Day 2 Arguments

Day 2 Arguments: 15th November 2018

The Court has taken suo moto cognisance of the large number of judicial vacancies (unfilled judge posts) in the lower courts across India. Suo moto means ‘on its own motion’. Meaning, the Court has started proceedings even though no party has approached the Court, asking it to do so.

Note that the lower courts includes the District Courts (also referred to as Higher Judicial Service) and Subordinate Courts. The Higher Judicial Service, i.e. the District Courts, ought not to be confused with the High Courts.

In the previous hearing, the Bench led by CJI Gogoi announced it would monitor judicial appointments in respective State High Courts in four phases. In the first phase, the Court will monitor progress in the States of Uttar Pradesh, Maharashtra, Chhattisgarh, Delhi, West Bengal, & the North Eastern States. Shyam Divan is acting as the amicus curiae who will report on the progress in these States.

In today’s hearing, the Registrar Generals of the High Courts and the authorised representatives of the Chief Secretaries of Uttar Pradesh, Maharashtra, West Bengal, Chhattisgarh, and the North Eastern States were present in Court. The Court is assessing whether these States have been filling vacancies in a timely fashion, as outlined the guidelines issued in Malik Mazhar Sultan.

The Court was addressed by Mr. Shyam Divan, the Amicus Curiae in the case, as well as the Registrar Generals of the respective High Courts and persons deputed by the Chief Secretaries of the State.

Uttar Pradesh

Mr. Divan began by dealing first with the State of Uttar Pradesh and the High Court of Allahabad. He submitted that a suo moto petition had been taken up by the Allhabad High Court on similar issues.

Next, he placed before the Court the computed figures for the vacancies for the period ending on 31.12.2019. CJI Gogoi asked Mr. Divan to give separate figures for the vacancies in Higher and Subordinate Judiciary. The Court was informed that there were 610 vacancies in the subordinate judiciary all of which had been advertised. The Public Service Commission undertook to complete the recruitment process by 20.05.2019. There were 394 vacancies in the higher Judiciary and the process for filling up 364 of the latter was ongoing.

CJI Gogoi asked Mr. Divan whether the vacancies were being filled in a timely fashion, as per the guidelines issued in Malik Mazhar Sultan. Mr. Divan answered in the negative. Further, of the 364 vacancies, 125 had been advertised on 10.05.2018 and 239 had been advertised only on 12.11.2018. The Court directed the State of UP to complete the the recruitment process for these advertised vacancies by 31.03.19 and 31.07.19 respectively.

The Court expressed concern over the lack of adequate infrastructure and support staff. The State admitted that, were all the advertised posts to be filled, there would be insufficient infrastructure and staff for the each judge. CJI Gogoi observed that Courts needed infrastructure and manpower to function and the State Governments and Public Service Commission must be held accountable.

Mr. Divan submitted on behalf of the State that it has taken steps to provide infrastructure and residences for the new judges. The Court took this on record. Further, Mr. Divan submitted that an additional 3495 posts for Grade 3 and 4 support staff had been advertised to provide necessary staff to the new judges. Noting the same, the Court directed that the recruitment process for these must also be completed on or before 31.03.2019.

Additionally, it was directed that the procedure for filling up of vacancies in the promotional posts in the Higher Judiciary must run parallel and be completed by 31.07.19.

Maharashtra

Mr. Divan submitted the report filed by the State of Maharashtra and stated that as far as the State was concerned, the process for filling judicial vacancies is almost complete in both the Higher and Subordinate Judiciary. Mr. Divan submitted that the State’s primary concern is with respect to availability of infrastructure. He stated that the State government has provided detailed steps as to how it undertaken to ensure that infrastructure, such as housing, will be available for the new judges. The Court was satisfied with the progress made in Maharashtra.

West Bengal

Mr. Divan submitted that the State has computed vacancies up until 31.12.19. He submitted that there are 32 vacancies in the Higher Judicial Services, of which appointment orders have been issued for 17 posts for 12.11.2018. The Court noted that the position of all the ongoing recruitment processes was in advanced stages and directed that the Public Service Commission take steps to complete the same in a timely manner and send the recommendations to the appointing authority.

In the case of support staff, Mr. Divan submitted that the process for filling all 1355 vacancies was underway.

With respect to infrastructure, the Bench was not satisfied with position in the State of West Bengal, with high numbers of shortfalls in both court rooms and residences for judges. The Bench noted that the Chief Secretary present in Court failed to designate any authorised personnel, who could provide the details of the steps to be taken to fix the infrastructure problem.

The Court directed both the Chief Secretary and the Finance Secretary to file separate affidavits providing details of the time frame for completing the construction of the court halls and residences. Further, the Court ordered the two Secretaries to include in their affidavits the dates for the starts of new constructions. The Court observed that it was imperative to provide infrastructure at the earliest and if the Court found the affidavits filed to be unsatisfactory, it would order the Chief Secretary and Finance Secretary to be present in Court.

The Court will take up the case of vacancies in the State of West Bengal again in the next hearing, on 29th November 2018.

Chhattisgarh

Mr. Divan submitted that of a total sanctioned strength of 218 posts, 72 were vacant in the Higher Judiciary. Of these 72, 62 were in the process of being filled up by February 2019 through both direct recruitment, promotion and limited competitive examination, he submitted. Further, he submitted that the process for filling up the remaining 10 vacancies would be initiated in 2019.

The Court emphasised that the time schedule for filling these vacancies must adhere to the schedule provided under Malik Mazhar Sultan.

Assam & Other States under the Guwahati High Court

Submitting the Guwahati High Court’s report, Mr. Divan informed the Court that vacancies were being filled in a timely manner.

However, he submitted that adequate infrastructure to support new judges is seriously lacking, with 37 new Courts being required to accommodate all judges. He submitted that the proposed plan was to construct new buildings, lease buildings and accommodate Courts in other government buildings.

The Bench inquired whether building plans had been finalised and proposals submitted for administrative approval. Subsequently, it ordered the High Court to prepare final proposals and the Government to provide necessary infrastructure plans.

Manipur & Meghalaya

In the case of Manipur, Mr. Divan noted that there were 5 vacancies of District Judges. The Bench directed the High Court to initiate the recruitment process with respect to the 5 vacancies and complete it as expeditiously as possible.

With respect to infrastructure, Mr. Divan submitted that the primary issue was with regards to residences, specifically for Judges in Imphal. Accordingly, the Bench directed the State Government to take steps to provide residences in the capital city. As far as Manipur is concerned, the Registrar General of the High Court informed the Bench that 18 new buildings were required to house courtrooms and the Court ordered that the construction be completed in a time bound manner.

The Bench will hear the matter next on 29th November, where it will review the submissions by the State of West Bengal and New Delhi. The Court has ordered the Chief Secretaries of the two governments to file affidavits regarding their respective infrastructure problems.

Subsequently, the Bench will take up the case on 05.12.2018, on which date the Court will hear the States of Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka and Kerala.

(Court Reporting by Disha Chaudhry)