Day 9 ArgumentsJudicial Vacancies in the Lower Courts
Day 9 Arguments: 19 February 2019
A three Judge Bench of the Supreme Court is monitoring steps taken by High Courts and State Governments to fill vacant judicial posts in the District and Subordinate Courts.
On the previous date of hearing, the Court had sought clarifications on certain questions from the States of Kerala and Karnataka. With respect to Kerala, the court had sought clarification on the status of the availability of the 85 new court halls and asked for further information on whether these 85 courts that had already been constructed were an additional availability and could accommodate a majority of the 91 new courts that were required or whether these were already functioning buildings that were not part of the 91 new courts sought to be constructed. As far as Karnataka was concerned, the Court wanted details with respect to the breakup of the vacancies for reserved categories, more specifically whether the reservation for women, PH category etc. was being granted as vertical reservation or a horizontal reservation across categories.
Kerala and Karnataka
In today’s hearing, the Court was informed that the 91 court halls mentioned in the earlier affidavit filed on behalf of the State of Kerala are over and above the 85 court halls that have already been constructed. These 91 courts are required to accommodate the courts that are currently working in government buildings/rented buildings/rent free buildings. Of these, a certain number was required immediately and the issue was to be assessed by the government. Further, of the 91 Courts that were required, the estimates for only 10 were under preparation and land was yet to be alloted for 68 Courts. As far as the State of Karnataka was concerned, Mr Vishwanathan submitted that that the reservations for women, physically challenged, etc. are horizontal reservation and not vertical reservation.
Upon hearing the submissions made by Mr. Vishwanathan on behalf of the States of Kerala and Karnataka, CJI Gogoi directed the Hon’ble Chief Justice of the Kerala High Court to work out and finalize a suitable time frame within which the 91 court halls be made available to house and assess the need for future court halls.
Next, Mr. Gaurav Agarwal who is assisting the court as Amicus for the States of Rajasthan, Sikkim, Telangana, Andhra Pradesh, Tripura and Uttarakhand made his submissions with respect to the status of both vacancies as well as availability of infrastructure in these States.
For the State of Rajasthan, Mr. Gaurav Agarwal submitted that position of vacancies was somewhat satisfactory as the process for filling up vacancies both by way of direct recruitment as well as promotion had been initiated and would be complete by July 2019. However, there were currently 4122 vacancies in the posts of the support staff of the court and CJI Gogoi questioned the Registrar General as to whether the same would be filled in time for the newly appointed judges to take charge of office. The Registrar General submitted that the process for filling up vacancies would be scheduled for completion in a manner such that adequate staff was made available to the judges who were to be appointed by July 2019. Coming to issue of infrastructure, CJI Gogoi expressed his dissatisfaction with the state of affairs in Rajasthan where over 230 courts were pending completion of construction and proposal for over 100 other courts and 244 residential units for judges were yet to be received. The Court directed that these proposals be submitted within 3 months.
For the State of Sikkim, the primary submission of the Amicus was on the issue of availability of funds from the Central Government. it was submitted that the State of Sikkim was suffering from lack of proper infrastructure owing to the non-availability of funds which are due from the Central government given the fact that 90% of the funds to the State were to be provided by the Union and only 10% were granted by the State Government. The Court took note of the deficiency of funds and accordingly directed the Secretary, Department of Justice, Government of India to look into the matter and ensure that necessary steps are taken so that the requisite funds are made available to the State of Sikkim for construction of court halls, residential units, etc.
Telangana & Andhra Pradesh
The status of the States on Telangana and Andhra Pradesh as far as notification of vacancies and completion of recruitment processes that are already underway are concerned, the same will be reassessed by the Court within a time of 3 months. In the meantime, both states have been directed to submit reports on the issue whether in place of the present policy of reimbursing rent upto the percentage of the Basic Pay should be modified by payment of actual rent that is paid by a Judicial Officer for his residential accommodation.
With respect to vacancies in the State, it was submitted that 11 out of 35 posts in the cadre of District Judge/Additional District Judge are presently vacant. Of these, 3 were to be filled by way of direct recruitment by the end of March 2019. As far as the pending vacant posts were concerned, no eligible candidates were available at present for appointment on the basis of the Limited Competitive Examination, however 5 person would become eligible in August 2019. For the post of Civil Judge Senior Division is concerned, 12 officers would become eligible for consideration for promotion by the end of August, 2019. The Court accordingly directed that vacancies be filled up in the two cadres as and when suitable candidates were available and the ongoing process for selection be completed by July 31st 2019. The Court also took note of the details that were placed before the Bench with respect to ongoing constructions and overall availability of infrastructure and will re-assess the same after a period of 3 months.
On the question of filling up of vacancies, Mr. Agarwal submitted that the problem arose because of the 10% reservation for EWS granted by way of an ordinance dated 5th feb and all recruitment processes were cancelled where examinations had not been held. Nothing can be done till roster points vacancies are notified. The government will have to authorise the authority to issue certificates of EWS category and only then can the process move further
CJI Gogoi decided to take up this aspect after a period of 3 months. Mr. Gaurav Agarwal further submitted that only the issue of vacancies can be taken up later, with regard to infrastructure there was something that needed to be brought to the notice of the court. He informed the Court that a building in Dehradun which was to be made functional as a court has not been made unavailable owing to the fact that funds have not not being released by Central Government thus leading to a stagnant situation. CJI Gogoi sought the response on this issue from the Central Government and Mr. Tushar Mehta informed the Court that the certificate for utilisation of past grants was not furnished by the state government therefore further release of funds could not be sanctioned. The Court accordingly directed the State of Uttarakhand to furnish to the Competent Authority in the Union of India, Utilization Certificate for the past grants to enable further release of funds for completion of the Court Complex at Dehradun.
The Court will take up the matter with respect to the State of Uttarkhand as well as other States after a period of 3 months. However, the Court will hear Mr. Vijay Hansaria, Amicus Curiae for the State of Madhya Pradesh and the High Courts of Madras, Odisha, Patna and Punjab and Haryana on 26th of February regarding funding for infrastructure of subordinate judiciary by the Central Government and the State Governments.