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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.________/2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) (WITH PRAYER FOR INTERIM RELIEF) IN THE MATTER OF:-
SUNIL SAMDARIA -PETITIONER VERSUS
UNION OF INDIA AND OTHERS -RESPONDENTS PAPER BOOK (FOR INDEX KINDLY SEE INSIDE)
PETITIONER-IN-PERSON
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INDEX S. No
Particulars
Page Nos.
1.
Synopsis and List of Dates
2.
Memo of Writ Petition along with the Affidavit.
3.
Annexure-P/1:- True copy of the
Representation
dated
8.2.2107 sent to the Govt. on 9.2.2017. 4.
Annexure-P/2:- True copy of the Notification dated 12.5.2017
5.
I.A.No.______/2017 (Application for Interim relief)
3
Synopsis and List of Dates Synopsis 1. Constitution ‘is’ what the Supreme Court says the Constitution ‘is’. Justice Charles Evanes Hughes [Former Chief Justice, U.S. Supreme Court (1930-1941)] aptly quoted, ‘We are under a Constitution, but the constitution is what the judge says it is’. This
Hon’ble
Court
too
has
held
in
unequivocal terms in M. Nagraj Vs Union of India, (2006) 8 SCC 212] that interpretation placed on the Constitution by Supreme Court becomes part of Constitution and it gets inbuilt in the provisions interpreted. As a corollary, constitutional appointment(s) must be in consonance and in conformity with
the
constitutional
constitutional standards
provisions, and
the
interpretation given to the constitutional provisions by the Supreme Court.
4
2. In sequel to above principle, petitioner prefers the present writ petition challenging the legality and validity of Notification dated 12.5.2017 inter alia appointing Respondent No. 2 and Respondent No.3 as Additional Judges of the Rajasthan High Court under Article 224(1) of Constitution of India from the date of assuming their respective offices till1st September 2018 and 2nd July, 2018 respectively.
3. Petitioner appointment
submits of
that
Respondent
aforesaid No.2
and
Respondent No.3 as Additional Judges of Rajasthan High Court is contrary to Article 224(1) of Constitution of India itself, in view of law declared by 7-Judges constitutional bench judgment rendered in the case of S. P. Gupta and Others Vs Union of India and Others [(1981) Supp SCC 87], Para 44 of which mandates for minimum term of 2 years for an Additional Judge, appointed under Article 224(1) of the Constitution of
5
India,
in a High Court where arrears of
pending cases is more than 2 years. Thus, appointment
of
Respondent
No.2
and
Respondent No.3 for short period of 1 year 3 months 17 days and 1 year 1month 17 days respectively in Rajasthan High Court, where arrears of pending cases is more than 10 years, is per se contrary to minimum term prescribed by constitutional bench judgment and is therefore void ab initio.
4. That, appointment of Respondent No.2 and Respondent No.3, as a Judge / Additional Judge is further contrary to Article 217(2)(a) of the Constitution of India in view of law declared by Hon’ble Supreme Court in the case of Kumar Padma Prasad Vs Union of India and Others [AIR 1992 SC 1213] wherein it has been categorically declared in Para 25, 35 and 41, that in order to qualify for appointment as a Judge of High Court
under
Article
217
(2)
(a)
of
6
Constitution of India, a person ‘must hold’ “judicial office” which must be a part of judicial
service
of
State
and
that
qualification for appointment has to be seen on the date of issuance of warrant by President of India. Respondent No.2 and Respondent No.3 stood retired from ‘judicial service’
of
the
superannuation
state age
on of
attaining 60
years
the on
30.9.2016 and on 31.7.2016, consequently ceasing to hold the “judicial office” after their retirement from judicial service. Thus, Respondent No.2 and Respondent No.3 neither held ‘judicial office’ nor they were part of judicial service of the state on the date of issuance of warrant by President of India, thus they were neither qualified nor eligible to be appointed as Judge of High Court on the date of issuance of warrant of appointment by President of India making their appointment as an Additional Judge of Rajasthan High Court as non est and void ab initio.
7
5. That, before 7-Judges constitutional bench of this Hon’ble Court in the case of S. P. Gupta Vs Union of India and Others, apart from several others questions which had arisen for consideration, a specific question arose
‘when
an
additional
judge
is
appointed, what should be the term for which his appointment is made’. Hon’ble Court specifically answered the aforesaid question in Para 44 of the judgment, concluding that when arrears of pending cases before High Courts are so large that it is not possible to dispose them of even within 10 years, then ‘what justification there
can
be for
appointing
Additional
Judges for a period less than two years. That, would be plainly outside the scope of the power conferred under clause (1) of Article 224.’ It further went on to declare that that ‘when the arrears of pending cases are such that they cannot possibly be disposed of within a period of less than two years, Additional Judges must be appointed
8
for a term of two years and no less’. It further laid down ‘that the term for which an Additional Judge is appointed must not be less than two years, unless the temporary increase in business or arrears of pending cases are so small that they can be reasonably
be
disposed
within
shorter
period, which of course today is only an idle dream in most of the High Courts.’ Relevant part of Para 44 of the judgment supra, for ready
reference
and
convenience
is
reproduced herein below :-
“44. One last argument now remains, when an additional judge is appointed, what should
be
the
term
for
which
his
appointment is made. Clause (1) of Article 224 provides that an Additional Judge may be appointed for a period not exceeding two years. That is the outside limit prescribed by Article 224 Clause (1) and it was therefore contended by the learned Attorney General that appointment of Additional Judge can be
9
made for any term, howsoever short it be, so long as it does not exceed two years. The appointment of O.N. Vohra, S. N. Kumar and S. B. Wad for three months and the appointment of some other additional judges for six months were thus defended by the learned Attorney General as being within the scope and ambit of clause (1) of Article 224. We cannot accept this argument. It is no doubt true that clause (1) of the Article fixes the outer limit for the term for which an Additional Judge may be appointed, but that has been done because there may be cases where the temporary increase in business or arrears of pending cases are so small that it may be possible to dispose them of by appointing Additional Judges for a term less than two years. If the temporary increase in business or arrears of pending cases can be disposed
of
within
shorter
time
why
Additional Judges be appointed for a full period of two years. That is why Parliament provided that an Additional Judge may be
10
appointed for a term not exceeding two years. But when the arrears of pending cases are so large that it would not be possible to dispose them of even within ten years-and when we say ten years, we are making a very conservative estimate-what justification there can be for appointing Additional Judges for a period less than two years. That, would be plainly outside the scope of the power conferred under clause (1) of Article 224. When the arrears of pending cases are such that they cannot possibly be disposed of within a period of less than two years, Additional Judges must be appointed for a term of two years and no less. Mr Mridul informed us towards the close
of
the
arguments
that
Union
Government had decided that ordinarily further appointment of Additional Judge will not be made for a period less than one year, but we cannot regard his statement as being fully
in
compliance
requirement.
