Supreme Court Yearly Digest 2022- Judiciary

Judges Appointment - Collegium reiterations are binding - Supreme Court asks Centre to explain by reiterated names are sent back to the collegium- 10 names reiterated by the Supreme Court collegium sent back by the Central Government- SC asks Attorney General as to how under the Scheme of law prevalent, are reiterated names sent back - Refers to para 486, clause 5 of the second Judges case reported in 1993 (4) SCC 441 - sending back a second time reiterated names would be in breach of this direction. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Delay in finalizing the appointments discouraging eminent lawyers from joining the bench-There has been reluctance on the part of the successful lawyers to accept the honour and what we have stated in our last order is out of the experience of not being able to persuade such eminent people to join the Bench with one factor largely weighing in with them apart from any other issue, i.e. the long prolonged process of appointment and putting their career on hold. Thus on one hand, they are making a monetary sacrifice to come on to the Bench in a larger cause of justice but in that process they do not want their life to be dragged into an uncertainty. This has also resulted in at times, persons withdrawing their consent who are recommended to be elevated. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Delays in appointment will discourage competent lawyers in opting for judgeship - With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench-unless the Bench is adorned by competent lawyers very concept of Rule of Law and Justice suffers. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judges Appointment - Memorandum of Procedure is final - The final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017- The undisputed legal position that the MoP is final. That this does not mean that if the Government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Supreme Court disapproves Centre splitting up collegium recommendation - When the recommendations are cleared by the Supreme Court, the seniority set out therein must be followed. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judicial Appointment - Supreme Court issues notice to the Secretary (Justice) and the current Additional Secretary (Administration and Appointment) over delays in clearing collegium reiterations. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Once the Government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place. Thus, keeping the names pending is something not acceptable. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Selection to the post of Civil Judge (Junior Division) in Bihar - Decision of Bihar Public Service Commission to reject the applications of 8 candidates for not submitting originals of the certificates at the time of interview set aside - The rejection of the candidates was improper, unjustified and not warranted - 8 appellants who were duly qualified and duly selected have been deprived of their appointment as Judicial Officers. Aarav Jain v. Bihar Public Service Commission, 2022 LiveLaw (SC) 521 : AIR 2022 SC 2525

Judicial Appointments - Supreme Court criticises Centre keeping the recommendations pending - We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Supreme Court makes critical remarks against the Union Government over delay in clearing names reiterated by the Collegium. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Infrastructure - Supreme Court directs the Law Secretaries of all State Governments to file affidavits relating to budget allocation and utilization. Imtiaz Ahmad v State of Uttar Pradesh, 2022 LiveLaw (SC) 636

Judgment & Order

Judgment & Order - Reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. An unreasoned order suffers the vice of arbitrariness. (Para 18) Ms. Y v. State of Rajasthan, 2022 LiveLaw (SC) 384 : AIR 2022 SC 1910 : (2022) 9 SCC 269

Judgment and Order - An order is in the given factual scenario. The judgment lays down the principles of law. The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776

Judgment and Order - Judgment or decree btained by fraud is to be treated as a nullity - Non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to fraud. (Para 21) Ram Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 806 : AIR 2022 SC 4705

Judgments - Accessibility - Judgments to carry paragraph numbers and a table of contents in a longer version - Judgments should be accessible to persons from all sections of society including persons with disability - They should not have improperly placed watermarks and should be signed using digital signatures - They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens. (Para 20-21) State Bank of India v. Ajay Kumar Sood, 2022 LiveLaw (SC) 710

Judgments - Broad guidelines on judgment writing - While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles - Incoherent judgments have a serious impact upon the dignity of our institutions - "IRAC‟ method of judgment writing - The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. (Para 10-28) State Bank of India v. Ajay Kumar Sood, 2022 LiveLaw (SC) 710

