M/S. PLR PROJECTS PVT. LTD.versusMAHANADI COALFIELDS LTD. & ORS.

                           [2021] 4 S.C.R. 153                               153


                  M/s. PLR PROJECTS PVT. LTD.                                A
                                    v.
            MAHANADI COALFIELDS LTD. & ORS.
              (Transfer Petition (Civil) No. 2419 of 2019)
                             APRIL 20, 2021                                  B
       [S.A. BOBDE, CJI, SANJAY KISHAN KAUL AND
                          SURYA KANT, JJ.]
       Judiciary – Appointment of High Court Judges – Vacancies
in High Courts – Certain timelines were stated for appointment of
Judges to the High Court in the Memorandum of Procedure as                   C
finalized by the Supreme Court Collegium on 10.03.2017 – In order
to facilitate timely appointment, following additional timelines
advised – The Intellligence Bureau (IB) would submit its report/
inputs within 4 to 6 weeks from the date of recommendation of the
High Court Collegium, to the Central Government – The Central                D
Government would then forward the file(s)/recommendations to the
Supreme Court within 8 to 12 weeks from the date of receipt of
views from the State Government and the report/input from the IB –
The Government would thereafter proceed to make the appointment
immediately on the aforesaid consideration – In case of
Government’s reservations on suitability or in public interest, within       E
the same period of time it may be sent back to the Supreme Court
Collegium with the specific reasons for reservation recorded – If
the Supreme Court Collegium after consideration of the aforesaid
inputs still reiterates the recommendation(s) unanimously (Cl. 24.1),
such appointment should be processed and appointment should be               F
made within 3 to 4 weeks.
      Third Judge’s case (1998) 7 SCC (Special Reference
      1 of 1998) – referred to
     CIVIL ORIGINAL JURISDICTION : Transfer Petition (Civil)
No.2419 of 2019.                                                             G
       Petition under Article 139A(2) of the Constitution of India seeking
transfer of Writ Petition Civil No. 17476 of 2019 Pending before the
High Court of Odisha, Cuttack to the Hon’ble High Court of Telangana
or any other High Court.
                                                                             H
                                   153
154            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A           Kaushik Poddar, Adv. for the Petitioner.
            Sunil Kumar, Ravindra Shrivastava, Ashok Panda, Vikas Singh,
      Mahalakshmi Pavani, Sr. Advs., Sibo Sankar Mishra, Niranjan Sahu,
      Umakant Mishra, Ashok Kumar Singh, Rajiv Sinha, Kunal Chatterji, Ms.
      Maitrayee Banerjee, Pravar Veer Misra, Kedar Nath Tripathy, Ms.
B     Preetika Dwivedi, S.N. Bhat, V.N. Raghupathy, Shibashish Misra,
      Dhananjai Jain, Gautam Narayan, Ms. Asmita Singh, Ms. Dacchita Shahi,
      Adithya Nair, Ms. RitikaVohra, Shantanu Sagar, Himanshu Shekhar,
      Jamnesh Kumar, Mrs. K. Enatoli Sema, Amit Kumar Singh, Apratim
      Animesh Thakur, Ms. Prachihasija, Arjun Garg, Ms. Shrutika Garg, Gopal
      Jha, Shreyash Bhardwaj, Ms. Renuka Sahu, Abhimanyu Tewari, Naresh
C     K. Sharma, Aniruddha P. Mayee, Ms. Shobha Gupta, Ms. Sneha Kalita,
      Ms. Prerna Kumari, Ms. Bristi Rekha Mahanta, Ms. Sudha Pal, Ms.
      Mansa Singh, Ms. Bhakti Pasrija Sethi, Ms. Priyanka S. Mathur, Ms.
      Deepika Kalra, Ms. Preeti Singh, Ms. Reena Rao, Ms. Ruchi Khurana,
      Ms. Sakie Jhakaria, Ms. Savita Singh, Ms. Sobha, Ms. Swati Garg, Ms.
D     Yugandhara Pawar Jha, Ms. Priyanka Das, Ms. Ritu Bharadwaj, Ms.
      Manjula Gupta, Ms. Madhumita Bhattacharjee, Ms. Subra Saha, Ms.
      Neka Tandon Phookan, Ms. Inklee Roy Baruah, Ms. Maheravish Rein,
      Ms. Supriya Jain, Ms. Jessy Kurian, Advs. for the Respondents.
            The following order of the Court was passed:
E                                     ORDER
            1. The High Courts are in a crisis situation. There are almost 40%
      vacancies in the High Courts, with many of the larger High Courts working
      under 50% of their sanctioned strength.

F            2. We have discussed in detail the aforesaid while dealing with
      the aspect of appointment of ad hoc Judges under Article 224A of the
      Constitution of India in WP(C) No.1236/2019. Vide separate order in
      the aforementioned matter passed today, we have also discussed the
      process of appointment under Articles 217 & 224 of the Constitution of
      India.
G
             3. Learned Attorney General has placed before us the appointment
      position in the High Courts to contend that against the sanctioned strength
      of 1080 Judges, 664 Judges have been appointed with vacancies of 416
      Judges. However, the recommendations received and under process
      with the Government are 196 leaving 220 recommendations to be
H     received.
M/S. PLR PROJECTS PVT. LTD. v. MAHANADI COALFIELDS                             155
                    LTD. & ORS.

