1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.835 OF 2017
SUNIL SAMDARIA ... PETITIONER
VERSUS
UNION OF INDIA THROUGH ITS
SECRETARY, MINISTRY OF LAW AND
JUSTICE AND OTHERS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This writ petition under Article 32 of the
Constitution of India has been filed by the petitioner,
a practicing Advocate of Rajasthan High Court,
questioning the Notification dated 12.05.2017
appointing respondent Nos.2 and 3 as Additional Judges
of Rajasthan High Court. This Court on 03.10.2017 had
issued notice to respondent No.1 only. A counteraffidavit
has been filed by the Union of Indiarespondent
No.1.
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2. We have heard the petitioner, appearing inperson
and Shri Maninder Singh, learned Additional Solicitor
General of India for the respondent.
3. The petitioner appearing inperson challenging the
appointment of respondent Nos.2 and 3 as Additional
Judges of Rajasthan High Court makes following two
submissions:
(1) The appointment of respondent Nos.2 and 3 has
been made as Additional Judges of the Rajasthan
High Court under Article 224 of the Constitution of
India. The appointment of respondent No.2 has been
made till Ist September, 2018 whereas the
appointment of respondent No.3 has been made till
2
nd July, 2018, both the appointments having been
made for a period of less than two years violates
Article 224 of the Constitution of India. It is
submitted that appointment of Additional Judges
should not be made for a period of less than two
years, hence the appointments are nonest and void.
Reliance has been placed on Constitution Bench
3
judgment of this Court in S.P.Gupta vs. Union of
India and another, 1981 Supp SCC 87.
(2) Respondent Nos.2 and 3 were members of
Judicial Service of the State of Rajasthan who
retired from the post of District Judge
respectively on 30.09.2016 and 31.07.2016 after
attaining the age of superannuation of 60 years.
On the day when the notification was issued
appointing respondent Nos.2 and 3, i.e.,
12.05.2017, both being not holding a Judicial
Office they were not eligible for appointment as
Additional Judges of the High Court. The
eligibility of a person to be appointed as a Judge
of the High Court as provided under Article 217(2)
(a) is that he should be a member of the Judicial
Service of the State. Respondent Nos.2 and 3,
having long retired from Judicial Service, do not
possess eligibility for appointment as Additional
Judges of the High Court hence on this ground also
the appointments of respondent Nos.2 and 3 are
liable to be declared as nonest and void.
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Petitioner placed reliance on the judgment of this
Court in Shri Kumar Padma Prasad vs. Union of India
others, 1992 (2) SCC 428 (paragraphs 25, 35, 41).
4. Shri Maninder Singh, learned Additional Solicitor
General of India refuting the submission of the
petitioner contends that appointments of respondent
Nos.2 and 3 are fully in accordance with Article 217(2)
and Article 224 of the Constitution of India.
Respondent Nos.2 and 3 having held Judicial Office for
a period of 10 years were fully eligible to be
appointed as Additional Judges of the Rajasthan High
Court. The maximum period of appointment of Additional
Judge of the High Court under Article 224 clause (1)
being two years, respondent Nos.2 and 3 who were
attaining the age of superannuation of 62 years before
expiry of a period of two years, there is no illegality
in their appointment upto the age of superannuation
which falls on 01.09.2018 and 02.07.2018 respectively.
The judgment of this Court in Shri Kumar Padma Prasad
(supra) is not applicable nor the Constitution Bench
judgment in S.P. Gupta (supra) supports the contention
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advanced by the petitioner in the present case.
5. We have considered the submissions of the
petitioner inperson and learned Additional Solicitor
General for the Union of India and perused the record.
6. The relevant facts pertaining to the Judicial
Service, the process of appointment as Additional
Judges of the Rajasthan High Court and the period of
their tenure are not in dispute. Both respondent Nos.2
and 3 were members of Judicial Service of the State
when their names were recommended by the Acting Chief
Justice of Rajasthan High Court by letter dated
18.02.2016. On the date their names were recommended,
they were fully in the zone of consideration, they
being within the prescribed age limit of 58 ½ years on
the date of occurrence of vacancy against which their
names were recommended. The Acting Chief Justice while
processing the recommendation followed Memorandum of
Procedure as laid down by letter dated 24.09.2004 of
Minister of Law and Justice. The Government of India,
Ministry of Law and Justice, after processing the
recommendation forwarded the same for consideration of
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Chief Justice of India on 22.07.2016. The Supreme Court
Collegium vide its Minutes dated 01.08.2016 recommended
the names of respondent Nos.2 and 3 as from the service
stream. The Government of India after receiving the
recommendation of Supreme Court Collegium and after
obtaining the approval of Hon'ble President of India
notified the appointment on 12.05.2017. The entire
process consumed a period of one year and three months.
The notification dated 12.05.2017 which was issued for
appointment of respondent Nos.2 and 3 as Additional
Judges in exercise of power under Article 224(1)
mentioned their appointment with effect from the date
they took charge till 01.09.2018 and 02.07.2018
respectively. The dates 01.09.2018 and 02.07.2018 which
are mentioned in the notification are obviously the
dates when they shall attain the age of superannuation
as Judges of the High Court, i.e., 62 years. It is
relevant to note that along with respondent Nos.2 and 3
three more persons were appointed as Additional Judges
for a period of two years and with regard to their
tenure the period of two years was mentioned. It is
relevant to extract notification dated 12.05.2017 which
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is to the following effect:
“NOTIFICATION
In exercise of the powers conferred by
Clause(1) of Article 224 of the
Constitution of India, the President is
pleased to appoint S/Shri(i) Ashok Kumar
Gaur, (ii) Manoj Kumar Garg, (iii)
Inderjeet Singh, (iv) Dr.Virendra Kumar
Mathur, and (V) Shri Ramchandra Singh
Jhala, to be Additional Judges of
Rajasthan High Court, in that order of
seniority.
The appointment of S/Shri Ashok Kumar
Gaur, Manoj Kumar Garg, Inderjeet Singh,
would be for a period of 2 years with
effect from the date they assume charge
of their respective offices. However,
period of appointment in respect of Dr.
Virendra Kumar Mathur, and Sh. Ramchandra
Singh Jhala are with effect from the date
they assume charge of their respective
offices till 1st September, 2018 and 2nd
July, 2018 respectively.
Sd/
(S.C.BARMMA)
Joint Secretary to the Government of India
Tele:23072142“
7. The first submission which has been pressed by the
petitioner is that appointment of respondent Nos.2 and
3 being for a period of less than two years is contrary
to Article 224 of the Constitution of India and in the
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teeth of law laid down by S.P. Gupta (supra).
8. Article 224 of the Constitution of India provides
for appointment of Additional and Acting Judges. The
period for appointment of Additional Judges of the High
Court as mentioned in Article 224(1) is “for such
period not exceeding two years”. The Constitution Bench
in S.P. Gupta (supra) has considered in detail Article
224 of the Constitution, its purpose and object.
Article 224 as it existed in the original constitution
contained the heading “Attendance of retired Judges at
sittings of High Court” which was to the following
effect:
“Article 224. Attendance of retired
Judges at sittings of High Court.
Notwithstanding anything in this
Chapter, the Chief Justice of a High
Court for any State may at any time,
with the previous consent of the
President, request any person who has
held the office of a Judge of that
Court or of any other High Court to
sit and act as a Judge of the High
Court for that State, and every such
person so requested shall, while so
sitting and acting, be entitled to
such allowance as the President may by
order determine and have all the
jurisdiction, powers and privileges
of, but shall not otherwise be deemed
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to be, a Judge of that High Court:
Provided that nothing in this
article shall be deemed to require any
such person as aforesaid to sit and
act as a Judge of that High Court
unless he consents so to do.”