The
with
term
for
constitutional which
an
11
Additional Judge is appointed must not be less than two years, unless the temporary increase in business or arrears of pending cases are so small that they can be reasonably
be
disposed
within
shorter
period , which of course today is only an idle dream in most of the High Courts.”
Thus,
constitutional
bench
judgment
(supra) prescribes minimum term of 2 years qua appointment of an Additional Judge under Article 224(1) of the Constitution of India, in a High Court where arrears of pending cases is more than 2 years. If the appointment
of
Respondent
No.2
and
Respondent No.3 as Additional Judges of Rajasthan High Court is tested on the anvil of aforesaid declaration of law made by constitutional bench judgment, same would be
in
clear
contravention
breach of
judgment supra. Respondent
No.3
and
in
constitutional
absolute bench
Respondent No.2 stood
appointed
and as
12
Additional Judges of Rajasthan High Court vide Notification dated 12.5.2017 from the date of assumption of their respective offices till 1st September 2018 and 2nd July, 2018. They assumed the office of Additional Judge of the High Court on 16.5.2017. Thus, their period of appointment is from 16.5.2017 to 1.9.2018 (1 year 3 months 17 days) and from 16.5.2017 to 2.7.2018 (1year 1month 17 days) respectively which is ex-facie less than minimum period of 2 years prescribed by constitutional bench judgment, thus their appointment as an Additional Judge of Rajasthan High Court is non est and void ab initio, especially when arrears of pending cases before Rajasthan High Court, in praesenti, is of more than 10 years. Arrears of pending cases before Rajasthan High Court, according to Annual Report of 2015 and of 2016, published by Rajasthan High Court is as follows:-
13
2015 Type
of
Cases
0-1
1 to 5
5-10
More
Total
year
years
years
than
pendency on
10
31.12.2015
years Civil
33,962
67,389
51,778
29,372
1,82,501
Criminal
14,081
17,201
13,662
17,421
62,365
Total
48,043
84,590
65,440
46,793
2,44,866
2016
Type
of
0-1
1 to 5
5-10
More
Total
year
years
years
than
pendency on
10
31.12.2016
Cases
years Civil
33321
63094
53652
35574
184451
Criminal
15620
20377
14440
19243
69680
Total
48941
84281
68092
52817
254131
Year wise
pendency
of
cases
in
preceding 6 years before Rajasthan High Court has been as follows:Year
Pendency at the end of each Year
2010
2,92,490 cases
2011
2,81,306 cases
14
2012
2,92,551 cases
2013
3,07, 640 cases
2014
2,28,887 cases
2015
2,44, 866 cases
2016
2,54.131 cases
Thus, consistently pendency of cases before Rajasthan High Court had been more than 10 years. In view, thereof, appointment of any person as an Additional Judge could not have been made for a period less than 2 years in view of binding judgment of constitutional bench rendered in the case of S. P. Gupta Vs Union of India. Aforesaid minimum period of 2 years prescribed by S. P. Gupta Vs Union of India and Others qua appointment of Additional Judges under Article 224(1) of the Constitution of India, in a High Court where arrears of pending cases is more than 2 years has not been varied / modified / altered or annulled by any subsequent judgment of this Hon’ble Court. Even 9 Judges Bench Judgement
15
rendered in the case of Supreme Court on Record Advocate Association Vs Union of India [(1993) 4 SCC 441] and Special Reference No.1 of 1998 [(1998) 7 SCC 739] wherein judgment of S.P. Gupta Vs Union of India came up for re-examination before this
Hon’ble
Court,
did
not
vary
the
aforesaid minimum period of 2 years qua appointment of an Additional Judge under Article 224 (1) of the Constitution of India, in a High Court where pendency of cases before High Court is more than 2 years. Ratio of S. P. Gupta Vs Union of India stood varied by this Hon’ble Court in Supreme Court Advocate-on-Record Association Vs Union of India [(1993) 4 SCC 441] only to the extent of primacy of judiciary over executive in relation to matters of appointment / transfer of Judges of High Court and in relation
to
justiciability
of
strength
of
Judges. Thus, in absence of any variance qua period / term of appointment of an Additional Judge under Article 224(1) of the
16
Constitution of India, ratio of S. P. Gupta Vs Union of India, prescribing minimum period of 2 years, for an Additional Judge, in a High Court, where the pendency of cases is more than 2 years, is intact and holds the field and is thus binding upon all in view of constitutional mandate of Article 141 of the Constitution of India. Thus, in view of aforesaid
binding
judgment
qua
constitutional minimum
appointment
as
an
appointment
of
Respondent
bench
period
Additional
of
Judge,
No.2
and
Respondent No.3 as an Additional Judges of Rajasthan High Court under Article 224(1) of the Constitution of India, for a period less than 2 years is non est and void ab initio.
6. That, appointment of Respondent No.2 and Respondent No.3 as Additional Judges of High
Court
is
not
only
contrary
to
constitutional bench judgment of S. P. Gupta Vs Union of India but is also contrary
17
to law declared by this Hon’ble Court in the case of Kumar Padma Prasad Vs Union of India (AIR 1992 SC 1213) qua interpretation of Article 217(2)(a) of the Constitution of India. It is submitted that there is no distinction between a Judge / Additional Judge so far as eligibility/ qualification for appointment is concerned. A citizen must satisfy the eligibility / qualification set out under Article 217 (2) of Constitution of India on the date of issuance of warrant by President of India in terms of declaration of law made by Kumar Padma Prasad Vs Union of India (supra). Aforesaid judgment categorically declares in most unequivocal terms in it’s Para 25, 35 and 41 that under Article 217 (2) (a) of Constitution of India, in order to qualify for appointment as a Judge of High Court, a person must hold a “judicial office” which must be a part of judicial service of State and that the qualification has to be seen on the date of issuance of warrant by President of India.
