M/S Plr Projects Pvt. Ltd. vs Mahanadi Coalfields Limited

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION (CIVIL) NO.2419 OF 2019

M/s. PLR Projects Pvt. Ltd. .....Petitioner

Versus

Mahanadi Coalfields Ltd. & Ors. ..Respondents

ORDER

1. The High Courts are in a crisis situation. There are almost 40%

vacancies in the High Courts, with many of the larger High Courts

working under 50% of their sanctioned strength.

2. We have discussed in detail the aforesaid while dealing with the

aspect of appointment of ad hoc Judges under Article 224A of the

Constitution of India in WP(C) No.1236/2019. Vide separate order in the

aforementioned matter passed today, we have also discussed the process

of appointment under Articles 217 & 224 of the Constitution of India.

3. Learned Attorney General has placed before us the appointment

position in the High Courts to contend that against the sanctioned strength Signature Not Verified Digitally signed by Sanjay Kumar Date: 2021.04.20 16:05:51 IST of 1080 Judges, 664 Judges have been appointed with vacancies of 416 Reason: [1] Judges. However, the recommendations received and under process with

the Government are 196 leaving 220 recommendations to be received.

4. We cannot but note the importance of the Chief Justices of the

High Courts making recommendations in time. The vacancies are known

and the norms permit making recommendations up to six months in

advance. However, even recommendations for 220 existing vacancies

appear not to have been made much less for vacancies, which are going to

arise in the next six months.

5. We, thus, once again, emphasise the requirement and desirability of

the Chief Justices of the High Courts, who will make endeavour to

recommend vacancies as early as possible even if they are not made at

one go. We may add that even in the earlier orders we have noted the

apparent hesitation of some High Courts to recommend names when the

earlier list(s) is in the pipeline. We have opined that there is no such

impediment to initiate a new process without waiting for the result of the

earlier recommendations.

6. We had handed over a chart in the previous proceedings to the

learned Attorney General of the names recommended from the High

Courts which were still pending with the Government for more than six

months, numbering 45. The last couple of weeks has seen progress in this

behalf and those names have reached the Collegium. The second was the

[2] list of old proposals in pipeline pending with the Government of India

after the Supreme Court Collegium recommendations numbering 10.

These have been pending for considerable period of time. On the last

date of hearing, the learned Attorney General had made a statement that a

decision would be taken in this behalf within the next three months. Six

names reiterated by the Supreme Court Collegium a second time, are also

awaiting appointment.

7. Learned Attorney General did not differ with the requirement of

time bound schedule for filling the vacancies at every stage though he

emphasised that the trigger for filling up of the vacancies is the

recommendations made by the Chief Justices of the High Courts.

However, once the recommendations are made, there are two stages at

which the matter rests with the Government – the first when the Ministry

processes the names; and the second post the Collegium of the Supreme

Court taking a call in recommending such of the names as are approved

by the Collegium.

8. Insofar as the Judiciary is concerned, the second stage after the

recommendations are made by the Collegium of the High Courts is the

time period taken by the Collegium of the Supreme Court in consulting

the consultee Judge(s) to take a call on those names.

[3]

9. We have looked at the Memorandum of Procedure (for short

‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017

(which is identical to the MoP of 1999 subsisting earlier on these aspects)

where certain timelines have been stated for appointment of Judges to the

High Court. In terms of the timeline prescribed in the MoP, the relevant

paras 21, 24 & 24.1 of the existing MoP are as under:

a. States may take not more than six weeks to send their views. (Cl. 21) b. The Central Government can presume no objection of the State Government, if their views are not received within six weeks. (Cl. 21) c. No timeline prescribed for the Central Government to forward recommendations.

d. The Chief Justice of India to send recommendations/advise to the Law Minister within four weeks. (Cl. 24) e. The Law Minister to put up the proposal to the Prime Minister within three weeks for advise of the President. (Cl. 24.1)

10. It was submitted that if this Court considers laying down timelines,

it would be contrary to the observations made in the Third Judge’s case (!

998) 7 SCC (Special Reference 1 of 1998). In para 31, the Court referred

the Second Judge’s case and observed as follows:

“31. In the context of the judicial review of appointments, the majority judgment in the Second Judges case said: (SCC pp.707-08, para

480) “Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias….. The judicial element being

[4] predominant in the case of appointments…., as indicated, the need for further judicial review, as in other executive actions, is eliminate.” The judgment added : (SCC p.708, para 482) “Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, …. these matters are not justiciable on any other ground….”

It is not possible to accept this contention since the above observations of

the Court deal with the judicial review of particular appointment and not

such aspects of the appointment process like delay.

11. In the conspectus of the aforesaid and in order to facilitate timely

appointment, we are of the view that it would be advisable to follow the

following timelines in addition to the aforesaid:

i. The Intelligence Bureau (IB) should submit its report/inputs

within 4 to 6 weeks from the date of recommendation of the

High Court Collegium, to the Central Government. ii. It would be desirable that the Central Government forward

the file(s)/recommendations to the Supreme Court within 8

to 12 weeks from the date of receipt of views from the State

Government and the report/input from the IB. iii. 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

[5] 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.

12. We are conscious that the aforesaid exercise is collaborative in

nature and we would expect promptness in this process to facilitate the

larger cause of dispensation of timely justice.

13. With the above directions, we close this proceeding.

........................................CJI [S.A.BOBDE]

.............................................J. [SANJAY KISHAN KAUL]

.............................................J [SURYA KANT]

NEW DELHI;

APRIL 20, 2021.

[6]