Hon. Vikram Nath, J.
Hon. K.N. Pandey, J.
(By Hon. Sunil Ambwani, J. & Hon. K. N. Pandey, J.)
1. Writ petition No.4502 of 1982 was filed by Indian societies of Lawyers through its convenor Shri Ravi Kiran Jain, Advocate practicing at Allahabad High Court with the prayers to issue a writ of mandamus directing the respondents to appoint judges to the 12 vacancies in the Allahabad High Court without delay; to issue a direction directing the respondents to review the position arising out of arrears of pending cases in the High Court and to refix without delay the strength of judges of this Court in order to dispose of the arrears. The petitioners also sought the relief to abolish the posts of the additional judges, and to declare those posts as the posts of permanent judges, and fill them up appointing permanent judges on those posts.
2. In People's Union for Civil Liberties U.P. Branch through its Joint Secretary Vs. State of U.P. (Writ Petition No.1533 of 1996) the petitioner has prayed for direction commanding the registry of the Court to place all the criminal appeals, criminal revisions, applications under Section 482 CrPC applications in which trials have been stayed and the criminal writ petitions before this Court, if such cases are pending for more than 4 years, and the accused in all such cases be acquitted and files of all such cases be consigned to record after passing orders of acquittal. The petitioners have also prayed for directions to declare that aforesaid type of cases have become infructuous and further holding that the accused in all such cases stand acquitted, on the ground that the speedy trial is fundamental right under Art.21 of the Constitution of India; appeal being continuation of trial, the accused in all the appeals, which are pending in the Court for more than 4 years are entitled to be acquitted.
3. Shri Pushkar Mehrotra, Advocate of the Court filed Writ Petition No.28424 of 1997 for writ, order or direction in the nature of mandamus commanding the Chief Justice of the High Court to recommend the names from the members of the Bar, for being appointed as judges on the posts, which are lying vacant; a writ of mandamus commanding Union of India to review strength of the judges in the High Court; writ of mandamus commanding respondent Nos.1 to 4 to quash policy of having the quota of 40% judges from the subordinate judiciary and writ of mandamus commanding Chief Justice of this Court to comply with the order dated 3rd May, 1982 passed in Writ Petition No.4502 of 1982.
4. Shri Harish Chand Jaiswal filed Writ Petition No.32623 of 1997 for writ of mandamus commanding the respondents to fill existing vacant posts of Hon'ble Judges of the High Court within a reasonable time and further in directing them to fill any vacancy of the office of the High Court judges, as soon as it becomes vacant; issue of writ of mandamus commanding the respondents to review the strength of Hon'ble Judges of Allahabad High Court and to increase the strength; writ of mandamus commanding the respondents not to adhere to the policy of quota of appointment form the Bar and judicial service and other policies like minority, scheduled castes, other backward classes and other sectarian policy; writ of mandamus commanding the respondents not to make policy of High Court judges from the members of judicial services on the criteria of seniority and further commanding them not to make appointment of the members of judicial services on the basis of merit, honesty and integrity.
5. In writ petition filed by People's Union for Civil Liberties U.P. Chapter Vs. Union of India (Writ Petition No.23445 of 2008) the petitioners have prayed for directions to the Union of India to start process of appointment of judges to the full strength of 160 judges and not to let the sanctioned posts vacant any further and for that purpose request Chief Justice of India and Chief Justice of this Court to recommend names for the appointment of these posts in accordance with the constitutional requirement; to issue directions to Union of India in the matter of fixation of strength of judges under Art.216 of the Constitution of India, to enable the President to determine such strength ''from time to time', seek advice of this Court through Chief Justice of this Court, and remain in constant touch with this Court through Chief Justice to discharge its functional obligations under Art.216 of the Constitution of India.
6. Shri Udit Chandra, Shri Anubhav Shukla and Shri Diyang Chand, the practicing Advocates of the High Court at Allahabad have filed Writ Petition No.30186 of 2010 with prayers to direct the respondents to issue a rule that the duties and powers of Hon'ble Acting Chief Justice under Art.223 of the Constitution of India includes all powers of Hon'ble Chief Justice; a direction recommending / suggesting the respondent No.3 i.e. Hon'ble the Acting Chief Justice to call for collegium for consideration and recommendation of the names for being appointed as judges in Hon'ble High Court of Judicature at Allahabad; directing respondent No.1 to fill up all the vacancies of judges in Allahabad High Court; directing the respondents to follow the conclusion and tentative scheme framed by the Constitutional Bench in the case of Supreme Court Advocates on Record Association, (1993) 4 SCC 441 while interpreting the constitutional provisions and also in the Constitutional Bench decision in the case of Ashok Tanwar & Anr. Vs. State of H.P., (2005) 2 SCC 104.
7. Shri Daya Shankar Mishra, Advocate of this Court and Senior Vice President, Bar Association of the High Court has filed Writ Petition No.34239 of 2010 seeking directions to make appointment on all the 160 posts of Hon'ble Judges of the Court; to appoint special judges and to fill up all the vacant posts by issuing directions to all the associates, employees and officials; to issue writ of mandamus to all the officers and employees for ensuring speedy justice; to issue directions to take immediate and reasonable steps to provide for the Court rooms and the residential houses of the Hon'ble Judges by acquiring the land at the appropriate place, and to issue writ of mandamus directing the respondents to hold meeting of collegium without any delay for appointment on the vacancies and to issue all necessary directions in that regard.
8. All the writ petitions have been filed by the Advocates of this Court and the organizations with which they are actively associated, in public interest and are classified as public interest litigation. The entire batch was nominated to be decided by Full Bench by Hon'ble the Chief Justice.
9. We heard these matters at length after recess, for 13 days beginning from 19.1.2011 to 15.2.2011. The counsels appearing in these matters, and some appearing in person have pleaded in public interest, to treat the writ petition to be urgent in nature, and to issue directions to all the concerned authorities including Hon'ble Chief Justice of the High Court to fill up all the vacancies of Hon'ble Judges in the Court. All of them including the counsels appearing for the Union of India, State Government and the High Court agree that the vacancies on the permanent and temporary strength of judges sanctioned from time to time, is one of the main causes, and the most important one, in allowing the pendency in the Court to increase beyond reasonable proportions, causing delay in dispensation of justice. They submit that every year the number of pending cases has kept mounting on account of vacancies on the sanctioned strength of judges leading to pendency of the total number of cases in the Allahabad High Court 709984 at Allahabad, and 251048 at Lucknow on 2nd February, 2011. With only 65 judges doing the work of 160 judges in the High Court, and with the increased filing of new cases every year, the work at Allahabad High Court is in total disarray. All the parties appearing in the matter have submitted that it is not humanly possible for 65 judges of the Court to deal with fresh cases filed every year at Allahabad and at Lucknow and that the delay in initiating the process of appointment of the judges, is not justified. The administration of justice in the State should not be allowed to suffer due to delay caused in initiating the process of appointment. In the matter of the appointment of judges the people of the State represented by the lawyers have not only legitimate expectation, but a legal right to demand that all the vacancies should be filled up. It is submitted by all the counsels appearing in the matters that the delay in initiating the process of appointment is not justified. They submit that the successive Chief Justices appointed in the High Court in the last 20 years have for unjustifiable reasons delayed the process of appointment and have allowed large number of vacancies unfilled at all points of time. The Supreme Court has in Advocates on Record Association (Supra) and in the Presidential Reference No.1 of 1998: Re, given clear directions that the process of appointment of judges should start at least six months before the date of the expected vacancy, which is certain on the retirement of the judge so that the judge appointed is ready to take over charge as soon the judge of the High Court retires.
10. It is submitted by all the counsels appearing in the PILs that the present working strength of judges at 65 (as on 15.2.2011, when the arguments closed) out of the total sanctioned strength of 160 (permanent and additional), is about 40% and with the present infrastructure, is grossly insufficient to cope up with the increasing work in High Court. They submit that the constitutional authorities entrusted with the initiation of the process of appointment have failed to perform their duties. The other constitutional authorities involved in the process are also equally responsible to initiate, or to atleast remind the Hon'ble Chief Justice to initiate the process.
11. A deep concern was expressed by the counsels appearing in person, and for the petitioners over almost similar situation is prevailing in the High Courts across the country. A large number of vacancies on the sanctioned posts of High Court judges are not filled up within reasonable time. Out of 895 sanctioned posts of High Court judges in the 21 High Courts in India as on 31.10.2010 there were 287 vacancies, which were required to be filed up, and thus almost 1/3 posts of the High Court judges were and are still vacant. It is submitted that the statistics of last 10 years would show that same situation has prevailed in almost all the High Courts, except a few, where vacancies were filled up in time. All the counsels submit that there is something seriously wrong or missing in the process of appointment, which requires a fresh look, by the Court. They submit that the Chief Justices from the different High Court take same time to search for suitable persons for appointment, and the lack of directions, or atleast a practice to hold collegium meetings periodically in a time schedule, the process requires to be either amended or clarified.
12. In all these petitions the counsels appearing for the petitioners agree that at present (in the year 2011) the judge strength of the Allahabad High Court of both permanent and additional judges at 160, is sufficient, though it needs to be revised from time to time, as it is provided under Art.216, making it constitutional obligations upon the Chief Justice to inform the President of India through the Ministry of Law and Justice, Union of India with the number of pending cases and the requirement of judges. At present they submit that the Court may issue directions for which the Court is competent on judicial side under Art.226 of the Constitution of India, its Chief Justice on administrative side, to start the process to fill up the vacancies.
13. Before dealing with the submissions in this case, important to the judiciary of the State, it will be necessary to give in brief the history of the establishment of the High Court. In 1856 Avadh came under British suzerainty. A Judicial Commissioner was appointed as the head of the judicial administration in the province. On 1st July, 1862 the High Court of Judicature at Fort William in Bengal was constituted by the Letters Patent of Her Majesty Queen Victoria and the North Western Provinces came for certain purposes under the jurisdiction of that High Court; Avadh continued to have its separate judicial administration.
14. The High Court of Judicature for North East Provinces was established by the Royal Charter dated 17th March, 1966 under the Indian High Court Act, or Charter Act (24 of 1925 Vic.C.104) passed by the British Parliament in 1861. The Royal Charter establishing High Court of Judicature for North Western Provinces was issued 4 years later to the Royal Charter establishing High Courts in the Presidency Towns in the Calcutta, Madras and Bombay. It conferred civil, criminal, testamentary, intestate and matrimonial jurisdiction on the new High Courts. The dual system of administration of justice (Civil by Diwani Adalats and Criminal by Fauzdari Adalats) was amalgamated and transferred to new High Courts. The first sitting of the High Court was held at Agra and the first Rules of Practice were made on 18th June, 1866. In the year 1869 the High Court was shifted to Allahabad. On 27.11.1916 new building of the High Court was inaugurated by Lord Chelmsford, the then Viceroy. A supplementary letters patent was issued on 11th March, 1919, with which the High Court was named as High Court of Judicature at Allahabad.
15. The Oudh was annexed to the territories of British East India Company in 1856, as the 12th district constituted as province of Oudh under the Chief Commissioner. The Act VII of 1902 re-designated the province into United Province of Agra and Oudh. There were separate courts to administer laws in Oudh under Oudh Laws Act XVIII of 1876. The Judicial Commissioner's Court was established in Lucknow in 1856 for civil and criminal case and continued to function for 70 years. The Financial Commissioner was the highest court in hierarchy, which was abolished by Act XXXII of 1871. The Oudh Court Act (U.P. Act No.IV of 1925) amended and consolidated the laws relating to courts in Oudh and established Chief Court of Oudh with one Chief Justice and 4 Puisne judges.
16. After independence the two highest court of appeal in the State of Uttar Pradesh were amalgamated by U.P. High Court Amalgamation Order, 1948 with Shri B. Malik as Chief Justice of the High Court and 14 companion judges. The High Court at Allahabad administered rule of law in the entire state upto 1999, when the U.P. Reorganisation Act (29 of 2000) resulted into creation of State of Uttaranchal (now Uttarakhand). The High Court of Judicature at Allahabad, at present administers laws both Central and State laws, as by laws established under the Constitution of India, in the 71 districts of the State of Uttar Pradesh, which is the third largest state in geographical area (after Rajasthan and Madhya Pradesh), and most populous state in the country with population recorded in the census of 2001 and in the Census 2011.
17. The High Court of Judicature at Allahabad started with the amalgamation with Chief Court of Oudh on 26.7.1948 with a Chief Justice and 16 judges. With the passage of time and increase of work in the High Court and corresponding accumulation of pending cases, the judge strength was revised from time to time.
18. In his speech, the then Chief Justice Mr. Nasirullah Beg delivered in the Centenary Celebration of the High Court on 25.11.1966 said after referring to the then population of the State of 7,37,90,000, as follows:-
"The changed dimensions of conditions, under which Justice was administered a hundred years ago as compared with that today, may be gauged from the fact that the number of civil cases pending in this Court has risen from 3, 112 in 1866 to 42,020 in 1965. Similarly, the number of criminal cases pending in this Court has risen from 1,000 in 1866 to 8,434 in 1965. The sanctioned strength of Judges is now 39 (including 15 Additional Judges) as against 6 in 1866; but, taking into consideration the delay caused in filling up the vacancies, its actual working strength on an average comes to 32 only.
Tremendous increase in litigation, apart from reasons such as growth of population, and vast social, political, and economic changes, was to be expected from the development of that gargantuan body of laws which characterises a modern welfare socialistic democratic State in which private and public property, individual enterprise and nationalised industry, fundamental rights of citizens and increased social controls and governmental powers exist side by side, with the Judiciary, armed with additional powers, acting as the arbiter in cases of dispute. The Judges of this Court, however, are deeply conscious of the gravity of the problems created by this increased volume of litigation and are determined to tackle them effectively. In spite of the growing complexity and quantity of laws today, the hard and intensive labour of Judges of this Court, who have curtailed their vacations and work even on holidays, produced a rate of disposal of 824 main cases per Judge last year, which exceeds, by 174, the average disposal of 650 main cases per Judge accepted as a yard-stick by the All-India Chief Justices' Conference. This rate is perhaps higher than that of any other High Court in India. I am also happy to announce that, as a result of the concerted endeavour on the part of its Judges, this Court has, at long last, been able to control the growing volume of accumulating arrears. This would be borne out by the last year's statistics, which indicate that in 1965 the number of disposals exceeded the number of institutions in this Court by about 3,000. We, however, realise that, beyond a point, speedier decision of cases cannot be achieved without impairing the efficiency of judicial performance and sacrificing quality to mere quantity and defeating the ends of justice. It may be noted that, even in England where there are 64 High Court Judges, apart from the Master of the Rolls and eleven Lords Justices of Appeal who perform functions analogous to an appellate Bench hearing special appeals in the Allahabad High Court, with a population of about 50 millions in England as compared to about 70 millions of this State and a proportionately much smaller quantity of litigation, civil and criminal, the problem of arrears has raised its ugly head, so much so that, as indicated by them, we could not have a single representative of the Judiciary from England on this happy occasion, as all the Judges in England are at present very busy tackling their problem of arrears.
The rise in litigation being a lasting feature, I may observe that the practice of maintaining a standing body of no less than 15 Additional Judges in this Court whose terms of office are renewed after every two years, so that they depend on the Executive for periodic renewals of their terms of office, seems to violate the principle of security of tenure of judicial office embodied in Article 217 of the Constitution. Anything which impairs the spirit of judicial independence is bound to reduce the effectiveness of the Judicial organ as a guardian of the Rule of Law and a bastion of democracy."
19. As on 31.3.1993 sanctioned strength of judges (permanent and additional) in Allahabad High Court was 70, out of which 66 were in position with 4 vacancies. Out of these 44 were the appointees from Bar and 22 from the services.
20. In the year 2006-07 the judge strength in the High Courts was reviewed by the Central Government, on the basis of which a total of 152 posts of judges were created in various High Courts. The approved strength of the Allahabad High Court was increased from 95 to 160 with 76 permanent judges and 84 additional judges. On the instructions received from the Ministry of Law and Justice, Government of India, Shri M.B. Singh, learned counsel for Union of India informed us that presently 66 judges (including permanent and additional) are in position against the approved strength of 160; hence there are 94 vacancies that are required to be filled up. One more Hon'ble Judge retired during the pendency of the hearing of these writ petitions and thus as on 15th February, 2011, when the judgment was reserved 65 judges (permanent and Additional) were in position and there were 95 vacancies required to be filled up. He has informed the Court that in respect of Allahabad High Court no proposals were received from the Chief Justice/ Acting Chief Justice since November, 14th, 2008. A proposal for appointment of 9 additional judges in Allahabad High Court has, however, been received on 9.2.2011, which is under process.
21. The sanctioned strength of Hon'ble Judges and the vacancies as on 1st January of each year for last 11 years is given as below:-
Year Sanctioned strength Strength of Hon. Judges at the beginning of the year Average working strength (fractions rounded to next higher whole number) Average vacancies 2000 95 64 (64+49)/2=57 28 2001 95 49 (49+46)/2=48 47 2002 95 46 (46+71)/2=59 36 2003 95 71 (71+74)/2=73 22 2004 95 74 (74+73)/2=74 21 2005 95 73 (73+81)/2=77 18 2006 95 81 (81+85)/2=83 12 2007 95 85 (85+72)/2=79 16 2008 160 72 (72+73)/2=73 87 2009 160 73 (73+78)/2=76 84 2010 160 78 (78+70)/2=74 86 2011 160 70 65 (In Feb 2011) 67.5 92.5
22. On February 15th, 2011, when the arguments closed in these writ petitions, out of sanctioned strength of 160 judges, the Allahabad High Court has only 65 judges (49 judges sitting at Allahabad and 16 at Lucknow) in place. Six more judges are to retire this year. Out of 65 sitting judges as on February 15th, 2011, the Hon'ble Chief Justice is from Bombay High Court, the Senior Judge was transferred from Calcutta High Court, one of the judges was transferred from Punjab High Court and another from Hyderabad. All the sitting judges except 13 are from Bar. During the pendency of the hearing of these petitions, nine judges from services were recommended for appointment as Additional Judges by the Collegium, which held its sitting in January, 2011 after a period of 2 years and 4 months. The last batch of 18 judges including 6 from the Bar and 12 from the services had taken oath of office on 13.4.2009. The Court with largest number of vacancies has not witnessed the oath ceremony of new judges so far after 13.4.2009. As on 2.2.2011 a total of 709984 cases were pending at the principal seat of High Court at Allahabad and 251048 at Lucknow. The oldest of the pending cases was filed in the High Court in 1961.
23. There are 65889 applications under Section 482 CrPC; 10688 misc. bail applications; 10754 contempt applications (civil); 93745 criminal appeals; 22485 criminal misc. writ petitions; 35958 criminal revisions; 37034 first appeal from orders; 12889 first appeal from orders (defective); 11497 first appeals; 13836 government appeals; 41731 second appeals; 118313 writ petitions ''Group-A'; 63190 writ petitions in ''Group-B' and 114919 writ petitions of Group ''C' pending at Allahabad; 274789 cases were instituted in the High Court at Allahabad including Lucknow in the year 2010; 284115 were disposed of in the same year.
