Day 16 Arguments

August 1st 2019

Today, a three judge bench of the Supreme Court comprising Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Aniruddha Bose heard matters regarding the filling up of judicial vacancies in the state of Bihar.

Background

In October 2018, the court took suo moto cognisance of the high number of judicial vacancies in District and Subordinate courts. It noted that of the 22,036 judicial posts in the lower courts of the country, 5,133 posts are vacant. Therefore the Supreme Court is monitoring the progress made by the 24 High Courts in the country to expeditiously fill up judicial vacancies, as per the timeline fixed in the 2006 Malik Mazhar Sultan case.

The court has appointed four amici curiae to assist in monitoring the states.

• Shyam Divan for Uttar Pradesh, Maharashtra, Chhattisgarh, Delhi and the North Eastern States
• K.V. Vishwanathan for Gujarat, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka and Kerala
• Vijay Hansaria for Madhya Pradesh, Tamil Nadu, Odisha, Patna and Punjab & Haryana
• Gaurav Agrawal for Rajasthan, Sikkim, Telangana, Andhra Pradesh, Tripura and Uttarakhand

The bench is summoning government officials and Registrar Generals of the High Court to note the progress of processes undertaken to fill judicial vacancies. It is collecting information on the total strength of each cadre, the vacant posts in each cadre, the filled up posts in each cadre, the number of posts for which selection is ongoing and the status of the selection process and the number of posts for which selection process is yet to be initiated.

On July 30th, the court took note of the progress made by the states of Maharashtra, Uttar Pradesh, West Bengal, Chhattisgarh, Delhi and North-Eastern states. On July 31st, it monitored the progress of the states of Rajasthan, Sikkim, Telangana, Andhra Pradesh, Tripura and Uttarakhand.

Today’s hearing

Chief Justice Ranjan Gogoi began today’s hearing by asking Amicus Curiae Vijay Hansaria how many people had been appointed in the state of Bihar to fill judicial vacancies.

The Chief Secretary of Bihar outlined the state’s progress in appointments. He stated that in 2018, 18 officers had been selected and appointed against 26 vacancies. He informed the court that the next exam would be conducted on August 18th 2019 and interviews would be held on September 30th. He further submitted that police verification for candidates outside the state of Bihar takes a long time.

Chief Justice Gogoi asked Bihar’s Chief Secretary why this information had not been submitted to the court on the previous day. He stated the court had to adjourn the matter previously because of poor information. He added that if the information had been provided to the court on time, orders would have been passed earlier and the matter would not have to been taken up today.

Further, Chief Justice Gogoi directed the Chief Justice of Patna High Court to ensure that lapses in providing proper information to the Supreme Court do not occur and that the persons responsible for poor information are suitably dealt with.

There are 93 vacancies in Bihar’s judicial cadre of District Judge. A new process has been brought in for the selection of District Judges and this had led to some delay. However judgments have been received and the process of evaluation is expected to be completed by end of August with a final list scheduled to be published by August 31st. Chief Justice Gogoi directed Patna High Court to make appointments within 7 days of completion of the selection process.

Furthermore, 128 officers are being considered for the 35 posts through competitive exam. The written exam is on 18 August and interviews are scheduled for 9 September. The overall selection process is expected to be completed by end of September. The court directed the state government to make the appointments within 7 days of receiving the High Court’s recommendations.

12 candidates have been selected for the posts of Metropolitan Magistrate. Of the 12 candidates, 8 are from the state of Bihar and 4 are from outside. The court directed that for the candidates from Bihar, appointments be made within 4 weeks. It urged that the same time frame be applied for appointing the 4 candidates from outside Bihar. It directed that the police verification be completed as expeditiously as possible. Further, it directed the Chief Secretaries of the states from which the 4 candidates belong to ensure the quick completion of police verification. It also directed that seniority would be determined by the merit list published by the High Court and not the date of appointment.

With respect to selection of Junior Judges, the state of Bihar has conducted a written exam for 3,704 candidates and is requesting 4 months’ time to check the results. It anticipates that the final list can be published by October.

Chief Justice Gogoi stated the process of checking the results will take longer and that it is not possible to complete the process by October.

In the Civil Junior Judge division, 349 posts are vacant and answer script evaluation is ongoing. The results will be published by the end of September. After the conduct of interviews, results would be

published by November and appointments will be made by the end of December. However, Chief Justice Gogoi extended this timeline. Since 960 judgments were received by the High Court on July 31st, Chief Justice Gogoi stated that the estimate of completing evaluation by 14 September was unrealistic. He added that the High Court would need more time.

However, Chief Justice Gogoi stated that the entire system had completely failed because they had not attended to the basic problem of vacancies in the lower cadre. He stated that 128 Distict Judges could not be added to the cadre, until 128 munsiffs are appointed. He noted that there is a shortage of 377 munsiffs in Bihar and that new munsiffs could not be appointed until December 2020. He stated that if 120 munsiffs were made District judges, there would not be any munsiffs in Bihar.

The Chief Secretary of Bihar stated that they did not have a choice but to keep some positions vacant. Justice Gogoi then stated that all his directions and orders with respect to the state of Bihar will have to be postponed.

Amicus Curiae Vijay Hansaria states that the issue of which posts remain vacant must be left to the High Court’s discretion. However Chief Justice Gogoi stated that he would need to revise his orders. He took note of the peculiar situation in Bihar where the lowest judicial cadre has 377 posts vacant and a large number of additional vacancies are anticipated across cadres due to the retirement of officers. While 153 District Judge and 272 Senior Civil Judge posts are vacant, these upper cadres cannot be filled without promotion from lowest cadre. However, if promotions are made from lowest cadre, it will become dysfunctional. Therefore, he deemed that appointments must be made in a phased manner. He directed the Patna High Court to decide how to create upward mobility in the state’s judicial cadres with minimum disturbance. The Patna High Court must lay its plan before the Supreme Court within the next six weeks.

(Court reporting by Siddhartha Iyer)