SUNIL SAMDARIA versus UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF LAW AND JUSTICE AND OTHERS on 23 February 2018

[2018] 10 S.C.R. 289

SUNIL SAMDARIA

v.

UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OFLAW AND JUSTICE AND OTHERS

(Writ Petition (C) No. 835 of 2017)

FEBRUARY 23, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Constitution of India – Arts. 217 and 224 – Appointment ofAdditional Judges of High Court – Petitioner challengedappointment of respondent nos.2 and 3 as Additional Judges ofHigh Court on two grounds – Firstly, both the appointments havingbeen made for a period of less than two years violates Art.224 andsecondly, both respondents were retired members of judicial serviceof the State and notification was issued when both were not holdinga judicial office, hence they were not eligible for appointment asAdditional Judges of the High Court u/Art. 217(2) – Held:Respondent Nos.2 and 3 retired from the post of District Judgerespectively on 30.09.2016 and 31.07.2016 after attaining the ageof superannuation of 60 years – Notification appointing respondentNos.2 and 3 was issued on 12.05.2017 by which appointment ofrespondent no.2 was made till 01.09.2018 whereas the appointmentof respondent no.3 was made till 02.07.2018 – The question as towhen remaining tenure of a person to be appointed as AdditionalJudge is less than two years, whether such appointment is inconformity with Art.224 or not, was neither gone into nor any opinionwas expressed by the Supreme Court in the case of S.P .Guptawhereas an observation was made therein which supports the viewthat in case where Additional Judge has been appointed for a periodof two years, he would cease to be Judge if he attains the age of 62years prior to the expiration of his term of two years – This clearlysupports that the tenure of appointment of Additional Judges whohave less than two years to retire is not contrary to Art.224 – Insofaras second ground is concerned, a plain reading of eligibility asprovided u/Art.217(2)(a) does not make the respondent nos.2 and3 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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Athat apart from holding 10 years a judicial office, the incumbentshould 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 appointmentBto cope with the increased work load of cases in different HighCourts – The temporary increase in the business of the High Courtor by reason of arrears of work therein was a reason for appointmentor reason for invoking power u/Art.224 – But to cope with theincrease in business of the High Court and the arrears of casesemergent steps are needed by all to fulfill the object and purposeCfor which constitutional provision was brought in place, enormousdelay in appointment of Judges of the High Courts not only frustratethe purpose and object for which Art.224(1) was brought into theConstitution but belies the hope and trust of litigant who comes tothe High Courts seeking justice and early disposal of their cases –DIt is, therefore, in the interest of all the stakeholders, including thejudiciary, that definite timelines are drawn for each stage of theprocess, so that process of appointment is accomplished within atime bound manner.

Constitution of India – Art.217(2)(a) – Qualification forEappointment of a Judge of the High Court – Use of word ‘held’ inArt.217(2)(a) – Words and Phrases.

Dismissing the writ petition, the Court

Conclusion

HELD: 1.1 Article 224 of the Constitution of India providesfor appointment of Additional and Acting Judges. The period forFappointment of Additional Judges of the High Court as mentionedin Article 224(1) is “for such period not exceeding two years”.The Constitution Bench in S.P. Gupta case has considered in detailArticle 224 of the Constitution, its purpose and object. [Para 8][296-D-E]G1.2 The observations were made by the Constitution Benchin the S.P. Gupta case that when although three Additional Judgeswere initially appointed for a period of two years but they werefurther appointed only for a period of three months and after thatonly one was continued for a period of one year. The ConstitutionBench having noticed the purposes of Article 224 has observedH

that when arrears of pending cases are such that they cannotpossibly be disposed of then the purpose and object ofappointment of Additional Judges is that appointment should begiven for two years and no less. But the above observation of theConstitution Bench has to be read in reference to the context inwhich it was made. Before the Constitution Bench, the questionas to when remaining tenure of a person to be appointed asAdditional Judge is less than two years, whether suchappointment is in conformity with Article 224 or not, was neithergone into nor any opinion was expressed whereas an observationwas made in the Judgment which supports the view that in a casewhere Additional Judge has been appointed for a period of twoyears, he would cease to be a Judge if he attains the age of 62years prior to the expiration of his term of two years. This clearlysupports that the tenure of appointment of Additional Judges whohave less than two years to retire is not contrary to Article 224.The observations of the Constitution Bench in S.P. Gupta casedo not support the submission of the petitioner that appointmentof Additional Judges for a period of less than two years whenthey are attaining the age of superannuation before two years iscontrary 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) indicatesthat what is prescribed is qualification for appointment of a Judgeof the High Court is that a person has for at least 10 years held ajudicial office in the territory of India. Use of word ‘held’ in theabove clause does not indicate that qualification is also meantthat apart from holding 10 years a judicial office, the incumbentshould also be holding the judicial office at the time notificationunder Article 224 is issued. [Para 24] [306-G-H]