9. Article 224 as originally contained in the
Constitution did not work well and neither found
adequate nor satisfactory. The Parliament to combat
mounting arrears of the cases in the High Courts
amended Article 224 by substituting existing Article
224 by a new Article providing for appointment of
Additional Judges. Article 224 as amended by the
Constitution (Seventh Amendment) Act, 1956 is as
follows:
“Article 224. Appointment of
additional and acting Judges.(1). If by
reason of any temporary increase in the
business of High Court or by reason of
arrears of work therein, it appears to
the President that the number of the
Judges of that Court should be for the
time being increased, the President may
appoint duly qualified persons to be
additional Judges of the Court for such
period not exceeding two years as he may
specify.
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(2). When any Judge of a High Court other
than the Chief Justice is by reason of
absence or for any other reason unable to
perform the duties of his office or is
appointed to act temporarily as Chief
Justice, the President may appoint a duly
qualified person to act as a Judge of
that Court until the permanent Judge has
resumed his duties.
(3). No person appointed as an additional
or acting Judge of a High Court shall
hold office after attaining the age of
sixty two years.”
10. Deliberating the object and purpose of Article 224
as provided by the Constitution Seventh Amendment, the
Constitution Bench in S.P. Gupta (supra) made the
following observation:
“37...The power to appoint an Additional
Judge cannot therefore be exercised by
the President unless there is either
temporary increase in the business of the
High Court or there is accumulation of
arrears of work in the High Court and
even when one of these two conditions
exists, it is necessary that the
President must be further satisfied that
it is necessary to make a temporary
increase in the number of Judges of that
High Court. The words "for the time
being" clearly indicate that the increase
in the number of judges which the
President may make by appointing
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Additional Judges would be temporary with
a view to dealing with the temporary
increase in the business of the High
Court or the arrears of work in the High
Court. Article 224, Clause (1) did not
contemplate that the increase in the
number of Judges should be for an
indefinite duration. The object clearly
was that Additional Judge should be
appointed for a short period in order to
dispose of the temporary increase in the
business of the High Court and/or to
clear off the arrears of pending cases.
There is sufficient indication in Clause
(1) of Article 224 that the appointments
of Additional Judges were intended to be
of short duration and Parliament expected
that sufficient number of Additional
Judges would be appointed so as to
dispose of the temporary increase in the
work or the arrears of pending cases
within a period of two years or
thereabouts. That is why Clause (1)
of Article 224 provided that Additional
Judges may be appointed for a period not
exceeding two years. The underlying idea
was that there should be an adequate
strength of permanent Judges in each High
Court to deal with its normal
institutions and so far as the temporary
increase in the work or the arrears of
pending cases were concerned, Additional
Judges appointed for a period not
exceeding two years should assist in
disposing of such work....”
11. The Constitution Bench, however, noticed and
observed that true intention and purpose of clause (1)
of Article 224 was never carried into effect, what
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practically Article 224 was utilised has been
categorically stated in paragraph 38 of the
Constitution Bench judgment in the following words:
“38...The entire object and purpose
of the introduction of Clause (1)
of Article 224 was perverted and
Additional Judges were appointed under
this Article not as temporary Judges for
a short period who would go back on the
expiration of their term as soon as the
arrears are cleared off, but as Judges
whose tenure, though limited to a period
not exceeding two years at the time of
each appointment as an Additional Judge,
would be renewed from time to time until
a berth was found for them in the cadre
of permanent Judges. By and large, every
person entered the High Court judiciary
as an Additional Judge in the clear
expectation that as soon as a vacancy in
the post of a permanent Judge became
available to him in the High Court he
would be confirmed as a permanent Judge
and if no such vacancy became available
to him until the expiration of his term
of office, he would be reappointed as an
Additional Judge for a further term in
the same High Court, Therefore, far from
being aware that on the expiration of
their term, they would have to go back
because they were appointed only as
temporary Judges for a short period in
order to clear off the arrears which
would have been the position if Clause
(1) of Article 224 had been implemented
according to its true intendment and
purpose the Additional Judges entered
the High Court judiciary with a
legitimate expectation that they would
not have to go back on the expiration of
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their term but they would be either
reappointed as Additional Judges for a
further term or if in the meanwhile, a
vacancy in the post of a permanent Judge
became available, they would be confirmed
as permanent Judges. This expectation
which was generated in the minds of
Additional Judges by reason of the
peculiar manner in which Clause (1)
of Article 224 was operated, cannot now
be ignored by the Government and the
Government cannot be permitted to say
that when the term of an Additional Judge
expires, the Government can drop him at
its sweet will. By reason of the
expectation raised in his mind through a
practice followed for almost over a
quarter of a century, an Additional Judge
is entitled to be considered for
appointment as an Additional Judge for a
further term on the expiration of his
original term and if in the meanwhile, a
vacancy in the post of a permanent Judge
becomes available to him on the basis of
seniority amongst Additional Judges, he
has a right to be considered for
appointment as a permanent Judge in his
High Court.”
12. The ratio laid down by the Constitution Bench in
S.P. Gupta(supra) as relied by the petitioner needs to
be considered in the light of what has been said above
by the Constitution Bench itself. Now, the background
facts which led the Constitution Bench to make certain
observations in paragraph 44 need to be noted. The writ
petition in which the question of tenure of Additional
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Judges came to be considered was filed in the Delhi
High Court which was transferred to this Court as
Transferred Case No.20 of 1981. In the said writ
petition apart from challenging the circular dated
18.03.1981 issued by the Union Law Minister, a
complaint was made regarding shortterm appointments of
three Additional Judges of Delhi High Court, namely,
Shri O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad. The
above Additional Judges had originally been appointed
as Additional Judges for a period of two years and
whose term was expiring on the midnight of 06.03.1981.
They were further appointed as Additional Judges for a
period of three months only from 07.03.1981. In the
writ petition complaint was made of such shortterm
appointment. It was contended that such shortterm
appointments were unjustified by the terms of Article
224 and were in any event subversive of the
independence of the judiciary. The Central Government
subsequently did not extend the term of S/Shri O.N.
Vohra and S.N. Kumar, whereas Shri S.B. Wad was
continued as an Additional Judge for a period of one
15
year from 07.06.1981. S/Shri O.N. Vohra and S.N. Kumar
were not continued for a further term.
13. The petitioner has heavily relied on what the
Constitution Bench has said in paragraph 44, where in
the above context, it had observed that when the
arrears of pending cases are such that they cannot
possibly be disposed of within a period of less than
two years, Additional Judges must be appointed for a
term of two years and no less. The observations made by
the Constitution Bench in paragraph 44 are to the
following effect:
“44. One last argument now remains,
when an additional Judge is appointed,
what should be the term for which his
appointment is made. Clause (1)
of Article 224 provides that an
Additional Judge may be appointed for a
period not exceeding two years. That is
the outside limit prescribed by Article
224Clause (1) and it was therefore,
contended by the learned Attorney General
that appointment of an Additional Judge
can be made for any term, howsoever short
it be, so long as it does not exceed two
years. The appointments of O.N. Vohra,
S.N. Kumar and S.B. Wad for three months
and the appointments of some other
Additional Judges for six months were
thus defended by the learned Attorney
General as being within the scope and
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ambit of Clause (1) of Article 224. We
cannot accept this argument. It is no
doubt true that Clause (1) of (the)
Article fixes the outer limit for the
term for which an Additional Judge may be
appointed, but that has been done because
there may be cases where the temporary
increase in the business or the arrears
of pending cases are so small that it may
be possible to dispose them of by
appointing Additional Judges for a term
less than two years. If the temporary
increase in the business or the arrears
of pending cases can be disposed of
within a shorter time, why should
Additional Judges be appointed for the
full period of two years. That is why
Parliament provided that an Additional
Judge may be appointed for a term not
exceeding two years. But when arrears of
pending cases are so large that it would
not be possible to dispose them of even
within a period of ten years and when
we say ten years, we are making a very
conservative estimate what
justification there can be for appointing
Additional Judges for a period of less
than two years. That would be plainly
outside the scope of the power conferred
under Clause (1) of Article 224. When the
arrears of pending cases are such that
they cannot possibly be disposed of
within a period of less than two years,
Additional Judges must be appointed for a
term of two years and no less....”