Judgments - High Court dictated operative portion of the order on 06.11.2019 but the final order was dictated only on 15.03.2020 i.e. after 4 months and it typed out and corrected on 15.04.2020 - Supreme Court observed that it has repeatedly frowned upon the aspect of the oral orders being passed. Surendra Pratap Singh v. Vishwaraj Singh, 2022 LiveLaw (SC) 335

Judgments - It is well settled that judgments and observations in judgments are not to be read as provisions of statute. Judicial utterances and/or pronouncements are in the setting of the facts of a particular case - To interpret words and provisions of a statute, it may become necessary for the Judges to embark upon lengthy discussions. The words of Judges interpreting statutes are not to be interpreted as statutes. Axis Bank Ltd v. Vidarbha Industries Power Ltd; 2022 LiveLaw (SC) 817

Judgments - Practice of pronouncing final order without a reasoned judgment - Serious difficulties are caused on account of the said practice - Even if such oral orders were to be pronounced, it is expected that they are either dictated in Court or at least must follow immediately thereafter to facilitate the aggrieved party to seek redressal from the higher Court. (Para 2-3) Surendra Pratap Singh v. Vishwaraj Singh, 2022 LiveLaw (SC) 335

Judgments - Supreme Court advises High Courts to pronounce judgments without delay after concluding arguments -t is always advisable that the High Court delivers the judgment at the earliest after the arguments are concluded and the judgment is reserved-Long delay in delivery of the judgment gives rise to unnecessary speculations in the minds of the parties in a case. (Para 6.2) State of U.P. v. Akhil Sharda, 2022 LiveLaw (SC) 594

Judgments - Words and phrases and/or sentences in a judgment cannot be read in the manner of a statute, and that too out of context. (Para 47) Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318 : 2022 (5) SCALE 353

Judicial Misconduct

Judicial Misconduct - Showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that "the public servants are like fish in the water, none can say when and how a fish drank the water". A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar's wife, must be above suspicion. (Para 15) Muzaffar Hussain v. State of Uttar Pradesh, 2022 LiveLaw (SC) 450

Judicial Review

Judicial Review - Limited scope of judicial review over policy matters of executive-we do not think in exercise of judicial power we can require the State to operate a pension scheme in a particular manner. These factors would be for the policy makers to examine and prescribe. We cannot issue directions on the Central Government to work out statutory scheme in a particular fashion. (Para 32) Employees Provident Fund Organization v. B. Sunil Kumar, 2022 LiveLaw (SC) 912 : AIR 2022 SC 5634

Judicial Service

Judicial Service - Appeal against Bombay HC judgment which refused to interfere with cancellation of appointment of appellant judicial officer who could not join before prescribed date due to nationwide lockdown imposed in view of covid-19 pandemic - Allowed - It is not a case where there is a complete dearth of any explanation by the candidate - There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation - Impugned notification quashed and appointment restored - The appellant will not be entitled to claim seniority / backwages. Rakesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 250

Judicial Service - Appeal against High Court judgment which upheld discharge of a judicial officer - Allowed - Charges filed against the appellant are vague in nature and that absolutely no details have been provided regarding the said allegation of passing the bail order for extraneous considerations/ ulterior motive - Even if appellant's act is considered to be negligent, it cannot be treated as "misconduct" - The appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months. Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judicial Service - Appellant had applied to the post of Additional District and Sessions Judge (in Bihar) - In the meantime, he also applied for post of Civil Judge (Junior Division) in State of Uttar Pradesh - After being successful in the selection process (UP), he was appointed on 16th January 2017 as a Civil Judge (Junior Division) in UP - After this, the selection process for recruitment in the Bihar Superior Judicial Services proceeded further. After obtaining the requisite permission from the Allahabad HC, he participated in the selection process conducted by the Patna High Court for the post of Additional District & Sessions Judge. After successfully clearing the selection process, he obtained permission from the Allahabad HC for resigning from the Uttar Pradesh Judicial Services, so as to join his service as Additional District and Sessions Judge in the State of Bihar. Thus he joined the Bihar Superior Judicial Service with effect from 21st August 2018 - Later the Patna HC terminated his service citing the decision in Dheeraj Mor v. High Court of Delhi (2020) 7 SCC 401 - His writ petition challenging this termination dismissed by Patna HC - Allowing appeal, the Supreme Court observed: He was neither in services of the Bihar Subordinate Judicial Services Cadre on the date on which he applied - Nor was he in the services of the Bihar Subordinate Judicial Officer Cadre on the date on which he was selected- He had also sought permission from Allahabad HC in this regard - directed reinstation. Sunil Kumar Verma v. State of Bihar, 2022 LiveLaw (SC) 775