2.2 The above conclusion is also supported by taking intoconsideration the Explanation (a) and (aa) to Article 217(2). WhenExplanation (a) provides that in computing the period duringwhich a person has held judicial office in the territory of India,there shall be included any period, after he has held any judicialoffice, during which the person has been an Advocate of a HighCourt 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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[2018] 10 S.C.R.

A2.3 A plain reading of eligibility as provided under Article217(2)(a) does not make the respondent Nos.2 and 3 ineligiblefor appointment as Additional Judges of the Rajasthan High Court.[Para 26] [307-B-C]

3. The purpose and object for which Article 224 of theBConstitution was substituted by the Constitution SeventhAmendment of 1956 needs to be seen. Appointment of AdditionalJudges was envisaged as appointment to cope with the increasedwork load of cases in different High Courts. The temporaryincrease in the business of the High Court or by reason of arrearsof work therein was a reason for appointment or reason forCinvoking power under Article 224, although as noted byConstitution Bench in S.P. Gupta’s case by lapse of time the useof Article 224 has been substantially changed. But there is nodenying that to cope with the increase in business of the HighCourt and the arrears of cases emergent steps are needed by allDto fulfil the object and purpose for which constitutional provisionwas brought in place, enormous delay in appointment of Judgesof the High Courts not only frustrate the purpose and object forwhich Article 224(1) was brought into the Constitution but beliesthe hope and trust of litigant who comes to the High Courtsseeking justice and early disposal of their cases. [Para 27] [307-ED-F]

S.P. Gupta v. Union of India and Ors., (1981) Suppl.SCC 87 : [1982] 2 SCR 365; Shri Kumar Padma Prasadv. Union of India others (1992) 2 SCC 428 : [1992] 2SCR 109; Chandra Mohan v. State of U.P. AIR 1966FSC 1987; Supreme Court Advocates-on-RecordAssociation and Others v. Union of India (1993) 4 SCC441 : [1993] 2 Suppl. SCR 659; – referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.835 of 2017.H

SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRYOF LAW AND JUSTICE

Under Article 32 of the Constitution of India Sunil Samdaria (Petitioner-in-Person).

Maninder Singh, ASG, Ms. Madhavi Divan, R. Balasubramanian,Prabhas Bajaj, Akshay Amrianshu, Ms. Aarti Sharma, Mukesh KumarMaroria, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This writ petition under Article 32of the Constitution of India has been filed by the petitioner, a practicingAdvocate of Rajasthan High Court, questioning the Notification dated12.05.2017 appointing respondent Nos.2 and 3 as Additional Judges ofRajasthan High Court. This Court on 03.10.2017 had issued notice torespondent No.1 only. A counter-affidavit has been filed by the Union ofIndia- respondent No.1.

2. We have heard the petitioner, appearing in-person and ShriManinder Singh, learned Additional Solicitor General of India for therespondent.

3. The petitioner appearing in-person challenging the appointmentof respondent Nos.2 and 3 as Additional Judges of Rajasthan High Courtmakes following two submissions:

(1) The appointment of respondent Nos.2 and 3 has been madeas Additional Judges of the Rajasthan High Court under Article224 of the Constitution of India. The appointment of respondentNo.2 has been made till Ist September, 2018 whereas theappointment of respondent No.3 has been made till 2[nd] July, 2018,both the appointments having been made for a period of less thantwo years violates Article 224 of the Constitution of India. It issubmitted that appointment of Additional Judges should not bemade for a period of less than two years, hence the appointmentsare non-est and void.

Reliance has been placed on Constitution Bench judgment ofthis 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 Serviceof the State of Rajasthan who retired from the post of DistrictJudge respectively on 30.09.2016 and 31.07.2016 after attaining A

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the age of superannuation of 60 years. On the day when thenotification was issued appointing respondent Nos.2 and 3, i.e.,12.05.2017, both being not holding a Judicial Office they were noteligible for appointment as Additional Judges of the High Court.The eligibility of a person to be appointed as a Judge of the HighCourt as provided under Article 217(2)(a) is that he should be amember of the Judicial Service of the State. Respondent Nos.2and 3, having long retired from Judicial Service, do not possesseligibility for appointment as Additional Judges of the High Courthence on this ground also the appointments of respondent Nos.2and 3 are liable to be declared as non-est and void. Petitionerplaced reliance on the judgment of this Court in Shri KumarPadma Prasad vs. Union of India others, 1992 (2) SCC 428(paragraphs 25, 35, 41).