24. Shri Ravi Kiran Jain, Senior Advocate leading the arguments submits that since after 1982, when he filed first writ petition, and at any time, thereafter, the High Court is not a properly constituted Court. Chapter V of the Constitution of India provides for the High Courts in the states. Art.214 provides that there shall be a High Court for each State. Art.216 provides that every High Courts shall be a court of record and shall have all the powers of such a Court including power to punish for contempt of itself.
25. Shri Jain submits that Art.216 provides that every High Court shall consist of Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. The words ''time to time' in Article 216 are important. The President being the appointing authority has to be made aware of the number of judges and that in order to deem it necessary to appoint, to constitute the High Court. She has to be made aware of the number of vacancies and the requirement of judges in each High Court. There has to be a procedure in place, for making assessment of the requirement of judges for the purposes of the strength of judges for the High Court, and for filling up all the vacancies. In the First Judges' case (S.P. Gupta Vs. Union of India, 1981 (Supp.) SCC 87, the three judges in minority had issued a writ of mandamus on the criteria for fixing judge strength for the High Courts. Shri Jain submits that Art.224 of the Constitution of India provides for appointment of Additional and Acting judges; Clause (i) of Art.224 provides that if by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of judges of that High Court should be for the time being increased, the President may appoint duly and qualified persons to be additional judges of the Court for such period not exceeding two years as he may satisfy. The words 'temporary increase of business of a High Court' or by 'reason of arrears of work therein' has to be understood in the context of the words 'from time to time' under Art.216. The strength of judges in any High Court is to be fixed with reference to Art.216 of the Constitution of India. The Central Government has to fix the strength of judges in a High Court in accordance with the permanent increase of work. The exercise of increasing judge strength has to be made from time to time for which Chief Justice of the High Court has to inform the Central Government of the permanent increase in the business of the High Court. The exercise of increasing strength of judges to take care of the permanent increase in the business under Art.216, and temporary increase in the business under Art.224, has to be a continuous exercise.
26. Shri Jain submits that in the First Judges' case (S.P. Gupta & Ors. Vs. Union of India) Hon'ble Mr. Justice R.S. Pathak said in para 886, that the President is under constitutional obligation to ensure that the High Court is fully constituted. It is fully constituted, when it consists of judges sufficient in number to cope with and dispose of the work falling within its jurisdiction. It is plain from the terms ''from time to time' used in Art.216, he submits that the President should ensure that the High Court consists of sufficient number of judges. The responsibility of making of periodical review requires the assessment of the annual institution of the case and pendency, resulting in reasonable assessment of the number of judges needed in each High Court. Serious injury is possible to a constitutional democracy, if it is not done. The Union Government assured the Court to take up the matter with the various State Governments so that after consulting Chief Justices of the High court they expeditiously send proposals for conversion of a substantial number of posts of additional judges into those of permanent judges. In view of the undertaking given by the Union Government the Supreme Court observed that:- "we hope and trust that the Central Government will soon take the necessary steps to increase realistically strength of permanent judges of each High Court". Hon'ble Mr. Justice Venkataramiah, however, issued a writ in para 1265, to the Union Government, which has responsibility of appointing sufficient number of judges in every High Court, to review the strength of permanent judges in every High Court, to fix number of permanent judges that should be appointed in the High Court on the basis of the workload, and to fill up vacancies by appointing permanent judges. While making these appointments learned Judge observed that the Union Government should first consider the case of the Additional Judges, who are now in office for appointment as Permanent Judges in those vacancies.
27. Shri Jain has referred to observations of Mr. Justice R.S. Pathak in Para 882 in the First Judges' case (S.P. Gupta Vs. Union of India) to the provisions made under Art.224 with regard to appointment of duly qualified persons to be additional judges of the Court for a period not exceeding two years, where there is temporary increase in the business of the High Court or the pending arrears of work increases. The number of judges is increased in such case under Art.224, only for the time being, and the appointment of an Additional Judge is, therefore, for a limited period, which in Clause 1 (1) and Art.224 must not exceed two years. An Acting Judge is appointed under Clause 2 of Art.224 by the President, when any judge of a High Court other than Chief Justice is by reason of absence or for any other reason unable to perform duties of his office or is appointed to act temporarily as Chief Justice; a person was appointed as a judge only until the permanent judge has resumed his duties. Both Additional Judges and Acting Judges must be appointed from among duly qualified persons that is to say qualification prescribed in Art.217. In the same paragraph Mr. Justice R.S. Pathak observed that Art.216 contemplates judges, who are Permanent Judges, Additional Judges or Acting Judges, the Permanent Judges as a Rule, and Additional Judges or any other Judges in exceptional or special circumstances. A separate and distinct category is that of adhoc judges of the High Court, who under Art.224A may be requested by the Chief Justice of a High Court, with the previous consent of the President, to sit and act as a judge of the High Court. Such a person does not fall within Art.216, in that he is not judge of the High Court, when so sitting and acting. The President does not appoint him, and only gives his consent to the Chief Justice to request former judge to sit and act as a judge of the High Court. The process of appointment under Clause (1) of Art.217 does not apply to him. It is for that reason that the expressed provision has been made in Art.224-A itself that while sitting and acting as a judge of the High Court, the former judge will be entitled to such allowance as President may by order determine and he shall have all the jurisdiction power and privileges but will not otherwise be deemed to be a judge of that High Court.
28. Shri Jain submits that although strength of judges has been increased in Allahabad High Court from time to time and that at present the strength of the Allahabad High Court is 76 permanent judges and 84 Additional judges, looking to the number of pending cases and the filing of new cases, there must be increase in the strength of permanent judges of the High Court. It cannot be said that the increase in the strength of the additional judges, contemplated under Art.224 (1) with reference to Art.216, is increased, only for the time being. The appointment of the additional judges for a period of two years and thereafter searching for a vacancy in the strength of Permanent Judges, does not take into account the increase of work in the High Court. The increase in the strength of additional judges, who may be appointed for a period of two years is wholly irrational. The increase of work in the Allahabad High Court is not temporary in nature and thus the President must in consultation with the High Courts and the Supreme Court increase permanent strength of the Judges of the Allahabad High Court. Shri Jain, however, at this stage in these writ petitions does not propose for any directions to that effect, which according to him is a constitutional obligation of the President, and has confined his relief for the appointment of both permanent and Additional Judges on the sanctioned posts. He submits that ideally all types of cases should be disposed of within a period of two years including second appeals, first appeals, criminal appeals and revisions and other types of cases. A writ petition, which is a speedy remedy should be disposed of within few months. The situation, however, in the High Court at Allahabad is extremely bad. Pendency of lacs of cases for years altogether and in some cases pendency of cases to more than 20 to 25 years on account of failure to fill up the vacancies on the sanctioned posts of both Permanent and Additional Judges has left the litigants waiting for their turn of hearing for decades altogether. Thousands of expedite applications are pending. Those cases in which hearing has been expedited for last several years are yet to appear on the list. Filing of new cases is increasing at alarming rate and that backlog of cases has increased at such a rate that a time may come, when people have to wait for generations in getting a decision from the Court.
29. Shri Jain submits that it is unfortunate that in Allahabad High Court even Habeas Corpus petitions are becoming infructuous. Criminal appeals involving important questions of personal liberty are pending for decades making a mockery of cherished ideal of founding fathers of our Constitution of providing speedy affordable justice. It is prolonged mental torture for an accused to remain in the state of uncertainty as to what will happen to his case. Whether an accused is or is not on bail in appeal, and whether ultimately he is acquitted or convicted, his appeal should be disposed of expeditiously. Human life is short and should not be spent waiting for hearing for decisions in a case. The delay in appointment of judges violates the litigants' right under Art.21 of the Constitution of India.
30. Shri Jain has referred to paras 505, 506 and 507 of the judgment in Second Judge's case in the Supreme Court (Advocates on Record Association Vs. Union of India, AIR 1994 SC 268=(1993) 4 SCC 441:-
"505. Referring back to Articles 124 and 217, in so far as the role of the Chief Justice of India is concerned, the plain language employed therein suggests that the proposal for an appointment must emanate from the President of India. Conventionally it is just the reverse and for sound practical reasons. The proposal now emanates, and should keep emanating, from the Chief Justice of India, in so far as the Supreme Court appointments are concerned, and from the Chief Justice of the High Court, in so far as the High Court appointments are concerned, to which the Chief Justice of India is a very important consultee. To have developed such convention is pure and sound logic. The qualifications for appointment of Judges to the Supreme Court, as well as to the High Court, have in unmistakable terms been laid in the Constitution, and those being that one has either to be a Judge functioning in the High Court, or the District Court, as the case may be, or a lawyer of a particular standing for both the Courts, and a jurist for the Supreme Court. Search would obviously have to be made in areas to which Judges and lawyers flock to or function, for they are the dominant contributories to the manning of the Bench. Plainly that area is the Courts where the Chief Justice, be it of the Supreme Court or of the High Court, controls or oversees the functioning where the faculties and talent of both Judges and Lawyers are at their fullest display, functioning as they do in public gaze, facilitating to some extent a choice. Strong common sense thus leaves the act of proposing a name to the Chief Justice of the Court concerned, he being the longest tenured and having gained the longest experience in men. Besides knowing about the legal acumen of the person under consideration, the Chief Justice has opportunity to notice his behaviour and court-craft and the fairness with which he deals with the Court, client and opposing counsel. The Chief Justice has various means to know about the general reputation of the person under consideration. Yet the search, as said before, traditionally is to look for a gentleman, a man of honesty and integrity for the discovery of which the Chief Justice may not be fully equipped. These attributes are reflected to some extent in the formal atmosphere of the Court but most of them outside the Court. The proposal cannot, and should not, fructify on the mere asking of the Chief Justice because his recommendation in the very nature is incomplete and inchoate unless and until the twain of information about the character, honesty, integrity gentlemanliness, and a host of other attributes are supplied by the Executive. The Executive also is in a position to supply the possible impact of the appointment as to whether it would receive acclaim and approval in the society or not. Thus it is evident that as the human being is not dissectible and is assessible as a whole, the qualities and attributes gatherable by the two functionaries should be pooled and churned as a whole so that the appointment surfaces in approval or disapproval of both of them. The information covering areas cannot be divided in water-tight compartments or by allocation of higher or smaller roles or award of less or more marks as do the Public Service Commissions. There are a lot many overlapping areas coverable by the Executive as are areas in which difference of opinion may surface in assessment. Both need to entwine to help emerging appropriate acceptable appointments both to the Chief Justice of India and the Executive. In crystallising their views and conclusions, no window of information can be kept closed. They are entitled to draw and solicit light from all genuine and permissible quarters since there is no bar to that effect under the Constitution. It is left exclusively to the Chief Justice of the Supreme Court or the High Court, as the case may be, to consult any number of Judges on the particular proposal. It is equally within his right not to consult anyone. This is his constitutional primacy and prerogative. A division, artificial on the face of it, cannot tilt in favour of the Chief Justice by assigning to him more knowledgaibility of a proposed appointment than other functionaries and on that basis a primacy, leaving the opinion of others for due regard. As said before, the whole personality of the person under considerations is to undergo the test of acceptability at a joint level. Knowledge of law alone is not a tilting factor.
506. A statement of Lord Diplock from Duport Steels Ltd. v. Sirs (1980 (1) All ER S29), has been quoted by my learned brother Ahmadi, J. in his opinion. That seems to be wholly apt in guiding what we are handling. There is clearly no principle of consideration which would justify reading into the plain and simple words of Article 124(2) any additional words to suggest that the Chief justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one can denude him of the role to which he is constitutionally entitled. Equally it is difficult for me to agree to a construction of the provision that the proposal initiated by him, or related to a High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. I would rather go by the scriptural thought that when one says and the other agrees, both be known as wise.
507. With regard to the role of the Chief Justice of India vis-a-vis the Chief Justice of High Court in making appointments to the High Court, I would favour their views to coalesce because on that depends discipline in the judicial family. As said above, the appointments to the High Court are not a local affair in a State subject. At times local affairs may appear messed up and complicated which cannot be conducive to the emergence of right appointments. As said before, the Chief Justice of India has an over all role in the image and upkeep of the judiciary for he has a hand in the appointment of every High Court Judge and also a hand in the matter of transfers of judges from one High Court to another. Those transfers need to have a basis. Unless he is obliged under the Constitutional scheme to oversee the functioning of the High Courts, he cannot purposively have a participatory role in the subject of transfers. In that limited hierarchical sense, the voice of the Chief Justice of India, in my view, to the proposal, should there be a difference, unexpected though, be the determining factor. The views of the Chief Justice of the High Court regarding an appointment, being virginal and primary in nature, he being the initiator, would normally be entitled to great accommodation, but should there ever be a difference with the views of the Chief Justice of India, the latter's view should be allowed to the lead. For it cannot be ever said in the constitutional scheme that there are as many judiciaries in the country as of the High Courts; the Supreme Court being just another. As a wing of the political set up, the judiciary is one whole, knitted hierarchically under the Constitution in the manner suggested earlier and in the preceding paragraphs, and by allocation of specific roles."
31. Shri Jain has relied upon large number of cases decided by the Supreme Court, laying down and reiterating the principle that speedy justice is a fundamental right, which flows from Art.21 of the Constitution of India. Beginning from Husain Ara Khatoon reported in AIR 1979 SC 1360; 1377; 1379, 1819 and 1980 (1) SCC 81; the judgment in Sunil Batra, 1979 SCC 392; Kadra Pahedia Vs. State of Bihar, (1983) 2 SCC 104; Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569 to the judgment in Raj Dev Sharma II Vs. State of Bihar, 1997 (7) SCC 604, the Supreme Court has consistently held that the delay in disposal of the cases defeats the fundamental right of the speedy trial, which is integral and essential part of fundamental rights to life and liberty enshrined in Art.21. The shortage of judges is defeating the rights of the citizens of India waiting for justice in Allahabad High Court. Shri Jain submits that although after second judge's case and the judgment in the Presidential Reference No.1 of 1998: known as Third Judges' case, (1998) 7 SCC 739, the procedure of appointment of Judges and Additional Judges has been clearly laid down and understood by the Union of India, Supreme Court and the High Courts, for variety of reasons, which could not be foreseen at the time of laying down the method of appointment of judges, the recommendations of the names by the collegium in the High Court and the appointments are not made in time. The Court News published by the Supreme Court as on 31.12.2009 demonstrated that against the sanctioned post of 895 High Court judges in 21 High Courts in the country, there were 265 vacancies as on 31.12.2009. Almost 1/3rd of the sanctioned strength of the High Court was not filled up and that the position is more or less remains the same even today.
32. Shri Jain submits that the unforeseen reasons for delay in appointment have to be analysed and sufficient guidelines with directions should be given, so that appointment on the sanctioned strength of judges is made in accordance with the recommendations made by Second Judge's case by initiating the process of appointment at least six months prior to the date, when the vacancy is expected to arise so that selected person is available for appointment atleast one month before the Judge retires. He refers to the situation, where the Acting Chief Justice of this Court by his letter dated 30.11.2009 had stated that he would not like to be part of the collagium as his name has been nominated for Chief Justice. There is no impediment for an Acting Chief Justice to initiate the process and to make recommendations for appointment of judges. He submits that policy of having Chief Justice from outside the State, after 1993 has no legal sanction, as there is no such policy in existence. It may at best be said to be a practice adopted after Second Judge's case. The number of vacancies in every High Court in which Chief Justices are posted from outside, has established that the vacancies are largely attributable to the time taken by the Chief Justice to acclaimatise to the conditions of High Court and to find out the competent persons; to verify their integrity to be appointed on the post of judges.
33. Shri Daya Shankar Misra, a senior counsel practising in the High Court and the Senior Vice President of the Bar Association appearing in person in Writ Petition No.34239 of 2010 has pointed out to the pendency of large number of criminal appeals. He submits that as on 3.1.2011, 26653 criminal appeals (DB), and 66596 criminal appeals (SJ) are pending. If we add 345 defective criminal appeals (DB) and 777 defective criminal appeals (SJ); 111 government appeals; 647 defective government appeals (DB); 226 defective criminal appeals (single judge), the plight of citizens waiting for justice need not be emphasized. He submits that apart from criminal appeals , 235711 criminal revisions (4010 defective criminal revisions); 11201 criminal writs (DB); 11522 criminal writs (SJ); 66754 applications under Section 482 CrPC were pending as on 3.1.2011.
34. Shri Misra submits that in 6 Central Jails and 53 District Jails in the State of U.P. as against the capacity of 6893 and 42540 prisoners, actually 13534 and 82230 prisoners are lodged respectively. In the Naini Central Jail in the year 2009 there were 4255 prisoners as against the capacity of 2060. The condition of these prisoners living in overcrowded jails is pitiable. They are forced to live life like a animal without sufficient food, beds, blankets, water and toilets. A large number of these prisoners are under trials waiting for their bail applications to be decided or the trials to be concluded. He submits that in series of cases in Husaina Ara Khatoon; Sunil Batra, K. Baheria and Raj Dev Sharma I and II the Supreme Court has held that speedy justice is fundamental right, which flows from Art.21 of the Constitution of India. The prolonged delay in disposal of trials and thereafter appeals in criminal cases for no fault of the accused confer right upon them to apply for bail. The executive is under obligation to appoint requisite number of judges to cope up with the increasing pressure on the existing judicial structure. The appellants have statutory right to appeal, the trial court verdict does not attain finality during the pendency of the appeal, and for that purpose the trial is deemed to be continuing despite conviction. In Akhtari Be (Smt.) Vs. State of M.P., (2001) 4 SCC 355, the Supreme Court held that it is unfortunate that even from the existing strength of High Court the vacancies are not being filled up with result that accused in criminal cases are languishing in jail for no fault of there's. Shri Misra submits that in the absence of prompt action to fill up the vacancies, it is incumbent upon the High Court to find ways and means by taking steps to ensure disposal of criminal appeals, from such appeals, where the accused are in jails that the matters are not disposed of within specified time not exceeding 5 years in any case. The Supreme Court requested the Chief Justices of the High Courts (para 5), where criminal cases are pending for more than 5 years, to take effective steps for their disposal by constituting regular and Special benches for that purpose. In that case the concerned appeal was pending since 1997. In Allahabad High Court criminal appeals are pending since 1982.
35. Shri Misra submits that due to state amendment denying right of anticipatory bail under Section 438 CrPC, the High Court in the State of U.P. is flooded with the cases of stay of arrest and applications under Section 482 in which relying upon Full Bench judgment, number of appeals and judgments of the Supreme Court this Court is regularly protecting the rights of citizens. The increasing number of cases, leaves no time with judges to decide appeals. He submits that in this Court on an average 1000 new cases are filed chocking up the entire administration of justice. The situation has reached to such an extent that Habeas Corpus cases treated to be most urgent in nature involving life and liberty of the persons, are not being listed and have been rendered infructuous after the person has served full period of preventive detention. Shri Daya Shankar Misra submits that this Court under Art.226 of the Constitution of India has ample power to issue directions to the collagium headed by Hon'ble Chief Justice to initiate the process to fill up all the vacancies. He relies upon scope of Art.226 explained by the Supreme Court in L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261. Shri Daya Shankar Misra has also referred to appointment of judges to be made under Art.224 and 224A, whenever there is temporary increase of work in the High Court or by reasons of arrears. He submits that until such time that vacancies are not filled up, the Court should not ignore the rights of the citizens under Art.226, and that all those cases in which bails have not been granted and appeals are pending, the accused should be directed to release on bail. He goes on to argue to the extent that where appeals are pending, and there is no possibility of hearing of appeal in near future, the High Court should devise ways and method to acquit the appellants.