18
For ready reference and convenience Para 25 is reproduced herein below:-
“25. It is thus clear that the expression “judicial office under Article 217 (2) (a) of the Constitution
has
to
be
interpreted
in
consonance with the scheme of Chapters V and VI of Part VI of the Constitution of India. We
therefore
hold
that
the
expression
“judicial office” under Article 217 (2) (a) of the Constitution means a “judicial office” which belongs to the judicial service as defined
under
Article
236
(b)
of
the
Constitution of India. In order to qualify for appointment as a Judge of High Court under Article 217 (2) (a), a person must hold a “judicial office” which must be a part of judicial service of State.”
Hon’ble Court further clarified in Para 35 of judgment supra that word “judicial office” under Article 217 (2) (a) means a subsisting office with a substantive position. For ready
19
reference and convenience Para 35 judgment
supra
is
reproduced
of
herein
below:-
“35. The word “office” has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context it appears in the Constitution. We are of
the
view
that
the
framers
of
the
Constitution did not and could not have meant by “judicial office” which did not exist independently and duties or part of duties of which could be conferred on any person whether trained or not in administration of justice .The word “judicial office” under Article 217(2) (a) in our means a subsisting office with a substantive position which has an existence independent from it’s holder.”
In
view
of
enunciation
proposition of law,
of
aforesaid
Hon’ble Court allowed
the petition filed by Kumar Padma Prasad quashing the appointment of Sh. K.N.
20
Shrivastava as a Judge of the High Court holding that that Sh. K. N. Shrivastava was not qualified to be appointed as Judge on the date of issuance of Presidential warrant. The relevant part of Paragraph 41 for ready reference and convenience is reproduced herein below:-
“41. We allow transferred petition of Kumar Padma Prasad and declare that K. N. Shrivastava, on the date of issue of the warrant by the President of India was not qualified to be appointed as a Judge of High Court. As a consequence, we quash his appointment as Judge of the High Court.”
7. That, the principle which emerges from combined reading of Para 25, 35 and 41 reproduced herein above and other parts of the judgment supra is that, qualification / eligibility to hold the office of a Judge of High Court is to be seen on the date of issuance
of
issuance
of
warrant
by
21
President of India and a person must hold ‘judicial office’ in the judicial service of the State on the date of issuance of warrant of appointment by Hon’ble President of India. As a consequence / corollary thereof, if any person do not hold “judicial office” in the “judicial service” of the State ‘on the date of issuance of Presidential warrant’, he would not be qualified / eligible to be appointed as Judge of High Court under Article 217 (2) (a) of the Constitution of India. Respondent No.2 and Respondent No.3 though held the ‘judicial office’ and was part of ‘judicial service’ of the state up to 30.9.2016 and 31.7.2016 respectively, when they retired from ‘judicial services’ on attaining the superannuation age of 60 years, but they ceased to be part thereof and consequently ceased to hold judicial office after 30.9.2016 and 31.7.2016. Thus, Respondent No.2 and Respondent 3 neither held ‘judicial office’ nor were they part of ‘judicial service’ contemplated under Article 236(b) of the
22
Constitution
of India
‘on
the
date
of
issuance of Presidential Notification’ i.e. on 12.5.2017. In view thereof, Respondent 2 and 3 were neither eligible nor qualified to be appointed as Judge of a High Court on the date of issuance of warrant by President of India, which makes their appointment as Judge / Additional Judge of the Rajasthan High Court as null and void being contrary to Article 217(2) (a) of the Constitution of India. List of Dates 30.9.2016
Respondent No.2 and Respondent
31.7.2016
No.3 stood retired from ‘judicial services’ of State of Rajasthan on 30.9.2016
and
respectively
on
on
31.7.2016
attaining
the
superannuation age of 60 years from District Judgeship of District Alwar (Rajasthan) and from District Judgeship (Rajasthan)
of
District respectively.
Bhilwara Thus,
23
Respondent No.2 and Respondent No.3 ceased to hold ‘judicial office’ after their retirement from ‘judicial service’ of the State after 30.9.2016 and 31.7.2016 respectively.
8.2.2017/
Petitioner
9.2.2017
dated 8.2.2017 on 9.2.2017 inviting attention
sent
of
a
the
unconstitutional
representation
Govt.
towards
practice
of
appointing retired judicial officers of state ‘judicial services’ as Additional Judges in a High Courts for a period less
than
2
years
contrary
to
declaration of law made by 7-Judges constitutional
bench
judgment
rendered in the case of S. P. Gupta Vs Union of India [(1981) Supp SCC 87] and contrary to declaration of law made in the case of Kumar Padma Prasad Vs Union of India [AIR 1990 SC 1213].
24
12.5.2017
Ignoring the representation made by the
petitioner,
issued
Respondent
Notification
on
No.1
12.5.2017
inter alia appointing Respondent No.2
and
Respondent
No.3
as
Additional Judges of Rajasthan High Court under Article 224(1) of the Constitution of India from the date of assumption of their respective office till 1st September, 2018 and till 2nd July, 2018 respectively.
16.5.2017 Respondent No.2 and Respondent No.3
assumed
the
office
of
Additional Judge of Rajasthan High Court on 16.5.2017
Petitioner
prefers
the
present
petition challenging the legality and validity 12.5.2017
of
Notification to
the
dated
extent
of
25
appointment of Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court, challenging their
eligibility to hold
the office of Judge of High Court with a prayer for issuance of writ of quo warranto, as their appointment is contrary to Article 224(1) and Article 217 (2) (a) of Constitution of India
as
constitutional
enunciated bench
by
judgment
rendered in S. P. Gupta Vs Union of India [(1981) Supp SCC 87] and in the case of Kumar Padma Prasad Vs Union of India [AIR 1990 SC 1213].
Thus, this petition.
26
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.________/2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) (WITH PRAYER FOR INTERIM RELIEF)
IN THE MATTER OF:Sunil Samdaria s/o Late Sh. B. L. Samdaria aged about 43 years, r/o C-235, Nirman Nagar, Lane Opp. Shyam Nagar Police Station, King’s Road, Jaipur. -Petitioner Versus 1. Union of India through it’s Secretary to Govt. of
India,
Ministry
of
Law
and
Justice
(Department of Justice), Jaiselmer House, 26, Mansingh Road, New Delhi-110 001
-Respondent No.1
27
2. Dr. Virendra Kumar Mathur Additional Judge, Rajasthan High Court, C/O Registrar General, Rajasthan High Court, Jodhpur.