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4. Shri Maninder Singh, learned Additional Solicitor General ofIndia refuting the submission of the petitioner contends that appointmentsDof 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 3having held Judicial Office for a period of 10 years were fully eligible tobe appointed as Additional Judges of the Rajasthan High Court. Themaximum period of appointment of Additional Judge of the High Courtunder Article 224 clause (1) being two years, respondent Nos.2 and 3Ewho were attaining the age of superannuation of 62 years before expiryof a period of two years, there is no illegality in their appointment uptothe age of superannuation which falls on 01.09.2018 and 02.07.2018respectively. The judgment of this Court in Shri Kumar Padma Prasad(supra) is not applicable nor the Constitution Bench judgment in S.P.FGupta (supra) supports the contention advanced by the petitioner inthe present case.

5. We have considered the submissions of the petitioner in-personand learned Additional Solicitor General for the Union of India andperused the record.

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6. The relevant facts pertaining to the Judicial Service, the processof appointment as Additional Judges of the Rajasthan High Court andthe period of their tenure are not in dispute. Both respondent Nos.2 and3 were members of Judicial Service of the State when their names wererecommended by the Acting Chief Justice of Rajasthan High Court by H

letter dated 18.02.2016. On the date their names were recommended,they were fully in the zone of consideration, they being within theprescribed age limit of 58 ½ years on the date of occurrence of vacancyagainst which their names were recommended. The Acting Chief Justicewhile processing the recommendation followed Memorandum ofProcedure as laid down by letter dated 24.09.2004 of Minister of Lawand Justice. The Government of India, Ministry of Law and Justice,after processing the recommendation forwarded the same forconsideration of Chief Justice of India on 22.07.2016. The SupremeCourt Collegium vide its Minutes dated 01.08.2016 recommended thenames of respondent Nos.2 and 3 as from the service stream. TheGovernment of India after receiving the recommendation of SupremeCourt Collegium and after obtaining the approval of Hon’ble Presidentof India notified the appointment on 12.05.2017. The entire processconsumed a period of one year and three months. The notification dated12.05.2017 which was issued for appointment of respondent Nos.2 and3 as Additional Judges in exercise of power under Article 224(1)mentioned their appointment with effect from the date they took chargetill 01.09.2018 and 02.07.2018 respectively. The dates 01.09.2018 and02.07.2018 which are mentioned in the notification are obviously thedates when they shall attain the age of superannuation as Judges of theHigh Court, i.e., 62 years. It is relevant to note that along with respondentNos.2 and 3 three more persons were appointed as Additional Judgesfor a period of two years and with regard to their tenure the period oftwo years was mentioned. It is relevant to extract notification dated12.05.2017 which is to the following effect:

“NOTIFICATION

In exercise of the powers conferred by Clause(1) of Article224 of the Constitution of India, the President is pleased toappoint 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 ofRajasthan High Court, in that order of seniority.

The appointment of S/Shri Ashok Kumar Gaur, Manoj KumarGarg, Inderjeet Singh, would be for a period of 2 years witheffect from the date they assume charge of their respectiveoffices. However, period of appointment in respect of Dr.

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Virendra Kumar Mathur, and Sh. Ramchandra Singh Jhalaare with effect from the date they assume charge of theirrespective offices till 1[st] September, 2018 and 2[nd] July, 2018respectively.

Sd/-

(S.C. BARMMA)

Joint Secretary to the Government of India Tele:23072142"

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7. The first submission which has been pressed by the petitioneris that appointment of respondent Nos.2 and 3 being for a period of lessthan two years is contrary to Article 224 of the Constitution of India andin the teeth of law laid down by S.P. Gupta (supra).

