Transferred Judge Does Not Go With Label 'Bar Judge' Or 'Service Judge' : Supreme Court Makes Important Clarification On Categorising Vacancies

The Supreme Court on Friday made an important clarification as to how the vacancies in a High Court is to be categorized when a judge comes there on transfer from another High Court.

There is a proportion maintained among the judges drawn from the bar and from service. Generally, 2/3rd of the judges of the High Court are elevated from the bar and the rest 1/3rd are promoted from district judicial service. So, when a judge reaches a High Court on transfer from another High Court, whether the said judge should be considered as belonging to 'bar quota' or 'service quota' was a point of confusion.

Making an important clarification on this issue, the bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka stated that when a judge is transferred from one High Court to another, the said judge does not go to the transferred High Court with a label of a 'bar judge' or the 'service judge'. The judge goes to the High Court as a transferred judge and it should be left to the Chief Justice of the High Court as to how the vacancies should be categorized.  

Justice Kaul explained that the above clarification was necessary because, "The Ministry is at times issuing letters on the presumption as if bar judges are transferred there, so bar vacancies will be gone. No, that is not the way it operates. They may be from the bar or service, it is up to the Chief Justice. This is creating impediments in recommendations from some courts".

In view of this confusion, the bench observed in the order as follows :

"It should be appreciated that in every High Court there is a sanctioned strength of judges. 2/3rd of the judges are from the bar and 1/3rd are from the service. If a judge is transferred from a court, it is not as if a replacement can be provided from the bar or the service from that court, as the total strength of a court is specified."

Pointing out further the nature of a transferred judge, the bench observed in the order :

"When a judge is transferred to another court, he is a transferred judge - neither categorised from the bar nor from the service. In the Court where he is transferred, he occupies a physical position in the strength of that court and unless correspondingly judges are transferred from that court, there will be lesser persons appointed in that court from bar/service, as the total strength of the court to which the transfer has been made cannot be exceeded."

The bench further dictated in the order :

"The transferred judge does not carry the label of a bar or a service judge and it is up to the Chief Justice of Court where to he is transferred to reduce the inflow in the Court of transfer, i.e from the bar or the service. Similarly, if from the Court where to judges are transferred, in turn judges from other category are transferred to other courts, they in turn will carry the label of a transferred judge and not from the bar or from service. This aspect is being clarified as there appear to be some doubts expressed as to how the system of transfer will operate".

After dictating the order, Justice Kaul orally explained the order as follows:

"I am clarifying the position. Let us say, from one court, 3 bar judges are transferred to another court. In the Court where they go to, they occupy the position of a transferred judge, which means that if no judge is being transferred out from there, there will be three less local judges. It is not as if three bar judges are transferred, so three bar judges become less. No. It can be either from the bar or from the service depending on the Chief Justice. What is happening at times is that the Ministry is issuing letters on a presumption as if if three bar judges are transferred, three bar vacancies are gone. No. That is not how it operates. The vacancies may be from the bar or service, it is left to the Chief Justice".

Justice Kaul stated that in view of this confusion, there are impediments in making recommendations with respect to vacancies. Many High Courts are therefore delaying recommendations. Justice Kaul stated that the clarification is being made towards the objective of removing the confusion so that the High Courts do not delay recommending names.

"See it is very simple to understand. I don't know why it is difficult to understand. If a judge goes to another court, he does not carry the label of a service judge or bar judge. He goes as a transferred judge.  Consequently, where he goes, there will be naturally a reduction in the number of people who can be elevated. Whether it should be reduced from bar or service, it is the Chief Justice's wisdom", Justice Kaul added.

The judge stated that the bar and service quotas are defined as per the cadre strength.

"What is happening is that in more than one High Courts, this(confusion) is creating a problem. And therefore, the Chief Justices are not making recommendations. With this objective, I have clarified".

"I quite see that",  Attorney General for India R Venkataramani replied.

[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]

Click here to read/download the order

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