Judicial Service - Delhi Higher Judicial Service - In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations. (Para 29) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

Judicial Service - Delhi Higher Judicial Service - The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. (Para 27) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

Judicial Service - Discharge of Judicial Officer - Negligence cannot be treated to be misconduct - Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54) Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judicial Service - Inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points. Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

Judicial Service - The writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated. The Supreme Court Held: Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative. The petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014, passed by the respondent No. 2, thereby accepting the resignation of the petitioner, is quashed and set aside; and the respondents are directed to re­instate the petitioner forthwith as an Additional District & Sessions Judge. Though the petitioner would not be entitled to back wages, she would be entitled for continuity in service with all consequential benefits with effect from 15th July 2014. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150 : 2022 (3) SCALE 99

Judicial Service (Delhi) - Order dated 21st March 2002 modified - 25% by promotion strictly on the basis of merit through LDCE of Civil Judges having 7 years qualifying service [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division)] or 10 years qualifying service as Civil Judge (Junior Division) - Only 10% of the cadre strength of District Judges be filled up by Limited Departmental competitive Examination with those candidates who have qualified service of 7 years [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division) or 10 years qualifying service as Civil Judge(Junior Division). (Para 17) All India Judges Association v. Union of India, 2022 LiveLaw (SC) 385 : AIR 2022 SC 1944 : (2022) 7 SCC 494

Judicial Service Examination - Particularly in such cases where there is a multiple choice question paper, it is always advisable that for such question papers, there shall always be an OMR sheet which may be provided to the candidates so that the question paper can be retained by each of the participants and after the examination is held, a provisional answer key is to be uploaded inviting objections from the candidates who had participated in the selection process, to be furnished within a reasonable time and after collating such objections, the same be placed before a subject expert committee to be constituted by the recruiting/competent authority and after the report is submitted by the subject expert committee, the same be examined by the recruiting authority and thereafter the final answer key is to be uploaded. We make it clear that no presumption is to be drawn that the result has to be declared, but at least the candidates may be provided the final answer keys to enable them to make their own assessment. (Para 26) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Judicial Service Examination - Punjab/Haryana Superior Judicial Service Examination, 2019 - High Court dismissed writ petition challenging the examination process - Allowing the appeal, the Supreme Court directed : Valuate the marks obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law) (out of total 160 marks) and after undertaking the process, a fresh result of the written examination be declared of the candidates in reference to Punjab/Haryana Superior Judicial Service Examination, 2019 and those who qualify and fall in the zone of three times the number of vacancies may be called for viva­voce and result of the selection process, thereafter be finally declared in accordance with the scheme of Rules, 2007. Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Judicial Service Examination - Where the written examination is followed with viva­voce, declaration of result of the written examination before conducting viva­voce may not be valid and justified but in cases where determination of merit is based on written examination, it must be declared and made available to candidates without any loss of time and this Court can take a judicial notice of the fact that in such cases where the written examination is followed with interview / viva­voce and the members in the interview board are made aware of the marks secured by the candidates in the written examination that may likely to form bias affecting the impartial evaluation of the candidates in viva­voce and in our considered view, it may always be avoided. (Para 28-29) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Jurisdiction

Jurisdiction - An ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication. (Para 16) Vodafone Idea Cellular Ltd. v. Ajay Kumar Agarwal, 2022 LiveLaw (SC) 221 : (2022) 6 SCC 496