8. Article 224 of the Constitution of India provides for appointmentDof Additional and Acting Judges. The period for appointment of AdditionalJudges of the High Court as mentioned in Article 224(1) is “for suchperiod not exceeding two years”. The Constitution Bench in S.P. Gupta(supra) has considered in detail Article 224 of the Constitution, its purposeand object. Article 224 as it existed in the original constitution containedEthe heading “Attendance of retired Judges at sittings of High Court”which was to the following effect:

“Article 224. Attendance of retired Judges at sittingsof High Court.- Notwithstanding anything in this Chapter,the Chief Justice of a High Court for any State may at anytime, with the previous consent of the President, request anyFperson who has held the office of a Judge of that Court or ofany other High Court to sit and act as a Judge of the HighCourt for that State, and every such person so requested shall,while so sitting and acting, be entitled to such allowance asthe President may by order determine and have all theGjurisdiction, powers and privileges of, but shall not otherwisebe deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed torequire any such person as aforesaid to sit and act as a Judgeof that High Court unless he consents so to do.”

SUNIL SAMDARIA v. U.O.I. THR. ITS SECRETARY, MINISTRYOF LAW AND JUSTICE [ASHOK BHUSHAN, J.]

9. Article 224 as originally contained in the Constitution did notwork well and neither found adequate nor satisfactory. The Parliamentto combat mounting arrears of the cases in the High Courts amendedArticle 224 by substituting existing Article 224 by a new Article providingfor appointment of Additional Judges. Article 224 as amended by theConstitution (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 businessof High Court or by reason of arrears of work therein, itappears to the President that the number of the Judges ofthat Court should be for the time being increased, the Presidentmay appoint duly qualified persons to be additional Judgesof the Court for such period not exceeding two years as hemay specify.

(2). When any Judge of a High Court other than the ChiefJustice is by reason of absence or for any other reason unableto perform the duties of his office or is appointed to acttemporarily as Chief Justice, the President may appoint a dulyqualified person to act as a Judge of that Court until thepermanent Judge has resumed his duties.

(3). No person appointed as an additional or acting Judge ofa High Court shall hold office after attaining the age of sixtytwo years.”

10. Deliberating the object and purpose of Article 224 as providedby the Constitution Seventh Amendment, the Constitution Bench in S.P.Gupta (supra) made the following observation:

“37...The power to appoint an Additional Judge cannottherefore be exercised by the President unless there is eithertemporary increase in the business of the High Court or thereis accumulation of arrears of work in the High Court andeven when one of these two conditions exists, it is necessarythat the President must be further satisfied that it is necessaryto make a temporary increase in the number of Judges of thatHigh Court. The words “for the time being” clearly indicatethat the increase in the number of judges which the Presidentmay make by appointing Additional Judges would be A

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temporary with a view to dealing with the temporary increasein the business of the High Court or the arrears of work inthe High Court. Article 224, Clause (1) did not contemplatethat the increase in the number of Judges should be for anindefinite duration. The object clearly was that AdditionalJudge should be appointed for a short period in order todispose of the temporary increase in the business of the HighCourt and/or to clear off the arrears of pending cases. Thereis sufficient indication in Clause (1) of Article 224that theappointments of Additional Judges were intended to be ofshort duration and Parliament expected that sufficient numberof Additional Judges would be appointed so as to dispose ofthe temporary increase in the work or the arrears of pendingcases within a period of two years or thereabouts. That iswhy Clause (1) of Article 224provided that Additional Judgesmay be appointed for a period not exceeding two years. Theunderlying idea was that there should be an adequate strengthof permanent Judges in each High Court to deal with itsnormal institutions and so far as the temporary increase inthe work or the arrears of pending cases were concerned,Additional Judges appointed for a period not exceeding twoyears should assist in disposing of such work....”

11. The Constitution Bench, however, noticed and observed thattrue intention and purpose of clause (1) of Article 224 was never carriedinto effect, what practically Article 224 was utilised has beencategorically stated in paragraph 38 of the Constitution Bench judgmentin the following words:

“38...The entire object and purpose of the introductionof Clause (1) of Article 224was perverted and AdditionalJudges were appointed under this Article not as temporaryJudges for a short period who would go back on the expirationof their term as soon as the arrears are cleared off, but asJudges whose tenure, though limited to a period not exceedingtwo years at the time of each appointment as an AdditionalJudge, would be renewed from time to time until a berth wasfound for them in the cadre of permanent Judges. By andlarge, every person entered the High Court judiciary as anAdditional Judge in the clear expectation that as soon as a vacancy in the post of a permanent Judge became availableto him in the High Court he would be confirmed as a permanentJudge and if no such vacancy became available to him untilthe expiration of his term of office, he would be re-appointedas an Additional Judge for a further term in the same HighCourt, Therefore, far from being aware that on the expirationof their term, they would have to go back because they wereappointed only as temporary Judges for a short period inorder to clear off the arrears — which would have been theposition if Clause (1) of Article 224had been implementedaccording to its true intendment and purpose — the AdditionalJudges entered the High Court judiciary with a legitimateexpectation that they would not have to go back on theexpiration of their term but they would be either reappointedas 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. Thisexpectation which was generated in the minds of AdditionalJudges by reason of the peculiar manner in which Clause (1)of Article 224was operated, cannot now be ignored by theGovernment and the Government cannot be permitted to saythat when the term of an Additional Judge expires, theGovernment can drop him at its sweet will. By reason of theexpectation raised in his mind through a practice followedfor almost over a quarter of a century, an Additional Judgeis entitled to be considered for appointment as an AdditionalJudge for a further term on the expiration of his originalterm and if in the meanwhile, a vacancy in the post of apermanent Judge becomes available to him on the basis ofseniority amongst Additional Judges, he has a right to beconsidered for appointment as a permanent Judge in his HighCourt.”