-Respondent No.2
3. Sh.
Ramchandra
Singh
Jhala,
Additional
Judge, Rajasthan High Court, C/O Registrar General, Rajasthan High Court, Jodhpur.
-Respondent No.3
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTUION OF INDIA SEEKING WRIT OF QUO WARRANTO AGAINST APPOINTMENT OF RESPONDENT NO.2 AND RESPONDENT NO.3 AS ADDITIONAL
JUDGES
OF
RAJASTHAN
HIGH
COURT INTER ALIA MADE BY NOTIFICATION DATED 12.5.2017 ISSUED UNDER ARTICLE 224(1) OF
THE
CONSTITUTUION
OF INDIA
FOR
A
28
PERIOD LESS THAN 2 YEARS, CONTRARY TO MANDATE OF LAW DECLARED BY 7-JUDGES CONSTITUTIONAL BENCH OF HON’BLE SUPREME COURT IN THE CASE OF S.P.GUPTA VS UNION OF INDIA AND OTHERS [(1981) SUPP SCC 87] AND ALSO
CONTRARY
TO
MANDATE
OF
LAW
DECLARED BY HON’BLE SUPREME COURT IN THE CASE OF KUMAR PADMA PRASAD VS UNION OF INDIA AND OTHERS [AIR 1992 SC 1213] QUA INTERPRETATION OF ARTICLE 217(2) (a) OF CONSTITUION OF INDIA.
TO HON’BLE
THE
CHIEF
JUSTICE
AND
HIS
COMPANION HON’BLE JUSTICES OF HON’BLE SUPREME COURT OF INDIA.
MAY IT PLEASE THE HON’BLE SUPREME COURT:The
petitioners
under:-
most
respectfully
showeth
as
29
1. That, the petitioner is a citizen of India. He is an Advocate by profession enrolled with Bar Council of Rajasthan with his enrolment number as R/100/99 and is a practising Advocate before Rajasthan High Court at Jaipur.
2. That,
the
petitioner
prefers
the
present
petition challenging the legality and validity of Notification dated 12.5.2017 to the extent of appointment
of
Respondent
No.2
and
Respondent No.3 as Additional Judges of High Court, challenging their eligibility to hold the office of Judge of High Court with a prayer for issuance of writ of quo warranto, as their appointment provisions,
is contrary prescriptions
to and
constitutional parameters
prescribed by Article 224(1) and Article 217 (2) (a) of Constitution of India as enunciated by constitutional bench judgment rendered in S. P. Gupta Vs Union of India [(1981) Supp SCC 87] and in the case of Kumar Padma Prasad Vs Union of India [AIR 1990 SC 1213].
30
3. That, Respondent No.2 and Respondent No.3 holds public office, therefore present writ of quo warranto is maintainable against their holding of public office of Judge / Additional Judge of High Court because same is in contravention of constitutional mandate of Article
224(1)
and
Article
217(2)
(a)
of
Constitution of India in view of law declared by Hon’ble Supreme Court in the case of S. P. Gupta Vs Union of India and Others [(1981) Supp SCC 87] and in the case of Kumar Padma Prasad Vs Union of India and Others [AIR 1992 SC 1213].
4. That, the facts in brief necessary to appreciate the controversy are as follows:-
(i)
That, Respondent No.2 and Respondent No.3 stood retired from ‘judicial services’ of State of Rajasthan on 30.9.2016 and on 31.7.2016 respectively on attaining the superannuation age of 60 years from
31
District Judgeship of District Alwar and District Judgship of District Bhilwara respectively.
(ii)
That, as a consequence of retirement from state ‘judicial services’ on 30.9.2016 and on 31.7.2016, Respondent No.2 and Respondent No.3 ceased to hold ‘judicial office’ contemplated by Article 236(b) of the Constitution of India.
(iii)
That, petitioner sent a representation dated
8.2.2017 on 9.2.2017
inviting
attention of the Government towards unconstitutional practice of appointing Additional Judges of High Court amongst retired
judicial
officers
of
‘judicial
services’ of state contrary to mandate of Article 224(1)
and Article 217(2) (a) of
Constitution of India. True copy of the representation dated 8.2.2017 sent on 9.2.2017
is
submitted
marked as Annexure-P/1.
herewith
and
32
(iv)
That, ignoring the representation made by
the
petitioner,
Union
of
India
(Respondent No.1), issued a Notification dated 12.5.2017 inter alia appointing Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court
under
Article
224(1)
of
the
Constitution of India for the period from the date of assumption of their respective office till 1st September, 2018 and till 2nd July, 2018 respectively. True copy of the Notification submitted
dated herewith
12.5.2017 and
is
marked
as
Annexure-P/2
(v)
That, in sequel to the Notification dated 12.5.2017,
Respondent
No.2
and
Respondent No.3 assumed the public office of Additional Judge of High Court on
16.5.2017,
administered
the
when oath
they of
were
office
of
33
Additional Judges of Rajasthan High Court.
(vi)
That, as a consequence of assuming the office of Additional Judge of High Court by Respondent No.2 and Respondent No.3
on
16.5.2017,
their
period
of
appointment of as Judge / Additional Judge of the High Court is 1 year 3 months 17 days and for 1 year 1 month and 17 days respectively.
(vii) That, it is a mandatory requirement of law that a person holding public office should not only be eligible / qualified to hold
the
public
office
but
his
appointment must also be in conformity with
provisions
of
law.
Absence
of
eligibility or violation of any statutory or constitutional provisions governing the appointment
would
invalidate
the
appointment since inception and would
34
make it liable to be declared void ab initio.
(viii) That,
the
petitioner
submits
that
appointment of Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court is void ab initio having being made in gross violation of Article 224(1) and Article 217(2) (a) of the Constitution of India and therefore same deserves to be declared null and void.
5. That, the legality and validity of appointment of Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court inter
alia
made
vide
Notification
dated
12.5.2017 is challenged on following cogent grounds inter alia amongst others:-
35
GROUNDS OF CHALLENGE
A.