36. Shri Misra submits that the procedure for appointment devised by the Second Judge's case and the presidential reference in the Third Judge's case ensuring primacy of the opinion of Hon'ble Chief Justice of India in the appointment of judges has insulated appointment of any outside interference, but the procedure has miserably failed to make appointment within reasonable time. On account of change of procedure coupled with the facts that Chief Justices are posted from outside and are looking forward to their elevation to the Supreme Court, collagiums are not held regularly. He submit that successive Chief Justices have not filled up vacancies in Allahabad High Court by initiating process of appointment regularly. The delay caused by almost all the Chief Justices in last 10 years, clearly suggest that the collagium headed by Hon'ble the Chief Justice, are either not interested in initiating the process of appointment or there is some defect in the process, which needs to be amended.
37. Shri Misra submits that at present the High Court at Allahabad does not have infrastructure including court rooms, staff, equipment, and the judge's residence, for the sanctioned strength of 160 judges. The Court may while issuing directions to the Chief Justices to initiate the process of appointment should also issue directions to the State Government to provide sufficient funds to provide for increase in the infrastructure to accommodate and for functioning of the judges as and when they are appointed. Shri Misra has referred to judgment of the Supreme Court in Shanti Bhushan & Anr. Vs. Union of India, 2009 (1) SCC 657 laying down that at the time of appointment of Additional Judge of the High Court as the Permanent Judge, the exercise done at the time of initial is not required to be redone, at the time of appointment as the Permanent Judge for the reasons that recur of scrutiny and process of selection are the same for both types of appointment. Referring to the Supreme Court Advocates on Record Association's case, (1993) 4 SCC 441; and Special Reference No.1 of 1998, (1998) 7 SCC 739 and para 13 of the memorandum issued by the Union Government it was held that though there is no right of automatic appointment as Permanent Judge, or extension of appointment as Additional Judge nor the Additional Judge can be said to be on probation for period of appointment as Permanent Judge, the recur of scrutiny and process of selection is not necessary. Where the constitutional functionaries have already expressed their opinion regarding suitability of the person the parameters as laid down in para 13 of the memorandum have to be considered differently from the parameters in para 12. Shri Daya Shankar Misra submits that inspite of judgment in Shanti Bhushan's case there have been number of instances, where the same scrutiny has been done and that some of the Additional Judges have not been confirmed for the reasons, which are not referable to their merit and competence, examined at the time of initial scrutiny.
38. Shri Misra submits that the policy of having Chief Justice from outside has its initiation in a resolution passed by the High Court Bar Association at Allahabad. The policy, however, has in practice failed to achieve the desired results. The Chief Justices coming from other High Courts do not have attachment to the institution. They are appointed for a very short time; some of them are elevated to the Supreme Court soon after their appointment. The short period for which they are appointed does not give them sufficient time to select suitable persons for appointment causing delay in initiating the process for appointments.
39. Shri Ram Niwas Singh, learned counsel appearing for Shri Harish Chandra Jaiswal, an Advocate of this Court in Writ Petition No.32623 of 1997 submits that at present with the sanctioned strength of 160 judges there is no issue of the review of the judge strength. The question relates to the delay in initiating the process for appointment and filling up the vacancies. He has raised several questions, which he submits are relevant to the appointment of judges in the High Courts. He has raised an issue with regard to transfer of Chief Justices to different states and some of the Chief Justices elevated to the Supreme Court. He has also raised issues with regard to powers of the Acting Chief Justice to make recommendations for appointment. It is submitted by him that the policy in making appointments of the Chief Justices from outside and thereafter sending them to another states does not stand on firm foundation. Their tenure for which they are required to work in the High Court and within which they are transferred or elevated does not leave them sufficient time to perform the constitutional obligation of making appointments. There was never any doubt on the powers of the Acting Chief Justice, where no Chief Justice is nominated to initiate the process of appointment but that successive Acting Chief Justices have avoided to exercise the powers.
40. Shri Singh submits that Art.216, 224 and 224A of the Constitution of India provide for an integrated process in which the judiciary has greater responsibility. By a contextual and purposive interpretation the judiciary has usurped the powers to make appointment giving it primacy, but has not taken over the responsibility to perform the constitutional duties. He submits that when the office of the Chief Justice of the Supreme Court, Chief Justice of the High Court and the judges of the Supreme Court are not left vacant for long time, the same constitutional functionaries must take interest in initiating the appointment of judges in the High Court. Is it not open to the constitutional functionaries to perform part of duties and leave the remaining part, which mostly concern the litigants in the High Court. He submits that due to delay in making appointments the litigant seeking justice suffers. The truncated High Court cannot serve the litigants. They have become paradise for lawyers. He calls the High Court at Allahabad as Court of infructuous cases and pleads that in the interest of the litigants and for enforcement of the fundamental rights, the High Court must issue directions to Hon'ble the Chief Justice to initiate process of appointment of judges. He has drawn distinction between the Permanent and Additional Judges and submits that if the constitutional functionaries are unable to appoint Permanent Judges, they should appoint Additional Judges to liquidate the arrears. Shri Ram Niwas Singh has also raised question on the selection of the persons for appointment as High Court judges.
41. Shri Singh submits that there is absolutely no reason to insisting upon the quota of service judges. The criteria for appointment should be merit and not quotas to be divided between the Bar and services and thereafter sub-divided into the caste and religion. He submits that in First Judge's case and in Second Judge's case the charts of sanctioned strength and the judges in place would indicate that as on 18.3.81, 320 judges were in place against the sanctioned strength of 405; and on 1.1.1993, 443 judges were in place as against 512 in all the High Courts in the country. The percentage of these vacancies in 1981 and 1993 can be worked out at 20% and 13% respectively, whereas after the Second Judge's case, when the judiciary took upon itself to make recommendations and assumed primacy in the process, there were 265 vacancies as against the sanctioned strength of 895 in all the High Courts in 21 States in the country as on 31.12.2009. The sanctioned strength has increased from 512 on 1.1.1993 to 895, and the vacancies have also increased to almost 30%.
42. Shri Singh submits that due to shortage of judges and ever increasing filing the judges in the High Court are not able to hear the cases. They have adopted to short hearings and orders, in deciding the cases. They are disposing the cases with variety of directions, instead of adjudicating and deciding the disputes. He has argued for issuing directions to Hon'ble Chief Justice to initiate process to fill up the vacancies, enlarge collagium, reconsider the practice of appointing Chief Justice from other States and to ensure merit alone to be the criteria for appointment without bifurcating the number of vacancies into quotas of service judges and on caste and religion. He submits that their should be emphasis on giving longer tenure to the judges, than giving them only few years.
43. Shri Udit Chandra, a junior advocate of the Court appearing in person submits in his written arguments:-
"(a) The number of cases pending in Allahabad High Court are around 9,48,137 while the total pendency of all the High Courts in the country are around 40,49,649 i.e. almost 1/4 of the total pendency is in Allahabad High Court. There is also an increase of around 62,000 cases per year.
(b)The sanctioned strength of the Judges of Allahabad High Court is 160 w.e.f. 1.4.07. By the end of July 2010 there will be only 72 Hon'ble Judges left and the vacancy will rise up to 88, which is much more than that of the Judges to be appointed. Such type of circumstances is not prevalent anywhere in any other High Court in India. It is quite clear that because of the increase in the number of vacant posts the pendency is increasing drastically. That it will take around 8 years to clear of the arrears if all 160 judges are appointed. thus filling of the vacancies of the Judges is very necessary in the interest of the nation.
(c) Such type of pendency and the less number of Judges than that of sanctioned strength is nowhere in any other High Courts in India. The last time the Hon'ble Judges were appointed was on 13.4.2009.
(d) Despite working to their full capacity (and many times the Hon'ble Judges are working over time in the favour of the nation) and giving their full dedication to each and every case then also the Hon'ble Judges are finding it hard for quick disposal of the case. Thus the litigants of the State of Uttar Pradesh are sufferring.
(e) Justice delayed is justice denied. One of the essential features of Article 21 is that of speedy justice. The slow disposal because of inadequate number of Judges have led to the gross violation of the general litigants' fundamental rights for example Article 21 of the Constitution. It is a settled principle that when there is a violation of fundamental rights the writ can directly lie to the High Court or to the Supreme Court.
(f) Article 223 does not provide for any kind of bar or restrictions of duties for the Hon'ble Acting Chief Justice to that of Hon'ble Chief Justice. The words used such as 'duties of his office' and 'the duties of the office shall be performed' require interpretation by this Hon'ble Full Bench.
(g) It is a clear rule of interpretation that when the language of the statute is plain, explicit and unambiguous and is subject to one interpretation then it wold not be open to the courts to adopt any other hypothetical construction.
(h) In Supreme Court Advocates on Record Association's case Hon'ble Mr. Justice Kuldip Singh quoting from Sir W. Ivor Jennings's book on 'Law and the Constitution', said that effects of the constitution must change with the changing circumstances of national life and that man should work the old law in order to satisfy the new needs and demands.
(i)In Ashok Tanwar's case the constitutional bench has clearly stated that there are no limitation or restriction in performance of duties by the Acting Chief Justice under Article 223.
(j) The constitution is like a living organ which breathes and grows according to the present demands of the nation and its countrymen. The judiciary 63 years ago was different than that of present era. In the present circumstances to impose a bar on the expanding wing of judiciary will cripple it and in the long run may harm the nation. The duties of the Acting Chief Justice are the same to that of the Chief Justice. The Constitution of India does not provide any rider on the Acting Chief Justice from performing the duties to that of the Chief Justice. On the contrary the words like 'duties of his office' and 'the duties of the office shall be performed' clearly expresses the intention of the legislature of not imposing any restrictions on the duties of the Acting Chief Justice; rather the framers of the constitution anticipated present situation of judiciary and only for this reason no restriction on powers of the active Chief Justice has been imposed.
(k) It is one of the most important aspects of Supreme Court Advocates on Record Association's case (Supra) that the process of appointment of Judges must be initiated by the Chief Justice of India in the case of Supreme Court and by the Chief Justice of High Court in the case of High Court. Another important aspect which was laid down by the Nine Judge's bench was that such process of appointment must be initiated by the said Chief Justice one month prior to the anticipated vacancy. Thus once the power has been given by the Hon'ble Supreme Court to itself and to its subordinates courts then there is no reason as to why the names of the Judges should not be send to the President for the appointments.
(l) Judiciary is the most important functionary of the Constitution of India and because of the decline in the stature of the executive and legislature, its responsibility has further increased. A mere perusal of the history can show that because of the failure of the executive and the legislature the judiciary started to expand its power in order to save the country and till now it has done the job quite well. Thus the present need of the nation is a strong and efficient judiciary. The real strength of judiciary lies in its Judges, so it is quite evident that the increase of Judges is a must in order to strengthen judiciary and to save democracy.
(m) Sir William Churchill made an observation in the House of Commons that: "Perhaps only those who have led the life of a Judge Can know the lonely responsibility which rests upon him". Thus more duty lies on the chief Justice of India or the Chief Justice of High Court to initiate the process of appointment of judges by calling the collegium and sending the names of judges to fill up those vacancies.
(n) In the present circumstances the Allahabad High Court is going through extraordinary circumstances. The vacant posts of Judges are more than that of the Judges presently sitting. Huge pendency is accumulating each and every day. The appointment of Chief Justice of Allahabad High Court has taken more time than that which was anticipated. Such type of extraordinary circumstances demand extraordinary actions. Formation of collegiums and sending of names in the present set of circumstances cannot wait for the Chief Justice as enough waiting has already been done. If more waiting is done it will further increase the pendency and further the system will become fragile.
(o) The essence of democracy lies in the judiciary. This is probably the reason why Hon'ble Dr. B.R. Ambedkar while making constitution has laid down more stress on judiciary. Once he said that according to him Article 32 was the most important Article in the Constitution, thus realizing the importance of judiciary. No doubt the judiciary has shown its metal in difficult times and has saved the democracy; especially Allahabad High Court has played a major role in saving the nation [the decision of Allahabad High Court during emergency is like a Kohinoor in the crown of judiciary]. The contribution of active and vigilant lawyers is quite significant, but the real credit goes to the Hon'ble Judges for acting fearlessly and actively in saving the nation and helping in preserving the concept of rule of law for which many of our countrymen have time and again laid down their lives. No doubt that the Indian Judges have more nationalistic views than that of the Judges in any other countries and its result is that in no other country the judicial organ is so much active than that of India. This is the real triumph of the Constitution and the Framers of the Constitution. Thus in order to fight against the evils (such as pendency, lack of performance of duties by the other two organs etc.), which threatens the roots of our country it is quite evident to strengthen the judiciary which is only possible by appointing more Hon'ble Judges without any further delay. Last but not least I wold like to quote Chief Justice Burger, who said:-
"A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law- in the larger sense-cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets." "
43-A. Shri Rajiv Gupta, learned counsel appearing for the High Court through its Registrar General submits that the petitioners do not have any legal right to maintain the writ petitions. A writ of mandamus does not ordinarily lie to Hon'ble the Chief Justice for the reliefs prayed for in the writ petition. He submits that the exercise of appointment of judges is in progress.
44. Shri Ashok Nigam, Addl. Solicitor General of India assisted by Shri S.K. Misra appearing for the Union of India submits that the judges of the High Court are appointed by the President after consultation with the Chief Justice of India, Governor of the State and in the case of appointment of a judge other than Chief Justice, Chief Justice of the High Court under Art.217 (1) of the Constitution of India. The approved strength of the Allahabad High Court is 76 permanent judges and 84 additional judges. On the date of swearing of the counter affidavit of Shri V.P. Gurbani, Under Secretary, Government of India, Ministry of Law and Justice, New Delhi filed on behalf of Union of India on 11th August, 2010 the approved strength of the Allahabad High Court is 76 permanent judges and 84 additional judges. He submits that 56 permanent judges and 17 additional judges are in position leaving 20 vacancies of permanent judges and 67 vacancies of additional judges to be filled up. He has referred to the request by the Union Law Minister to the Acting Chief Justice in February, 2010 to initiate action for filling up vacancies from the Bar quota and service quota. No proposals were, however, received. Shri Nigam submits that in pursuance to the judgment of the Supreme Court Advocate on Record & Anr. Vs. Union of India and advisory opinion of the Supreme Court dated October 28th, 1998 Memorandum of Procedure for Appointment of Judges in the Supreme Court and Memorandum of Procedure for Appointment of Judges in the High Court have been framed. The initiation of proposal for appointment of judge of a High Court lies with the Chief Justice of that High Court for filling up the vacant post. There is no bar on initiation of such proposal by the Acting Chief Justice of that High Court. The proposals received from Chief Justice/ Acting Chief Justice of the High Court are processed by the Central Government apparently for filling up all the vacancies. The Central Government does not initiate any proposal for appointment on its own.
45. In para 6 of the counter affidavit of Shri V.P. Gurbani, Under Secretary, Government of India, Ministry of Law and Justice, Department of Justice, New Delhi, it is stated that the Chief Justice of the High Court is required to initiate the proposals six months in advance as per the Memorandum of Procedure.
46. The proposals received by the department are processed expeditiously for approval of the President of India. The Ministry of Law and Justice is periodically according to the Chief Justice of the High Court and the Chief Minister of the State to expedite the proposals to fill up the vacant post of judges in their respective High Court. In respect of Allahabad High Court no proposal has been received from the Chief Justice/ Acting Chief Justice since November 14th, 2008. Therefore, the vacancies have remained unfilled.
47. In para 13 of the counter affidavit it is stated that 5 judges of the Allahabad High Court are working outside High Court. As per decision dated 6.10.1993 of the Supreme Court read with their advisory opinion dated 28.10.1998 proposal for appointment of a judge of the High Court is initiated by the Chief Justice of that High Court. No proposal for filling up of the existing vacant post has been received by the Central Government. In para 17 it is stated that a total number of civil and criminal cases pending before the Allahabad High Court as on 31.12.2009 was 9,50,864, the number of approved posts of judges is 160, in para 19 it is stated that the number of approved posts is considered to be sufficient for the present. In para 24 it is stated that the appointment of Chief Justice of the Allahabad High Court has been notified vide notification dated 22nd June, 2010 and the new Chief Justice has already taken charge of the office.
48. In the background note in respect of CMWP No.23445 of 2008 in Allahabad High Court submitted by Shri M.B. Singh, learned counsel for the Union of India it is stated as follows:-
"Pursuant to the Judgment of the Supreme Court dated October 6, 1993 in the case of Supreme Court Advocates on Record and Anr Vs. Union of India, and the Advisory Opinion of the Supreme Court dated October 28, 1998, "Memorandum of Procedure for appointment of Judges in the Supreme Court" and "Memorandum of Procedure for appointment of Judges in the High Court" have been framed.
The initiation of proposal for appointment of a Judge of High Court, lies with the Chief Justice of that High Court for filling up vacant posts. A Chief Justice from an outside High Court may convey meeting of the High Court where he is posted and make recommendations for appointment of Judges. The proposals received from Chief Justice of a High Court are processed by the Government promptly for filling up of the vacancies. The Government does not initiate any proposal for appointment on its own. Chief Justice of the High Court need to initiate proposals 6 months in advance as per the Memorandum of Procedure. The proposals received by the Department are processed expeditiously for approval of the President of India. The Minister of Law and Justice is periodically writing to Chief Justices of High Courts and the Chief Ministers of the States to expedite proposals to fill up vacant posts of Judges in their respective High Courts.
The Conference of Chief Justices and Chief Ministers, presided over by the Prime Minister, held on 4th December, 1993 to consider various measures for liquidation of a large number of cases pending in Subordinate Courts/High Courts, had inter-alia passed a Resolution that the Judge strength of the high Courts should be reviewed after every three years.
According to the guidelines finalized in 1994 on recommendation of the then Chief Justice of India, the required strength of permanent Judges in a High Court is worked out by dividing the average institutions of main cases during the last 5 years by the national average or the average rate of disposal of main cases per Judge per year in that High Court, whichever is higher. Similarly, the required strength of Additional Judges in a High Court is worked out by dividing the number of main cases pending over two years by the National average or the average rate of disposal of main cases per Judge per year in that High Court, whichever is higher.
The Judge strength of High Courts was last reviewed in 2006/2007 on the basis of which a total of 152 posts of Judges have been created in various High Courts. The approved strength of the Allahabad High Court is 76 Permanent Judges and 84 Additional Judges. Presently, 66 (sic) Permanent Judges and 17 Additional Judges are in position against the approved strength. Hence, there are 94 vacancies that are required to be filled up.
