Supreme Court of India
SUNIL SAMDARIAversusUNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF LAW AND JUSTICE AND OTHERS
- Citation
- 2018 INSC 202
- Decided
- 23 February 2018
- Disposal
- Dismissed
- Bench
- A K SIKRI
Holding
Appointments of Additional Judges for less than two years are constitutionally valid, and retired judicial officers who have previously held a judicial office for at least ten years are eligible for such appointments.
Summary
Sunil Samdaria challenged the appointment of two retired district judges as Additional Judges of the Rajasthan High Court, arguing that the appointments violated Article 224 because they were for less than two years and that the retirees were ineligible under Article 217(2)(a) as they were not holding a judicial office at the time of appointment. The Supreme Court held that Article 224 permits appointments for any period not exceeding two years and does not require the full two‑year term when the judge would retire before that period; thus the short tenure was constitutionally valid. It also clarified that the word “held” in Article 217(2)(a) merely requires a past ten‑year judicial service, not current holding of office, and the explanations to the article support this interpretation. Consequently, the petition was dismissed. The Court emphasized the purpose of Article 224 to address temporary workload increases and called for timely appointments to avoid delays in justice delivery.
Issues considered
- The validity of appointing Additional Judges for a period of less than two years under Article 224 of the Constitution.
- The eligibility of retired judicial officers who are not holding a judicial office at the time of appointment under Article 217(2)(a).
Legislation cited
- Constitution of Indias. Art.217(2)(a), s. Art.224(1), s. Art.224(3)
- Constitution (Seventh Amendment) Act, 1956
Subjects
Article 224Additional JudgeHigh CourtJudicial ServiceEligibilityConstitution of IndiaRetirement ageAppointment processWrit petitionArticle 217
Judgment
[2018] 10 S.C.R. 289 289
SUNIL SAMDARIA A
v.
UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF
LAW AND JUSTICE AND OTHERS
(Writ Petition (C) No. 835 of 2017) B
FEBRUARY 23, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India – Arts. 217 and 224 – Appointment of
Additional Judges of High Court – Petitioner challenged
C
appointment of respondent nos.2 and 3 as Additional Judges of
High Court on two grounds – Firstly, both the appointments having
been made for a period of less than two years violates Art.224 and
secondly, both respondents were retired members of judicial service
of the State and notification was issued when both were not holding
a judicial office, hence they were not eligible for appointment as D
Additional Judges of the High Court u/Art. 217(2) – Held:
Respondent Nos.2 and 3 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 – Notification appointing respondent
Nos.2 and 3 was issued on 12.05.2017 by which appointment of
E
respondent no.2 was made till 01.09.2018 whereas the appointment
of respondent no.3 was made till 02.07.2018 – 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 Art.224 or not, was neither gone into nor any opinion
was expressed by the Supreme Court in the case of S.P .Gupta F
whereas an observation was made therein which supports the view
that in case where Additional Judge has been appointed for a period
of two years, he would cease to be 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 Judges who
G
have less than two years to retire is not contrary to Art.224 – Insofar
as second ground is concerned, a plain reading of eligibility as
provided u/Art.217(2)(a) does not make the respondent nos.2 and
3 ineligible for appointment as Additional Judge of the High Court
– Art.217(2)(a) does not indicate that qualification is also meant
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289
290 SUPREME COURT REPORTS [2018] 10 S.C.R.
A that apart from holding 10 years a judicial office, the incumbent
should also be holding judicial office at the time notification u/
Art.224 is issued.
Constitution of India – Art.224 – Purpose and object – Held:
Appointment of Additional Judges was envisaged as appointment
B 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 u/Art.224 – But to cope with the
increase in business of the High Court and the arrears of cases
emergent steps are needed by all to fulfill the object and purpose
C 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 Art.224(1) was brought into the
Constitution but belies the hope and trust of litigant who comes to
the High Courts seeking justice and early disposal of their cases –
D It is, therefore, in the interest of all the stakeholders, including the
judiciary, that definite timelines are drawn for each stage of the
process, so that process of appointment is accomplished within a
time bound manner.