12. The ratio laid down by the Constitution Bench in S.P.Gupta(supra) as relied by the petitioner needs to be considered in thelight of what has been said above by the Constitution Bench itself. Now,the background facts which led the Constitution Bench to make certainobservations in paragraph 44 need to be noted. The writ petition in whichthe question of tenure of Additional Judges came to be considered was ABC

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Afiled in the Delhi High Court which was transferred to this Court asTransferred Case No.20 of 1981. In the said writ petition apart fromchallenging the circular dated 18.03.1981 issued by the Union LawMinister, a complaint was made regarding short-term appointments ofthree Additional Judges of Delhi High Court, namely, Shri O.N. Vohra,Shri S.N. Kumar and Shri S.B. Wad. The above Additional Judges hadBoriginally been appointed as Additional Judges for a period of two yearsand whose term was expiring on the midnight of 06.03.1981. They werefurther appointed as Additional Judges for a period of three months onlyfrom 07.03.1981. In the writ petition complaint was made of such short-term appointment. It was contended that such short-term appointmentsCwere unjustified by the terms of Article 224 and were in any eventsubversive of the independence of the judiciary. The Central Governmentsubsequently 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 Judgefor 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 Benchhas said in paragraph 44, where in the above context, it had observedthat when the arrears of pending cases are such that they cannot possiblybe disposed of within a period of less than two years, Additional Judgesmust be appointed for a term of two years and no less. The observationsEmade by the Constitution Bench in paragraph 44 are to the followingeffect:

“44. One last argument now remains, when an additionalJudge is appointed, what should be the term for which hisappointment is made. Clause (1) of Article 224provides thatan Additional Judge may be appointed for a period notexceeding two years. That is the outside limit prescribedby Article 224Clause (1) and it was therefore, contended bythe learned Attorney General that appointment of an AdditionalJudge can be made for any term, howsoever short it be, solong as it does not exceed two years. The appointments ofO.N. Vohra, S.N. Kumar and S.B. Wad for three months andthe appointments of some other Additional Judges for sixmonths were thus defended by the learned Attorney Generalas being within the scope and ambit of Clause (1) of Article224.We cannot accept this argument. It is no doubt true that F

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Clause (1) of (the) Article fixes the outer limit for the term forwhich an Additional Judge may be appointed, but that hasbeen done because there may be cases where the temporaryincrease in the business or the arrears of pending cases areso small that it may be possible to dispose them of by appointingAdditional Judges for a term less than two years. If thetemporary increase in the business or the arrears of pendingcases can be disposed of within a shorter time, why shouldAdditional Judges be appointed for the full period of twoyears. That is why Parliament provided that an AdditionalJudge may be appointed for a term not exceeding two years.But when arrears of pending cases are so large that it wouldnot be possible to dispose them of even within a period of tenyears — and when we say ten years, we are making a veryconservative estimate — what justification there can be forappointing Additional Judges for a period of less than twoyears. That would be plainly outside the scope of the powerconferred under Clause (1) of Article 224.When the arrearsof pending cases are such that they cannot possibly bedisposed of within a period of less than two years, AdditionalJudges must be appointed for a term of two years and noless....”

