Reservation for Civil Judges | Day 2: High Courts urge the Court to maintain their discretion in recruitments

Dwivedi: Uniformity will “disrupt balance”; cadre control lies with High Courts

Dwivedi argued that the Constitution vests exclusive control to the High Courts who are “in a position to deal with the conditions prevailing in its state”, as it is “seized with its own facts and situations”. He urged the Bench to refrain from framing binding directions for recruitment, and pressed in favour of preserving the High Court’s control.

Dwivedi pointed out that most High Courts were unrepresented before the Bench and that the data placed by the amicus were “scanty, incomplete and based on pre-existing legal positions.”

CJI Gavai observed that “some uniformity has to be there between the High Courts,” to which Dwivedi replied, “There is no uniformity. The situation is varied. If the situation is varying, any quota is bound to disrupt balance.”

Justice Vikram Nath remarked that this was “the whole difficulty,” noting that “the registry controls everything so strongly, same like the Supreme Court registry. If there are more direct recruits, they ensure that promotees do not get their due benefits, and if the promotees are in majority, they will hold back.”

Dwivedi agreed that institutional control was a reality but insisted that decentralisation was constitutionally sound, “It is time to strengthen the High Courts.” He added, “If the discretion of the High Court is not to be taken away, leave it to the High Court.”

Justice Surya Kant interjected to clarify the Court’s position, “There is no question of entertaining inter-se seniority. It is just going to be a general direction.” CJI Gavai added, “We will not be taking away the discretion of the High Court for recommending names. We do not even indirectly intend to take away that discretion; recommendations will continue to be based on the High Court’s satisfaction regarding the suitability of candidates.”

Dwivedi maintained that new quotas were “unnecessary” and “would create another imbalance.” Referring to the All India Judges’ Association rulings since 2002, he said that “within a span of 18 years, three uniformities have already been attempted,” arguing that further experimentation would unsettle functioning systems.

Presenting comparative data, Dwivedi noted that “in Chhattisgarh, out of 23 judges, 14 are promotees; in Gujarat, 24 out of 33 are promotees,” adding that “at least 13 High Courts, including West Bengal, Delhi and Tamil Nadu, show similar patterns. So where is the need for uniformity?”

He explained that the age gap between promotees and direct recruits, once around 10 years in Allahabad, had now reduced to 3 years or even 4 months owing to roster implementation and timely departmental examinations. “If a lawyer gets an LL.B at 22 or 23 but chooses to appear for the exam only at 30 or 32, that age gap will persist. These are choices being exercised,” he said.

CJI Gavai responded, “There cannot be 100 percent uniformity,” while Justice Kant added, “This judgement will also not end it…this is trial and error.”

Punjab & Haryana High Court: Roster system functioning well

Counsel appearing for the Punjab and Haryana High Court said the amicus’s concern that promotees were lagging behind “does not hold true in our High Court.” She explained that once Additional District Judges are appointed, “their seniority is determined by the roster,” and that in practice “promotees are not left behind.”

Rejecting calls for a fresh quota, she submitted that “once all officers are appointed as ADJs from the three sources — promotion, LDCE and direct recruitment—they lose their birthmark. They become one cadre, so equals should be treated as equals.” She added that even in her High Court, “promotees are more than direct recruits, yet the system is working.”

Basant: Lateral induction vital for the judiciary’s health

Basant argued that lateral induction from the Bar was “required and necessary for the health of the institution.”. He urged the Court to view the matter from a systemic perspective rather than through isolated grievances. He argued against adopting a “trade-union approach” where “each person says, ‘I did not get’.”

CJI Gavai concurred in principle, observing, “Nobody doubts that proposition. The question is whether only their aspirations are to be looked into, or the aspirations of all.” Basant concluded, “When an integrated cadre is created from three sources, they lose their birthmark.”

Patwalia: Roster is sound; delays to blame for imbalance

Patwalia outlined three points for consideration:

(1) whether weightage of any sort should be granted;

(2) whether the roster system has failed; and

(3) whether any quota is needed.

He defended the roster mechanism, and submitted that the system has not failed but has not been given a proper chance to operate. He added that the roster system does not function synchronously as the selection process of direct recruits is often delayed.

The Court will continue hearing the matter on 4 November.