Government Bound To Appoint Judges On Reiteration By Supreme Court Collegium

The Supreme Court in the second judges case held that "In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention." The same view has been reiterated recently in the case of PLR Projects wherein the court directed that "It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously (Cl. 24.1), such appointment should be processed and appointment should be made within 3 to 4 weeks."

However, it appears that the Government has not followed the law laid down above and there have been many instances where despite re-iteration of names by the Supreme Court collegium, appointment orders have not been issued.

Kerala High Court

The Kerala High Court collegium on 12.04.2018 recommended three advocates, namely, Shri Conrad Stansilaus Dias, Shri Mohammed Nias C.P. and Shri Paul K.K. for being appointed as judge of the High Court. The Supreme Court collegium in its resolution dated 25.03.2019 agreed with the High Court collegium and recommended all the three to be appointed as judges of Kerala High Court. The Central Government, however, appointed only Shri Conrad Stansilaus Dias and he was sworn in as an Additional judge on 18.11.2019 and thereafter made permanent on 28.05.2021. The two other names recommended by the Supreme Court collegium remained pending.

The Supreme Court collegium on 06.05.2019 recommended Shri Viju Abraham, Advocate for appointment as a judge of Kerala High Court on receipt of a proposal from the High Court collegium. It appears that all the three pending names i.e. Shri Mohammed Nias C.P., Shri Paul K.K. and Shri Viju Abraham were returned by the Central Government. The Supreme Court collegium in its meeting dated 02.03.2021 reiterated all the aforesaid three names for appointment as judges of Kerala High Court. Out of the three names reiterated by the Supreme Court collegium, Shri Mohammed Nias C.P. and Shri Viju Abraham have been appointed as Additional judges of Kerala High Court on 13.08.2021. The name of Shri Paul K.K. though recommended by the High Court collegium on 12.04.2018, by the Supreme Court collegium on 25.03.2019 and reiterated by the Supreme Court collegium on 02.03.2021, is still pending with the Central Government for appointment.

The aforesaid facts show that out of the three names recommended by the High Court collegium on 12.04.2018, Shri C.S. Dias was appointed on 18.12.2019, Shri Mohammed Nias C.P. was appointed on 13.08.2021, and Shri Paul K.K. is yet to be appointed. This is in clear violation of the direction issued by the Supreme Court with regard to appointment of judges after reiteration of the names by the collegium.

Karnataka High Court

Shri Aaditya Sondhi, senior advocate was recommended for elevation by the Karnataka High Court collegium in 2020, whereafter the Supreme Court collegium in its meeting on 04.02.2021 has approved the proposal for his elevation. The Supreme Court collegium thereafter in its meeting on 01.09.2021, on reconsideration, resolved to reiterate its earlier recommendation for his elevation. Yet, the proposal remained pending with the Government of India and on 09.02.2022 Mr. Sondhi has withdrawn his consent for elevation.

Jharkhand High Court

The Supreme Court collegium on 01.09.2021 recommended five judicial officers, namely, 1. Shri Pradeep Kumar Srivastava 2. Shri Gautam Kumar Choudhary, 3. Shri Ambuj Nath, 4. Shri Navneet Kumar, and 5. Shri Sanjay Prasad. The President of India vide notification dated 06.10.2021 appointed Shri Gautam Kumar Choudhary, Shri Ambuj Nath, Shri Navneet Kumar, and Shri Sanjay Prasad in that order of seniority. However, the senior most judicial officer Pradeep Kumar Srivastava was not appointed. The Supreme Court collegium vide resolution dated 01.02.2022 has reiterated elevation of Pradeep Kumar Srivastava as the judge of Jharkhand High Court; but, the appointment order is yet to be issued. Even if Pradeep Kumar Srivastava is appointed now, he would a junior judge to the judicial officers who were earlier junior to him

It is thus necessary that the Supreme Court, on the judicial side, monitors the implementation of its directions in the PLR projects case as to the timeline to be followed by the constitutional authorities.

Vijay Hansaria - Sr Advocate

The author is a Senior Advocate in the Supreme Court of India and views are personal.