In respect of Allahabad High Court no proposals were received from the Chief Justice/ Acting Chief Justice since November 14, 2008. A proposal for appointment of 9 Additional Judges in Allahabad High Court has however been received on 09.02.2011, which is under process.
.......
MAHENDRA BAHADUR SINGH (Counsel for the U.O.I)"
49. Shri S.K. Misra, learned counsel appearing for the Union of India and assisting Dr. Ashok Nigam, has placed on record five letters of the Union Law Minister, addressed to Hon'ble the Chief Justice of the Allahabad High Court, requesting them to initiate the process to fill up the vacancies. The contents of these letters, important for the purposes of these writ petitions are reproduced as follows:-
"(i) Letter dated 10th December, 2007 sent by Shri H.R. Bhardwaj, Minister of Law and Justice, Government of India to Hon'ble the Chief Justice of Allahabad High Court "Dear Chief Justice The approved strength of the Allahabad High Court is 76 Permanent Judges and 84 Additional Judges. There are 63 Permanent Judges (including 03 from outside High Courts) and 10 Additional Judges in position against the approved strength.
1.1 In the present accepted ratio of 66-2/3:33-1/3 between the Members of the Bar and the Judicial Service, there can be up to 107 Judges from the Bar and 53 Judges from the Judicial Service in the Allahabad High Court. Currently, the State of Uttar Pradesh has provided 51 Judges from the Bar (including 03 serving in outside High Courts) and 22 Judges from the Judicial Service leaving 87 vacancies to be filled up.
1.2 The ratio of 2:1 has been the accepted ratio for the Members of the Bar and the Judicial Service, which implies that there can be up to 107 Judges from the Bar and 53 from the Judicial Service in the Allahabad High Court. On 1st January, 2009, we had 54 Judges from the Bar and 19 Judges from the Judicial Service serving in the Allahabad and outside High Courts leaving 53 vacancies from the Bar and 34 vacancies from the Judicial Service to be filled up. By 30th June, 2009, another vacancy for the Bar and 3 vacancies for the Judicial Service will also arise because of the retirement of sitting Judges on attaining the age of superannuation. Against this, your proposals for appointment of 8 persons from the Bar and 12 from the Judicial Service are under consideration.
2. Your are no doubt aware that additional posts of Judges were created to reduce pendency in the High Courts. Should the posts not be filled up early, the whole purpose would be defeated. I would, therefore, appreciate if you could send your proposals at the earliest for filling up atleast some proportion of the remaining 46 vacancies from the Bar and 25 vacancies from the Judicial Service.
3. Further, against the 76 Permanent vacancies in the Allahabad High Court, only 60 Judges on the strength of the Allahabad High Court are Permanent. Your proposal for appointment of Additional Judges working in the Allahabad High Court to be appointed as Permanent Judges of that High Court, may also be sent.
4. While making the recommendations, I would like to add that the need for giving representation to Scheduled Castes, Scheduled Tribes, Other Backward Classe3s, Minorities and Women may also please be kept in view. I shall be grateful for your personal attention to have these appointments expedited to help reduce the pendency in the High Courts.
With regards.
Yours sincerely, (H.R. Bhardwaj)"
(iii) Letter dated 25th August, 2009 sent by Dr. M. Veerappa Moily, Minister of Law and Justice, Government of India to the Chief Justice of the Allahabad High Court Dear Justice Chandramauli Ji, The approved strength of the Allahabad High Court is 76 Permanent Judges and 84 Additional Judges. Presently, 54 Permanent Judges (including 5 from outside High Courts) and 31 Additional Judges are in position against the approved strength.
Hence, there are 75 vacancies that require to be filled up. Five more vacancies are likely to occur in next six months on the superannuation of 5 Permanent Judges.
As per the Memorandum of Procedure for appointment of High Court Judges, a proposal for appointment should be initiated by the Chief Justice at least 6 months before the occurrence of the vacancy. This was reiterated at the Joint Conference of Chief Ministers of States and Chief Justices of the High Courts held at New Delhi on August 16, 2009. The Prime Minister has also urged the Chief Justices to fill up the vacancies urgently keeping in view the mammoth number of pending cases.
I shall be grateful if you could expedite proposals for filling up as many of existing and anticipated vacancies while ensuring that candidates recommended meet the professional standards and have impeccable integrity.
The need for giving representation to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women may also please be kept in view while making recommendations for fresh appointments to the High Court.
With regards.
Yours sincerely, (Dr. M. Veerappa Moily)
(iv) Letter dated 23rd February, 2010 sent by Dr. M. Veerappa Moily, Minister of Law and Justice, Government of India to the Chief Justice of the Allahabad High Court Dear Justice Amitava Lala Ji The approved strength of the Allahabad High Court is 160 Judges. Currently, 78 Judges (including 4 from outside High Court) are in position.
2. In the approved ratio of 2:1 between the Bar and the Judicial Service, there can be 107 Judges from the Bar and 53 Judges from the Judicial Service. The State of Uttar Pradesh has so far provided 56 Judges from the Bar (including 5 working in outside High Court) and 23 Judges from the Judicial Service leaving 51 vacancies to be filled up from the Bar and 30 vacancies from the Judicial Service.
3. As per the Memorandum of Procedure for appointment of Judges in the High Courts proposal for appointment is required to be initiated by the Chief Justices at least six months before the occurrence of the vacancy. This position was reiterated at the Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts held at New Delhi on August 16, 2009. The Prime Minister had also urged the Chief Justices to fill up the vacancies urgently keeping in view the mammoth number of pending cases.
4. At the National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays held in New Delhi on 24th and 25th October, 2009 the suggestion of the Chief Justice of India for a notional increase in the sanctioned strength of Judges by 25% in order to enable the judiciary to make advance selection for appointment as soon as the vacancy arises was welcomed and adopted as a point of the Resolution. A need was also recognized in the said Consultation for appointment of ad-hoc judges at all levels of the judiciary on a temporary basis from amongst retired judges and members of the bar. While the Chief Justice of India and the Government of India are seriously considering to liquidate the ever mounting court cases, it is not considered desirable to keep the already existing vacancies unfilled. Unless the existing vacancies are filled up, case for increasing the judge strength would not hold firm ground.
5. In the next six months, 5 more vacancies are going to occur in you High Court 1 for the Bar quota and 4 for the Service quota due to the retirement of sitting Judges. Thus, recommendations for 52 vacancies to be filled up from the Bar quota and 34 from the Service quota can be initiated. I shall be grateful if you could kindly consider sending your proposal for filling up of the said vacancies.
6. I would also request that the professional standards and impeccable integrity of the recommendees may be ensured while sending your recommendations. The need for giving representation to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women may also please be kept in view while making recommendations against the Bar quota.
With regards.
Yours sincerely, (Dr. M. Veerappa Moily)
(v) Letter dated 9th August, 2010 sent by Dr. M. Veerappa Moily, Minister of Law and Justice, Government of India to the Chief Justice of the Allahabad High Court Dear Chief Justice, The approved strength of the Allahabad High Court is 76 Permanent Judges and 84 Additional Judges. Presently, 56 Permanent Judges (including 4 from outside High Courts) and 17 Additional Judges are in position against the approved strength. 5 Permanent Judges of the Allahabad High Court are working in other High Courts.
2. Hence, there are 87 vacancies that are required to be filled up. The dates of occurrence of vacancies are given in the Annexure.
3. As per the Memorandum of Procedure for appointment of High Court Judges, a proposal for appointment should be initiated by the Chief Justice at least 6 months before the occurrence of the vacancy. This was reiterated at the Joint Conference of Chief Ministers of States and Chief Justices of the High Courts held at New Delhi on August 16th, 2009. The Prime Minister also urged the Chief Justices to fill up the vacancies urgently keeping in view the mammoth number of pending cases.
4. I shall be grateful if you could kindly expedite proposals for filling up the said existing and anticipated vacancies while ensuring that candidates recommended meet the professional standards and have impeccable integrity.
5. The need for giving representation to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women may also please be kept in view while making recommendations for fresh appointments to the High Court.
6. You may also like to send your recommendation for appointment of Additional Judges as Permanent Judges against available posts of Permanent Judge or for extension of their tenure, as the case may be. With regards. Yours sincerely, (Dr. M. Veerappa Moily)" 50. In Subhash Sharma Vs. Union of India, 1991 Supp (1) SCC 574 a three Judge Bench of the Supreme Court took the view that the correctness of the majority view in First Judge's case (S.P. Gupta Vs. UOI, 1981 Supp SCC 87) should be considered by a Larger Bench of 9 judges to examine the two questions namely, the position of the Chief Justice of India with reference to primacy in the process of appointment of Judges, and consequently feasibility of fixation of judges strength. On these two issues in the First Judge's case the Supreme Court by a majority of 4:3 had concluded that among the opinions of the three constitutional functionaries the opinion of the Chief Justice of India does not enjoy primacy over the two opinions in the matter of appointment of judges. A majority of judges in the First Judges case also took the view that in the absence of judicially maintainable standards for controlling or guiding the discretion of the government for the performance of the duty under Art.216 a mandamus should be issued to secure the fixation of judge strength for each High Court. The judge strength in any High Court was not a matter liable to be scrutinised or revised or increased by judicial review. 51. In Supreme Court Advocates On Record Association Vs. Union of India, (1993) 4 SCC 441 (the Second Judges' case) five opinions were delivered. Hon'ble Mr. Justice J.S. Verma spoke for himself and four Hon'ble Judges. Mr. Justice Pandian and Mr. Justice Kuldeep Singh wrote individual judgments supporting the majority view. Mr. Justice Ahmadi dissented with the reasoning that had found favour in First Judges' case. Mr. Justice Punchhi took a view that Chief Justice of India had primacy and that he was entitled to consult any number of judges on the particular proposal; it is equally within his right not to consult anyone.
52. The President of India in exercise of his powers under Art.143 of the Constitution of India to the Supreme Court, for its opinion questions of law or fact, which have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain such opinion made a reference (Special Reference No.1 of 1998) raising questions, broadly on three aspects:-
"(1) consultation between the Chief Justice of India and his brother Judges in the matter of appointments of Supreme Court and High Court Judges and transfers of the latter: Questions 1, 3, 4, 5, 7 and 9;
(2) judicial review of transfers of Judges: Question 2; and (3) the relevance of seniority in making appointments to the Supreme Court: Question 6."
53. The Supreme Court after examining the scheme of the Constitution providing for appointment of judges for the Supreme Court and the High Court in Art.124, 216, 217 and 222 and quoting extensively from the Second Judge's case answered the questions raised by the President of India in his reference:-
"The questions posed by the Reference are now answered, but we should emphasis that the answers should be read in conjunction with the body of this opinion:
1. The expression "consultation with the Chief justice of India" in Articles 217(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of Indian does not constitute "consultation" within the meaning of the said Articles.
2.The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has bot been made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.
3.The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with two seniormost puisne Judges of the Supreme Court.
4.The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a judge recommended for appointment.
5.The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
6."Strong cogent reasons" do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.
7.The views of the Judges consulted should be in writing and should be conveyed to the Government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.
8.The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.
9.Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of India."
54. The Government of India has followed the opinion of the Supreme Court in the Third Judge's case and that so far the method of appointment of judges has not been questioned except in a few appointments. A bill proposing to make a parliamentary legislation, which has been subject matter of a debate is pending. In these writ petitions none of the counsels have doubted the correctness of the view expressed and the procedure prescribed for formation of the opinion and the process of consultation with the Chief Justice of India prescribed by the Supreme Court in the Second and Third Judge's case. The arguments are mainly confined to the fixation of the judge strength, which according to the counsels for the petitioner is adequate for the time being but may not stand the test of times to come. They submit that fixation of judge strength should be a periodical process, undertaking from time to time, taking into account the pendency of filing of case in the High Court. They have further argued that sufficient measures should be taken to ensure that the appointment of judges in the High Courts should not be delayed unreasonably. It is submitted that the time schedule should be provided, to be adhered to by Hon'ble the Chief Justice as in the case of the Rules of the Court providing for the meetings of the Full Court and the directions given by Hon'ble Supreme Court fixing time schedule for selection and appointment of subordinate court judges, in Sultan Malik Mazhar & Anr. Vs. U.P. Public Service Commission, & Ors., (2008) 17 SCC 703, so that Hon'ble Chief Justice and the two seniormost judges of the Court, constituting the collegium must meet regularly, and make recommendations in accordance with the procedure prescribed for appointment of judges. They should ensure that the process as indicated by the Supreme Court in Second Judges' case is initiated atleast six months before the anticipated vacancy and the judges be appointed to take over without any delay.
55. Shri Udit Chandra, the petitioner in Writ Petition No.30186 of 2010 has provided an interesting statistical data to demonstrate that taking into account the number of cases decided by each judge in the years beginning from 2000-2010, if all the vacancies on the sanctioned strength of permanent and additional Judges were filled up on the same day, when such vacancy were caused, with the number of cases decided on average by the Judges there would have been no arrears in the Allahabad High Court. The chart prepared by him on the basis of the statistics made available to him on a request made to the Computer Centre of the High Court is given as below:-
Year Sancti-oned strengt-h Pendency of cases of the year Vacancy of Hon. Judges* Average Disposal per Hon. Judge Cases that would have been decided if vacant posts were filled up Arrears of cases Left over arrears (if there is no vacancy of Hon. Judges 2000 95 22661 28*1741 48748 210845 210845-48748=162097 2001 95 21705 47*2287 10748 162097+21705 183802-10748=173054 2002 95 31265 36*2011 72396 173054+31265 204319-72396=131923 2003 95 36622 22*2070 45540 131923+36622 168545-45540=123005 2004 95 38706 21*2239 47019 123005+38706 161711-47019=114692 2005 95 43129 18*2082 37476 114692+43129 157821-37476=120345 2006 95 47669 12*1981 23772 120345+47669 168014-23772=144242 2007 95 53080 16*3080 49290 144242+53080 197322-49290=148032 2008 160 62302 87*2188 190356 148032+62302 210334-190356=19978 2009 160 70551 84*3458 290472 19978+70551 90529-290472=-199943 2010 160 82601 86*3839 330154 -199943+82601 -117342-330154= -447496
56. Dr. Ashok Nigam, Addl. Solicitor General of India has placed on record the revised memorandum vide Reference No.K-110017/13/98-USII dated 30.6.1999 providing for the procedure for appointment and transfer of Chief Justice and judges of the High Court. He submits that memorandum is strictly in terms of the opinion given by the Supreme Court in Third Judge's case to the Presidential reference and is being followed by the Central Government in making appointments of the Chief Justices, Acting Chief Justices, Permanent Judges and Additional Judges.
57. The memorandum applicable for appointment of Permanent Judges, Additional Judges and Acting Judges and transfer of a Judge including Chief Justice from one High Court to another is quoted as below:-
"MEMORANDUM SHOWING THE PROCEDURE FOR APPOINTMENT AND TRANSFER OF CHIEF JUSTICES AND JUDGES OF HIGH COURTS.
APPOINTMENT OF CHIEF JUSTICE The Government have, in consultation with the Chief Justice of India, decided as a matter of policy to appoint the Chief Justice of all High Courts from outside.
2. In case of initial appointment of a Chief Justice of a High Court, the provisions of Article 217 will have to be followed.. In the case of Jammu & Kashmir High Court, appointment of Chief Justice shall be made in accordance with section 95 of the Constitution of Jammu & Kashmir. Transfer of Chief Justice from one High Court to another will be governed by the provision of Article 222. Transfer of a Chief Justice to and from Jammu & Kashmir High Court shall be made in accordance with clause (1) of Article 222 of the Constitution of India read with Article 222(1A) of the Constitution (Application to Jammu & Kashmir)Order, 1954.
3. For purposes of elevation as Chief Justices the inter-se seniority of puisne Judges will be reckoned on the basis of their seniority in their own High Courts and they will be considered for appointment as Chief Justices in other High Courts when their turn would normally have come for being considered for such appointment in their own High Courts.
4. A puisne Judge in a High Court who has one year or less to retire when his turn for being considered for elevation as Chief Justice arrives may be considered for appointment as Chief Justice in his own High Court if vacancy is to occur in the office of the Chief Justice in that High Court during that period.
5. Initiation of the proposal for the appointment of Chief Justice of a High Court would be by the Chief Justice of India. The process of appointment must be initiated well in time to ensure the completion at least one month prior to the date of anticipated vacancy for the Chief Justice of the High Court. The Chief Justice of India would ensure that when a Chief Justice is transferred from one High Court to another simultaneous appointment of his successor in office should be made and ordinarily the arrangement of appointment of an acting Chief Justice should not be made for more than one month.
5.1 The Chief Justice of India would send his recommendation for the appointment of a puisne Judge of the High Court as Chief Justice of that High Court or of another High Court, in consultation with the two senior most Judges of the Supreme Court. He would also ascertain the views of the seniormost colleague in the Supreme Court who is conversant with the affairs of the High Court in which the recommendee has been functioning and whose opinion is likely to be significant in adjudging the suitability of the candidate. It is of no consequence whether the Judge of the Supreme Court, so consulted, had that High Court as Parent High Court or was transferred there from any other High Court.
5.2 The views of the Judges of the Supreme Court thus consulted would then be sent by the Chief Justice of India alongwith his proposal, to the Union Minister of law, Justice and Company Affairs.
6. After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs would obtain the views of the concerned State Government. After receipt of the views of the State Government, the Union Minister of law, Justice and Company Affairs, will submit proposals to the Prime Minister, who will then advise the President as to the selection.
7. As soon as the appointment is approved by the President, the Department of Justice will announce the appointment and issue necessary notification in the Gazette of India.
APPOINTMENT OF ACTING CHIEF JUSTICE
8. Appointment of Acting Chief Justices is to be made by the President under Article 223 of the Constitution. Intimation from the Chief Justice about his proceeding on leave or being unable to perform the duties of the Office of Chief Justice must be sent to all concerned well in advance to make arrangement for appointment of Acting Chief Justice.
9. When it proposed to appoint the seniormost puisne Judge on duty, as Acting Chief Justice, as soon as above intimation is received, the Union Minister of Law, Justice and Company Affairs in the Central Government would appoint the seniormost puisne Judge and the Secretary to the Government of India in the Department of Justice will, inform the Chief Minister and announce the appointment and issue the necessary notification in the Gazette of India.
10. Where, however, it is proposed to appoint an Acting Chief Justice, other than the seniormost puisne Judge the procedure for appointment of a regular Chief Justice as prescribed above will have to be followed.
APPOINTMENT OF PERMANENT JUDGES
11. The Chief Justice and Judges of the High Courts are to be appointed by the President under clause (1) of Article 217of the Constitution. The Judges of the Jammu & Kashmir High Court are to be appointed by the President under section 95 of the Constitution of Jammu & Kashmir. Appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy.
12. When a permanent vacancy is expected to arise in any year in the office of a Judge, The Chief Justice will as early as possible but at least 6 months before the date of occurrence of the vacancy, communicate to the Chief Minister of the State his views as to the persons to be selected for appointment. Full details of the persons recommended, in the format given in Annexure-1 should invariably be sent. Before forwarding his recommendation, the Chief Justice must consult two of his seniormost colleagues on the Bench regarding the suitability of the names proposed. All consultation must be in writing and these opinions must be sent to the Chief Minister along with the recommendations.