14. Thus, the above observations were made by the ConstitutionBench in the background when although three Additional Judges wereinitially appointed for a period of two years but they were furtherappointed only for a period of three months and after that only one wascontinued for a period of one year. The Constitution Bench having noticedthe purposes of Article 224 has observed that when arrears of pendingcases are such that they cannot possibly be disposed of then the purposeand object of appointment of Additional Judges is that appointment shouldbe given for two years and no less. But the above observation of theConstitution Bench has to be read in reference to the context in which it was made. Before the Constitution Bench, the question as to whenremaining tenure of a person to be appointed as Additional Judge is lessthan two years, whether such appointment is in conformity with Article224 or not, was neither gone into nor any opinion was expressed whereasan observation was made in paragraph 32 which supports the view thatin a case where Additional Judge has been appointed for a period of twoyears, he would cease to be a Judge if he attains the age of 62 years AB

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Aprior to the expiration of his term of two years. This clearly supports thatthe tenure of appointment of Additional Judges who have less than twoyears to retire is not contrary to Article 224. In paragraph 32 followingobservations have been made by the Constitution Bench:

“32...Clause(3) of Article 224provides inter alia that noBperson appointed as an Additional Judge shall hold officeafter attaining the age of 62 years. Therefore even if anAdditional Judge has been appointed for a period of twoyears, he would cease to be a Judge if he attains the age of62 years prior to the expiration of his term of two years.”

C15. The observations of the Constitution Bench in S.P. Gupta(supra), as noticed above, clearly do not support the submission of thepetitioner that appointment of Additional Judges for a period of less thantwo years when they are attaining the age of superannuation before twoyears is contrary to Article 224. We thus do not find any merit in the firstsubmission of the petitioner.D

16. Now we come to the second submission of the petitioner.Petitioner submits that although on the date when recommendations weremade for names of respondent Nos.2 and 3 by the High Court forappointment as Additional Judges they were members of the JudicialService of the State but the day they were issued appointment underEArticle 224, they had already retired from Judicial Service, hence werenot eligible for appointment as Additional Judges.

17. Petitioner has relied on the judgment of this Court in ShriKumar Padma Prasad (supra) in support of the submission that whois not a member of Judicial Service is ineligible for appointment asFAdditional Judge. The case of Shri Kumar Padma Prasad (supra)was a case where petitioner has challenged the appointment of ShriK.N. Srivastava as a Judge of Gauhati High Court on the ground that hedoes not fulfil the eligibility for appointment as contained in Article 217of the Constitution of India. Name of Shri K.N. Srivastava wasGrecommended on the ground that he held Judicial Office for at least 10years. The challenge in the writ petition was that Shri K.N. Srivastavadoes not fall within the expression Judicial Office as defined under Article217(2)(a). This Court after referring to judgment of this Court inChandra Mohan v. State of U.P., AIR 1966 SC 1987, held that JudicialOffice as used in Article 217(2)(a) must be a part of Judicial Service ofHthe State. In paragraph 25 following was held:

“25. It is thus, clear that the expression “judicial office”under Article 217(2)(a)of the Constitution has to beinterpreted in consonance with the scheme of Chapters V andVI of Part VI of the Constitution. We, therefore, hold thatexpression “judicial office” under Article 217(2)(a)of theConstitution means a “judicial office” which belongs to thejudicial service as defined under Article 236(b)of theConstitution of India. In order to qualify for appointment asa Judge of a High Court under Article 217(2)(a)a personmust hold a “judicial office” which must be a part of thejudicial service of the State.”

18. After holding that Judicial Office must be the part of JudicialService of the State, position held by Shri K.N. Srivastava was detailedand 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 Judgeof the High Court. In paragraph 36 following was held by this Court:

“36. We have already held that “judicial office” in Article217(2)(a)means an office as a part of the judicial service asdefined under Article 236(b)of the Constitution of India. Theoffice of the Assistant to Deputy Commissioner held bySrivastava for a period of about six months under thenotification reproduced above, was neither a judicial officenor was it part of a judicial service as defined under Article236(b)of the Constitution of India. We, therefore, accept thesecond contention advanced by Mr. Anil Diwan and RamJethmalani and hold that Srivastava was not qualified forappointment as a Judge of a High Court under Article217(2)(a)of the Constitution of India.”

19. Petitioner has placed reliance on paragraphs 25, 35 and 41 ofthe judgment of Shri Kumar Padma Prasad (supra) Kumar PadmaPrasad (supra) which are to the following effect:

“25. It is thus, clear that the expression “judicial office”under Article 217(2)(a) of the Constitution has to be interpretedin consonance with the scheme of Chapters V and VI of PartVI of the Constitution. We, therefore, hold that expression“judicial office” under Article 217(2)(a) of the Constitutionmeans a “judicial office” which belongs to the judicial serviceas defined under Article 236(b) of the Constitution of India.