Constitution of India – Art.217(2)(a) – Qualification for
E appointment of a Judge of the High Court – Use of word ‘held’ in
Art.217(2)(a) – Words and Phrases.
Dismissing the writ petition, the Court
HELD: 1.1 Article 224 of the Constitution of India provides
for appointment of Additional and Acting Judges. The period for
F 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 case has considered in detail
Article 224 of the Constitution, its purpose and object. [Para 8]
[296-D-E]
G 1.2 The observations were made by the Constitution Bench
in the S.P. Gupta case that when although three Additional Judges
were initially appointed for a 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
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 291
OF LAW AND JUSTICE
that when arrears of pending cases are such that they cannot A
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
B
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 the Judgment which supports the view that in a case
where Additional Judge has been appointed for a period of two C
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 Judges who
have less than two years to retire is not contrary to Article 224.
The observations of the Constitution Bench in S.P. Gupta case
D
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. [Paras 14 and 15] [301-E-H; 302-A-B, C]
2.1 The word ‘held’ as used in Article 217(2)(a) indicates
that what is prescribed is qualification for appointment of a Judge E
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 also meant
that apart from holding 10 years a judicial office, the incumbent
should also be holding the judicial office at the time notification F
under Article 224 is issued. [Para 24] [306-G-H]
2.2 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, G
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.
[Para 25] [307-A-B]
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292 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 2.3 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.
[Para 26] [307-B-C]
3. The purpose and object for which Article 224 of the
B Constitution was substituted by the Constitution Seventh
Amendment of 1956 needs to be seen. 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
C invoking power under Article 224, although as noted by
Constitution Bench in S.P. Gupta’s case 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
D 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 litigant who comes to the High Courts
seeking justice and early disposal of their cases. [Para 27] [307-
E D-F]
S.P. Gupta v. Union of India and Ors., (1981) Suppl.
SCC 87 : [1982] 2 SCR 365; Shri Kumar Padma Prasad
v. Union of India others (1992) 2 SCC 428 : [1992] 2
SCR 109; Chandra Mohan v. State of U.P. AIR 1966
F SC 1987; Supreme Court Advocates-on-Record
Association and Others v. Union of India (1993) 4 SCC
441 : [1993] 2 Suppl. SCR 659; – referred to.
Case Law Reference
G [1982] 2 SCR 365 referred to Para 3
[1992] 2 SCR 109 referred to Para 3
AIR 1966 SC 1987 referred to Para 17
[1993] 2 Suppl. SCR 659 referred to Para 28
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
835 of 2017.
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 293
OF LAW AND JUSTICE
Under Article 32 of the Constitution of India A
Sunil Samdaria (Petitioner-in-Person).
Maninder Singh, ASG, Ms. Madhavi Divan, R. Balasubramanian,
Prabhas Bajaj, Akshay Amrianshu, Ms. Aarti Sharma, Mukesh Kumar
Maroria, Advs. for the Respondents.
B
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. 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 C
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.
2. We have heard the petitioner, appearing in-person and Shri
Maninder Singh, learned Additional Solicitor General of India for the D
respondent.
3. The petitioner appearing in-person 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 E
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
F
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 non-est and void.
Reliance has been placed on Constitution Bench judgment of
this Court in S.P. Gupta vs. Union of India and another, G
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
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294 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
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 non-est and void. Petitioner
C 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
D 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
E 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.
F Gupta (supra) supports the contention advanced by the petitioner in
the present case.
5. We have considered the submissions of the petitioner in-person
and learned Additional Solicitor General for the Union of India and
perused the record.