14. Thus, the above observations were made by the
Constitution Bench in the background when although
three Additional Judges were initially appointed for a
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period of two years but they were further appointed
only for a period of three months and after that only
one was continued for a period of one year. The
Constitution Bench having noticed the purposes of
Article 224 has observed that when arrears of pending
cases are such that they cannot possibly be disposed of
then the purpose and object of appointment of
Additional Judges is that appointment should be given
for two years and no less. But the above observation of
the Constitution Bench has to be read in reference to
the context in which it was made. Before the
Constitution Bench, the question as to when remaining
tenure of a person to be appointed as Additional Judge
is less than two years, whether such appointment is in
conformity with Article 224 or not, was neither gone
into nor any opinion was expressed whereas an
observation was made in paragraph 32 which supports the
view that in a case where Additional Judge has been
appointed for a period of two years, he would cease to
be a Judge if he attains the age of 62 years prior to
the expiration of his term of two years. This clearly
supports that the tenure of appointment of Additional
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Judges who have less than two years to retire is not
contrary to Article 224. In paragraph 32 following
observations have been made by the Constitution Bench:
“32...Clause(3) of Article 224 provides
inter alia that no person appointed as an
Additional Judge shall hold office after
attaining the age of 62 years. Therefore
even if an Additional Judge has been
appointed for a period of two years, he
would cease to be a Judge if he attains
the age of 62 years prior to the
expiration of his term of two years.”
15. The observations of the Constitution Bench in S.P.
Gupta (supra), as noticed above, clearly do not
support the submission of the petitioner that
appointment of Additional Judges for a period of less
than two years when they are attaining the age of
superannuation before two years is contrary to Article
224. We thus do not find any merit in the first
submission of the petitioner.
16. Now we come to the second submission of the
petitioner. Petitioner submits that although on the
date when recommendations were made for names of
respondent Nos.2 and 3 by the High Court for
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appointment as Additional Judges they were members of
the Judicial Service of the State but the day they were
issued appointment under Article 224, they had already
retired from Judicial Service, hence were not eligible
for appointment as Additional Judges.
17. Petitioner has relied on the judgment of this Court
in Shri Kumar Padma Prasad (supra) in support of the
submission that who is not a member of Judicial Service
is ineligible for appointment as Additional Judge. The
case of Shri Kumar Padma Prasad (supra) was a case
where petitioner has challenged the appointment of Shri
K.N. Srivastava as a Judge of Gauhati High Court on the
ground that he does not fulfil the eligibility for
appointment as contained in Article 217 of the
Constitution of India. Name of Shri K.N. Srivastava was
recommended on the ground that he held Judicial Office
for at least 10 years. The challenge in the writ
petition was that Shri K.N. Srivastava does not fall
within the expression Judicial Office as defined under
Article 217(2)(a). This Court after referring to
judgment of this Court in Chandra Mohan v. State of
20
U.P., AIR 1966 SC 1987, held that Judicial Office as
used in Article 217(2)(a) must be a part of Judicial
Service of the State. In paragraph 25 following was
held:
“25. It is thus, clear that the
expression "judicial office" under
Article 217(2)(a) of the Constitution has
to be interpreted in consonance with the
scheme of Chapters V and VI of Part VI of
the Constitution. We, therefore, hold
that expression "judicial office" under
Article 217(2)(a) of the Constitution
means a "judicial office" which belongs
to the judicial service as defined under
Article 236(b) of the Constitution of
India. In order to qualify for
appointment as a Judge of a High Court
under Article 217(2)(a) a person must
hold a "judicial office" which must be a
part of the judicial service of the
State.”
18. After holding that Judicial Office must be the part
of Judicial Service of the State, position held by Shri
K.N. Srivastava was detailed and this Court came to the
conclusion that the office held by Shri K.N. Srivastava
was not a Judicial Office and he was not qualified as
Judge of the High Court. In paragraph 36 following was
held by this Court:
“36. We have already held that
"judicial office" in Article 217(2)(a)
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means an office as a part of the judicial
service as defined under Article 236(b) of the
Constitution of India. The office of the
Assistant to Deputy Commissioner held by
Srivastava for a period of about six
months under the notification reproduced
above, was neither a judicial office nor
was it part of a judicial service as
defined under Article 236(b) of the
Constitution of India. We, therefore,
accept the second contention advanced by
Mr. Anil Diwan and Ram Jethmalani and
hold that Srivastava was not qualified
for appointment as a Judge of a High
Court under Article 217(2)(a) of the
Constitution of India.”
19. Petitioner has placed reliance on paragraphs 25, 35
and 41 of the judgment of Shri Kumar Padma Prasad
(supra) Kumar Padma Prasad (supra) which are to the
following effect:
“25. It is thus, clear that the
expression "judicial office" under
Article 217(2)(a) of the Constitution has
to be interpreted in consonance with the
scheme of Chapters V and VI of Part VI of
the Constitution. We, therefore, hold
that expression "judicial office" under
Article 217(2)(a) of the Constitution
means a "judicial office" which belongs
to the judicial service as defined under
Article 236(b) of the Constitution of
India. In order to qualify for
appointment as a Judge of a High Court
under Article 217(2)(a) a person must
hold a "judicial office" which must be a
part of the judicial service of the
State.
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xxx xxx xxx xxx
35. The Word "office" has various
meanings and we have to see which is
appropriate meaning to be ascribed to
this word in the context it appears in
the Constitution. We are of the view that
the framers of the Constitution did not
and could not have meant by a "judicial
office" which did not exist independently
and the duties or part of the duties of
which could be conferred on any person
whether trained or not in the
administration of justice. The word
"judicial office" under Article 217(2)(a)
in our view means a subsisting office
with a substantive position which has an
existence independent from its holder.
xxx xxx xxx xxx
41. We allow transferred writ
petition of Kumar Padma Prasad and
declare that K.N. Srivastava, on the date
of issue of warrant by the President of
India, was not qualified to be appointed
as a Judge of the High Court. As a
consequence, we quash his appointment as
a judge of the Gauhati High Court. We
direct the Union of India and other
respondents present before us not to
administer oath or affirmation under
Article 219 of the Constitution of India
to K.N. Srivastava. We further restrain
K.N. Srivastava from making and
subscribing an oath or affirmation in
terms of Article 219 of the Constitution
of India and assuming office of the Judge
of the High Court. We direct the Registry
to send a copy of this judgment to the
President of India for his consideration
and necessary action in terms of our
23
judgment. There shall be no order as to
costs.”
