Raise Quota Of Judicial Officers In High Court Judges' Appointment To 50% : Plea In Supreme Court

The notice was passed by a bench of Justices BR Gavai and Vikram Nath while hearing an intervention application filed in the All India Judges Association case.  Currently, the practice followed in High Courts is to appoint judicial officers to 1/3rd of the HC posts, with the remaining 2/3rd filled up with members elevated from the bar.

During the hearing on February 7, Senior Advocate Rakesh Khanna with advocates Sachin Jain and Ajay Kumar Agarwal appeared for the applicants.

The application moved by Judicial Service Association of Delhi, relying on Article 217 (2) of the Constitution of India, states that there are two sources for elevation as Judges of the High Court. The first source is a person who has held a judicial office for at least 10 years and the second source is a person who has been an advocate for at least 10 years. These two sources are independent and separate, the application said.

“It may further be noted that in the Constitution, no ratio or quota is mentioned about the intake of Hon'ble High Court judges from the bar or service. Since Article 217 (2) does not prescribe any proportion for appointments vis-a-vis categories A and B. The fact that the category of judicial officers is placed prior to the category from the bar shows that the framers of the Constitution have treated both equally while placing more emphasis and responsibility on persons who have held judicial offices.”

In fact, in the scheme of the Constitution, the first clause of Article 217(2) of the Constitution is about the judicial officers from service, the applicant pointed out. And only the second clause is about elevating advocates from the bar. The first choice for elevation as a high court judge, therefore, ought to be from the judicial officers, it argued.

“..if the current ratio of 1/3 of the Judicial Officers' Quota for elevation to the high court, is increased to 1/2 (50:50), there would be a significant improvement in tenns of disposal of the cases as well as quality of judgments. The same would further leave no room for any criticism regarding any lack of experience for holding an 6 esteemed post of a high court judge, as the judges from the District Judiciary, when elevated to Hon'ble High Court, already possess a minimum judicial experience of at least 10 years as a judge”, the plea further argued.

Moreover, these appointees to the high court from the subordinate judiciary had been under the constant supervision and guidance of the respective High Court, their performance is tested over time, the plea said.

Explaining this, the application stated that when candidates of subordinate judiciary are considered for elevation, their requisite data is readily available i) their understanding and the concept of the law and justice, ii) writing skills, iii) behaviour with the bar, iv) handling of litigants, v) character which is assessed by the public, the legal fraternity, and the High Court.

This apart, a judicial officer with long years of experience on the Bench is already a recluse without any attachment to with any political ideology. Therefore, for the improvement of the institution and for instilling the confidence of the citizenry in the judiciary, the quota open to the District Judiciary in the High Court can be enhanced to 50%.

The application also highlighted the role played by the District Judiciary in the society.

“The District and Subordinate Courts play a prominent role in preserving law and order in the society. It is the public confidence in the Judicial system that sustains the credibility of the Judiciary. In generating and fostering the public confidence, the role of the District and Subordinate Judiciary is therefore significant.”

Further, the application flagged that the issue of appointment/elevation as a high court judge cannot be looked at from the narrow perspective of the transferor and transferee High Courts only. It needs to be seen at the “pan-Indian level”.

The applicant, therefore, urged the Court to issue directions to ensure that the bar-service ratios are at least maintained in the appointment of High Court Judges, and that vacancies from the service quota are filled at the earliest.

In the past few years, suitable candidates from bar were not available timely and many times there is an inordinate delay in filling the vacancies from Bar in various High courts. This ultimately prejudices the dispensation of justice, the IA said.

The plea also seeks to direct all High Courts to fill the vacancies from the Judicial Services Quota expeditiously.

Another development which happened during the hearing was that the Supreme Court took serious exception to certain states not complying with its earlier directions regarding enhancement of the pension of retired judicial officers. The matter will be next heard on February 28.

Case Title: Judicial Service Association of Delhi vs UOI