       4. We cannot but note the importance of the Chief Justices of the       A
High Courts making recommendations in time. The vacancies are known
and the norms permit making recommendations up to six months in
advance. However, even recommendations for 220 existing vacancies
appear not to have been made much less for vacancies, which are going
to arise in the next six months.
                                                                               B
       5. We, thus, once again, emphasise the requirement and desirability
of the Chief Justices of the High Courts, who will make endeavour to
recommend vacancies as early as possible even if they are not made at
one go. We may add that even in the earlier orders we have noted the
apparent hesitation of some High Courts to recommend names when
the earlier list(s) is in the pipeline. We have opined that there is no such   C
impediment to initiate a new process without waiting for the result of the
earlier recommendations.
        6. We had handed over a chart in the previous proceedings to the
learned Attorney General of the names recommended from the High
Courts which were still pending with the Government for more than six          D
months, numbering 45. The last couple of weeks has seen progress in
this behalf and those names have reached the Collegium. The second
was the list of old proposals in pipeline pending with the Government of
India after the Supreme Court Collegium recommendations numbering
10. These have been pending for considerable period of time. On the            E
last date of hearing, the learned Attorney General had made a statement
that a decision would be taken in this behalf within the next three months.
Six names reiterated by the Supreme Court Collegium a second time,
are also awaiting appointment.
       7. Learned Attorney General did not differ with the requirement         F
of time bound schedule for filling the vacancies at every stage though he
emphasised that the trigger for filling up of the vacancies is the
recommendations made by the Chief Justices of the High Courts.
However, once the recommendations are made, there are two stages at
which the matter rests with the Government – the first when the Ministry
processes the names; and the second post the Collegium of the Supreme          G
Court taking a call in recommending such of the names as are approved
by the Collegium.
       8. Insofar as the Judiciary is concerned, the second stage after
the recommendations are made by the Collegium of the High Courts is
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156              SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A     the time period taken by the Collegium of the Supreme Court in consulting
      the consultee Judge(s) to take a call on those names.
             9. We have looked at the Memorandum of Procedure (for short
      ‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017 (which
      is identical to the MoP of 1999 subsisting earlier on these aspects) where
B     certain timelines have been stated for appointment of Judges to the High
      Court. In terms of the timeline prescribed in the MoP, the relevant paras
      21, 24 & 24.1 of the existing MoP are as under:
            a.     States may take not more than six weeks to send their views.
                   (Cl. 21)
C           b.     The Central Government can presume no objection of the
                   State Government, if their views are not received within
                   six weeks. (Cl. 21)
            c.     No timeline prescribed for the Central Government to
                   forward recommendations.
D
            d.     The Chief Justice of India to send recommendations/advise
                   to the Law Minister within four weeks. (Cl. 24)
            e.     The Law Minister to put up the proposal to the Prime
                   Minister within three weeks for advise of the President.
                   (Cl. 24.1)
E
            10. It was submitted that if this Court considers laying down
      timelines, it would be contrary to the observations made in the Third
      Judge’s case (!998) 7 SCC (Special Reference 1 of 1998). In para 31,
      the Court referred the Second Judge’s case and observed as follows:
F           “31. In the context of the judicial review of appointments, the
            majority judgment in the Second Judges case said: (SCC pp.707-
            08, para 480)
            “Plurality of Judges in the formation of the opinion of the Chief
            Justice of India, as indicated, is another inbuilt check against the
G           likelihood of arbitrariness or bias….. The judicial element being
            predominant in the case of appointments…., as indicated, the need
            for further judicial review, as in other executive actions, is
            eliminate.”
            The judgment added : (SCC p.708, para 482)
H
M/S. PLR PROJECTS PVT. LTD. v. MAHANADI COALFIELDS                                 157
                    LTD. & ORS.

       “Except on the ground of want of consultation with the named                A
       constitutional functionaries or lack of any condition of eligibility in
       the case of an appointment, …. these matters are not justiciable
       on any other ground….”
      It is not possible to accept this contention since the above
observations of the Court deal with the judicial review of particular              B
appointment and not such aspects of the appointment process like delay.
      11. In the conspectus of the aforesaid and in order to facilitate
timely appointment, we are of the view that it would be advisable to
follow the following timelines in addition to the aforesaid:
       i.       The Intelligence Bureau (IB) should submit its report/inputs       C
                within 4 to 6 weeks from the date of recommendation of
                the High Court Collegium, to the Central Government.
       ii.      It would be desirable that the Central Government forward
                the file(s)/recommendations to the Supreme Court within 8
                to 12 weeks from the date of receipt of views from the             D
                State Government and the report/input from the IB.
       iii.     It would be for the Government to thereafter proceed to
                make the appointment immediately on the aforesaid
                consideration and undoubtedly if Government has any
                reservations on suitability or in public interest, within the      E
                same period of time it may be sent back to the Supreme
                Court Collegium with the specific reasons for reservation
                recorded.
                If the Supreme Court Collegium after consideration of the
                aforesaid inputs still reiterates the recommendation(s)            F
                unanimously (Cl. 24.1), such appointment should be
                processed and appointment should be made within 3 to 4
                weeks.
       12. We are conscious that the aforesaid exercise is collaborative
in nature and we would expect promptness in this process to facilitate             G
the larger cause of dispensation of timely justice.
       13. With the above directions, we close this proceeding.

Devika Gujral                                                 Directions issued.
                                                                                   H