20. There cannot be any dispute to the proposition laid
down by this Court in paragraph 25 that a person must
hold Judicial Office which must be a part of Judicial
Service of the State for appointment of a Judge of the
High Court under Article 217(2)(a). Much emphasis is
being given by the petitioner on the observation made
in paragraph 35 that the word 'Judicial Office' under
Article 217(2)(a) means a subsisting office with a
substantive position which has an existence independent
from its holder. The above observation has been made by
this Court in reference to nature of the different
offices held by Shri K.N. Srivastava in the State
specially while dealing with the contention that Shri
Srivastava having held the office of Deputy
Commissioner by Rule 9 of the 1937 Rules whether he
fulfilled the requirement under Article 217 read with
(2)(a) explanation. The argument forcibly put in
paragraph 31 was rejected in paragraph 32 which are to
the following effect:
24
“31. Mr. Venugopal contended that
the administration of justice both on
civil and criminal side was being manned
exclusively by the Deputy Commissioner
and his Assistants under the 1937 Rules.
No other courts were functioning. Apart
from administering criminal and civil
justice the total administration of the
district known as the Lushai Hills was
vested in the Governor of Assam , the
Deputy Commissioner of Lushai Hill, and
his Assistants. The Deputy Commissioner
under the 1937 Rules was competent to
pass sentence of death, transportation or
imprisonment up to a maximum provided for
the offence and fine up to any amount.
The Assistants to the Deputy Commissioner
were to exercise such powers as conferred
by the Governor not exceeding those of a
magistrate of the first class as defined
under the Code of Criminal Procedure. An
appeal lies to the Deputy Commissioner
against any order passed by any of his
Assistants. Similarly under Rule 15 the
administration of civil justice was
entrusted to the Deputy Commissioner and
his Assistants. Srivastava exercised the
powers of Assistant to the Deputy
commissioner from June 23, 1979 to
December 19, 1979. According to Mr.
Venugopal the office of the Assistant to
which Srivastava was appointed for a
period of about six months was a judicial
office. According to him period for which
he held the judicial office and the
quality of the said office are not
relevant factors. He therefore,
forcefully contended that Srivastava,
having held the judicial office of
Assistant to the Deputy Commissioner
under the 1937 Rules he fulfills the
qualification under Article 217(2)(a)
read with (a) to the Explanation.
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According to him all the offices held by
Srivastava after relinquishing the office
of the Assistant to the Deputy
Commissioner required special knowledge
of law and as such whole of that period
is liable to be included for counting 10
years during which he held a judicial
office. Srivastava, according to him, is
qualified for appointment as a judge of a
High Court.
32. We have given our thoughtful
consideration to the argument advanced by
Mr. Venugopal. We are not inclined to
agree with him.”
21. Thus, the observation in Shri Kumar Padma Prasad
(supra), in paragraph 35 as extracted above was in the
above context. This Court was not concerned with the
issue which is raised in the present writ petition as
to whether the person should be holding a Judicial
Office at the time of his appointment as Additional
Judge of the High Court, although, he held a Judicial
Office of the State when his name was recommended by
the High Court for Additional Judge. Thus, the
observations made by this Court in paragraphs 25, 35
and 41 do not support the contentions which are sought
to be raised by the petitioner.
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22. Shri Maninder Singh, learned Additional Solicitor
General submitted that Article 217(2)(a) uses the words
'held' a Judicial Office which means that a person who
has held Judicial Office at least for a period of 10
years is eligible for appointment as Additional Judge.
23. The word 'held' has been defined in Words and
Phrases Permanent Edition, Volume 19 to the following
effect:
"Held has no primary or technical
meaning and its meaning is determined
largely by connection in which it is
used. State v. Thomson, 449 P.2d 656,
659, 79 N.M. 748.
Perfect participle “held” has no
connotation of time. Holman Transfer Co.
v. City of Portland, 350 P.2d 929, 930,
196 Or. 551.”
24. The word 'held' as used in Article 217(2)(a)
indicates that what is prescribed is qualification for
appointment of a Judge of the High Court is that a
person has for at least 10 years held a judicial office
in the territory of India. Use of word 'held' in the
above clause does not indicate that qualification is
27
also meant that apart from holding 10 years a judicial
office, the incumbent should also be holding the
judicial office at the time notification under Article
224 is issued.
25. The above conclusion is also supported by taking
into consideration the Explanation (a) and (aa) to
Article 217(2). When Explanation (a) provides that in
computing the period during which a person has held
judicial office in the territory of India, there shall
be included any period, after he has held any judicial
office, during which the person has been an Advocate of
a High Court or has held the office of a member of a
tribunal or any post, under the Union or a State,
requiring special knowledge of law.
26. A plain reading of eligibility as provided under
Article 217(2)(a) does not make the respondent Nos.2
and 3 ineligible for appointment as Additional Judges
of the Rajasthan High Court. This Court's judgment in
Shri Kumar Padma Prasad (supra) does not support the
submission which is pressed by the petitioners before
28
us. We, thus, do not find force in the second
submission of the petitioner.
27. Before parting with this case we need to remind
ourselves the purpose and object for which Article 224
of the Constitution was substituted by the Constitution
Seventh Amendment of 1956. Appointment of Additional
Judges was envisaged as appointment to cope with the
increased work load of cases in different High Courts.
The temporary increase in the business of the High
Court or by reason of arrears of work therein was a
reason for appointment or reason for invoking power
under Article 224, although as noted by Constitution
Bench in S.P. Gupta's case (supra) by lapse of time the
use of Article 224 has been substantially changed. But
there is no denying that to cope with the increase in
business of the High Court and the arrears of cases
emergent steps are needed by all to fulfil the object
and purpose for which constitutional provision was
brought in place, enormous delay in appointment of
Judges of the High Courts not only frustrate the
purpose and object for which Article 224(1) was brought
into the Constitution but belies the hope and trust of
29
litigant who comes to the High Courts seeking justice
and early disposal of their cases.
28. In Supreme Court AdvocatesonRecord Association
and Others v. Union of India, (1993) 4 SCC 441, this
Court expressed in categorical terms that the process
of appointment must be initiated at least one month
prior to the date of an anticipated vacancy. It was
done to achieve an ideal situation, namely, to ensure
that the post is filled up immediately after the
occurrence of the vacancy so that no time is lost.
Unfortunately, it still remains a far cry. In the
first instance, names are not forwarded by the High
Court in time. What to talk of sending the names one
month before the occurrence of an anticipated vacancy,
names are not forwarded even much after the vacancy has
occurred. It is also seen that once the names are
forwarded, they remain pending at the Executive level
for unduly long time, before they are sent to the
Collegium of the Supreme Court for approval along with
the inputs of the Executive. Even after the clearance
of the names by the Collegium, these remain pending at
the level of the Executive. All this results in
30
inordinate delay. Sometimes, it takes more than one
year to complete the process from the date of
forwarding the names till appointment. There are
instances where time consumed is much more than one
year even. In the case of judicial officers of
subordinate judiciary, who are recommended for
appointment to the High Court, this process of
consuming so much time adversely affects their tenure.
It is a matter of common knowledge that most of the
judicial officers get a chance for elevation when only
few years’ service is left. Thus, when unduly long time
is taken, even this lesser tenure gets further reduced.
It also gives rise to the situation like the present
one. Equally, members of the Bar, whose names are
recommended for elevation to the High Court, undergo
hardships of a different kind. It is unjust that the
fate of such persons remains in limbo for indefinite
periods and gives rise to unnecessary conjectural
debates. It leads to unpleasant situations which can
be avoided. It is, therefore, in the interest of all
the stakeholders, including the judiciary, that
definite timelines are drawn for each stage of the
31
process, so that process of appointment is accomplished
within a time bound manner. We need not say more. It
is more so, to keep hope and aspiration of litigants
alive and to fulfil the commitment of providing a
speedy justice the process of appointment of Judges of
the High Court needs more expedition at the hands of
all who have to discharge the constitutional
obligation entrusted by the Constitution of India. With
these observations, we dismiss the writ petition.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 23, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.835 OF 2017
SUNIL SAMDARIA ... PETITIONER
VERSUS
UNION OF INDIA THROUGH ITS
SECRETARY, MINISTRY OF LAW AND
JUSTICE AND OTHERS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This writ petition under Article 32 of the
Constitution of India has been filed by the petitioner,
a practicing Advocate of Rajasthan High Court,
questioning the Notification dated 12.05.2017
appointing respondent Nos.2 and 3 as Additional Judges
of Rajasthan High Court. This Court on 03.10.2017 had
issued notice to respondent No.1 only. A counteraffidavit
has been filed by the Union of Indiarespondent
No.1.
