The Supreme Court on Monday gave green signal for appointment ad-hoc judges to High Courts under Article 224A of the Constitution (Lok Prahari through its General Secretary SN Shukla v. Union of India).
The top court ruled that a vacancy position of more than 20 percent of the sanctioned strength of the High Court should be the trigger for the Chief Justice of the concerned High Court to initiate the appointment of ad hoc judges.
The judgment delivered by a Bench of Chief Justice of India, SA Bobde and Justices Sanjay Kishan Kaul and Surya Kant in a petition filed by NGO Lok Prahari.
As per the judgment, other considerations for the appointment of the ad hoc judges would be:
– Cases in a particular category are pending for over five years.
– More than 10 percent of pending cases are over five years old.
– The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court
– Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.
However, the top court made it clear that the process will not be a substitute for regular appointments.
“We have already observed that the recourse to Article 224A is not an alternative to regular appointments. In order to emphasise this aspect, we clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise,” said the judgment.
As far as the guidelines concerning the pre-recommendation process is concerned, the Supreme Court ruled that the High Court Chief should take into account the following:
– Past performance of recommenders in both quality and quantum of disposal of cases;
– Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year;
“However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court,” the judgment said.
Regarding the methodology of appointment, the top court stuck to para 24 of the Memorandum of Procedure laying down a procedure for appointment under Article 224A of the Constitution.
However, since the judges are already appointed to the post through a warrant of appointment, the occasion to refer the matter to the IB or other agencies would not arise in such a case, which would itself shorten the time period, the Court noted.
The Court clarified that a period of about three months should be sufficient to process a recommendation and, thus, ideally a Chief Justice should start the process three months in advance.
Carving out the role of ad-hoc judges, the three-judge Bench stated that the primary objective would be to deal with long pending arrears and that the said objective will be “subserved by assigning more than five year old cases to the ad hoc Judges so appointed”.
However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind
The Supreme Court also barred an ad hoc Judge from performing any other legal work whether it be advisory, arbitration or appearance.
With respect to emoluments and allowances of an ad hoc Judge, the top court ordered that it should be at par with a permanent judge of that Court at the relevant stage of time minus the pension.
“The emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances,” the Court said.
Further, the number of ad hoc Judges should be in the range of two to five in a High Court.
The top court has kept the case as containing mandamus and stated that it would not be appropriate to close the present proceedings to work out the most effective method of taking recourse to Article 224A of the Constitution.
“We may note that unlike a writ remedy, a continuing mandamus is an innovative procedure not a substantive one which allows the Court an effective basis to ensure that the fruits of a judgment can be enjoyed by the right-bearers, and its realisation is not hindered by administrative and/or political recalcitrance. It is a means devised to ensure that the administration of justice translates into tangible benefits,” the Supreme Court elaborated.
The case will, therefore, be heard again after four months.
During the hearing of the case, the Central government had expressed reservations regarding appointment of ad-hoc judges stating such appointments could be derogatory to the concerned judge and retired judges might be more interested in other lucrative avenues like arbitration.
CJI Bobde had, however, brushed aside such concerns stating that the consent of the concerned judge would be obtained before he/ she is appointed as ad-hoc judge.
“The CJI will definitely have a talk with the retired judge who is proposed to be appointed. If the judge think he has something better to do, he will say no. This is not bonded slavery,” he had said.