The, Notification dated 12.5.2017 inter alia appointing Respondent No.2 and Respondent No.3 as Additional Judges of High Court is contrary to mandate of Article 224(1) and Article 217(2) (a) of the Constitution of India and is therefore invalid to the extent of appointment of Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court.
B.
That, a specific question arose before the constitutional bench of Supreme Court in the case of S. P. Gupta Vs Union of India and Others [1981 (Supp) SCC 87], as
to
what
should
be
term
of
appointment of an Additional Judge of High
Court
appointed
under
Article
224(1) of the Constitution of India. Constitutional
bench
specifically
answered the aforesaid question in Para
36
44 of the judgment, concluding that when arrears of pending cases before High Courts are so large that it is not possible to dispose them of even within 10 years, there is no justification for appointing Additional Judges for a period less than 2 years and that would be plainly outside the scope of Article 244(1) of the Constitution of India.
It further
went on to state that ‘when the arrears of pending cases are such that they possibly cannot be disposed of within a period of less than two years, Additional Judges must be appointed for a term of two years and no less’. It was further laid down ‘that the term for which an Additional Judge is appointed must not be less than two years, unless the temporary increase in business or arrears of pending cases are so small that they can be reasonably be disposed within shorter period, which of course today is only an idle dream in most of the High Courts.’ Relevant part of
37
Para
44,
for
ready
reference
and
convenience is reproduced herein below:“44. One last argument now remains, when an additional judge is appointed, what should be the term for which his appointment is made. Clause (1) of Article 224 provides that an Additional Judge may be appointed for a period not exceeding two years. This is outside limit prescribed by Article 224, Clause (1) and it was therefore contended by the learned Attorney General that appointment of Additional Judge can be made for any term, howsoever short it be, so long as it does
not
exceed
two
years.
The
appointment of O.N. Vohra, S. N. Kumar and S. B. Wad for six months were thus defended by the learned Attorney General as being within the scope and ambit of clause (1) of Article 224. We cannot accept this argument. It is no doubt true that clause (1) of Article fixes the outer limit for
38
the term for which an Additional Judge may be appointed, but that has been done because there may be cases where the temporary increase in business or arrears of pendency cases are so small that it may be possible to dispose them of by appointing Additional Judges for a term less than two years. If the temporary increase
in
business
or
arrears
of
pendency cases can be disposed of within shorter time why Additional Judges be appointed for a full period of two years. That is why Parliament provided that an Additional Judge may be appointed for a term not exceeding two years. But when the arrears of pending cases are so large that it would not be possible to dispose them of even within ten years-and when we say ten years, we are making a very conservative estimate-what justification there can be for appointing Additional Judges for a period less than two years. That, would be plainly outside the scope
39
of the power conferred under clause (1) of Article 224. When the arrears of pending cases are such that they possibly cannot be disposed of within a period of less than two years, Additional Judges must be appointed for a term of two years and no less. Mr Mridul informed us towards the close of the arguments that Union Government had decided that ordinarily further appointment of Additional Judge will not be made for a period less than one year, but we cannot regard his statement as being fully in compliance with constitutional requirement. The term for
which
an
Additional
Judge
is
appointed must not be less than two years, unless the temporary increase in business or arrears of pending cases are so small that they can be reasonably be disposed within shorter period , which of course today is only an idle dream in most of the High Courts.”
40
Tested
on
proposition
the
anvil
of
law
of
aforesaid
declared
by
constitutional bench in S. P. Gupta Vs Union
of
India,
appointment
of
Respondent No.2 and Respondent No.2 as Additional
Judge
Court
ex-facie
is
of
Rajasthan contrary
High
to
the
constitutional bench judgment and is therefore null and void, especially when arrears
of
pending
cases
before
Rajasthan High Court is more than 10 years.
Pendency
Rajasthan
High
of Court,
cases
before
according
to
Annual Report 2015 and 2016 published by Rajasthan High Court are as follows:2015 Type Cases
of
0-1
1 to 5
5-10
More
Total
year
years
years
than
pendency on
10
31.12.2015
years Civil
33,962
67,389
51,778
29,372
1,82,501
Criminal
14,081
17,201
13,662
17,421
62,365
Total
48,043
84,590
65,440
46,793
2,44,866
41
2016 Type
of
Cases
0-1
1 to 5
5-10
More
Total
year
years
years
than
pendency on
10
31.12.2016
years Civil
33321
63094
53652
35574
184451
Criminal
15620
20377
14440
19243
69680
Total
48941
84281
68092
52817
254131
Year wise
pendency
of
cases
in
preceding 6 years before Rajasthan High Court has been as follows:Year
Pendency at the end of each Year
2010
2,92,490 cases
2011
2,81,306 cases
2012
2,92,551 cases
2013
3,07, 640 cases
2014
2,28,887 cases
2015
2,44, 866 cases
2016
2,54.131 cases
Thus, consistently pendency of cases before Rajasthan High Court had been
42
more than 10 years. In view, thereof, appointment
of
any
person
as
an
Additional Judge could not have been made for a period less than 2 years in view
of
binding
judgment
of
constitutional bench rendered in the case of S. P. Gupta Vs Union of India. Aforesaid minimum period of 2 years prescribed by S. P. Gupta Vs Union of India and Others qua appointment of Additional Judges under Article 224(1) of the Constitution of India, in a High Court where pendency of cases is more than 2 years has not been varied / modified / altered or annulled by any subsequent judgment of this Hon’ble Court. Even 9 Judges Bench Judgement rendered in the case of Supreme Court on Record Advocate Association Vs Union of India [(1993) 4 SCC 441] and Special Reference No.1 of 1998 [(1998) 7 SCC 739] wherein judgment of S.P. Gupta Vs Union of India came up for re-examination before this
43
Hon’ble Court, did not vary the aforesaid minimum
period
appointment
of
of
an
2
years
qua
Additional Judge
under Article 224 (1) of the Constitution of India, in a High Court where pendency of cases before High Court is more than 2 years. Ratio of S. P. Gupta Vs Union of India stood varied by this Hon’ble Court in
Supreme
Court
Advocate-on-Record
Association Vs Union of India [(1993) 4 SCC 441] only to the extent of primacy of judiciary over executive in relation to matters of appointment / transfer of Judges of High Court and in relation to justiciability of strength of Judges. Thus, in absence of any variance qua period / term of appointment of an Additional Judge
under
Article
224(1)
of
the
Constitution of India, ratio of S. P. Gupta Vs Union of India, prescribing minimum period of 2 years, for an Additional Judge, in a High Court, where the pendency of cases is more than 2 years,
44
is intact and binding upon all in view of constitutional mandate of Article 141 of the Constitution of India. Thus, in view of aforesaid binding constitutional bench judgment of S. P. Gupta Vs Union of India and others qua minimum period of appointment as an Additional Judge, appointment of Respondent No.2 and Respondent
No.3
as
an
Additional
Judges of Rajasthan High Court under Article 224(1) of the Constitution of India, vide Notification dated 12.5.2017 for a period less than 2 years from 16.5.2017 to 1.9.2018 (1 year 3 months 17 days) and from 16.5.2017 to 2.7.2018 (1 year 1 month and 17 days) respectively is contrary to constitutional mandate and is thus void ab initio.
