Day 19 Arguments

November 7th 2019

The Surpeme Court has taken suo motu cognisance of judicial vacancies in the lower courts. It is assessing whether the High Courts and State Governments are following the guidelines issued in Malik Mazhar Sultan to ensure the efficient appointment of District and Subordinate Court judges across India. It also monitoring whether there is adequate infrastructure for the lower judiciary to efficiently function.

For assistance, the Court has appointed four Amicus Curiae:

• Shyam Divan, responsible for Uttar Pradesh, Maharashtra, Chhattisgarh, Delhi and the North Eastern States
• K.V. Vishwanathan, responsible for Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka and Kerala
• Vijay Hansaria, responsible for Madhya Pradesh and the High Courts of Madras, Odisha, Patna and Punjab & Haryana
• Gaurav Agrawal, responsible for Rajasthan, Sikkim, Telangana, Andhra Pradesh, Tripura and Uttarakhand

Schedule

Today, the Bench heard Amicus Curiae K.V. Vishwanathan report on the States of Gujarat, Himachal Pradesh, Jammu and Kashmir and Jharkhand. Tomorrow, he will updated the Bench on the States of Karnataka and Kerala.

Next week, Amicus Curiae Shyam Divan is scheduled to present on Wednesday, 13 November. Then, on Friday November 15th, the Bench will hear Amicus Curiae Gaurav Agarwal. This will likely be the final matter that Chief Justice Gogoi hears, as his last working day is on November 15th (he retires on November 17th).

Today’s hearing

Gujarat

Amicus Curiae K.V. Vishwanathan handed over a consolidated chart to the Bench detailing the number of Senior Civil Judge vacancies. Currently, there are 186 vacancies, of which 185 will be filled. The examination to fill these 185 vacancies is scheduled for November 17th 2019. Amicus Curiae Vishwanathan explained that 1 vacancy is yet to be listed as it only just arose when a judge unexpectedly resigned.

He stated that in the previous examination, 4700 of the 5000 candidates failed. Of the 300 who cleared the exam, only 210 were found suitable for the interview round. He said that merely 7 new judges were ultimately appointed. Chief Justice Gogoi expressed dismay, rhetorically asking, ‘Are you looking for a Rhodes scholar?’

Chief Justice Gogoi stressed that the recruitment process should be more ‘realistic’. He appeared to suggest that there should be a higher acceptance rate. He directed the High Court of Gujarat to assess how many judicial officers were truly required. He emphasised the cadre of Senior Civil Judge.

Further, Chief Justice Gogoi directed the High Court to expedite the recruitment of District Judges. He was not satisfied that the High Court was only scheduled to discuss the issue after 11 November.

On infrastructure, Amicus Curiae K.V. Vishwanathan submitted that proposals for 17 court buildings are pending with the Government. The Bench recorded that the the 17 complexes are at different stages of completion and directed the Government to complete the construction as soon as possible.

Himachal Pradesh

Amicus Curiae Vishwanathan reported that there are 0 Senior Civil Judge vacancies. However, he said that there are 10 vacancies for Junior Civil Judges. Chief Justice Gogoi directed the High Court to fill these vacancies by the end of December 2019.

With regards to District Judges, Amicus Curiae Vishwanathan said that there are currently 5 vacancies and that the recruitment process for 3 of them had begun. He said that 8 candidates had been selected for the 3 posts. However, as 2 of them are judicial officers (i.e. potentially not eligible), the process had not been completed. He handed over the results of the selection process to the Bench in a sealed cover. He reported that the matter is currently pending as a case before the High Court.

He clarified that one of the judicial officers who made the 8 person short-list, is in the top 3 of the short-list. Chief Justice Gogoi ordered the High Court to fill 2 of the vacancies by appointing the other 2 ‘top 3’ candidates. He said that the other seat should remain vacant until the High Court delivers a ruling.

Amicus Curiae Vishwanathan requested the Bench for a direction with regards to infrastructure. He highlighted issues regarding the transfer of land and expenditure that the Government must sanction. The Bench took note of this and directed the State to take appropriate steps to ensure the availability of adequate infrastructure.

Jammu and Kashmir

The Jammu and Kashmir High Court filed an interlocutory application requesting another 12 weeks to fill District and Senior Civil Judge vacancies. In its application it says that it was unable to comply with the initial timeline framed in the 1 August order due to the political situation in the State. The State of Jammu and Kashmir has been bi-furcated into two Union Territories. Today, Amicus Curiae Vishwanathan specified that the High Court was requesting for a total of 24 weeks from today (12 weeks for District Judges and 12 weeks for Senior Civil Judges).

Chief Justice Gogoi granted the High Court a 4 month extension.

Regarding Junior Division vacancies, Amicus Curiae Vishwanathan reported that candidates had been selected for 41 of the 42 vacancies. The Advocate appearing for the former State Government, Sanjay Kapur, assured the Bench that the entire appointment process will be completed by November 30th.

Jharkhand

Amicus Curiae Vishwanathan first reported on District Judge vacancies. He reported that there are 80 vacant post. He said that 59 were filled by promotion. For the remaining 21 posts, he said the process of direct recruitment is virtually complete. He reported that 15 candidates had been appointed via direct recruitment. Only 6 of the 80 posts are now vacant.

He added that 2 additional candidates had been selected by direct recruitment, but that they had not been appointed because they are judicial officers in the State of Uttar Pradesh. The counsel for these 2 candidates was present in Court today. He requested the Bench to keep the seats vacant for his clients. He explained that the candidates were concerned that they may also lose their U.P. posts. Chief Justice Gogoi said that the candidates would be allowed to join as District Judges of Jharkhand for the time being. However, he stressed that this would ultimately be subject to the Court’s pending ruling on the issue of whether existing judicial officers may take direct recruitment exams.

As for Senior Civil Judges, the Bench did not issue any new orders. It took note of the fact that 42 vacant posts had already been filled by promotion. Amicus Curiae Vishwanathan submitted that the process for filling the rest of the posts was already underway.

With regards Junior Civil Judges, the Bench noted that the results of the written exam will be declared next week. It directed the Jharkhand High Court to finalise its recruitment timeline and appoint judges in a timely manner.

The Bench rose at 11.42 AM. It will hear Amicus Curiae K.V. Vishwanathan on the States of Karnataka and Kerala tomorrow.