2
2. We have heard the petitioner, appearing inperson
and Shri Maninder Singh, learned Additional Solicitor
General of India for the respondent.
3. The petitioner appearing inperson challenging the
appointment of respondent Nos.2 and 3 as Additional
Judges of Rajasthan High Court makes following two
submissions:
(1) The appointment of respondent Nos.2 and 3 has
been made as Additional Judges of the Rajasthan
High Court under Article 224 of the Constitution of
India. The appointment of respondent No.2 has been
made till Ist September, 2018 whereas the
appointment of respondent No.3 has been made till
2
nd July, 2018, both the appointments having been
made for a period of less than two years violates
Article 224 of the Constitution of India. It is
submitted that appointment of Additional Judges
should not be made for a period of less than two
years, hence the appointments are nonest and void.
Reliance has been placed on Constitution Bench
3
judgment of this Court in S.P.Gupta vs. Union of
India and another, 1981 Supp SCC 87.
(2) Respondent Nos.2 and 3 were members of
Judicial Service of the State of Rajasthan who
retired from the post of District Judge
respectively on 30.09.2016 and 31.07.2016 after
attaining the age of superannuation of 60 years.
On the day when the notification was issued
appointing respondent Nos.2 and 3, i.e.,
12.05.2017, both being not holding a Judicial
Office they were not eligible for appointment as
Additional Judges of the High Court. The
eligibility of a person to be appointed as a Judge
of the High Court as provided under Article 217(2)
(a) is that he should be a member of the Judicial
Service of the State. Respondent Nos.2 and 3,
having long retired from Judicial Service, do not
possess eligibility for appointment as Additional
Judges of the High Court hence on this ground also
the appointments of respondent Nos.2 and 3 are
liable to be declared as nonest and void.
4
Petitioner placed reliance on the judgment of this
Court in Shri Kumar Padma Prasad vs. Union of India
others, 1992 (2) SCC 428 (paragraphs 25, 35, 41).
4. Shri Maninder Singh, learned Additional Solicitor
General of India refuting the submission of the
petitioner contends that appointments of respondent
Nos.2 and 3 are fully in accordance with Article 217(2)
and Article 224 of the Constitution of India.
Respondent Nos.2 and 3 having held Judicial Office for
a period of 10 years were fully eligible to be
appointed as Additional Judges of the Rajasthan High
Court. The maximum period of appointment of Additional
Judge of the High Court under Article 224 clause (1)
being two years, respondent Nos.2 and 3 who were
attaining the age of superannuation of 62 years before
expiry of a period of two years, there is no illegality
in their appointment upto the age of superannuation
which falls on 01.09.2018 and 02.07.2018 respectively.
The judgment of this Court in Shri Kumar Padma Prasad
(supra) is not applicable nor the Constitution Bench
judgment in S.P. Gupta (supra) supports the contention
5
advanced by the petitioner in the present case.
5. We have considered the submissions of the
petitioner inperson and learned Additional Solicitor
General for the Union of India and perused the record.
6. The relevant facts pertaining to the Judicial
Service, the process of appointment as Additional
Judges of the Rajasthan High Court and the period of
their tenure are not in dispute. Both respondent Nos.2
and 3 were members of Judicial Service of the State
when their names were recommended by the Acting Chief
Justice of Rajasthan High Court by letter dated
18.02.2016. On the date their names were recommended,
they were fully in the zone of consideration, they
being within the prescribed age limit of 58 ½ years on
the date of occurrence of vacancy against which their
names were recommended. The Acting Chief Justice while
processing the recommendation followed Memorandum of
Procedure as laid down by letter dated 24.09.2004 of
Minister of Law and Justice. The Government of India,
Ministry of Law and Justice, after processing the
recommendation forwarded the same for consideration of
6
Chief Justice of India on 22.07.2016. The Supreme Court
Collegium vide its Minutes dated 01.08.2016 recommended
the names of respondent Nos.2 and 3 as from the service
stream. The Government of India after receiving the
recommendation of Supreme Court Collegium and after
obtaining the approval of Hon'ble President of India
notified the appointment on 12.05.2017. The entire
process consumed a period of one year and three months.
The notification dated 12.05.2017 which was issued for
appointment of respondent Nos.2 and 3 as Additional
Judges in exercise of power under Article 224(1)
mentioned their appointment with effect from the date
they took charge till 01.09.2018 and 02.07.2018
respectively. The dates 01.09.2018 and 02.07.2018 which
are mentioned in the notification are obviously the
dates when they shall attain the age of superannuation
as Judges of the High Court, i.e., 62 years. It is
relevant to note that along with respondent Nos.2 and 3
three more persons were appointed as Additional Judges
for a period of two years and with regard to their
tenure the period of two years was mentioned. It is
relevant to extract notification dated 12.05.2017 which
7
is to the following effect:
“NOTIFICATION
In exercise of the powers conferred by
Clause(1) of Article 224 of the
Constitution of India, the President is
pleased to appoint S/Shri(i) Ashok Kumar
Gaur, (ii) Manoj Kumar Garg, (iii)
Inderjeet Singh, (iv) Dr.Virendra Kumar
Mathur, and (V) Shri Ramchandra Singh
Jhala, to be Additional Judges of
Rajasthan High Court, in that order of
seniority.
The appointment of S/Shri Ashok Kumar
Gaur, Manoj Kumar Garg, Inderjeet Singh,
would be for a period of 2 years with
effect from the date they assume charge
of their respective offices. However,
period of appointment in respect of Dr.
Virendra Kumar Mathur, and Sh. Ramchandra
Singh Jhala are with effect from the date
they assume charge of their respective
offices till 1st September, 2018 and 2nd
July, 2018 respectively.
Sd/
(S.C.BARMMA)
Joint Secretary to the Government of India
Tele:23072142“
7. The first submission which has been pressed by the
petitioner is that appointment of respondent Nos.2 and
3 being for a period of less than two years is contrary
to Article 224 of the Constitution of India and in the
8
teeth of law laid down by S.P. Gupta (supra).
8. Article 224 of the Constitution of India provides
for appointment of Additional and Acting Judges. The
period for appointment of Additional Judges of the High
Court as mentioned in Article 224(1) is “for such
period not exceeding two years”. The Constitution Bench
in S.P. Gupta (supra) has considered in detail Article
224 of the Constitution, its purpose and object.
Article 224 as it existed in the original constitution
contained the heading “Attendance of retired Judges at
sittings of High Court” which was to the following
effect:
“Article 224. Attendance of retired
Judges at sittings of High Court.
Notwithstanding anything in this
Chapter, the Chief Justice of a High
Court for any State may at any time,
with the previous consent of the
President, request any person who has
held the office of a Judge of that
Court or of any other High Court to
sit and act as a Judge of the High
Court for that State, and every such
person so requested shall, while so
sitting and acting, be entitled to
such allowance as the President may by
order determine and have all the
jurisdiction, powers and privileges
of, but shall not otherwise be deemed
9
to be, a Judge of that High Court:
Provided that nothing in this
article shall be deemed to require any
such person as aforesaid to sit and
act as a Judge of that High Court
unless he consents so to do.”