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In order to qualify for appointment as a Judge of a HighCourt under Article 217(2)(a) a person must hold a “judicialoffice” which must be a part of the judicial service of theState.

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35. The Word “office” has various meanings and we haveto see which is appropriate meaning to be ascribed to thisword in the context it appears in the Constitution. We are ofthe view that the framers of the Constitution did not and couldnot have meant by a “judicial office” which did not existindependently and the duties or part of the duties of whichcould be conferred on any person whether trained or not inthe administration of justice. The word “judicial office” underArticle 217(2)(a) in our view means a subsisting office witha substantive position which has an existence independentfrom its holder.

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41. We allow transferred writ petition of Kumar PadmaPrasad and declare that K.N. Srivastava, on the date of issueof warrant by the President of India, was not qualified to beappointed as a Judge of the High Court. As a consequence,we quash his appointment as a judge of the Gauhati HighCourt. We direct the Union of India and other respondentspresent before us not to administer oath or affirmation underArticle 219 of the Constitution of India to K.N. Srivastava.We further restrain K.N. Srivastava from making andsubscribing an oath or affirmation in terms of Article 219 ofthe Constitution of India and assuming office of the Judge ofthe High Court. We direct the Registry to send a copy of thisjudgment to the President of India for his consideration andnecessary action in terms of our judgment. There shall be noorder as to costs.”

20. There cannot be any dispute to the proposition laid down bythis Court in paragraph 25 that a person must hold Judicial Office whichmust be a part of Judicial Service of the State for appointment of aJudge of the High Court under Article 217(2)(a). Much emphasis isbeing given by the petitioner on the observation made in paragraph 35

that the word ‘Judicial Office’ under Article 217(2)(a) means a subsistingoffice with a substantive position which has an existence independentfrom its holder. The above observation has been made by this Court inreference to nature of the different offices held by Shri K.N. Srivastavain the State specially while dealing with the contention that Shri Srivastavahaving held the office of Deputy Commissioner by Rule 9 of the 1937Rules whether he fulfilled the requirement under Article 217 read with(2)(a) explanation. The argument forcibly put in paragraph 31 was rejectedin paragraph 32 which are to the following effect:

“31. Mr. Venugopal contended that the administration ofjustice both on civil and criminal side was being mannedexclusively by the Deputy Commissioner and his Assistantsunder the 1937 Rules. No other courts were functioning. Apartfrom administering criminal and civil justice the totaladministration of the district known as the Lushai Hills wasvested in the Governor of Assam , the Deputy Commissionerof Lushai Hill, and his Assistants. The Deputy Commissionerunder the 1937 Rules was competent to pass sentence ofdeath, transportation or imprisonment up to a maximumprovided for the offence and fine up to any amount. TheAssistants to the Deputy Commissioner were to exercise suchpowers as conferred by the Governor not exceeding those ofa magistrate of the first class as defined under the Code ofCriminal Procedure. An appeal lies to the DeputyCommissioner against any order passed by any of hisAssistants. Similarly under Rule 15 the administration of civiljustice was entrusted to the Deputy Commissioner and hisAssistants. Srivastava exercised the powers of Assistant tothe Deputy commissioner from June 23, 1979 to December19, 1979. According to Mr. Venugopal the office of theAssistant to which Srivastava was appointed for a period ofabout six months was a judicial office. According to himperiod for which he held the judicial office and the quality ofthe said office are not relevant factors. He therefore, forcefullycontended that Srivastava, having held the judicial office ofAssistant to the Deputy Commissioner under the 1937 Ruleshe fulfills the qualification under Article 217(2)(a) read with(a) to the Explanation. According to him all the offices heldby Srivastava after relinquishing the office of the Assistant to A

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the Deputy Commissioner required special knowledge of lawand as such whole of that period is liable to be included forcounting 10 years during which he held a judicial office.Srivastava, according to him, is qualified for appointment asa judge of a High Court.

B 32. We have given our thoughtful consideration to theargument advanced by Mr. Venugopal. We are not inclined toagree with him.”

21. Thus, the observation in Shri Kumar Padma Prasad (supra),in paragraph 35 as extracted above was in the above context. This CourtCwas not concerned with the issue which is raised in the present writpetition as to whether the person should be holding a Judicial Office atthe time of his appointment as Additional Judge of the High Court,although, he held a Judicial Office of the State when his name wasrecommended by the High Court for Additional Judge. Thus, theobservations made by this Court in paragraphs 25, 35 and 41 do notDsupport the contentions which are sought to be raised by the petitioner.