13. The Chief Justice while sending his recommendation for appointing an additional Judge as a permanent Judge, must along with his recommendation furnish statistics of month wise disposal of cases and judgments rendered by the Judge concerned as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days he actually attended the court and the days of his absence from the Court during the period for which the disposal statistics are sent.
14. The proposal for appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Since the Governor is bound by the advice of the Chief Minister heading the council of Ministers, a copy of the Chief Justice's proposal, with full set of papers, should simultaneously be sent to the Governor to avoid delay. Similarly, a copy thereof may also be endorsed to the Chief Justice of India and the Union Minister of Law, Justice and Company Affairs to expedite consideration. The Governor as advised by the Chief Minister should forward his recommendation along with the entire set of papers to the Union Minister of law, Justice and Company Affairs as early as possible but not later than six weeks from the date of receipt of the proposal from the Chief Justice of the High Court. If the comments are not received within the said time frame, it should be presumed by the Union Minister of Law,Justice and Company Affairs that the Governor (i.e. Chief Minister) has nothing to add to the proposal and proceed accordingly.
15. The Union Minister of Law, Justice and Company Affairs would consider the recommendations in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would, in consultation with the two senior most Judges of the Supreme Court, form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer.
15.1 After their consultations, the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Minister of law, Justice and Company Affairs. Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minister of Law, Justice and Company Affairs. Once the names have been considered and recommended by the Chief Justice of India, they should not be referred back to the State Constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion or Chief Justice of India should be obtained. The Union Minister of Law, Justice and Company Affairs would then put up as early as possible, preferably, within 3 weeks, the recommendation or the Chief Justice of India to the Prime Minister who will advise the President in the matter of appointment.
16. The correspondence between the Chief Justice and the Chief Minister and the correspondence between the Chief Minister and the Governor, if any, should be in writing and copies of the correspondence should invariably be forwarded along with the Chief Minister's recommendations.
17As soon as the appointment is approved by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court, who will obtain from the persons selected (I) a certificate of physical fitness as in Annexure II signed by a Civil Surgeon or District medical officer, and (ii) a certificate of date of birth as in Annexure III. A copy of the communication will also be sent simultaneously to the Chief Minister of the State. The medical certificates should be obtained from all persons selected for appointment whether they are at the time of appointment in the service of the State or not. When these documents are obtained, the Chief Justice will intimate the fact to the Secretary to the Government of India in the Department of Justice and also forward these documents to him.
18. As soon as the warrant of appointment is signed by the President , the Secretary to the Government of India in the Department of Justice will inform the Chief Justice and a copy of such communication will be sent to the Chief Minister. He will also announce the appointment and issue necessary notification in the Gazette of India.
APPOINTMENT OF PERMANENT JUDGES IN A HIGH COURT HAVING JURISDICTION OVER MORE THAN ONE STATE;
19. For appointments in these High Courts, the Chief Justice would initiate proposal in a manner prescribed in para 12 above and forward his recommendations to the Governor of the State where the seat of High Court is situated, and in the case of High Court of Punjab & Haryana, to the senior of the two Governors of these States, who would do the coordination and obtain the views of other Governor and Chief Ministers concerned in writing and forward the same along with the recommendations of the Chief Justice of the High Court to the Union Minister of Law, Justice and Company Affairs for further appropriate action as prescribed in para 15 above. In case, any of the State authorities wishes to recommend a name different from the one recommended by the Chief Justice of the High Court, he should send the same to the Chief Justice of the High Court concerned for his consideration. The initiation of a recommendation for filling up of a vacancy would be made only by the Chief Justice of the High Court concerned.
APPOINTMENT OF ADDITIONAL JUDGES
20. Additional Judges can be appointed by the President under clause (1) of Article 224 of the Constitution. When the need for this arises, the State Government should first obtain the sanction of the Central Government for the creation of such additional posts. The correspondence relating to this should be in the normal official form. After the post is sanctioned the procedure to be followed for making the appointment will be same as given in paragraphs 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person being appointed as an Additional Judge.
21. When an Additional Judge is being considered for confirmation as an Additional Judge for a fresh term, the relevant documents as mentioned in para 13 above also must be sent by the Chief Justice of the High Court concerned along with such recommendation.
22. The Chief Justice of the High Court, however, should not make a recommendation for appointment of an Additional Judge when a vacancy of a permanent Judge is available in that High Court.
APPOINTMENT OF ACTING JUDGES
23. Acting Judges can be appointed by the President under clause (2) of Article 224 of the Constitution. Such appointments will not, however, be made for periods of less than three months unless there are special reasons for doing so. When occasion arises for making such an appointment, the same procedure will be followed, as given in paragraphs 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person appointed as Acting Judge.
Ordinarily, members of the Bar should for obvious reasons not be suggested for appointment as Acting Judges.
ATTENDANCE OF RETIRED JUDGES AT SITTINGS OF HIGH COURTS.
24 Under Article 224A of the Constitution, the Chief Justice of a High Court may at any time, with the previous consent of the President , request any person who has held the office of a Judge of that court or of any other High Court to sit and Act as a Judge of the High Court of that State. Whenever the necessity for such an appointment arises, the Chief Justice will after obtaining the consent of the person concerned, communicate to the Chief Minister of the State the name of the retired Judge and the period for which he will be required to sit and act as Judge of the High Court. The Chief Minister will, after consultation with the Governor, forward his recommendation to the Union Minister of Law,Justice and Company Affairs. The Union Minister of Law, Justice and Company Affairs would then consult the Chief Justice of India in accordance with the prescribed procedure. On receipt of CJI's advice, the same would be put up to the Prime Minister, who will then advise the President as to the person to be appointed to it and act as a Judge of the High Court. As soon as the President gives his consent to the appointment, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court and the Chief Minister(s) and will issue the necessary notification in the gazette of India.
TRANSFER OF A JUDGE (INCLUDING CHIEF JUSTICE )FROM ONE HIGH COURT TO ANOTHER HIGH COURT:
25. Article 222 of the Constitution makes provision for the transfer of a Judge (including Chief Justice) from one High Court to any other High Court. The initiation of the proposal for the transfer of a Judge should be made by the Chief Justice of India whose opinion in this regard is determinative. Consent of a Judge for his first or subsequent transfer would not be required. All transfers are to be made in public interest i.e. for promoting better administration of justice throughout the country.
25.1 In the formation of his opinion for the transfer of a Judge, other than the Chief Justice, the Chief Justice of India is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, as also the Chief Justice of the High Court to which the transfer is to be effected. The Chief Justice of India should also take into account the views of one or more Supreme Court Judges who are in a position to offer his/ their views which would assist in the process of deciding whether or not a proposed transfer should take place.
25.2 In the case of transfer of a Chief Justice, only the views of one or more knowledgeable Supreme Court Judges need to be taken into account.
25.3 The views on the proposed transfer of a Judge or a Chief Justice of a High Court should be expressed in writing and should be considered by the Chief Justice of India and the four seniormost Judges of the Supreme Court. The personal factors relating to the concerned Judge, including the Chief Justice, and his response to the proposal, including his preference of places, should invariably be taken into account by the Chief Justice of India and the first four puisne Judges of the Supreme Court before arriving at conclusion on the proposal.
25.4. The proposal for transfer of the Judge, including the Chief Justice should be referred to the Government of India alongwith the views of all those consulted in this regard.
26. After the recommendation of a transfer is received from the Chief Justice of India, the Union Minister of law, Justice and Company Affairs would submit the recommendation alongwith relevant papers to the Prime Minister who will then advise the President as to the transfer of the Judge concerned. After the President approves the transfer, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Courts and the Chief Ministers of concerned States and will announce the transfer and issue the necessary notification in the Gazette of India.
27. Transfer of Judge to or from Jammu & Kashmir High Court shall be made in accordance with clause (1) of Article 222 of the Constitution of India read with Article 222 (1A) of the Constitution (Application to Jammu & Kashmir) order, 1954. Therefore, when it is proposed to transfer a Judge from or to the Jammu & Kashmir High Court, the Minister of Law and Justice in the Central Government will consult the Governor (Chief Minister ) of Jammu & Kashmir for his views before putting up the relevant papers to the Prime Minister for advising the President. In case there is a difference of opinion, the Union Minister of Law, Justice and Company Affairs will consult the Chief Justice of India again before putting up papers to the Prime Minister for advising the President on the matter of transfer. ON approval of the President, the transfer will be announced in the usual manner."
58. Para 11 of the Memorandum provides that the appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy. Para 12 of the Memorandum quoted as above provides that when a permanent vacancy is expected to arise in any year in the office of a judge, the Chief Justice will as early as possible, but at least six months before the date of occurrence of the vacancy communicate to the Chief Minister of the State, his views as to the persons to be selected for appointment. Full details of the persons recommended in the format given in Annexure-1 should invariably be sent. Before placing his recommendation the Chief Justice must consult two of his seniormost colleagues on the Bench regarding suitability of the names proposed. The consultation must be in writing and these opinions must be sent to the Chief Minister along with recommendations. For appointment of an Additional Judge as Permanent Judge under Para 13 of the Memorandum Chief Justice while sending his recommendations must along with his recommendations furnish statistics of month wise disposal of cases and judgments rendered by the judge concerned as well as the number of cases reported in Law Journals duly certified by him. He is also required to forward information with regard to total number of working days, number of day he actually attended the Court and the days of his absence during the period for which disposal statistics are sent. The papers under Para 14 are to be sent to the Governor simultaneously to avoid any delay and copy endorsed to the Chief Justice of India and Union Minister of Law, Justice and Company Affairs to expedite the consideration. The Governor as advised by the Chief Minister should forward his recommendations with entire set of papers to the Union Minister of Law Justice and Company Affairs as early as possible but not later than six weeks from the date of receipt of the proposal form the Chief Justice of the High Court. If the comments are not received within the set time frame, it should be presumed by the Union Minister of Law, Justice and Company Affairs that the Governor has nothing to add to the proposal and proceed accordingly. Para 15 and 16 provided for consideration of the proposals by the Union Minister of Law Justice and Company Affairs and to forward complete material to the Chief Justice of India for his advice. The Chief Justice of India would in consultation with the two seniormost Judges of the Supreme Court from his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court, who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court, who are conversant with the affairs of that High Court. After their consultation it is provided in para 15.1 that Chief Justice of India will in course of four weeks send his recommendation to Union Minister of Law, Justice and Company Affairs. The consultation should be in writing and all exchange of the correspondence should be sent by Chief Justice of India to the Union Minister of Law, Justice and Company Affairs. Once names have been considered and recommended by the Chief Justice of India, they are not to be referred back to the State constitutional authorities even if change takes place in the incumbency of any post. If it is considered expedient to refer back the names, the opinion of the Chief Justice of India should be obtained. The Union Minister of Law, Justice and Company Affairs would then put up as early as possible, preferably, within three weeks, the recommendation to the Prime Minister, who will advise the President in the matter of appointment.
59. Para 20 of the Memorandum provides for appointment of Additional Judges by the President under Clause (1) of Art.224 of the Constitution. When the need for this arises, the State Government should first obtain the sanction of the Central Government for the creation of such additional post. The correspondence relating to this should be in the normal official form. After the post is sanctioned the procedure to be followed for making the appointment will be same as given in paragraphs 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person being appointed as an Additional Judge.
60. For appointment of Acting Judges under Clause 2 of Art.224 para 23 of the Memorandum provides that such appointment will not be made for periods of less than three months unless there are special reasons for doing so. When occasion arises for making such an appointment, the same procedure will be followed, as given in paragraphs 12 to 18 for the appointment of a permanent Judge, except that a medical certificate will not be necessary from the person appointed as Acting Judge. A caveat has been put in para 23 that ordinarily members of the Bar should for obvious reasons not be suggested for appointment as Acting Judge.
61. The procedure laid down in Memorandum of Appointment strictly conforms to the method provided in Second Judge's case as explained in Third Judge's case. In addition it also provides for initiation of the process, as early as possible but atleast six months before the date of occurrence of the vacancy. The procedure, however, in initiating process for appointment as in many High Courts and specially in Allahabad High Court has not been followed with reference to prescribed time schedule. As observed above the last batch of judges in Allahabad High Court took oath of office on 13.4.2009; since thereafter upto 15.2.2011, when the judgment was reserved the collegium has met successfully only once to recommend the names of 9 Additional Judges from judicial services, received by the Union Minister of Law Justice and Company Affairs, Central Government on 9.2.2011.
62. The approved strength of the Allahabad High Court is 76 permanent judges and 84 Additional Judges. There were only 65 judges in place on 15.2.2011. With 95 vacancies the extra burden on the judges and the distress shown by the Advocates, does not require any emphasis. The variety of reasons for delay and disposal of cases, which also require attention cannot be given as an excuse for keeping more than half the sanctioned strength of judges, vacant for want of initiation of proposals.
63. The appointment of judges in the High Courts is an integrated consultative process, in which the initiation of the names is made by the Chief Justice of the High Court in consultation with the two seniormost judges of the Court, and ends up with the appointment by the President of India in consultation with the Chief Justice of India, in which Chief Justice of India has primacy, after considering the views of the Governor (i.e. the Chief Minister) and the Union Minister of Law, Justice and Company Affairs. Each of the constitutional functionaries in the process is equally responsible and accountable for the procedure, including the timely initiation of the process.
64. The rights of the citizens of the country waiting for justice, being a fundamental right under Art.21 of the Constitution of India, puts a corresponding duty on each of the constitutional functionaries to make appointment of judges with reasonable expediency and dispatch. The constitutional duty does not admit any scope for delay.
65. Learned counsels appearing for the parties have proposed variety of reasons, which could have been the cause of delay in the process. They submit that a large number of vacancies on the post of Judges in almost all the 21 High Courts of the States, leaving almost 1/3rd of the strength of Permanent and Additional Judges vacant, suggests that reasons attributable to delay are not confined to any one High Court. There appears to be some fault line in the process. They are unable to appreciate and comprehend as to why even after such a carefully drafted procedure, the vacancies are not filled up in time, in almost all the High Courts. There can be variety of reasons such as adoption of the policy of appointment by Chief Justice from outside the State; the short period of their tenure, their lateral movement on transfer to different High Courts, and elevation to the Supreme Court; and the desired cooperation from collegium members resulting into time taken to select the persons of competence and integrity for appointments.
66. Shri Ravi Kiran Jain submits that although the demand for having Chief Justice from High Court originated to avoid prejudice and bias, the Central Government has not framed any policy or guidelines for appointment of Chief Justice from outside the State. He submits that the reference to a resolution passed in the Chief Justices conference for having Chief Justice from outside should not be accepted as a policy. He submits that the medicine has not proved to be any better than the disease. We do not find that there are any pleadings or prayers to question the policy, and even if there is no such policy, the practice, which has taken the shape of policy in appointment of Chief Justice from outside.
67. We also do not propose to go into and consider the merits of the practice of having atleast 33%, which has been accepted as 40% in default, of appointment of High Court Judges to be made from Judicial Service. The judges coming from Judicial Service are equally competent, responsible and accountable as the members of the Bar and have legitimate expectation to be appointed as judges of the High Court.
68. In Ashok Tanwar & Anr. Vs. State of H.P. & Ors., (2005) 2 SCC 104 the Constitution Bench of the Supreme Court held in para 27 that in the very premise of Art.223 of the Constitution, when the office of the Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of office of the Chief Justice, the duties of the office of the Chief Justice shall be performed by such one or other judges of the Court as the President may appoint for the purpose. The plain reading of the Article shows that one or other judges of the High Court appointed in the vacancy of the Chief Justice of the High Court, for the time being can perform duties of the office of Chief Justice. No restriction or limitation in the performance of duties by the Acting Chief Justice can be read into the said Article. The Article also does not indicate as to which of the duties of the Chief Justice can be performed or which of the duties cannot be performed by the Acting Chief Justice. The appointment of Acting Chief Justice is meant to carry on work of the High Court and judiciary in the State. It may take some time for various reasons for appointment of Chief Justice, but that itself does not take away the powers conferred by the Constitution on a judge to act as Chief Justice to perform the duties of the Chief Justice. Normally senior most puisne judge is appointed as Acting Chief Justice. It is a rule of prudence that Acting Chief justice may not take major decisions, which otherwise could have been taken by the Chief Justice or which decisions to wait for a Chief Justice. Assuming that some decisions taken by the Chief Justice are required to be modified or corrected, that can be done either on the administrative side or on the judicial side by the High Court. In some cases the appointment of Chief Justice of a High Court takes a longer time and Acting Chief Justice cannot discharge duties of office of Chief Justice and anomalous position result leading to paralysing the work or may be some time creating a deadlock. It cannot be accepted that acting Chief Justice cannot perform the duties expected to be performed by him under various statues including the appointment of President of the State Consumer Commission, which were the subject matter of dispute in the case.
69. We find substance in the contention that there was no justification for the Acting Chief Justices, who were appointed in the High Court to discharge the duties of office of Chief Justice for several months altogether without there being any permanent appointment of the Chief Justice in sight, to hesitate to perform the constitutional duty, envisaged under Art.217 and 224 of the Constitution of India, to hold meeting of the collegium and recommend the names for appointment on the vacancy of Permanent and Additional Judges of the Court. The law on this point has been sufficiently explained in Ashok Tanwar's case.
70. In order to obtain a writ of mandamus the petitioner must satisfy the Court that he has a legal right to the performance of legal duty against whom mandamus is sought and such rights is subsisting on the date of the petition. The duty that may be enforced by writ of mandamus may be imposed by the Constitution, a statute, common law or by rules or orders having force of law. In State of Bombay Vs. Hospital Mazdoor Sabha, AIR 1960 SC 610 the Supreme Court held where there is request for performance of the duty in order to give party an opportunity is to consider for compliance the request for issuing writ of mandamus must precede a demand, which should be shown to have been refused either by words or conduct. In the case of public interest litigation filed in the year 1982, where an opportunity has been given to file a reply to issue writ of mandamus, it was not necessary for the request to precede a formal demand. The Court can take into account the pleading or otherwise the failure to comply with constitutional or statutory duty and to issue a writ of mandamus. In such case it is not necessary to show any positive injury to be caused to an individual. In the present case the request for issuing a writ of mandamus to increase judge strength and to make appointments to fill up all the vacancies of the judges in the High Court at Allahabad does not lie in any of the exceptions in which such relief may be refused. The Chief Justice of the High Court and the two senior most judges as members of collegium have to perform constitutional duties, which are administrative in nature, in accordance with the procedure laid down under Section 217 of the Constitution of India, and in accordance with Second Judge's case and in Presidential Reference No.1: Re of 1998.