9. Article 224 as originally contained in the
Constitution did not work well and neither found
adequate nor satisfactory. The Parliament to combat
mounting arrears of the cases in the High Courts
amended Article 224 by substituting existing Article
224 by a new Article providing for appointment of
Additional Judges. Article 224 as amended by the
Constitution (Seventh Amendment) Act, 1956 is as
follows:
“Article 224. Appointment of
additional and acting Judges.(1). If by
reason of any temporary increase in the
business of High Court or by reason of
arrears of work therein, it appears to
the President that the number of the
Judges of that Court should be for the
time being increased, the President may
appoint duly qualified persons to be
additional Judges of the Court for such
period not exceeding two years as he may
specify.
10
(2). When any Judge of a High Court other
than the Chief Justice is by reason of
absence or for any other reason unable to
perform the duties of his office or is
appointed to act temporarily as Chief
Justice, the President may appoint a duly
qualified person to act as a Judge of
that Court until the permanent Judge has
resumed his duties.
(3). No person appointed as an additional
or acting Judge of a High Court shall
hold office after attaining the age of
sixty two years.”
10. Deliberating the object and purpose of Article 224
as provided by the Constitution Seventh Amendment, the
Constitution Bench in S.P. Gupta (supra) made the
following observation:
“37...The power to appoint an Additional
Judge cannot therefore be exercised by
the President unless there is either
temporary increase in the business of the
High Court or there is accumulation of
arrears of work in the High Court and
even when one of these two conditions
exists, it is necessary that the
President must be further satisfied that
it is necessary to make a temporary
increase in the number of Judges of that
High Court. The words "for the time
being" clearly indicate that the increase
in the number of judges which the
President may make by appointing
11
Additional Judges would be temporary with
a view to dealing with the temporary
increase in the business of the High
Court or the arrears of work in the High
Court. Article 224, Clause (1) did not
contemplate that the increase in the
number of Judges should be for an
indefinite duration. The object clearly
was that Additional Judge should be
appointed for a short period in order to
dispose of the temporary increase in the
business of the High Court and/or to
clear off the arrears of pending cases.
There is sufficient indication in Clause
(1) of Article 224 that the appointments
of Additional Judges were intended to be
of short duration and Parliament expected
that sufficient number of Additional
Judges would be appointed so as to
dispose of the temporary increase in the
work or the arrears of pending cases
within a period of two years or
thereabouts. That is why Clause (1)
of Article 224 provided that Additional
Judges may be appointed for a period not
exceeding two years. The underlying idea
was that there should be an adequate
strength of permanent Judges in each High
Court to deal with its normal
institutions and so far as the temporary
increase in the work or the arrears of
pending cases were concerned, Additional
Judges appointed for a period not
exceeding two years should assist in
disposing of such work....”
11. The Constitution Bench, however, noticed and
observed that true intention and purpose of clause (1)
of Article 224 was never carried into effect, what
12
practically Article 224 was utilised has been
categorically stated in paragraph 38 of the
Constitution Bench judgment in the following words:
“38...The entire object and purpose
of the introduction of Clause (1)
of Article 224 was perverted and
Additional Judges were appointed under
this Article not as temporary Judges for
a short period who would go back on the
expiration of their term as soon as the
arrears are cleared off, but as Judges
whose tenure, though limited to a period
not exceeding two years at the time of
each appointment as an Additional Judge,
would be renewed from time to time until
a berth was found for them in the cadre
of permanent Judges. By and large, every
person entered the High Court judiciary
as an Additional Judge in the clear
expectation that as soon as a vacancy in
the post of a permanent Judge became
available to him in the High Court he
would be confirmed as a permanent Judge
and if no such vacancy became available
to him until the expiration of his term
of office, he would be reappointed as an
Additional Judge for a further term in
the same High Court, Therefore, far from
being aware that on the expiration of
their term, they would have to go back
because they were appointed only as
temporary Judges for a short period in
order to clear off the arrears which
would have been the position if Clause
(1) of Article 224 had been implemented
according to its true intendment and
purpose the Additional Judges entered
the High Court judiciary with a
legitimate expectation that they would
not have to go back on the expiration of
13
their term but they would be either
reappointed as Additional Judges for a
further term or if in the meanwhile, a
vacancy in the post of a permanent Judge
became available, they would be confirmed
as permanent Judges. This expectation
which was generated in the minds of
Additional Judges by reason of the
peculiar manner in which Clause (1)
of Article 224 was operated, cannot now
be ignored by the Government and the
Government cannot be permitted to say
that when the term of an Additional Judge
expires, the Government can drop him at
its sweet will. By reason of the
expectation raised in his mind through a
practice followed for almost over a
quarter of a century, an Additional Judge
is entitled to be considered for
appointment as an Additional Judge for a
further term on the expiration of his
original term and if in the meanwhile, a
vacancy in the post of a permanent Judge
becomes available to him on the basis of
seniority amongst Additional Judges, he
has a right to be considered for
appointment as a permanent Judge in his
High Court.”
12. The ratio laid down by the Constitution Bench in
S.P. Gupta(supra) as relied by the petitioner needs to
be considered in the light of what has been said above
by the Constitution Bench itself. Now, the background
facts which led the Constitution Bench to make certain
observations in paragraph 44 need to be noted. The writ
petition in which the question of tenure of Additional
14
Judges came to be considered was filed in the Delhi
High Court which was transferred to this Court as
Transferred Case No.20 of 1981. In the said writ
petition apart from challenging the circular dated
18.03.1981 issued by the Union Law Minister, a
complaint was made regarding shortterm appointments of
three Additional Judges of Delhi High Court, namely,
Shri O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad. The
above Additional Judges had originally been appointed
as Additional Judges for a period of two years and
whose term was expiring on the midnight of 06.03.1981.
They were further appointed as Additional Judges for a
period of three months only from 07.03.1981. In the
writ petition complaint was made of such shortterm
appointment. It was contended that such shortterm
appointments were unjustified by the terms of Article
224 and were in any event subversive of the
independence of the judiciary. The Central Government
subsequently did not extend the term of S/Shri O.N.
Vohra and S.N. Kumar, whereas Shri S.B. Wad was
continued as an Additional Judge for a period of one
15
year from 07.06.1981. S/Shri O.N. Vohra and S.N. Kumar
were not continued for a further term.
13. The petitioner has heavily relied on what the
Constitution Bench has said in paragraph 44, where in
the above context, it had observed that when the
arrears of pending cases are such that they cannot
possibly be disposed of within a period of less than
two years, Additional Judges must be appointed for a
term of two years and no less. The observations made by
the Constitution Bench in paragraph 44 are to the
following effect:
“44. One last argument now remains,
when an additional Judge is appointed,
what should be the term for which his
appointment is made. Clause (1)
of Article 224 provides that an
Additional Judge may be appointed for a
period not exceeding two years. That is
the outside limit prescribed by Article
224Clause (1) and it was therefore,
contended by the learned Attorney General
that appointment of an Additional Judge
can be made for any term, howsoever short
it be, so long as it does not exceed two
years. The appointments of O.N. Vohra,
S.N. Kumar and S.B. Wad for three months
and the appointments of some other
Additional Judges for six months were
thus defended by the learned Attorney
General as being within the scope and
16
ambit of Clause (1) of Article 224. We
cannot accept this argument. It is no
doubt true that Clause (1) of (the)
Article fixes the outer limit for the
term for which an Additional Judge may be
appointed, but that has been done because
there may be cases where the temporary
increase in the business or the arrears
of pending cases are so small that it may
be possible to dispose them of by
appointing Additional Judges for a term
less than two years. If the temporary
increase in the business or the arrears
of pending cases can be disposed of
within a shorter time, why should
Additional Judges be appointed for the
full period of two years. That is why
Parliament provided that an Additional
Judge may be appointed for a term not
exceeding two years. But when arrears of
pending cases are so large that it would
not be possible to dispose them of even
within a period of ten years and when
we say ten years, we are making a very
conservative estimate what
justification there can be for appointing
Additional Judges for a period of less
than two years. That would be plainly
outside the scope of the power conferred
under Clause (1) of Article 224. When the
arrears of pending cases are such that
they cannot possibly be disposed of
within a period of less than two years,
Additional Judges must be appointed for a
term of two years and no less....”
