M/S. PLR PROJECTS PVT. LTD. versus MAHANADI COALFIELDS LTD. & ORS. on 20 April 2021

1. The High Courts are in a crisis situation. There are almost 40%vacancies in the High Courts, with many of the larger High Courts workingunder 50% of their sanctioned strength.

F2. We have discussed in detail the aforesaid while dealing withthe aspect of appointment of ad hoc Judges under Article 224A of theConstitution of India in WP(C) No.1236/2019. Vide separate order inthe aforementioned matter passed today, we have also discussed theprocess of appointment under Articles 217 & 224 of the Constitution ofIndia.G

3. Learned Attorney General has placed before us the appointmentposition in the High Courts to contend that against the sanctioned strengthof 1080 Judges, 664 Judges have been appointed with vacancies of 416Judges. However, the recommendations received and under processwith the Government are 196 leaving 220 recommendations to beHreceived.

4. We cannot but note the importance of the Chief Justices of theHigh Courts making recommendations in time. The vacancies are knownand the norms permit making recommendations up to six months inadvance. However, even recommendations for 220 existing vacanciesappear not to have been made much less for vacancies, which are goingto arise in the next six months.

5. We, thus, once again, emphasise the requirement and desirabilityof the Chief Justices of the High Courts, who will make endeavour torecommend vacancies as early as possible even if they are not made atone go. We may add that even in the earlier orders we have noted theapparent hesitation of some High Courts to recommend names whenthe earlier list(s) is in the pipeline. We have opined that there is no suchimpediment to initiate a new process without waiting for the result of theearlier recommendations.

6. We had handed over a chart in the previous proceedings to thelearned Attorney General of the names recommended from the HighCourts which were still pending with the Government for more than sixmonths, numbering 45. The last couple of weeks has seen progress inthis behalf and those names have reached the Collegium. The secondwas the list of old proposals in pipeline pending with the Government ofIndia after the Supreme Court Collegium recommendations numbering10. These have been pending for considerable period of time. On thelast date of hearing, the learned Attorney General had made a statementthat a decision would be taken in this behalf within the next three months.Six names reiterated by the Supreme Court Collegium a second time,are also awaiting appointment.

7. Learned Attorney General did not differ with the requirementof time bound schedule for filling the vacancies at every stage though heemphasised that the trigger for filling up of the vacancies is therecommendations made by the Chief Justices of the High Courts.However, once the recommendations are made, there are two stages atwhich the matter rests with the Government – the first when the Ministryprocesses the names; and the second post the Collegium of the SupremeCourt taking a call in recommending such of the names as are approvedby the Collegium.

8. Insofar as the Judiciary is concerned, the second stage afterthe recommendations are made by the Collegium of the High Courts is A

B

C

D

E

F

G

H

Athe time period taken by the Collegium of the Supreme Court in consultingthe consultee Judge(s) to take a call on those names.

9. We have looked at the Memorandum of Procedure (for short‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017 (whichis identical to the MoP of 1999 subsisting earlier on these aspects) whereBcertain timelines have been stated for appointment of Judges to the HighCourt. In terms of the timeline prescribed in the MoP, the relevant paras21, 24 & 24.1 of the existing MoP are as under:

a.States may take not more than six weeks to send their views.(Cl. 21)

C

b.The Central Government can presume no objection of theState Government, if their views are not received withinsix weeks. (Cl. 21)

c.No timeline prescribed for the Central Government toforward recommendations.D

d.The Chief Justice of India to send recommendations/adviseto the Law Minister within four weeks. (Cl. 24)

e.The Law Minister to put up the proposal to the PrimeMinister within three weeks for advise of the President.(Cl. 24.1)E

10. It was submitted that if this Court considers laying downtimelines, it would be contrary to the observations made in the ThirdJudge’s case (!998) 7 SCC (Special Reference 1 of 1998). In para 31,the Court referred the Second Judge’s case and observed as follows:

F“31. In the context of the judicial review of appointments, themajority judgment in the Second Judges case said: (SCC pp.707-08, para 480)

“Plurality of Judges in the formation of the opinion of the ChiefJustice of India, as indicated, is another inbuilt check against theGlikelihood of arbitrariness or bias….. The judicial element beingpredominant in the case of appointments…., as indicated, the needfor further judicial review, as in other executive actions, iseliminate.”

The judgment added : (SCC p.708, para 482)

H

“Except on the ground of want of consultation with the namedconstitutional functionaries or lack of any condition of eligibility inthe case of an appointment, …. these matters are not justiciableon any other ground….”

A

It is not possible to accept this contention since the aboveobservations of the Court deal with the judicial review of particularappointment and not such aspects of the appointment process like delay.

B

11. In the conspectus of the aforesaid and in order to facilitatetimely appointment, we are of the view that it would be advisable tofollow the following timelines in addition to the aforesaid:

C

i.The Intelligence Bureau (IB) should submit its report/inputswithin 4 to 6 weeks from the date of recommendation ofthe High Court Collegium, to the Central Government.

ii.It would be desirable that the Central Government forwardthe file(s)/recommendations to the Supreme Court within 8to 12 weeks from the date of receipt of views from theDState Government and the report/input from the IB.iii.It would be for the Government to thereafter proceed tomake the appointment immediately on the aforesaidconsideration and undoubtedly if Government has anyreservations on suitability or in public interest, within theE

iii.It would be for the Government to thereafter proceed tomake the appointment immediately on the aforesaidconsideration and undoubtedly if Government has anyreservations on suitability or in public interest, within thesame period of time it may be sent back to the SupremeCourt Collegium with the specific reasons for reservationrecorded.

If the Supreme Court Collegium after consideration of theaforesaid inputs still reiterates the recommendation(s)unanimously (Cl. 24.1), such appointment should beprocessed and appointment should be made within 3 to 4weeks.

F

12. We are conscious that the aforesaid exercise is collaborativein nature and we would expect promptness in this process to facilitatethe larger cause of dispensation of timely justice.

G

13. With the above directions, we close this proceeding.

Devika Gujral

H