71. We have no doubt that the increase of judge strength from time to time taking into account the increased work in the High Court to be worked out on the basis of the number of pendency of the cases, and other factors and the initiation of the process of appointment by recommending the names for appointment of Judges is a constitutional duty. This duty is distinguished from the exercise of power, which is merely permissive and does not impose any obligation and discretion, as to the manner of its performance. It also imposes an obligation in public interest to constitute the High Court in full to enable it to perform its public functions. This duty does not admit any discretion. It is an obligation of which the manner of performance is clearly laid down in Second Judge's case and Presidential Reference No.1: Re of 1998 and which has been now clarified with all the details in the revised Office Memorandum issued by the Ministry of Law, Justice and Company Affairs quoted as above.
72. Where members of a civilized society under a social contract with State, agree to get their disputes, settled through the judiciary, as an independent and impartial mechanism offered by the State, with a set of laws and rules governing the same, there is an implied promise that the mechanism will deliver results within reasonable time. Justice has always been first virtue of any civilized society. All those, who are concerned with the judicial system are alive to the fact that because of diverse reasons, not entirely on the making of the judiciary, the judicial system has not been able to keep its promise to dispense with justice within reasonable time. A large number of facts including the lack of modernization, non-cooperation from those connected with the system, financial means to run and manage the administration, and the lack of concern of the members of the legal profession, has added to the breach of promise. The failure of the legislative and the executive to make legislative impact assessment on the making of the new laws, frequently shifting the law enforcement on the judiciary, failure of the executive to take the responsibility, politico legal issues, corruption in society are also the causes, leading to delays in disposal of cases. The judge strength in adequate numbers is thus not the only remedy of the endemic ailment.
73. The increase of judge strength and filling up all the vacancies in time may not solve the problem of delays in deciding the case. A scientific and effective management of the dockets with the active cooperation of the legal profession is equally important. The constitution has taken care of increasing judge strength under Art.216 from time to time. The words ''deem it necessary to appoint', when read with ''time to time' leave no doubt of periodical assessment of judge strength. It is a constitutional obligation, which must be performed in time, and without delay. Art.216 does not limit the consultation with the judiciary but normally Chief Justice of the High Court is the best person on the spot to have the knowledge of the arrears, the disposal ratio of the judges, and other requirements. He has to take into account the increase in the work and to assess where it is temporary or permanent, and other factors including frequent stoppage of work, the quality of the bar and to take up the matter from time to time with the Ministry of Law, Justice and Company Affairs providing empirical data for increasing the judge strength.
74. In S. P. Gupta Vs. Union of India, 1981 Suppl. SCC 87 the Court took into account and held that the appointment of judges is purely executive function entrusted by the Constitution to the executive. Hon'ble Desai J. endorsed the view of Hon'ble Bhagwati J. and observed in para 741 (page 617) that the failure to perform duties of appointing adequate number of judges in the High Court cast on the President by Art.216 would make him answerable to the Parliament and not to the Court. Hon'ble Pathak, J. observed that Art.216 mandates a periodical review of judge strength in every High Court; it is purely an executive function and that the Court cannot by judicial verdict decide how many permanent judges are required for the Court. Hon'ble Venkatramaiah, J. observed that the power conferred on the President by Art.216 of the Constitution of India to appoint sufficient number of judges, is power coupled with a duty and is not merely a political function. Ordinarily the Court would have been reluctant to issue any mandamus to the Government to comply with the duty of determination of the strength of judges of High Courts but having regard to the undisputed total inadequacy of the strength of judges in many High Courts, it appeared inevitable that the Union of India should be directed to determine within a reasonable time strength of permanent judges required for the disposal of cases instituted in them, and to keep steps to fill up vacancies after making such determination. He gave directions to Union of India to review strength of permanent judges in every High Court; to fix number of permanent judges that should be appointed on the basis of workload and to fill up vacancies. He directed a writ in the terms to issue.
75. In Second Judge's case Hon'ble Ahmadi, J. observed "it is, therefore, necessary to bear the distinction in mind between absence of power and jurisdiction and refusal to exercise power on the ground of propriety although the Court has inherent jurisdiction." The first three learned judges in S.P. Gupta's case ruled that the Court lacked power and jurisdiction to issue a writ or direction while the fourth judge said it would not be proper to exercise that power unless acquiring circumstances exist. Venkatramaiah, J. held issue to be distinguishable to the limited exception of directing Union to review judge strength. The legal principle laid down in this case is that if executive is charged with duty under the Constitution to undertake a periodical review of the judge strength and fails to perform of duty, an order of mandamus can lie to compel performance within a reasonable time. The issue is not wholly outside the Court's purview and the remedy is to knock the doors of legislature. The periodical revision of judge strength was found to be essential to ensure early disposal of court cases. It was also noticed in all these cases that process of appointment of judges is time consuming as proposal has to pass through as many as six consultees, but that is all the more reason why each functionary must show sense of urgency to see that proposal is not delayed unnecessarily. The observations made in the judgment for the Ministry of Law, Justice and Company Affairs to prepare the guidelines and to fix the maximum time limit, each consultee must take on the proposal having regard to the role, he is expected to play and ensure that strict compliance has born results, and that such system is in place.
76. The fundamental rights guaranteed under Art.21 of the Constitution of India to every citizen for speedy justice has been established in our country. This right obliges all the constitutional functionaries responsible for making appointment and casts a duty upon them to make appointments immediately as soon there is vacancy on the sanctioned post of Permanent Judges and Additional Judges. As explained by us and demonstrated by a model based upon number of cases left out in any year to be decided with reference to the total number of pending cases and the delay in appointments, the main reason for the arrears and the consequent denial of speedy justice to the citizen is delay in appointment of judges. This delay could have been avoided, if the successive Chief Justice and Acting Chief Justices had initiated the process of appointment as prescribed in the Memorandum of Appointment of the Chief Justices and Judges of the High Court six months prior to the anticipated vacancy. The pendency of the cases in the Allahabad High Court constituting almost 1/3rd of the total pendency of the cases in the High Courts in the country could be tackled, if the process of appointment was strictly followed and the new appointees were in place before a Judge retired.
77. Art.226 of the Constitution of India gives to the High Court wide powers, with accepted constitutional limitations to avoid injustice. The object of exercising these powers is to interpret constitution and the laws of the country, judicial review of administrative action, dispensation of civil and criminal justice and to maintain rule of law. All these constitutional obligations of the High Court are meaningless, if the vacancies, as in the present case are left unfilled for long periods of time. We entirely agree with Shri Ravi Kiran Jain that for a long period of time the High Court has not been fully constituted as a Court. It is a truncated Court, which can hardly function to meet its constitutional obligations. Art.226 of the Constitution of India admits the powers to issue directions to request to Hon'ble the Chief Justice and the two Senior Judges of the Court, to follow the mandate of law; and to fulfill their constitutional responsibility by initiating the process of appointment of judges by holding meetings of the collegium regularly, with positive outcome and to initiate process of appointment of judges by recommending the names. There may be many reasons for disagreement in reaching to a consensus, but those reasons have to be avoided and overcome to fulfill the constitutional obligations and the fundamental rights of the citizens of the country.
78. We do not find substance in the submissions and the prayers made by the petitioners to acquit and release all the appellants and the applicants in the criminal appeals, criminal revisions and criminal miscellaneous applications waiting for decision of their case for more than 5 years. A similar argument was raised and turned down in Vakil Prasad Singh Vs. State of Bihar, (2009) 3 SCC 355. The Supreme Court relying upon Ram Chandra Rao Vs. State of Karnataka, (2002) 4 SCC 578 held that the guidelines laid down in Abdul Rehman Antuley Vs. R.S. Nayak, (1992) 1 SCC 225 are not exhaustive but only illustrative. They are not intended to operate as hard and fast rule or to be applied as a straight jacket formula. Their applicability would depend upon fact situation of each case, as it is difficult to foresee all the situations and no generalisation can be made. The Supreme Court observed that it is well settled that right to speedy trial in all criminal prosecutions is an inalienable right under Art.21 of the Constitution of India. This right is applicable not only to the actual proceedings in Court but also includes within its sweep the proceeding police investigation as well. The right to speedy trial is applicable equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the Court has to perform the balancing act, upon taking into consideration all the attending circumstances and determine in each case whether the right to speedy trial has been denied in a given case. Where Court comes to the conclusion that the right of speedy trial of an accused has been infringed, the charges or conviction as the case may be, may be quashed unless the Court feels, that having regard nature of offence and other relevant circumstances, that the quashing of proceedings would be in interest of justice. In such a situation it is open to the Court to make an appropriate order, as it may deem just and equitable including fixation of time frame or conclusion of trial.
79. In P. Ramachandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, a Constitution Bench of 7 judges, reconsidered the question of fixing a time limit for criminal trial on the principles of speedy trial being fundamental right. The Supreme Court did not agree with the directions given in 'Common Cause' A Registered Society Vs. Union of India, (1996) 4 SCC 33; 'Common Cause' A Registered Society Vs. Union of India; (1996) 6 SCC 775; Raj Deo Sharma Vs. State of Bihar, (1998) 7 SCC 507 and Raj Deo Sharma (II) Vs. State of Bihar, (1999) 7 SCC 604 and held in para 29 as follows:-
"For all the foregoing reasons, we are of the opinion that in Common Cause Case (I) (1996) 4 SCC 33 [as modified in Common Cause (II) (1996) 6 SCC 775] and Raj Deo Sharma (I) (1998) 7 SCC 507 and Raj Deo Sharma (II) (1999) 7 SCC 604 the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay Case, (1992) 1 SCC 225 is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be t taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.
(5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively- by providing requisite funds, manpower and infrastructure. We hope and trust that the Government shall act.
We answer the questions posted in the orders of reference dated 19.9.2000 and 26.4.2001 in the abovesaid terms."
80. Before we part with the case, we express our gratitude for the able assistance given by Shri Ravi Kiran Jain and Shri Daya Shankar Misra, to decide the seemingly simple, but a complex issue of increase of judge strength and timely filling up of the vacancies in the High court.
81. To conclude, we may observe:-
(i) the periodical review of the judge strength is a constitutional function under Art.216 providing for the President to appoint judges as he may deem it necessary, from, 'time to time'. It castes an obligation as held by Supreme Court in the Second Judges' case and the Presidential Reference No.1 of 1998: Re., to undertake an exercise periodically, to be initiated by the Chief Justice of the High Court, taking into account all relevant factors, including pendency of cases.
(ii) The procedure of selection for appointment of Judges to the High Court is established and is not in any doubt. The entire procedure has been discussed in the directions given by the Supreme Court succinctly in the Presidential Reference No.1 of 1998: Re, and has been incorporated in the memorandum prepared and circulated by the Ministry of Law, Justice and Company Affairs. The initiation has to be made by Hon'ble the Chief Justice of the High Court along with two seniormost judges constituting the collegium.
(iii) The convening of the meeting of the collegium and making recommendations for appointment of judges is a constitutional duty, which does not leave any discretion with Hon'ble the Chief Justice, and certainly not a discretion to delay in making recommendations.
(iv) The directions given by the Supreme Court for initiating process of appointment atleast six months before the vacancy arises, so that the appointee is in place one month before the judge retires, may be followed by Hon'ble the Chief Justice of the High Court. (v) The convening of the meeting of the collegium, consideration and recommendation of names for appointment of judges well in advance to the vacancies to arise, should be performed periodically, with positive results of recommendations.
(vi) The High Court must have all the judges in place equal to the number of sanctioned strength at all times, failing which the High Court is not fully constituted. All the constitutional functionaries involved in the process of appointment have to ensure that the vacancies are filled up, as early as possible.
(vii) The Acting Chief Justice as held by the Supreme Court in Ashok Tanwar's case, where the appointment of Chief Justice takes some time, does not have any limitation on his powers, except the rules of prudence, to make recommendations for appointment of Judges of the High Court.
(viii) The State Government must provide the necessary infrastructure for the High Court to function, corresponding to the full strength of sanctioned number of judges. The infrastructure should be put in place, before the Judges are appointed.
(ix) The right to speedy trial is a fundamental right guaranteed under Art.21 of the Constitution of India. The delay in decision in appeals, revisions and other applications, even if it is for more than 5 years, cannot be treated as a ground for acquittal and release of the accused/ appellant. Each case will depend upon its own facts. No general directions can be given by the High Court under Art.226 of the Constitution of India to acquit/ release such persons.
81. We have not given any directions nor suggested any departure from the established process of appointments of Judges. We have only bended it forward, to make it more purposeful, to avoid the delay in initiating the process of appointment of judges. With this pious hope we close the proceedings of the cases, the first of which was instituted in the year 1982 and has paradoxically waited for almost 29 years for its disposal.
Dt.21.07.2011 SP/ Hon'ble Mr. Justice Vikram Nath has delivered separate judgment today.
(BY HON'BLE VIKRAM NATH, J) I have had the advantage of reading the judgement of Brother Sunil Ambwani, J. It incorporates the background, the facts and figures, the plethora of decisions relied upon and the submissions advanced by the learned Counsels appearing in the bunch of petitions. They are not being repeated again. In my order relevant extracts from the decisions in the 1st, 2nd and 3rd Judges Case, the Presidential Reference and the memorandum issued by the Union Government have been quoted only to make it more comprehensive, smooth reading and easy to understand.
The judgement of Brother Ambwani, J. in the penultimate paragraph (no. 80) records the conclusions drawn by him. The same are reproduced herein below:
(i) the periodical review of the judge strength is a constitutional function under Art.216 providing for the President to appoint judges as he may deem it necessary, from, 'time to time'. It castes an obligation as held by Supreme Court in the Second Judges' case and the Presidential Reference No.1 of 1998: Re., to undertake an exercise periodically, to be initiated by the Chief Justice of the High Court, taking into account all relevant factors, including pendency of cases.
(ii) The procedure of selection for appointment of Judges to the High Court is established and is not in any doubt. The entire procedure has been discussed in the directions given by the Supreme Court succinctly in the Presidential Reference No.1 of 1998: Re, and has been incorporated in the memorandum prepared and circulated by the Ministry of Law, Justice and Company Affairs. The initiation has to be made by Hon'ble the Chief Justice of the High Court along with two seniormost judges constituting the collegium.
(iii) The convening of the meeting of the collegium and making recommendations for appointment of judges is a constitutional duty, which does not leave any discretion with Hon'ble the Chief Justice, and certainly not a discretion to delay in making recommendations.
(iv) The directions given by the Supreme Court for initiating process of appointment atleast six months before the vacancy arises, so that the appointee is in place one month before the judge retires, may be followed by Hon'ble the Chief Justice of the High Court.
(v) The convening of the meeting of the collegium, consideration and recommendation of names for appointment of judges well in advance to the vacancies to arise, should be performed periodically, with positive results of recommendations.
(vi) The High Court must have all the judges in place equal to the number of sanctioned strength at all times, failing which the High Court is not fully constituted. All the constitutional functionaries involved in the process of appointment have to ensure that the vacancies are filled up, as early as possible.
(vii) The Acting Chief Justice as held by the Supreme Court in Ashok Tanwar's case, where the appointment of Chief Justice takes some time, does not have any limitation on his powers, except the rules of prudence, to make recommendations for appointment of Judges of the High Court.
(viii) The State Government must provide the necessary infrastructure for the High Court to function, corresponding to the full strength of sanctioned number of judges. The infrastructure should be put in place, before the Judges are appointed.
(ix) The right to speedy trial is a fundamental right guaranteed under Art.21 of the Constitution of India. The delay in decision in appeals, revisions and other applications, even if it is for more than 5 years, cannot be treated as a ground for acquittal and release of the accused/ appellant. Each case will depend upon its own facts. No general directions can be given by the High Court under Art.226 of the Constitution of India to acquit/ release such persons.
I am in agreement with the conclusion nos.(vii), (viii) & (ix) drawn by Brother Ambwani, J., however I have reservations about the rest of the conclusions nos, (i) to (vi) relating to Judge strength, selection and appointment of judges and would respectfully beg to differ for reasons recorded in this order. Most of these conclusions are either in the form of declarations or directions, however a couple of them are partially declaration and partially directions. It may be relevant to record at the outset that my order deals only with the issues relating to fixation of Judge strength, selection and appointment of Judges.
The learned counsels for the petitioners need be appreciated for the labour they have put in and the time they have given to this cause of public importance. They have taken us through the facts and figures, the law on the point and have also advanced their own views as part of their submissions. The arguments as advanced by the learned counsels for the petitioners have been elaborately recorded in the judgement of Brother Ambwani, J. The arguments are based upon the Constitutional provisions, the three Judges Case and the respective views of the learned counsels based upon experience.
In this bunch of 7 petitions, the following parties have been arrayed as respondents :
1.State of Uttar Pradesh through the Principal Secretary, Ministry of Law, Lucknow.
2.Union of India through the Secretary, Ministry of Law & Justice.
3.High Court of Judicature at Allahabad through its Registrar General.
4.The Hon'ble the Chief Justice of India, New Delhi.
5.The Hon'ble the Chief Justice, High Court, Allahabad.
6.Bar Council of Uttar Pradesh, Allahabad through its Secretary.
7.Advocates Association, High Court, Allahabad through its General Secretary.
8.Allahabad High Court Bar Association through its President.
9.Awadh Bar Association, Lucknow through its President.
The relief's sought in each of the petitions is quoted hereinafter :
1. Civil Misc. Writ Petition No.4502 of 1982, Indian Society of Lawyers vs. The President of India & Ors. :
a) To issue a writ of mandamus directing the respondents to appoint Judges to 12 vacancies in the High Court without delay.
b) To issue a writ, order or direction directing the respondents to review the position arising out of the arrears of pending cases in the High Court and to refix without delay the strength of the Judges of this Court in order to dispose of the arrears.
c) To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper.
d) To issue a writ of mandamus directing the respondents to abolish the posts of present additional judges and to declare those posts as posts of permanent judges and fill those posts by appointing permanent judges on those posts.
e) To award the costs of this writ petition.
2. Civil Misc. Writ Petition No.1533 of 1996, People's Union for Civil Liberties vs. State of U.P. & Ors. :
i) issue an appropriate writ, order or direction, commanding Registry of this Court to place all the Criminal Appeals, Criminal Revision, Application u/s 482 Cr.P.C. in which trials have been stayed and the Criminal Writ Petitions before this Court if such cases are pending for more than 4 years and the accused in all such cases be acquitted and the files of all such cases be consigned to record after passing orders of acquittal ;
ii) Issue an appropriate writ, order or direction declaring that the aforesaid type of cases have become infructuous and further holding that the accused in all such cases stand acquitted;
iii) issue such other, writ / order or direction in any nature which this Hon'ble Court may deem fit and proper under the circumstances of the case ;
iv) award costs to the petitioner.