C.
That, present case stand on a better footing than S. P. Gupta Vs Union of India. In S. P. Gupta’s matter, Hon’ble Judges had initially been appointed as
45
an Additional Judges for 2 years and they had served for 2 years as Additional Judges and thereafter they were again appointed as Additional Judges for three months / six months or for a period less than 2 years. Aforesaid appointment for three months / six months or for a period of less than 2 years as Additional Judges, after completion of their initial appointment as Additional Judges for 2 years, came up for judicial examination before Supreme Court in S. P. Gupta’s matter. After threadbare analysis, this Hon’ble Court concluded that Additional Judges cannot be appointed for a period less than 2 years unless the pendency of cases is so small that same could be disposed of within two years. In the present case, Respondent No. 2 and Respondent No.3 won’t be able to serve as Judge even for 2 years. Thus, they could not have been appointed as an Additional
Judges
unless
they
had
46
minimum 2 years to serve as Judges because of huge pendency of cases before Rajasthan High Court in view of clear mandate of S. P. Gupta Vs Union of India and Others. When this Hon’ble Court had not approved the appointment / further appointment / re-appointment as an Additional Judge, even after expiry of initial term of 2 years as an Additional Judge, first time appointment as an Additional Judge for a period less than 2 years
cannot
be
countenanced
/
approved by this Hon’ble Court. If such appointments of Additional Judges for a period less than 2 years contrary to ratio of S. P. Gupta Vs Union of India are approved, it would set a dangerous precedent for future, as it may lead to many short term appointments, which would become an anathema for the judicial system.
47
D.
That, in view of constitutional bench judgement supra, if any person is left with less than 2 years to serve, he would be clearly ineligible to be appointed as an Additional Judge under Article 224(1) of the Constitution of India, irrespective of source
of
appointment
Judicial
services.
appointment
of
any
i.e.
Bar
or
Consequently, person
as
an
Additional Judge for a period less than 2 years would be constitutionally invalid and thus void ab initio being contrary to mandate
of
Article
224(1)
of
the
Constitution of India. Respondent No.2 and Respondent No.3 did not have 2 years to serve as an Additional Judge therefore they were clearly ineligible to be appointed as Additional Judge under Article 224(1) of the Constitution of India. This was more so when arrears of pending cases before Rajasthan High Court were of more than 10 years and minimum period of appointment of an
48
Additional Judge in such state of facts is minimum for 2 years. Thus, appointment of Respondent No.2 and Respondent No.3 as an Additional Judge for a period less than 2 years in ultra vires to Article 224(1) of Constitution of India.
E.
That, appointment of Respondent No.2 and
Respondent
No.3
as
Additional
Judges vide Notification dated 12.5.2017 has
been
made
from
the
date
of
assumption of office till 1.9.2018 and 2.7.2018 respectively. Respondent No.2 and Respondent No.3 assumed the office on 16.5.2017. From the bare reading of Notification dated 12.5.2017 it is crystal clear
that
aforesaid
appointment
of
Respondent No.2 and Respondent No.3 is prospective in operation and does not relate
back
to
the
date
of
recommendation made by the collegium. Thus, period of their appointment as an Additional
Judge
commences
from
49
assumption of office. From the date of assumption
of
office,
period
of
appointment of Respondent No.2 and Respondent No.3 is less than 2 years, thus in view of declaration of law made by constitutional bench in S. P. Gupta Vs Union of India and Others, it could not have been made. Thus, appointment of Respondent No.2 and Respondent No.3 is in utter breach of binding constitutional bench
judgment
and
therefore
unsustainable in eyes of law.
F.
That, constitutional bench of Hon’ble Supreme Court had specifically rejected the suggestion of Attorney General of India that appointment of Additional Judge under Article 224(1) Constitution of India could be made for the lesser period than 2 years in a High Court where pendency of cases before High Courts were more than 2 years. Thus, in view specific rejection of proposal of
50
Attorney General of India, it did not lie in the constitutional domain of Govt. of India to appoint any Additional Judge under Article 224(1) of the Constitution for a period less than 2 years in a High Court where pendency of cases is more than 2 years.
G.
That, Hon’ble Supreme Court had given the judgment in S. P. Gupta’s matter 36 years ago. Arrears of pending cases in the High Courts are now multi-fold now despite increase in number of judges. Thus, when Hon’ble Supreme Court had disapproved
the
appointment
of
Additional Judges for a period less than 2 years 36 years ago, it cannot be approved today when position regarding arrears of pending cases is more serious.
H.
That, there is one more drawback of appointing Judges/Additional Judges for short periods. Within short period of their
appointment,
appointed
judges
51
would retire on attaining the age of 62 years, again creating the vacancy, for which Govt. has to re-initiate the process of appointment. In the present case, RespondentNo.2
would
serve
up
till
1.9.2018 and Respondent No.3 would serve up till 2.7.2018 i.e. for a short period of 1 year 3 months 17 days and for
1
year
1
month
and
17
days
respectively. After the expiry of aforesaid period, collegiums and Govt. will have to re-initiate
the
process
of
appointing
Judges, which is nothing but wastage of national resources. Thus, practice of appointing Judges / Additional Judges for short periods needs to be discouraged and consequently interjected.
I.
