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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 counter­

affidavit has been filed by the Union of India­

respondent 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

2nd  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

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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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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

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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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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

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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

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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:

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“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

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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

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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

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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

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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

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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.