3. Civil Misc. Writ Petition No.28424 of 1997, Pushkar Mehrotra vs. Hon'ble the Chief Justice & Ors. :
i) issue a writ order or direction in the nature of mandamus commanding Hon'ble the Chief Justice of the High Court to recommend the names from the members of the Bar for being appointed as Judges on the post which are lying vacant. ii) issue a writ, order or direction in the nature of mandamus commanding the Union of India to review the strength of Judges in this High Court. iii) issue a writ, order or direction in the nature of mandamus commanding respondent Nos.1 to 4 to quash the policy of having quota of 40% Judges from subordinate judiciary. iv) issue a writ, order or direction in the nature of mandamus commanding Hon'ble the Chief Justice of this Court to comply with the order dated 3rd May, 1982 passed in writ petition No.4502 of 1982. v) award costs. 4. Civil Misc. Writ Petition No.32623 of 1997, Harsh Chandra Jaiswal vs. Union of India & Ors. :
A) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to fill the existing vacant post of Hon'ble Judges of the High Court within a reasonable time and further directing them to fill any vacancy of the office of the High Court Judges as soon as it becomes vacant ;
B) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to review the strength of the Hon'ble Judges of Allahabad High Court and increase the strength ;
C) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents not to adhere any policy of quota of appointment from the Bar and judicial service and other policies like minority, Scheduled Caste, other backward classes and other sectarian policy ;
D) issue a writ, order or direction in the nature of writ of mandamus commanding the respondents not to make appointment of High Court Judges from the members of judicial service on the criteria of seniority and further commending them to make appointment of the members of the judicial service on the basis of merit, honesty and integrity ;
E) issue any other appropriate writ, order or direction which this Court may deem fit and proper in the facts and circumstances of the case, and F) allow writ petition with cost.
5. Civil Misc. Writ Petition No.23445 of 2008, Peoples Union for Civil Liberties, U.P. Chapter vs. Union of India & Ors. :
i) Issue an appropriate writ, order or direction in the nature of mandamus to the Union of India to start the process of appointment of Judges to the full strength of 160 Judges and not to keep the sanctioned posts vacant any further and for that purpose request the Chief Justice of India and the Chief Justice of this Court to recommend the names for the appointment to these posts in accordance with the constitutional requirement.
ii) Issue an appropriate writ, order or direction directing the Union of India that in the matter of fixation of strength of Judges under Article 216 of Constitution of India to enable the President to determine such strength "from time to time" seek advise of this High Court through the Chief Justice of this Court, and remain in constant touch with this Court through the Chief Justice to discharge the constitutional obligations under Article 216 of the Constitution of India.
iii) Pass such other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
iv) Award costs.
6. Civil Misc. Writ Petition (PIL) No.30186 of 2010, Udit Chandra & Ors. Union of India & Ors. :
i) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to issue a rule that duties and powers of the Hon'ble Acting Chief Justice under Article 223 of the Constitution of India includes all powers of Hon'ble the Chief Justice.
ii) To issue a writ, order or direction in the nature of mandamus recommending/suggesting the respondent no.3 i.e. Hon'ble A.C.J. to call for a collegium for consideration and recommendation of the names for being appointed as judge in the Hon'ble High Court of Judicature at Allahabad.
iii) To issue a writ, order or direction in the nature of mandamus directing respondent no.1 to fill the vacancies of Judges in the Allahabad High Court.
iv) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to follow the conclusion and tentative scheme framed by the Constitutional Bench in the Case of Supreme Court Advocates on record Association (Supra) while interpreting the constitutional provisions and also in the constitutional bench decision in the case of Ashok Tanwar (supra).
v) To issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
vi) To award cost of the petition to the petitioners.
7. Civil Misc. Writ Petition No.34239 of 2010, Daya Shankar Misra vs. High Court, Allahabad & Ors.
1.यह कि सम्माननीय न्यायालय परमादेश प्रकृति के याचिकादेश, आदेश निर्देश के माध्यम से इलाहाबाद उच्च न्यायालय हेतु स्वीकृत १६० माननीय न्यायमूर्तिगण के पदो में शेष न्यायमूर्तिगण के पदों को पूर्ण करने, विशेष माननीय न्यायमूर्तिगण की नियुक्त करने /रिक्त पदो पर माननीय न्यायमूर्तिगणों को नियुक्त करने हूतु उत्तरवादीगण समेत उनके सहयोगी, सहकर्मी, अधीनस्थ, अन्यान्य, समस्त अधिकारीणगण /कर्मचारीगण को आदेशित / निर्देशित करने की महती कृपा करें।
2.यह कि सम्मानीय न्यायलय परमादेश प्रकृति के याचिकादेश आदेश / निर्देश के माध्यम से समुचित सुचारू त्वरित न्याय में सुविध करने निमत्त अधिकारियों / कर्मचारियों की अविलम्ब नियुक्ति हेतु उत्तरवादीगण समेत उनके सहयोगी सहकर्मी अधीनस्थ अन्यान्य सम्बन्धित समस्त अधिकारी / कर्मचारीगण को आदेशित / निर्देशित करने की महती कृपा करें।
3.यह कि सम्माननीय न्यायालय परमादेश प्रकृति के याचिकादेश आदेश / निर्देश के माध्यम से इलाहाबाद के न्यायालय कक्ष व माननीय न्यायमूर्तिगण के आवास की स्थापना निर्माण हेतु त्वरित व व्यवहारिक कार्यवाही करने और इस सम्बन्ध में उचित स्थान पर भवन व भूखन्ड अविलम्ब अधिग्रहित कर निर्माण की कार्यवाही शीघ्रातिशीघ्र प्रारम्भ करने हेतु उत्तरवादी संख्या १ व ३ समेत उनके सहयोगी सहकर्मी अधीनन्थ अन्यान्य सम्बन्धित समस्त अधिकारीगण / कर्मचारीगण को आदेशित / निर्देशित करने की महती कृपा करें।
4.यह कि सम्माननीय न्यायालय परमादेश प्रकृति के याचिकादेश आदेश/ निर्देश के माध्यम से न्यायमूर्तिगण की चयन समिति (क्लोजियम) की अविलम्ब बैठक आहूत व सम्पन्न करने व शेष न्यायमूर्तिगण की नियुक्ति हेतु नाम चयनित व संदर्भित करने हेतु उत्तरवादी संख्या १ समेत उनके सहयोगी सहकर्मी अधीनस्थ अन्यान्य सम्बन्धित को / निर्देशित करने की महती कृपा करें।
5.यह कि सम्माननीय न्यायालय की दृष्टि में अन्य कोई न्यायोचित यथासम्भव याचिकादेश आदेश निर्देश उपषम, अनुतोष, पारित व प्रदान करने की महती कृपा करें साथ याचिका की सम्पूर्ण व्यय एवं विशेष क्षतिपूर्ति (हर्जाना) भी प्रदान करने / दिलाने की महती कृपा करें।
The relief's claimed can be broadly classified and summarised as follows :
A. Directions be issued to the respondents:
i) that the vacant posts of Judges / Additional Judges be filled up in time.
ii) that the process for appointment of Judges/Additional Judges should be initiated well in advance of the vacancy being caused.
iii) that the Judge Strength should be periodically assessed and if need be of extra hands, the same should be sanctioned forthwith.
iv) to provide all necessary infrastructure to facilitate the working of the sanctioned strength of Judges.
B. It may be declared that :
i) there be no fixed ratio of the bar and service Judges and appointments be made on sole consideration of merit, ii) there be no policy for selection of Judges on the basis of minority, Scheduled Caste, Other Backward Class etc. iii) the Acting Chief Justice is vested with all the powers of Chief Justice, he must therefore convene the collegium and make recommendation fr appointment of Judges / Additional Judges. C. It may be declared that : i) all the criminal cases before this Court in which trial has been stayed and such cases have remained pending for a reasonable time (4-5 years), then the accused in all such be acquitted and all such cases be consigned. ii) all convicts whether in or outside jail be acquitted if the pending appeals are not decided within a reasonable time (4-5 years).
Before I proceed to record reasons it would be appropriate to refer to the Constitutional provisions dealing with the High Courts, and the appointment of judges, and also briefly refer to the change brought about regarding the procedure to be adopted for the selection and appointment of judges.
Chapter V of Part VI of the Constitution deals with the High Courts in the States. Article 214 of the Constitution provides that there shall be a High Court for each State. Article 215 of the Constitution provides that every High Court should be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 216 of the Constitution provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 217 of the Constitution provides for appointments and conditions of the office of a Judge of a High Court. Article 223 of the Constitution provides for appointment of Acting Chief Justice, Article 224 of the Constitution provides for appointment of Additional / Acting Judges. Article 224-A of the Constitution provides for appointment of Retired Judges at sitting of the High Court.
Ever since the Constitution came into existence the appointments of Judges were being made as per the provisions and procedures contained in Article 217 of the Constitution according to which the President is empowered to appoint every Judge of a High Court after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.
First Judges case, S.P. Gupta versus Union of India, reported in AIR 1982 SC page 149, apart from other issues involved, also dealt with the issues relating to independence of Judiciary, nature of power to appoint / transfer High Court Judges and procedure to be followed - consultation with constitutional functionaries and consent of concerned Judges. The decision on the above issues in brief as reported by the All India Reporter, is quoted herein under:
"Independence of Judiciary :
............... the transfer of Hon'ble Chief Justice of Patna High Court and the non-extension of the term of Addl. Judge were alleged to be encroachments on judiciary. The power to appoint Judges is executive in nature and the President is bound by the advice of the Cabinet by virtue of Art. 74. The concept of independence of judiciary, its scope and limitations are discussed in the context of the procedure followed in India in the matter of appointment of Judges.
Appointment and extension of term of Additional Judges :
All Judges agree that consultation with constitutional functionaries must be meaningful and result oriented and that the proposal can emanate from any of the constitutional functionaries. It is also unanimously agreed that none of the constitutional functionaries can exercise veto in the matter.
On the question whether the opinion of the Chief Justice of India enjoys primacy over the other constitutional functionaries, Gupta, Tulzapurkar and Pathak, JJ. held that primacy should be given to the opinion of the Chief Justice of India. However,the majority consisting of Bhagwati, Desai, S.M.F. Ali and Venkataramaiah, JJ. held against primacy.
Dealing with constitutional convention that has come up for last 25 years that Additional Judge is normally appointed as permanent Judge as and when vacancy occurs, and therefore the normal expectation that Addl. Judge will be appointed as permanent Judge, it is held that such convention does not vest any enforceable right in the incumbent though the Addl. Judge is entitled to weightage for being appointed as permanent Judge as compared to any fresh candidate.
The nature and extent of consultation required at the stages of fresh appointment and extension of term respectively are also discussed."
An opinion was expressed by a three Judges Bench of the Supreme Court in a Public Interest Litigation captioned Subhash Sharma vs. Union of India, reported in AIR 1991 SCW 128 doubting the correctness of the ratio in the first Judges Case on the status of the Chief Justice of India in the matter of appointment of Judges to the higher echelons of judiciary and requesting for the matter being placed before a Larger Bench for reconsideration. The following two questions were framed for reconsideration namely ;
(i)Whether the opinion of the Chief Justice of India in regard to the appointment of Judges of the Supreme Court and High Courts as well in regard to the transfer of High Court Judges is entitled to primacy?
(ii)Whether the matters including matter for fixation of the Judge strength in the High Courts are justiciable?
The 9 Judges Bench overruled the ratio laid down in the first Judges Case with regard to the primacy of the Chief Justice of India in the matters of appointment of Judges and held that the opinion of the Chief Justice of India has primacy in the matter of appointment of the High Courts and Supreme Court Judges. It further overruled the ratio of the first Judges Case with regard to fixation of the Judge Strength being not justiciable and held that the fixation of Judge Strength is justiciable and in making review of the Judge Strength the opinion of the Chief Justice of the High Court and Chief Justice of India to carry great weight. This is the second Judges Case registered as Supreme Court Advocates on Record Association and another vs. Union of India, reported in AIR 1994 SC 268. It would be relevant to quote the summary of the conclusions drawn in paragraph no, 508 of the report.
SUMMARY OF THE CONCLUSIONS
508. A brief general summary of the conclusions stated earlier in detail is given for convenience, as under :-
(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges / Chief Justices of the High Courts must invariably be made.
(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India and formed in the manner indicated, has primacy.
(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.
(6) Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office.
(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court judges/Chief Justices.
(8) Consent of the transferred Judge / Chief Justice is not required for either the first or any subsequent transfer from one High Court to another.
(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.
(10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one.
(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.
(12) The initial appointment of Judge cannot be made to a High Court other than that for which the proposal was initiated.
(13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated.
(14) The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: AIR 1982 SC 149, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.
Certain doubts emerged in the mind of the President relating to the interpretation of the law laid down by the Supreme Court with regard to transfer and appointment of judges. Questions were of great public importance as such the President thought that it was expedient to obtain the opinion of the Supreme Court exercising powers under Article 143 of the Constitution. Accordingly, reference was made framing 9 questions. The questions as framed and mentioned in the Presidential Reference dated 23.07.1998 read as follows :
WHEREAS the Supreme Court of India has laid down principles and prescribed procedural norms in regard to the appointment of Judges of the Supreme Court (Article 124 (2) of the Constitution of India). Chief Justice and Judges of the High Court (Article 217(1), and transfer of Judges from one High Court to another (Article222(1), in the case of Supreme Court Advocates-on-record Association v. Union of India, reported in AIR, 1994 SC 268;
AND WHEREAS doubts have arisen about the interpretation of the law laid down by the Supreme Court and it is in public interest that the said doubts relating to the appointment and transfer of Judges be resolved;
AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon;
NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, K.R. Narayanan, President of India, hereby refer the following questions to the Supreme Court of India for consideration and to report its opinion thereon, namely,:-
(1) whether the expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles;
(2) whether the transfer of Judges is judicially reviewable in the light of the observation of the Supreme Court in the aforesaid judgement that "such transfer is not justiciable on any ground"and its further observation that limited judicial review is available in matters of transfer, and the extent and scope of judicial review;
(3) whether Article 124(3) as interpreted in the said judgement requires the Chief Justice of India to consult only the two senior-most Judges or whether there should be wider consultation according to past practice;
(4) whether the Chief Justice of India is entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court in respect of all materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment;
(5) whether the requirement of consultation by the Chief Justice of India with his colleagues, who are likely to be conversant with the affairs of the concerned High Court refers to only those Judges who have that High Court as a parent High Court and excludes Judges who had occupied the office of a Judge or Chief Justice of that Court on transfer from their parent or any other Court;
(6) whether in light of the legitimate expectations of senior Judges of the High Court in regard to their appointment to the Supreme Court referred to in the said judgement, the 'strong cogent reason' required to justify the departure from the order of the seniority has to be recorded in respect of each such senior Judge, who is overlooked, while making recommendations of a Judge junior to him or her:
(7) whether the Government is not entitled to require that the opinions of the other consulted Judges be in writing in accordance with the aforesaid Supreme Court judgement and that the same be transmitted to the Government of India by the Chief Justice of India along with his views;
(8) whether the Chief Justice of India is not obliged to comply with the norms and the requirement of the consultation process in making his recommendation to the government of India:
(9) whether any recommendations made by the Chief Justice of India without complying with the norms and consultation process are binding upon the Government of India.
New Delhi Dated : 23.7.1998 Narayanan K.R. President of India The reference was registered as Special Reference No.1 of 1998, in Re: Presidential Reference. 9 Judges Bench answered the questions in paragraph 41 of the judgement reported in AIR 1999 SC page 1. This is referred to as the third Judges Case. Paragraph 41 of the report is quoted herein under:
"41. The questions posed by the Reference are now answered, but we should emphasise that the answers should be read in conjunction with the body of this opinion ;
1. The expression "consultation with the Chief Justice of India" in Article 217 (1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said Articles.
2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior-most puisne Judges of the Supreme Court and /or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.
3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior-most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judge of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
6. "Strong cogent reasons" do not have to be recorded, as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.
7. The view of the other Judges consulted should be in writing and should be conveyed to the government of India by the Chief Justice of India along with his views to the extent set out in the body of this opinion.
8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as afore stated, in making his recommendations to the Government of India.
9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as afore stated, are not binding upon the Government of India.
The answers given to the Presidential Reference have been adopted by the Union Government in letter and spirit. A memorandum containing the procedure for appointment and transfer of Chief Justices and Judges of the High Courts was issued. Apparently there is no deviation in the memorandum from the conclusions and the answers recorded in the judgement in the second and third Judges Case. The following is the extract relating to appointment of Judges of the High Court, from the Memorandum :
MEMORANDUM SHOWING THE PROCEDURE FOR APPOINTEMNT AND TRANSFER OF CHIEF JUSTICE AND JUDGES OF HIGH COURTS APPOINTMENT OF CHIEF JUSTICE
1. .............
2. ..............
3. ..............
4. ..............
5. ..............
6. ..............
7. ..............
APPOINTMENT OF ACTING CHIEF JUSTICE
8. ..............
9. ...............
10. ...............
APPOINTMENT OF PERMANENT JUDGES
11. The Chief Justice and Judges of the High Courts are to be appointed by the President under clause (1) of Article 217 of the Constitution. The Judges of the Jammu & Kashmir High Court are to be appointed by the President under section 95 of the Constitution of Jammu & Kashmir. Appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy.
12. When a permanent vacancy is expected to arise in any year in the office of a Judge, the Chief Justice will as early as possible but at least 6 months before the date of occurrence of the vacancy, communicate to the Chief Minister of the State his views as to the persons to be selected for appointment. Full details of the persons recommended, in the format given in Annexure-1, should invariably be sent. Before forwarding his recommendation, the Chief Justice must consult two of his senior most colleagues on the Bench regarding the suitability of the names proposed. All consultation must be in writing and these opinions must be sent to the Chief Minister along with the recommendations.
13. The Chief Justice while sending his recommendation for appointing an additional Judge as a permanent Judge, must along with his recommendation furnish statistics of month-wise disposal of cases and judgements rendered by the Judge concerned as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days he actually attended the Court and the days of his absence from the Court during the period for which the disposal statistics are sent.
14. The proposal for appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Since the Governor is bound by the advice of the Chief Minister heading the Council of Ministers, a copy of the Chief Justice's proposal, with full set of papers, should simultaneously be sent to the Governor to avoid delay. Similarly, a copy thereof may also be endorsed to the Chief Justice of India and the Union Minster of Law, Justice and Company Affairs to expedite consideration. The Governor as advised by the Chief Minster should forward his recommendation along with the entire set of papers to the Union Minster of Law, Justice and Company Affairs as early as possible but not later than six weeks from the date of receipt of the proposal from the Chief Justice of the High Court. If the comments are not received within the said time frame, it should be presumed by the Union Minster of Law, Justice and Company Affairs that the Governor (i.e. Chief Minister) has nothing to add to the proposal and proceed accordingly.
15. The Union Minister of Law, Justice and Company Affairs would consider the recommendations in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would, in consultation with the two seniormost Judges of the Supreme Court, form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer.
15.1 After their consultations, the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Minster of Law, Justice and Company Affairs. Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minster of Law, Justice and Company Affairs. Once the names have been considered and recommended by the Chief Justice of India, they should not be referred back to the State Constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion of chief Justice of India should be obtained. The Union Minster of Law, Justice and Company Affairs would then put up as early as possible, preferably, within 3 weeks, the recommendations or the Chief Justice of India to the Prime Minster who will advise the President in the matter of appointment.
16. The correspondence between the Chief Justice and the Chief Minister and the correspondence between the Chief Minister and the Governor, if any, should be in writing and copies of the correspondence should invariably be forwarded along with the Chief Minster's recommendations.