That, appointment of Respondent No.2 and Respondent No.3 as Judges of High Court
is
not
only
contrary
to
constitutional bench judgment of S. P. Gupta Vs Union of India
but is also
52
contrary
to
Apex
Court
judgment
rendered in the case of Kumar Padma Prasad Vs Union of India (AIR 1992 SC 1213)
which
declares
in
most
unequivocal terms in it’s Para 25, 35 and 41 that under Article 217 (2) (a) of Constitution of India, in order to qualify for appointment as a Judge of High Court, a person must hold a “judicial office” which must be a part of judicial service of State and that qualification has to be seen on the date of issuance of warrant of appointment by Presidential of
India.
For
convenience
ready
Para
25
reference is
and
reproduced
herein below:-
“25. It is thus clear that the expression “judicial office under Article 217 (2) (a) of the Constitution has to be interpreted in consonance with the scheme of Chapters V and VI of Part VI of the Constitution of India.
We
therefore
hold
that
the
53
expression “judicial office” under Article 217 (2) (a) of the Constitution means a “judicial office” which belongs to the judicial service as defined under Article 236 (b) of the Constitution of India. In order to qualify for appointment as a Judge of High Court under Article 217 (2) (a), a person must hold a “judicial office” which must be a part of judicial service of State.”
Hon’ble Court further clarified in Para 35 of judgment supra that word “judicial office” under Article 217 (2) (a) means a subsisting position.
office For
with
ready
a
substantive
reference
and
convenience Para 35 of judgment supra is reproduced herein below:-
“35.
The
word
“office”
has
various
meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context it appears in the
54
Constitution. We are of the view that the framers of the Constitution did not and could not have meant by “judicial office” which did not exist independently and duties or part of duties of which could be conferred on any person whether trained or not in administration of justice .The word “judicial office” under Article 217(2) (a) in our means a subsisting office with a substantive
position
which
has
an
existence independent from it’s holder.”
In
view
of
enunciation
proposition of law,
of
aforesaid
Hon’ble Court
allowed the petition filed by Kumar Padma Prasad quashing the appointment of Sh. K.N. Shrivastava as a Judge of the High Court holding that that Sh. K. N. Shrivastava was not qualified to be appointed as Judge on the date of issuance of Presidential warrant. The relevant part of Paragraph 41 for ready
55
reference and convenience is reproduced herein below:-
“41. We allow transferred petition of Kumar Padma Prasad and declare that K. N. Shrivastava, on the date of issue of the warrant by the President of India was not qualified to be appointed as a Judge of High Court. As a consequence, we quash his appointment as Judge of the High Court.”
J.
That, the principle which emerges from combined reading of Para 25, 35 and 41 reproduced herein above and other parts of the judgment supra is that, a person must hold ‘judicial office’ in the judicial service of the State on the date of issuance of warrant of appointment by Hon’ble
President
of
India.
As
a
consequence / corollary thereof, if any person do not hold “judicial office” in the “judicial service” of the State ‘on the date
56
of issuance of Presidential warrant’, he would not be qualified / eligible to be appointed as Judge of High Court under Article 217 (2) (a) of the Constitution of India. Respondent No.2 and Respondent No.3 though held the ‘judicial office’ and was part of ‘judicial service’ of the State up
till
30.9.2016
and
31.7.2016
respectively, they ceased to be part thereof and ceased to hold judicial office after 30.9.2016 and 31.7.2016 because of their retirement from judicial service on the aforesaid dates. Thus on the date of issuance of Presidential Notification on 12.5.2017,
Respondent
Respondent 3
No.2
and
neither held ‘judicial
office’ not they were part of ‘judicial service’ of the State. In view thereof, Respondent 2 and Respondent No.3 were neither
eligible
nor
qualified
to
be
appointed as Judge of a High Court on the date of issuance of presidential notification,
which
makes
their
57
appointment as Judge of the Rajasthan High Court as null and void.
K.
That,
it
is
crystal
clear
from
the
judgment of Kumar Padma Prasad Vs Union of India, qualification / eligibility to hold the office of the Judge of the High Court is to be seen on the date of issuance of warrant by Hon’ble President of India. According to judgment supra (Para 25, 35 and Para 41), under Article 217(2) (a) of the Constitution of India, in order to qualify for appointment as a Judge of High Court, a person must hold a “judicial office” which must be a part of judicial service of State on the date of issuance of warrant by President of India. Respondent No.2 and Respondent No.3, ex-facie ceased to be part of ‘judicial service’ of the State on the date of issuance of warrant by President of India and thus was ineligible to be appointed as Judge of High Court on the
58
date of issuance of warrant by President of India. Thus, the notification dated 12.5.2017 to the extent it appoints Respondent No.2 and Respondent No.3 as Judge of the Rajasthan High Court is per se invalid and void ab initio.
L.
That, in order to be eligible for being appointed as Judge of High Court under Article 217 (2) of the Constitution of India,
a
person
should
either
hold
‘judicial office’ or he should be an Advocate on the date of issuance of warrant by President of India with the added requirement judicial officer should have held the “judicial office” for at least 10 years and the advocate should have been an Advocate of High Court for at least 10 years. Respondent No.2 and Respondent No.3 has been appointed as Additional Judge of High Court from ‘judicial services’ thus they must be part of ‘judicial services’ on the date of
59
issuance of warrant by President of India. Respondent No.2 and Respondent No.3 having being not part of ‘judicial services’ on the date of issuance of warrant
by
President
of
India
were
clearly ineligible to be appointed as Judge or Additional Judge of High Court.
M.
That,
it
is
constitutional
trite
to
say
that
appointment
the must
conform to constitutional provisions and constitutional standards.
Appointment
of Respondent No. 2 and Respondent No.3,
as
Additional
Judges
of
the
Rajasthan High Court do not meet the constitutional
standards
and
prescription of Article 224(1) and of Article 217(2) (a) of the Constitution of India, therefore their appointment are constitutionally impermissible and thus deserves to be quashed and set aside.
60
N.
That,
it
appears
that
no
‘effective
consultation’ postulated under Article 217(1) of the Constitution of India had taken place between the constitutional functionaries prior to their appointment in light of Article 224(1) and Article 217(2) (a) of the Constitution of India read with the judgments rendered in the case of S. P. Gupta Vs Union of India and the
judgment
rendered
in
the
case
Kumar Padma Prasad Vs Union of India. Thus, ‘absence of effective consultation’ between the constitutional functionaries also makes appointment of Respondent No.2 and Respondent No.3 as Judge of High Court as invalid.
