The Central Government on Thursday told the Supreme Court that the appointment of additional judges on ad-hoc basis in High Courts under Article 224A of the Constitution can be done only after the filling up of regular vacancies of judges.
This submission was made by Additional Solicitor General of India RS Suri before a bench comprising CJI SA Bobde, Justices S K Kaul and Surya Kant. The bench had earlier sought the views of the Centre on appointing ad-hoc High Court judges to tackle the problem of mounting case arrears.
"The stand of the Union Government is not adversarial. Pendency is a menace which requires to be tackled", ASG Suri submitted. But he added that the ad-hoc judges can be appointed only after regular appointments.
The bench however expressed doubts about the correctness of this proposition advanced by the ASG.
"You are saying that first regular vacancy should be filled and then ad hoc judges should be appointed?", Justice SK Kaul asked the ASG.
"That is the legislative intent", the ASG replied.
"If all vacancies are filled ,there will be no problem. So far as ad hoc judges are concerned, the idea is they keep working till the vacancies are filled up. I was told that there was a bill drafted to equate HC judges to SC judges. That is something we have to think about, increasing the age of HC judges as 65", Justice Kaul observed.
At this juncture, the CJI asked if there is anything in Article 224A of the Constitution which suggests that ad-hoc judges can be appointed only after vacancies are filled.
"Can you show us any provisions in Constitution which show that ad hoc judges should not be appointed until all regular vacancies are filled up. What is there in the article which shows that you must first fill up regular vacancies and then appoint ad-hoc judges?", the CJI asked.
The CJI also remarked that filling up of all regular vacancies is a situation which has never happened in the country.In reply, ASG said, "If the vacancies are filled up, there will be no need for ad hoc judges. Otherwise there will be an incentive not to appoint regular judges and to appoint ad hoc judges only".
Raising eyebrows at this argument, Justice Kaul said "I don't understand, what incentive? Your argument is circuitous. It is not that existing appointments cannot go on. Ad hoc judges is something to help High Court to deal with the interim period. It is a provision to be used completely in the reverse of what you are saying".
The ASG Suri then said that there are certain steps to be followed for appointment of ad-hoc judges. The CJ of HC would may at any time with previous consent of President, request any ex-HC judge to sit as a judge of that court. After obtaining the consent of the ex-judge, the Chief Justice must communicate the matter to the Chief Minister. The Chief Minister will forward the proposal to the Union Law Minister, the ASG added.
While the ASG was explaining this process, CJI Bobde said that these submissions will have to be put it on record by way of an affidavit.
Senior Advocate Arvind P Datar, who was appearing for the Orissa High Court, said that the ASG was referring to paragraph 24 of the Memorandum of Procedure drafted by the Union for appointment of judges.
The bench asked the Senior Advocates representing different High Courts to convene a meeting and discuss the circumstances under which ad-hoc judges can be appointed under Article 224A.
The matter will be considered on next Thursday, April 15.
The bench was considering a Public Interest Litigation(PIL) petition filed by the NGO Lok Prahari seeking the invocation of Article 224A of the Constitution for using the services of former High Court judges to decide pending cases.