G 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
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 295
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
letter dated 18.02.2016. On the date their names were recommended, A
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
B
and Justice. The Government of India, Ministry of Law and Justice,
after processing the recommendation forwarded the same for
consideration of 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 C
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)
D
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 E
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 is to the following effect:
“NOTIFICATION
In exercise of the powers conferred by Clause(1) of Article F
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. G
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.
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296 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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/-
B
(S.C. BARMMA)
Joint Secretary to the Government of India
Tele:23072142"
C 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 teeth of law laid down by S.P. Gupta (supra).
8. Article 224 of the Constitution of India provides for appointment
D 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
E 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
F 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
G jurisdiction, powers and privileges of, but shall not otherwise
be deemed 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.”
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 297
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
9. Article 224 as originally contained in the Constitution did not A
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:
B
“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 C
of the Court for such period not exceeding two years as he
may specify.
(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 D
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 E
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:
F
“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 G
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 Additional Judges would be
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298 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
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
C 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
D
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....”
E 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 practically Article 224 was utilised has been
categorically stated in paragraph 38 of the Constitution Bench judgment
in the following words:
F “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
G 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
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 299
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
vacancy in the post of a permanent Judge became available A
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 re-appointed
as an Additional Judge for a further term in the same High
Court, Therefore, far from being aware that on the expiration
B
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 C
expectation that they would not have to go back on the
expiration of 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
D
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 E
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
F
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 G
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 Judges came to be considered was
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300 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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 short-term 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
B
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 short-
term appointment. It was contended that such short-term appointments
C 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 year from 07.06.1981. S/Shri O.N. Vohra and S.N.
Kumar were not continued for a further term.
D
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
E 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
F 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
G 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 ambit of Clause (1) of Article
224. We cannot accept this argument. It is no doubt true that
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SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 301
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
Clause (1) of (the) Article fixes the outer limit for the term for A
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
B
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 C
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
D
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 E
Bench in the background when although three Additional Judges were
initially appointed for a 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 F
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 G
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 H
302 SUPREME COURT REPORTS [2018] 10 S.C.R.
A prior to the expiration of his term of two years. This clearly supports that
the tenure of appointment of Additional 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
B 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.”
C 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.
D
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
appointment as Additional Judges they were members of the Judicial
Service of the State but the day they were issued appointment under
E 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
F 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
G 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 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
H the State. In paragraph 25 following was held:
SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 303
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
“25. It is thus, clear that the expression “judicial office” A
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
B
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 C
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 D
217(2)(a) 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 E
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.” F
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” G
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. H
304 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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.
xxx xxx xxx xxx
B 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
C 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.
D
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
E 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
F 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 judgment. There shall be no
G 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
H
SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 305
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
that the word ‘Judicial Office’ under Article 217(2)(a) means a subsisting A
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
B
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:
“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 C
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 D
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 E
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 F
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 G
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. According to him all the offices held
by Srivastava after relinquishing the office of the Assistant to H
306 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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.
B 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
C 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
D support the contentions which are sought to be raised by the petitioner.
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.
E
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
F 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
G 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 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.
H
SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRY 307
OF LAW AND JUSTICE [ASHOK BHUSHAN, J.]
25. The above conclusion is also supported by taking into A
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
B
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 C
which is pressed by the petitioners before 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 D
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 E
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 F
Article 224(1) was brought into the Constitution but belies the hope and
trust of litigant who comes to the High Courts seeking justice and early
disposal of their cases.
28. In Supreme Court Advocates-on-Record Association and
Others v. Union of India, (1993) 4 SCC 441, this Court expressed in G
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 H
308 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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.
B
Even after the clearance of the names by the Collegium, these remain
pending at the level of the Executive. All this results in 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
C 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
D
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
E the interest of all the stakeholders, including the judiciary, that definite
timelines are drawn for each stage of the 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
F
hands of all who have to discharge the constitutional obligation entrusted
by the Constitution of India. With these observations, we dismiss the
writ petition.
Ankit Gyan Writ Petition dismissed.
G
H
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