14. Thus, the above observations were made by the
Constitution Bench in the background when although
three Additional Judges were initially appointed for a
17
period of two years but they were further appointed
only for a period of three months and after that only
one was continued for a period of one year. The
Constitution Bench having noticed the purposes of
Article 224 has observed that when arrears of pending
cases are such that they cannot possibly be disposed of
then the purpose and object of appointment of
Additional Judges is that appointment should be given
for two years and no less. But the above observation of
the Constitution Bench has to be read in reference to
the context in which it was made. Before the
Constitution Bench, the question as to when remaining
tenure of a person to be appointed as Additional Judge
is less than two years, whether such appointment is in
conformity with Article 224 or not, was neither gone
into nor any opinion was expressed whereas an
observation was made in paragraph 32 which supports the
view that in a case where Additional Judge has been
appointed for a period of two years, he would cease to
be a Judge if he attains the age of 62 years prior to
the expiration of his term of two years. This clearly
supports that the tenure of appointment of Additional
18
Judges who have less than two years to retire is not
contrary to Article 224. In paragraph 32 following
observations have been made by the Constitution Bench:
“32...Clause(3) of Article 224 provides
inter alia that no person appointed as an
Additional Judge shall hold office after
attaining the age of 62 years. Therefore
even if an Additional Judge has been
appointed for a period of two years, he
would cease to be a Judge if he attains
the age of 62 years prior to the
expiration of his term of two years.”
15. The observations of the Constitution Bench in S.P.
Gupta (supra), as noticed above, clearly do not
support the submission of the petitioner that
appointment of Additional Judges for a period of less
than two years when they are attaining the age of
superannuation before two years is contrary to Article
224. We thus do not find any merit in the first
submission of the petitioner.
16. Now we come to the second submission of the
petitioner. Petitioner submits that although on the
date when recommendations were made for names of
respondent Nos.2 and 3 by the High Court for
19
appointment as Additional Judges they were members of
the Judicial Service of the State but the day they were
issued appointment under Article 224, they had already
retired from Judicial Service, hence were not eligible
for appointment as Additional Judges.
17. Petitioner has relied on the judgment of this Court
in Shri Kumar Padma Prasad (supra) in support of the
submission that who is not a member of Judicial Service
is ineligible for appointment as Additional Judge. The
case of Shri Kumar Padma Prasad (supra) was a case
where petitioner has challenged the appointment of Shri
K.N. Srivastava as a Judge of Gauhati High Court on the
ground that he does not fulfil the eligibility for
appointment as contained in Article 217 of the
Constitution of India. Name of Shri K.N. Srivastava was
recommended on the ground that he held Judicial Office
for at least 10 years. The challenge in the writ
petition was that Shri K.N. Srivastava does not fall
within the expression Judicial Office as defined under
Article 217(2)(a). This Court after referring to
judgment of this Court in Chandra Mohan v. State of
20
U.P., AIR 1966 SC 1987, held that Judicial Office as
used in Article 217(2)(a) must be a part of Judicial
Service of the State. In paragraph 25 following was
held:
“25. It is thus, clear that the
expression "judicial office" under
Article 217(2)(a) of the Constitution has
to be interpreted in consonance with the
scheme of Chapters V and VI of Part VI of
the Constitution. We, therefore, hold
that expression "judicial office" under
Article 217(2)(a) of the Constitution
means a "judicial office" which belongs
to the judicial service as defined under
Article 236(b) of the Constitution of
India. In order to qualify for
appointment as a Judge of a High Court
under Article 217(2)(a) a person must
hold a "judicial office" which must be a
part of the judicial service of the
State.”
18. After holding that Judicial Office must be the part
of Judicial Service of the State, position held by Shri
K.N. Srivastava was detailed and this Court came to the
conclusion that the office held by Shri K.N. Srivastava
was not a Judicial Office and he was not qualified as
Judge of the High Court. In paragraph 36 following was
held by this Court:
“36. We have already held that
"judicial office" in Article 217(2)(a)
21
means an office as a part of the judicial
service as defined under Article 236(b) of the
Constitution of India. The office of the
Assistant to Deputy Commissioner held by
Srivastava for a period of about six
months under the notification reproduced
above, was neither a judicial office nor
was it part of a judicial service as
defined under Article 236(b) of the
Constitution of India. We, therefore,
accept the second contention advanced by
Mr. Anil Diwan and Ram Jethmalani and
hold that Srivastava was not qualified
for appointment as a Judge of a High
Court under Article 217(2)(a) of the
Constitution of India.”
19. Petitioner has placed reliance on paragraphs 25, 35
and 41 of the judgment of Shri Kumar Padma Prasad
(supra) Kumar Padma Prasad (supra) which are to the
following effect:
“25. It is thus, clear that the
expression "judicial office" under
Article 217(2)(a) of the Constitution has
to be interpreted in consonance with the
scheme of Chapters V and VI of Part VI of
the Constitution. We, therefore, hold
that expression "judicial office" under
Article 217(2)(a) of the Constitution
means a "judicial office" which belongs
to the judicial service as defined under
Article 236(b) of the Constitution of
India. In order to qualify for
appointment as a Judge of a High Court
under Article 217(2)(a) a person must
hold a "judicial office" which must be a
part of the judicial service of the
State.
22
xxx xxx xxx xxx
35. The Word "office" has various
meanings and we have to see which is
appropriate meaning to be ascribed to
this word in the context it appears in
the Constitution. We are of the view that
the framers of the Constitution did not
and could not have meant by a "judicial
office" which did not exist independently
and the duties or part of the duties of
which could be conferred on any person
whether trained or not in the
administration of justice. The word
"judicial office" under Article 217(2)(a)
in our view means a subsisting office
with a substantive position which has an
existence independent from its holder.
xxx xxx xxx xxx
41. We allow transferred writ
petition of Kumar Padma Prasad and
declare that K.N. Srivastava, on the date
of issue of warrant by the President of
India, was not qualified to be appointed
as a Judge of the High Court. As a
consequence, we quash his appointment as
a judge of the Gauhati High Court. We
direct the Union of India and other
respondents present before us not to
administer oath or affirmation under
Article 219 of the Constitution of India
to K.N. Srivastava. We further restrain
K.N. Srivastava from making and
subscribing an oath or affirmation in
terms of Article 219 of the Constitution
of India and assuming office of the Judge
of the High Court. We direct the Registry
to send a copy of this judgment to the
President of India for his consideration
and necessary action in terms of our
23
judgment. There shall be no order as to
costs.”