17. As soon as the appointment is approved by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court, who will obtain from the person selected (I) a certificate of physical fitness as in Annexure II signed by a Civil Surgeon or District Medical Officer, and (ii) a certificate of date of birth as in Annexure III. A copy of the communication will also be sent simultaneously to the chief Minister of the State. The medical certificate should be obtained from all per sons selected for appointment whether they are at the time of appointment in the service of the State or not. When these documents are obtained, the Chief Justice will intimate the fact to the Secretary to the Government of India in the Department of Justice and also forward these documents to him.
18. As soon as the warrant of appointment is signed by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice and a copy of such communication will be sent to the Chief Minister. He will also announce the appointment and issue necessary notification in the Gazette of India.
APPOINTMENT OF PERMANENT JUDGES IN A HIGH COURT HAVING JURISDICTION OVER MORE THAN ONE STATE.
19. For appointment in these High Courts, the Chief Justice would initiate proposal in a manner prescribed in para 12 above and forward his recommendations to the Governor of the State where the seat of High Court is situated, and in the case of High Court of Punjab & Haryana, to the senior of the two Governors of these States, who would do the coordination and obtain the views of other Governor and Chief Ministers concerned in writing and forward the same along with the recommendations of the Chief Justice of the High Court to the Union Minister of Law, Justice and Company Affairs for further appropriate action as prescribed in para 15 above. In case, any of the State authorities wishes to recommend a name different from the one recommended by the Chief Justice of the High Court, he should send the same to the Chief Justice of the High Court, he should sent the same to the Chief Justice of the High Court concerned for his consideration. The institution of a recommendation for filling up of a vacancy would be made only by the Chief Justice of the High Court concerned.
APPOINTMENT OF ADDITIONAL JUDGES
20. Additional Judges can be appointed by the President under clause (1) of Article 224 of the Constitution. When the need for this arises, the State Government should first obtain the sanction of the Central government for the creation of such additional posts. The correspondence relating to this should be in the normal official form. After the post is sanctioned the procedure to be followed for making the appointment will be same as given in paragraphs 12 to 18 for the appointment of a permanent judge, except that a medical certificate will not be necessary from the person being appointed as an Additional Judge.
21. When an Additional Judge is being considered for confirmation as an Additional Judge for a fresh term, the relevant documents as mentioned in para 13 above also must be sent by the Chief Justice of the High Court concerned along with such recommendation.
22. The Chief Justice of the High Court, however, should not make a recommendation for appointment of an Additional Judge when a vacancy of a permanent Judge is available in that High Court.
APPOINTMENT OF ACTING JUDGES
23. ...............
ATTENDANCE OF RETIRED JUDGES AT SITTINGS OF HIGH COURTS
24. ................
TRANSFER OF A JDUGE (INCLUDING CHIEF JUSTICE) FROM ONE HIGH COURT TO ANOTHER HIGH COURT:
25. ...............
26. ...............
27. ................
************ DISCUSSION The question for disagreement involved is whether a writ of mandamus in the form of declarations and / or directions should or should not be issued declaring the authority and status of the Chief Justice and directing the Chief Justice to initiate process for periodical review for fixation of judge strength and also make timely recommendations for appointment of Judges. In my opinion in the facts and circumstances of the case and the law as declared and laid down by the Supreme Court neither any declaration as claimed is warranted nor it is justifiable to issue any directions. The reasons are elaborated hereinafter.
In brief the reasons may be classified as follows :
(i) Essential ingredients for issuance of writ of mandamus are missing.
(ii) Cumbersome process involving high Constitutional functionaries. - Delays at different levels.
(iii) The self developed concept of judicial restraint needs to be observed.
(iv) Declaration once granted need not be repeatedly declared.
(v) High Court under Article 226 of the Constitution is not the executing court for the orders and directions of the Supreme Court.
(vi) Supreme Court has entertained a public interest petition seeking review of the decision in the 2nd and 3rd Judges case.
(vii) In the facts and circumstances of the case the reliefs' claimed cannot be granted.
Essential ingredient of writ of mandamus is missing A writ of mandamus or the remedy under Article 226 of the Constitution is pre-eminently a public law remedy and it is available against a body or person performing a public law function and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.
The application must be preceded by a distinct demand for performance of the duty, in order to give the party an opportunity to consider whether he should comply or not, and such demand must be shown to have been met by a refusal either by words or conduct, so that the Court may be satisfied that the party complained of is determined not to do what is demanded. The demand must be made prior to the application.
In this case from a perusal of all the 7 petitions it is apparent that no effort or exercise has been undertaken by any of the petitioners whether a group of persons or individuals, of having approached the concerned authorities for redressal of their grievance. Not a single averment has been made in any of these petitions as to at any point of time before filing these petitions, they had either physically approached or had represented to the concerned Constitutional functionaries involved in the process of selection and appointment of judges or in the fixation of the judge strength requesting them to perform their constitutional duty as envisaged in the Constitution and also vested in them under the decision of the Supreme Court in the 2nd and 3rd Judges case. Such an exercise is a sine qua non for issuance of a writ of mandamus. The law is well settled in this regard. The Supreme Court in the case of Saraswati Industrial Syndicate Ltd. etc., Vs. Union of India, AIR 1975 Supreme Court 460 has held as follows :
.............Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when writ of Mandamus is asked for could be stated as we find it set out in Halsbury's Laws of England (3rd edition vol. 13 p. 106):
"As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal."
For the above reason also I would feel hesitant in issuing any declaration or direction in the form of mandamus.
JUDICIAL RESTRAINT -
(I) Declaration once granted need not be repeatedly declared. (II) High Court is not the executing Court for the orders and directions of the Supreme Court.
I am conscious of the fact that the law declared by the Supreme Court is the law of land. The High Court is bound by the same. Judicial discipline demands that the same is to be strictly adhered to and followed with respect. This Court while exercising powers under article 226 of the Constitution can issue such directions and declarations, but the superior Courts in our country have evolved several forms of restraints and judicial restraint is one of them. From the issues raised in the present set of petitions it is but evident that the Supreme Court has already dealt with such issues exhaustively in the 1st, 2nd and 3rd Judges case. From a perusal of the conclusion drawn in paragraphs 500 to 507 of the report of the 2nd Judges Case and the answers given to the 9 questions framed in the Presidential Reference, in paragraph 41 of the report of the 3rd Judges Case there should be no hesitation in recording that each and every step involved in the procedure for selection and appointment of judges has been taken note of by the Supreme Court. A detailed procedure has been evolved involving the highest of the Constitutional functionaries from the Executive, Legislature and the Judiciary, in making the selection and appointment of judges. No room has been left to be filled up in the entire process and even if there was any room left, it would be for the Supreme Court and the Supreme Court alone to fill it up. Whenever the necessity has arisen or when it was brought before it, it has issued directions and declarations.
The relief's claimed in these bunch of petitions have their answers in the decisions of the 2nd & 3rd Judges case and accurately recorded in the memorandum issued by the ministry of law, justice and company affairs. In effect the petitioners seek its adherence or to put it more bluntly execution and enforcement of the directions contained therein. To me it appears that the substantial prayer in these petitions is for execution of those declarations. Judicial restraint prevents me from doing so specially when it has not been demonstrated that any effort was made before that Court itself. Even common law envisages that demand before the concerned authority or body is the sine qua non for issuance of a writ of mandamus. The High Court is not the executing Court of the orders and directions of the Supreme Court. Under law the Supreme Court alone is empowered to get its orders and directions executed.
Article 226 of the Constitution cannot be invoked to enforce or implement or redress a grievance that the directions of the Supreme Court is not being followed. The High Court is not competent to deal with any non-compliance or disobedience of an order of the Supreme Court. The petitioners may have a remedy of approaching the Supreme Court in appropriate proceedings.
The present system of appointment of Judges has been culled out by the Court itself. It is an in-house inbuilt system. True that the primacy is of the Chief Justice of India but at the same time the legislative head and the executive head do have their say as well, but in a case of disagreement the decision of the Chief Justice of India will prevail. The conclusions drawn by the Supreme Court in the 2nd and 3rd Judges case are in the form of declarations and directions as well. So if a declaration has been made by 9 Judges Bench of the Supreme Court the same need not be declared again by the High Court. It would be superfluous. It is well settled that writ should not be issued which would be futile and not serving any purpose.
Cumbersome process involving high Constitutional functionaries - Delays at different levels The selection and appointment of judges is not akin to the selection and appointment of a government servant. The judges are vested with extraordinary powers under the Constitution. It is for the constitutional functionaries involved in the process of selection and appointment to ensure that the right person is appointed as a judge. Such responsibility rests heavily upon the Chief Justice, Collegium members and the Chief Justice of India and the Collegium members of the Supreme Court. The same cannot be rushed through. Any haste would result into an appointment which may not be befitting the office and may lead to an embarrassing situation. This should be avoided at all costs. Any form of direction in this regard may tantamount to causing interference in the process to be followed, by any of the Constitutional functionaries. In my opinion such exercise should be left to the discretion and wisdom of the Chief Justice and the collegium members to perform and discharge their legal obligation and duties in best manner they deem fit.
In the selection and appointment of Judges the high constitutional functionaries are involved, which include the President, the Chief Justice of India, the Senior Supreme Court Judges, the Governor, the Chief Justice of the High Court, the Senior Judges of the High Court. Needless to say that the Cabinet of the Centre and State automatically get involved as it is on their advice that the President and the Governor act. It is not only expected but it is deemed that such high authorities are conscious of their duties and obligations cast upon them by the Constitution. We need not comment if there is some delay on their part in timely performance of such duties or discharge of such obligations.
One of the arguments advanced by the learned counsels for the petitioners is that on account of delay in making recommendations for appointment of judges by the Chief Justice and the collegium Members, large number of arrears are piling up and there is denial of right to speedy justice which is embodied in Article 21 of the Constitution as a fundamental right. It may be true that there have been delays in making appointment and there have been delays in making recommendations but the reason for such delays cannot only be attributed to the Chief Justice or the collegium members. There are other Constitutional Functionaries involved in the entire process. It is a long but carefully drawn out process. Every functionary involved has its own resources to ensure that the selection is the right selection. The delays could be on account of making recommendations by the Chief Justice, or the Chief Justice of India, on account of obtaining opinions of the Law Ministry, the Prime Minster or even at the level of the President. There have been occasions when the names were recommended by the High Court and the Supreme Court but it took extraordinary long time by the Law Ministry, the Prime Minister's Office and the President. Each Constitutional Authority has its own mode of working. Heavy responsibility is cast upon each of them in ensuring that the right person is appointed as aptly referred to in the 2nd Judges case that it is better not to appoint rather than making a wrong appointment. In a given situation where at any stage the matter is being unnecessarily or being unduly delayed, the Court may be approached for expediting.
It is to be noticed that none of the petitioners have laid down any foundation in the petitions alleging that the collegium has not met for extraordinary long time. It cannot be ruled out that the collegium may have met but the meetings could not fructify with positive results. The constitutional duty of the Chief Justice to make recommendations is not denied but at the same time in the absence of any such pleadings no inference can be drawn requiring issuance of a writ of mandamus.
Supreme Court has entertained PIL petition seeking review of the decision in 2nd & 3rd Judges case.
The Supreme Court, recently entertained a petition filed under Article 32 of the Constitution seeking review of the judgement of the 9 Judges case, referred to as 2nd and 3rd Judges Case, on the ground that the law laid down in the said two cases tends to amend the Constitutional provisions. The petition has been registered as Writ Petition (Civil) No. 204 of 2010, Suraz India Trust versus Union of India and others and the order is reported in 2011 (86) ALR 886. The questions of Constitutional importance sought to be raised are recorded by the Supreme Court in its order dated 4th April 2011. The same are being reproduced herein under :
(1) Whether the aforesaid two verdicts, viz. the 7-Judge Bench and 9-Judge Bench decisions of this Court referred to above really amount to amending Article 124(2) of the Constitution?
(2) Whether there is any ''Collegium' system for appointing Supreme Court or High Court Judges in the Constitution?
(3) Whether the Constitution can be amended by a judicial verdict or it can only be amended by Parliament in accordance with Article 368?
(4) Whether the Constitutional scheme was that the Supreme Court and High Court Judges can be appointed by mutual discussions and mutual consensus between the judiciary and the executive; or whether the judiciary can alone appoint Judges of the Supreme Court and High Courts?
(5) Whether the word ''consultation' in Article 224 means ''concurrence'?
(6) Whether by judicial interpretation words in the Constitution can be made redundant, as appears to have been done in the aforesaid two decisions which have made consultation with High Court Judges redundant while appointing a Supreme Court Judge despite the fact that it is permissible on the clear language of Article 124(2)?
(7) Whether the clear language of Article 124(2) can be altered by judicial verdicts and instead of allowing the President of India to consult such Judges of the Supreme Court as he deems necessary (including even junior Judges) only the Chief Justice of India and four seniormost Judges of the Supreme Court can alone be consulted while appointing a Supreme Court Judge?
(8) Whether there was any convention that the President is bound by the advice of the Chief Justice of India, and whether any such convention (assuming there was one) can prevail over the clear language of Article 124(2)?
(9) Whether the opinion of the Chief Justice of India has any primacy in the aforesaid appointments?
(10) Whether the aforesaid two decisions should be overruled by a larger Bench?
Further from a reading of paragraphs 13 and 14 of the order it appears that the matter is to be placed before Hon'ble the Chief Justice for appropriate directions. Said paragraphs are quoted herein under :
13. All this juncture, Mr. Ganguli as well as Mr. Vahanvati have submitted that even at the stage of preliminary hearing for admission of the petition, the matter requires to be heard by a larger Bench as this matter has earlier been dealt with by a three Judges Bench and involves very complicated legal issues.
14. In view of the above, we place the matter before the Hon'ble Chier Justice for appropriate directions.
From the above it appears that the declaration and the directions given in the 2nd and 3rd Judges Case by the Supreme Court is likely to be reconsidered. For this reason also I would be hesitant in issuing any declaration or direction with regard to the fixation of judge strength and selection and appointment of judges.
All the petitioners have claimed to be extremely concerned about the smooth and proper functioning of this Court. They are public spirited persons and have filed these petitions in the nature of public interest litigation espousing public cause. This would be a good opportunity for the petitioners to intervene and participate in the proceedings before the Supreme Court as and when the matter is referred to and heard by a larger Bench.
Relief's as claimed in all the 7 writ petitions cannot be granted The relief's claimed by the petitioners in this bunch of petitions relating to fixation of judge strength and selection & appointment of judges need to be examined vis a vis the declarations & directions contained in the 2nd & 3rd Judges case as also the consequential memorandum issued by the Union Government.
1. Writ Petition No.4502 of 1982 :
The first prayer is to issue a writ of mandamus directing the respondents to appoint judges to 12 vacancies in the High Court. In this regard direction is already existing in the decision of the 2nd Judges Case and incorporated in the memorandum to the effect that the process for the selection of judges should be initiated 6 months in advance of the vacancy likely to occur and such selection should be ready in place at least 1 month in advance of the vacancy to arise.
The second prayer is to issue a writ directing the respondents to refix the strength of judges of this Court. In this regard also specific declaration and directions are contained in the 2nd and 3rd Judges case. Further it may be recorded here, that with regard to this Court the review is being periodically made and the strength has been increased from time to time. In 1990 the judge strength of this Court was 60. In 1992 it was increased to 70 and in 1994 to 71. Thereafter in the year 2000 the judge strength was increased to 95. Lastly, with effect from 01.04.2007 the judge strength of this Court has been increased to 160. Thus it cannot be said that the judge strength is not being reviewed periodically and fixed accordingly.
2. Writ Petition No.1533 of 1996 :
In this petition the relief claimed is with regard to the release and acquittal of convicts on account of delays which has already been dealt with by Brother Ambwani, J. it does not require any discussion in this order as I have already agreed to the conclusion drawn by Brother Ambwani, J.
3. Civil Misc. Writ Petition No.28424 of 1997 :
The first relief claimed is to issue a writ of mandamus commanding Hon'ble the Chief Justice to recommend names from the members of bar for being appointed as judges on the posts which are lying vacant. The second relief is to issue a writ of mandamus commanding the Union of India to review the strength of judges. With regard to both these relief's I have already made the necessary discussions while dealing with the relief's claimed in Writ Petition No.4502 of 1982.
4. Civil Misc. Writ Petition No.32623 of 1997 :
The first relief is for issuance of a writ of mandamus to the respondents to fill the existing vacant posts of the Hon'ble Judges. The second relief is to issue a writ of mandamus for review of strength of the Hon'ble Judges. With regard to both these relief's I have already made the necessary discussions while dealing with the relief's claimed in Writ Petition No.4502 of 1982.
5. Civil Misc. Writ Petition No.23445 of 2008 The first relief is to issue a writ of mandamus to the respondents to start the process of appointment of judges to full strength of 160 judges and not to keep any sanctioned post vacant. With regard to this relief I have already made the necessary discussions while dealing with the relief's claimed in Writ Petition No.4502 of 1982.
6. Civil Misc. Writ Petition (PIL) No.30186 of 2010 :
The first relief is to issue a writ of mandamus directing the respondents to issue a rule that duties and powers of Hon'ble the Acting Chief Justice under Article 223 of the Constitution include all powers of Hon'ble the Chief Justice. This does not require any discussion as I have agreed with the conclusion drawn by Brother Ambwani, J.
The second relief is that a writ of mandamus be issued suggesting Hon'ble the Chief Justice to call for a collegium for consideration and recommendation of the names for being appointed as judge of this Court. With regard to this relief the discussion has already been made while dealing with the relief of Writ Petition No.4502 of 1982.
The third relief claimed is that a writ of mandamus be issued to the respondent no.1 (Union of India) to fill the vacancies of the judges in the Allahabad High Court. This has already been discussed above.
The fourth relief is to issue a writ of mandamus commanding the respondents to follow the conclusion and the scheme framed by the Supreme Court in the 3rd Judges Case as also the decision in the case of Ashok Tanwar. In my opinion the High Court not being an executing court of the orders and directions of the Supreme Court, such a relief cannot be granted.
7. Civil Misc. Writ Petition No.34239 of 2010 :
The first relief claimed is to issue a writ of mandamus to fill all the 160 posts of the judges of this Court. This has already been discussed above in Writ Petition No.4502 of 1982.
The second relief claimed is that a writ of mandamus be issued to the respondents to make necessary appointments of the retired staff including employees / officers for smooth functioning of Courts to deliver speedy justice. The third relief claimed is for issuance of a writ of mandamus to the respondents to provide adequate number of court rooms and residences for judges and for that purpose necessary acquisition of land and building be made. With regard to both these relief's I have already recorded my agreement with the conclusion of Brother Ambwani, J.
The fourth relief is for issuance of a writ of mandamus to constitute collegium forthwith and recommend names for appointment of judges. This relief has already been discussed while dealing with the relief's claimed in Writ Petition No.4502 of 1080.
CONCLUSION For the reasons recorded above I'am not in favour of issuing directions as prayed by the petitioners relating to fixation of Judge strength and selection and appointment of Judges.
21st July 2011 pk