would expect promptness in this process to facilitate the larger cause of dispensation of timely justice.
Result : Proceeding closed with directions.
Legal Category Hierarchy
Table of Contents
2. Whether prescribing timelines for judicial appointments contradicts the non-justiciability of appointments established in the Third Judge's case. (Para 10 )
3. Delays in recommendations and government processing hinder justice; procedural delays are distinct from the judicial review of individual appointment suitability. (Para 4 , 5 , 6 , 7 , 10 )
4. Procedural timelines for judicial appointments are justiciable and distinct from the judicial review of the merits of a particular appointment. (Para 10 )
5. Prescription of specific timelines for IB reports, government forwarding of recommendations, and processing of reiterated recommendations to fill High Court vacancies. (Para 11 )
6. Is the timeline for judicial appointments justiciable despite the Third Judge's case?
Yes. The court held that observations regarding the non-justiciability of appointments in the Third Judge's case pertain to the judicial review of particular appointments, not to procedural aspects like delays in the appointment process. (Para 10 )
7. What are the prescribed timelines for the Intelligence Bureau and Central Government in the appointment process?
The Intelligence Bureau should submit reports within 4 to 6 weeks of the High Court Collegium's recommendation. The Central Government should forward recommendations to the Supreme Court within 8 to 12 weeks of receiving State views and IB reports. (Para 11 )
8. How should reiterated recommendations by the Supreme Court Collegium be handled?
If the Supreme Court Collegium unanimously reiterates a recommendation after considering government reservations, the appointment should be processed and made within 3 to 4 weeks. (Para 11 )
9. Can High Courts initiate new recommendations while previous lists are still pending?
Yes. There is no impediment to initiating a new recommendation process without waiting for the results of earlier recommendations already in the pipeline. (Para 5 )
ORDER :
1. The High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.
2. We have discussed in detail the aforesaid while dealing with the aspect of appointment of ad hoc Judges under Article 224A of the Constitution of India in WP(C) No.1236/2019. Vide separate order in the aforementioned matter passed today, we have also discussed the process of appointment under Articles 217 & 224 of the Constitution of India.
3. Learned Attorney General has placed before us the appointment position in the High Courts to contend that against the sanctioned strength of 1080 Judges, 664 Judges have been appointed with vacancies of 416 Judges. However, the recommendations received and under process with the Government are 196 leaving 220 recommendations to be received.
4. We cannot but note the importance of the Chief Justices of the High Courts making recommendations in time. 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.
5. 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.
6. We had handed over a chart in the previous proceedings to the learned Attorney General of the names recommended from the High Courts which were still pending with the Government for more than six months, numbering 45. The last couple of weeks has seen progress in this behalf and those names have reached the Collegium. The second was the list of old proposals in pipeline pending with the Government of India after the Supreme Court Collegium recommendations numbering 10. These have been pending 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. Six names reiterated by the Supreme Court Collegium a second time, are also awaiting appointment.
7. Learned Attorney General did not differ with the requirement of time bound schedule for filling the vacancies at every stage though 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.
8. 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.
9. We have looked at the Memorandum of Procedure (for short ‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017 (which is identical to the MoP of 1999 subsisting earlier on these aspects) where certain timelines have been stated for appointment of Judges to the High Court. In terms of the timeline prescribed in the MoP, the relevant paras 21, 24 & 24.1 of the existing MoP are as under:
a. States may take not more than six weeks to send their views. (Cl. 21)
b. The Central Government can presume no objection of the State Government, if their views are not received within six weeks. (Cl. 21)
c. No timeline prescrib
