THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTIONIN
Writ Petition (C) NO.835 of 2017
Petitioner
Sunil Samdaria
Respondent
Union of India, Ministry of Law and Justice and Ors.
Date of Judgement
23rd February, 2018
Bench
Justice Ashok Bhushan; Justice A.K. Sikri
Background
The petitioner, a practicing Advocate of Rajasthan High Court filed a writ petition under Article 32 of the Constitution of India. Notification dated 12.05.2017 regarding the appointment of respondent Nos.2 and 3 as Additional Judges of Rajasthan High Court was questioned by the petitioner. Respondent No.1 i.e. the Union of India filed a counter-affidavit.
Statute and provisions involved
- Article 217(2), Article 224, Article 236(b) of the Constitution of India
Facts
- Respondent Nos. 2 and 3 retired from the post of District Judge. They were retired on 30.09.2016 and 31.07.2016 as both the judges attained 60 years by that time. They were the members of Judicial Service of the State of Rajasthan.
- The notification was issued on 12.05.17 to respondent no. 2 & 3 by appointing them as additional judges of Rajasthan high court. But they were not eligible for the post as they didn’t hold the judicial office anymore as per the eligibility criteria mentioned in Article 217(2) of the Constitution of India.
Issue
- Whether it is necessary for a person whose name was recommended to be appointed as an additional judge of the High Court to hold a judicial office at the time of recommendation?
Contention
Petitioner’s Contention
- As per the Article 217(2) of the Indian Constitution regarding the appointment of the High Court Judges respondent no. 2 & 3 do not possess eligibility for appointment as Additional Judges of the High Court has long retired from Judicial Service.
- So the appointment should be declared void as the petitioner claimed. The petitioner relied on the judgment given in the case of Sri Kumara Padma PrasadUnion of India and others[1]. As defined under Article 236(b) of the Indian Constitution the term “judicial office” means an office that belongs to judicial services. Therefore, to hold a judicial office that person has to be a part of judicial service.
Respondent’s Contention
- The respondent in order to refute the contention given by the petitioner claimed that the appointment was done in consonance with the article 217(2) & 224. As the respondent no. 2&3 held the office of judicial services as district judges for more than 10 years hence they are eligible to be appointed as Additional Judges of the High Court.
- Both the respondent no. 2 & 3 will attain the superannuation age i.e. 62 after the date of 01.09.2018 and 02.07.2018 respectively. As their appointment has been done in accordance with Article 224 of the Indian Constitution the maximum period for the appointment hence it is neither null nor void as claimed by the petitioner. They further claimed that the judgment of the case of Sri Kumar Padma Prasad v. Union of India,[2] can’t be relied upon as that case is not suitable for application here.
Judgment
The Supreme Court dismissed the petition.
Ratio Decidendi
- The word ‘held’ as mentioned in Article 217(2)(a) shows that what is recommended is the eligibility for the appointment of a Judge of the High Court is that an individual has for in any event 10 years held a legal office in the region of India.
- The word ‘held’ which is used in the above section doesn’t show that eligibility is likewise implied that besides holding 10 years a legal office, the officeholder ought to likewise be holding the judicial office at the time when under Article 224 notification was is given.
- The above conclusion is additionally upheld by thinking about the Explanation (a) and (aa) to Article 217(2). At the point when Explanation (a) gives that in registering the period during which an individual has held a judicial office in the region of India, there will be incorporated any period, after he has held any judicial office, during which the individual has been an Advocate of a High Court or has held the workplace of an individual from a council or any post, under the Union or a State, requiring uncommon information on the law.
- A plain perusing of qualification as given under Article 217(2)(a) doesn’t make the respondent Nos.2 and 3 ineligible for the appointment as Additional Judges of the Rajasthan High Court. This current Court’s judgment in Shri Kumar Padma Prasad case[3] doesn’t bolster the contention which is pressed by the petitioner. Along these lines, don’t discover the power in the second submission of the petitioner. Before leaving behind this case we have to remember the reason and item for which Article 224 of the Constitution was substituted by the Constitution Seventh Amendment of 1956.
- The Appointment of Additional Judges was conceived as to cope with the expanded burden of cases in various High Courts. Dependence was likewise set on the Supreme Court’s judgment on account of Supreme Court Advocates on Record Association and Others v. Association of India[4], wherein the Apex Court was of the view that the procedure of appointment must be started in any event one month before the date of a vacancy i.e. foreseeable. The Court commented that the equivalent was done with the goal to guarantee that the post is filled up following the event of the vacancy so no time is lost.
Obiter Dicta
- In spite of the fact that the Additional Judges were at first designated for a time of two years they have further selected only for a 3 month time and after that, just one proceeded for a time of one year. The Constitution Bench having seen the intent and purposes behind Article 224 has seen that when arrears of pending cases are with the end goal that they can’t in any way, shape or form be discarded then the reason and object of appointment of Additional Judges is that appointment ought to be allowed for a long time and no less. In any case, the above perception of the Constitution Bench must be perused in reference to the purpose for which it was made.
- Before the Constitution Bench, the inquiry regarding when the remaining tenure of an individual to be selected as Additional Judge is under two years, regardless of whether such appointment is in congruity with Article 224 or not, was neither gone into nor any assessment was communicated while an observation made underpins the view that for a situation where Additional Judge has been delegated for a time of two years, he would cease to be a Judge on the off chance that he accomplishes the age of 62 years preceding the lapse of his term of two years.
- This unmistakably bolsters the tenure of the appointment of Additional Judges who have less than two years to retire isn’t in contradiction with Article 224.
Conclusion
Because of this case, two interesting development occurred. Those two crucial observations are regarding the arrangement of Additional High Court Judges. Right off the bat, that a retired District Judge can be named as Additional High Court Judge and besides that, the tenure of an Additional High Court Judge can be under 2 years.[5]
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1]Sri Kumara Padma Prasad v. Union of India and others, 1992 (2) SCC 428.
[2] Id.
[3] Id.
[4] Supreme Court Advocates on Record Association and Others v. Association of India (1993) 4 SCC 441.
[5] VakilNo1.com, SC: Retired District Judge can be appointed as Additional Judge of High Court, Legal News, (Feb 27, 2020, 4:20 pm) https://www.vakilno1.com/legal-news/sc-appointment-retired-district-judge.html.