22. Shri Maninder Singh, learned Additional Solicitor Generalsubmitted that Article 217(2)(a) uses the words ‘held’ a Judicial Officewhich means that a person who has held Judicial Office at least for aperiod of 10 years is eligible for appointment as Additional Judge.E

23. The word ‘held’ has been defined in Words and PhrasesPermanent Edition, Volume 19 to the following effect:

“Held has no primary or technical meaning and itsmeaning is determined largely by connection in which it isused. State v. Thomson, 449 P.2d 656, 659, 79 N.M. 748.F

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 thatGwhat is prescribed is qualification for appointment of a Judge of theHigh Court is that a person has for at least 10 years held a judicial officein the territory of India. Use of word ‘held’ in the above clause does notindicate that qualification is also meant that apart from holding 10 yearsa judicial office, the incumbent should also be holding the judicial officeat the time notification under Article 224 is issued.H

25. The above conclusion is also supported by taking intoconsideration the Explanation (a) and (aa) to Article 217(2). WhenExplanation (a) provides that in computing the period during which aperson has held judicial office in the territory of India, there shall beincluded any period, after he has held any judicial office, during whichthe person has been an Advocate of a High Court or has held the officeof a member of a tribunal or any post, under the Union or a State, requiringspecial 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 asAdditional Judges of the Rajasthan High Court. This Court’s judgmentin Shri Kumar Padma Prasad (supra) does not support the submissionwhich is pressed by the petitioners before us. We, thus, do not findforce in the second submission of the petitioner.

27. Before parting with this case we need to remind ourselves thepurpose and object for which Article 224 of the Constitution wassubstituted by the Constitution Seventh Amendment of 1956. Appointmentof Additional Judges was envisaged as appointment to cope with theincreased work load of cases in different High Courts. The temporaryincrease in the business of the High Court or by reason of arrears ofwork therein was a reason for appointment or reason for invoking powerunder Article 224, although as noted by Constitution Bench in S.P. Gupta’scase (supra) by lapse of time the use of Article 224 has been substantiallychanged. But there is no denying that to cope with the increase inbusiness of the High Court and the arrears of cases emergent steps areneeded by all to fulfil the object and purpose for which constitutionalprovision was brought in place, enormous delay in appointment of Judgesof the High Courts not only frustrate the purpose and object for whichArticle 224(1) was brought into the Constitution but belies the hope andtrust of litigant who comes to the High Courts seeking justice and earlydisposal of their cases.

28. In Supreme Court Advocates-on-Record Association andOthers v. Union of India, (1993) 4 SCC 441, this Court expressed incategorical terms that the process of appointment must be initiated atleast one month prior to the date of an anticipated vacancy. It was doneto achieve an ideal situation, namely, to ensure that the post is filled upimmediately 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 A

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Anot forwarded by the High Court in time. What to talk of sending thenames one month before the occurrence of an anticipated vacancy, namesare not forwarded even much after the vacancy has occurred. It is alsoseen that once the names are forwarded, they remain pending at theExecutive level for unduly long time, before they are sent to the Collegiumof the Supreme Court for approval along with the inputs of the Executive.BEven after the clearance of the names by the Collegium, these remainpending at the level of the Executive. All this results in inordinate delay.Sometimes, it takes more than one year to complete the process fromthe date of forwarding the names till appointment. There are instanceswhere time consumed is much more than one year even. In the case ofCjudicial officers of subordinate judiciary, who are recommended forappointment to the High Court, this process of consuming so much timeadversely affects their tenure. It is a matter of common knowledge thatmost of the judicial officers get a chance for elevation when only fewyears’ service is left. Thus, when unduly long time is taken, even this lesser tenure gets further reduced. It also gives rise to the situation likeDthe present one. Equally, members of the Bar, whose names arerecommended for elevation to the High Court, undergo hardships of adifferent kind. It is unjust that the fate of such persons remains in limbofor indefinite periods and gives rise to unnecessary conjectural debates.

It leads to unpleasant situations which can be avoided. It is, therefore, inEthe interest of all the stakeholders, including the judiciary, that definitetimelines are drawn for each stage of the process, so that process ofappointment is accomplished within a time bound manner. We need notsay more. It is more so, to keep hope and aspiration of litigants alive andto fulfil the commitment of providing a speedy justice the process ofappointment of Judges of the High Court needs more expedition at theFhands of all who have to discharge the constitutional obligation entrustedby the Constitution of India. With these observations, we dismiss thewrit petition.

Ankit GyanG

Writ Petition dismissed.

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