20. There cannot be any dispute to the proposition laid
down by this Court in paragraph 25 that a person must
hold Judicial Office which must be a part of Judicial
Service of the State for appointment of a Judge of the
High Court under Article 217(2)(a). Much emphasis is
being given by the petitioner on the observation made
in paragraph 35 that the word 'Judicial Office' under
Article 217(2)(a) means a subsisting office with a
substantive position which has an existence independent
from its holder. The above observation has been made by
this Court in reference to nature of the different
offices held by Shri K.N. Srivastava in the State
specially while dealing with the contention that Shri
Srivastava having held the office of Deputy
Commissioner by Rule 9 of the 1937 Rules whether he
fulfilled the requirement under Article 217 read with
(2)(a) explanation. The argument forcibly put in
paragraph 31 was rejected in paragraph 32 which are to
the following effect:
24
“31. Mr. Venugopal contended that
the administration of justice both on
civil and criminal side was being manned
exclusively by the Deputy Commissioner
and his Assistants under the 1937 Rules.
No other courts were functioning. Apart
from administering criminal and civil
justice the total administration of the
district known as the Lushai Hills was
vested in the Governor of Assam , the
Deputy Commissioner of Lushai Hill, and
his Assistants. The Deputy Commissioner
under the 1937 Rules was competent to
pass sentence of death, transportation or
imprisonment up to a maximum provided for
the offence and fine up to any amount.
The Assistants to the Deputy Commissioner
were to exercise such powers as conferred
by the Governor not exceeding those of a
magistrate of the first class as defined
under the Code of Criminal Procedure. An
appeal lies to the Deputy Commissioner
against any order passed by any of his
Assistants. Similarly under Rule 15 the
administration of civil justice was
entrusted to the Deputy Commissioner and
his Assistants. Srivastava exercised the
powers of Assistant to the Deputy
commissioner from June 23, 1979 to
December 19, 1979. According to Mr.
Venugopal the office of the Assistant to
which Srivastava was appointed for a
period of about six months was a judicial
office. According to him period for which
he held the judicial office and the
quality of the said office are not
relevant factors. He therefore,
forcefully contended that Srivastava,
having held the judicial office of
Assistant to the Deputy Commissioner
under the 1937 Rules he fulfills the
qualification under Article 217(2)(a)
read with (a) to the Explanation.
25
According to him all the offices held by
Srivastava after relinquishing the office
of the Assistant to the Deputy
Commissioner required special knowledge
of law and as such whole of that period
is liable to be included for counting 10
years during which he held a judicial
office. Srivastava, according to him, is
qualified for appointment as a judge of a
High Court.
32. We have given our thoughtful
consideration to the argument advanced by
Mr. Venugopal. We are not inclined to
agree with him.”
21. Thus, the observation in Shri Kumar Padma Prasad
(supra), in paragraph 35 as extracted above was in the
above context. This Court was not concerned with the
issue which is raised in the present writ petition as
to whether the person should be holding a Judicial
Office at the time of his appointment as Additional
Judge of the High Court, although, he held a Judicial
Office of the State when his name was recommended by
the High Court for Additional Judge. Thus, the
observations made by this Court in paragraphs 25, 35
and 41 do not support the contentions which are sought
to be raised by the petitioner.
26
22. Shri Maninder Singh, learned Additional Solicitor
General submitted that Article 217(2)(a) uses the words
'held' a Judicial Office which means that a person who
has held Judicial Office at least for a period of 10
years is eligible for appointment as Additional Judge.
23. The word 'held' has been defined in Words and
Phrases Permanent Edition, Volume 19 to the following
effect:
"Held has no primary or technical
meaning and its meaning is determined
largely by connection in which it is
used. State v. Thomson, 449 P.2d 656,
659, 79 N.M. 748.
Perfect participle “held” has no
connotation of time. Holman Transfer Co.
v. City of Portland, 350 P.2d 929, 930,
196 Or. 551.”
24. The word 'held' as used in Article 217(2)(a)
indicates that what is prescribed is qualification for
appointment of a Judge of the High Court is that a
person has for at least 10 years held a judicial office
in the territory of India. Use of word 'held' in the
above clause does not indicate that qualification is
27
also meant that apart from holding 10 years a judicial
office, the incumbent should also be holding the
judicial office at the time notification under Article
224 is issued.
25. The above conclusion is also supported by taking
into consideration the Explanation (a) and (aa) to
Article 217(2). When Explanation (a) provides that in
computing the period during which a person has held
judicial office in the territory of India, there shall
be included any period, after he has held any judicial
office, during which the person has been an Advocate of
a High Court or has held the office of a member of a
tribunal or any post, under the Union or a State,
requiring special knowledge of law.
26. A plain reading of eligibility as provided under
Article 217(2)(a) does not make the respondent Nos.2
and 3 ineligible for appointment as Additional Judges
of the Rajasthan High Court. This Court's judgment in
Shri Kumar Padma Prasad (supra) does not support the
submission which is pressed by the petitioners before
28
us. We, thus, do not find force in the second
submission of the petitioner.
27. Before parting with this case we need to remind
ourselves the purpose and object for which Article 224
of the Constitution was substituted by the Constitution
Seventh Amendment of 1956. Appointment of Additional
Judges was envisaged as appointment to cope with the
increased work load of cases in different High Courts.
The temporary increase in the business of the High
Court or by reason of arrears of work therein was a
reason for appointment or reason for invoking power
under Article 224, although as noted by Constitution
Bench in S.P. Gupta's case (supra) by lapse of time the
use of Article 224 has been substantially changed. But
there is no denying that to cope with the increase in
business of the High Court and the arrears of cases
emergent steps are needed by all to fulfil the object
and purpose for which constitutional provision was
brought in place, enormous delay in appointment of
Judges of the High Courts not only frustrate the
purpose and object for which Article 224(1) was brought
into the Constitution but belies the hope and trust of
29
litigant who comes to the High Courts seeking justice
and early disposal of their cases.
28. In Supreme Court AdvocatesonRecord Association
and Others v. Union of India, (1993) 4 SCC 441, this
Court expressed in categorical terms that the process
of appointment must be initiated at least one month
prior to the date of an anticipated vacancy. It was
done to achieve an ideal situation, namely, to ensure
that the post is filled up immediately after the
occurrence of the vacancy so that no time is lost.
Unfortunately, it still remains a far cry. In the
first instance, names are not forwarded by the High
Court in time. What to talk of sending the names one
month before the occurrence of an anticipated vacancy,
names are not forwarded even much after the vacancy has
occurred. It is also seen that once the names are
forwarded, they remain pending at the Executive level
for unduly long time, before they are sent to the
Collegium of the Supreme Court for approval along with
the inputs of the Executive. Even after the clearance
of the names by the Collegium, these remain pending at
the level of the Executive. All this results in
30
inordinate delay. Sometimes, it takes more than one
year to complete the process from the date of
forwarding the names till appointment. There are
instances where time consumed is much more than one
year even. In the case of judicial officers of
subordinate judiciary, who are recommended for
appointment to the High Court, this process of
consuming so much time adversely affects their tenure.
It is a matter of common knowledge that most of the
judicial officers get a chance for elevation when only
few years’ service is left. Thus, when unduly long time
is taken, even this lesser tenure gets further reduced.
It also gives rise to the situation like the present
one. Equally, members of the Bar, whose names are
recommended for elevation to the High Court, undergo
hardships of a different kind. It is unjust that the
fate of such persons remains in limbo for indefinite
periods and gives rise to unnecessary conjectural
debates. It leads to unpleasant situations which can
be avoided. It is, therefore, in the interest of all
the stakeholders, including the judiciary, that
definite timelines are drawn for each stage of the
31
process, so that process of appointment is accomplished
within a time bound manner. We need not say more. It
is more so, to keep hope and aspiration of litigants
alive and to fulfil the commitment of providing a
speedy justice the process of appointment of Judges of
the High Court needs more expedition at the hands of
all who have to discharge the constitutional
obligation entrusted by the Constitution of India. With
these observations, we dismiss the writ petition.
...............................J.
( A.K. SIKRI )
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 23, 2018.
