Constitution of India – Arts. 217 and 224 – Appointment of Additional Judges of High Court – Petitioner challenged 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 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 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 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 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 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 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 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 – 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 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 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]
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 that when arrears of pending 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 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 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 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 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. [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, 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]
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 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 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 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] [307D-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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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