O.
That, Article 217 of the Constitution of India prescribes qualification for being appointed as Judge of High Court. It do not remotely contemplate that a person who had retired from ‘judicial services’ of the state could ever be appointed as
61
Judge of High Court after his retirement from judicial service of the state after ceasing
to
hold
judicial
office
contemplated under Article 236(b) of the Constitution of India. Where Constitution had desired the appointment of retired Judges to be appointed as Judge of High Court, it had specifically permitted so under Article 224-A of the Constitution of India where Constitution stipulates that retired High Court judges could be asked to sit and act as Judge of High Court. There is no such prescription under Article 217 of the Constitution of India that judicial officers of the state judicial
service
could
be
could
be
appointed as Judges /Additional Judges of the High Court. Thus, appointment of Respondent No.2 and Respondent No.3 as Additional Judge of Rajasthan High Court do not get support from any constitutional appointment
provision. is
patently
Hence, illegal
their and
62
invalid and thus deserves to be quashed and set aside.
P.
That, appointment of judicial officer after retirement from ‘judicial service’ of the state would automatically invalidate his appointment as an Additional Judge of High Court because it would then breach the
minimum
term
of
appointment
prescribed by S. P. Gupta Vs Union of India.
Retirement
age
of
officers
belonging to judicial service of the state throughout the territory of India is 60 years and any appointment after 60 years would be less than 2 years, because maximum age a person can hold the public office of Judge / Additional Judge of High Court is 62 years. Thus, appointment of retired judicial officer after
60
years
would
in
breach
of
constitutional bench judgment and thus would be constitutionally invalid.
63
Q.
That, all other arguments shall be urged at the time of audience of the petition.
6. Petitioner submits that he has not filed any other petition before High Court or before Hon’ble Supreme Court of India challenging the legality and validity of Notification dated 12.5.2017 inter alia appointing Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan High Court. Petitioner further submits he had filed D. B. Civil Writ Petition No.4578/2016 before Rajasthan High Court challenging the legality and validity of one similar Notification dated 6.4.2016 inter alia appointing one Justice Kailash Chandra Sharma as an Additional Judge of Rajasthan High Court. The challenge to the Notification dated 6.4.2016 was repelled by the High Court in limine vide order dated 29.9.2016 inter alia on the premise that recommendation for appointment of the Justice Kailash Chandra Sharma had been made by the collegium before his retirement from the ‘judicial service’
64
of the state and that challenge to the NJAC Act was pending before Supreme Court and that
the
recommendations
made
by
the
collegiums had been put in abeyance pending challenge to the NJAC Act. Challenging the validity of order dated 29.9.2016 passed in D. B. Civil Writ Petition No.4578/2016, petitioner filed
Special
Leave
Petition
No.
35445/2016 before this Hon’ble Court, which was rejected by this Hon’ble Court in limine without assigning any reason vide order dated 2.1.2017. Challenging the rejection of S.L.P, petitioner has preferred Review Petition No.1027/2017 which consideration.
Petitioner
is
pending
submits
that
in
limine rejection of writ petition by High Court vide order dated 29.9.2016 and
in limine
rejection of S.L.P vide order dated 2.1.2017 without assigning any reason against the Notification dated 6.4.2016 is per incurium, being
in
absolute
contravention
constitutional bench judgment
of
rendered in
the case of S. P. Gupta Vs Union of India and
65
Others, occupying the field qua minimum period of appointment of an Additional Judge under Article 224(1) of Constitution of India, for a period of 2 years, in a High Court where arrears of pending cases is more than
2
years. It is further per incurium being contrary to law declared by this Hon’ble Court in the case of Kumar Padma Prasad Vs Union of India and Others qua interpretation of Article 217(2) (a) of the Constitution of India. Both the above judgments were binding under Article 141 of the Constitution of India and no subordinate court or court of lesser strength could have taken a view different from the view of 7Judges
constitutional
bench.
In
view
of
declaration of law by Kumar Padma Prasad Vs Union of India and Others, qua interpretation of Article 217(2) (a) of the Constitution of India Hon’ble Court was bound by it.
Rejection of
writ petition in limine and rejection of S.L.P. in
limine
against
the
Notification
dated
6.4.2016, being per incuium does not restricts the power of Supreme Court to independently
66
examine the issue when it is brought before it on original side, especially in view of existing binding precedents in cases of S. P. Gupta Vs Union of India and Kumar Padma Prasad Vs Union of India and Others especially when the appointment
of
Respondent
No.2
and
Respondent No.3 as Additional Judges is exfacie contrary to above binding judgments. Otherwise also, a per law of precedent too, declaration
of
law
made
by
7-Judges
Constitutional bench in S. P. Gupta’s case qua Article 224(1) of Constitution of India and declaration
of
law
made
by
Supreme
Court qua interpretation of Article 217 (2) (a) of Constitution of India in Kumar Padma Prasad‘s would prevail over order of High Court rejecting the petition in limine or order of Supreme Court rejecting the S.L.P. in limine, without assigning any reason. In view of above submissions, present petition under Article
32
challenging
of the
the
Constitution
legality
and
of
India
validity
of
Notification dated 12.5.2017 to the extent of
67
appointment
of
Respondent
No.2
and
Respondent No.3 as Additional Judges is maintainable before this Hon’ble Court.
PRAYER In conspectus of aforesaid state of facts it is prayed to Hon’ble Court:(i)
To issue an appropriate writ, order or direction declaring that the appointment of Respondent No.2 and Respondent No.3 as null
and
void
having
being
made
in
contravention Article 224(1) and Article 217(2) (a) of the Constitution of India in view of enunciation of law declared by constitutional bench of Supreme Court in the case of S. P. Gupta Vs Union of India and Others [(1981) Supp SCC 87] and in view of law declared by Supreme Court in the case of Kumar Padma Prasad Vs Union of India and Others [AIR 1992 SC 1213]
68
(ii)
To issue a writ of quo warranto holding that Respondent No.2 and Respondent 3 were neither eligible nor qualified to be appointed as Judge / Additional Judge of Rajasthan High Court on the date of issuance of warrant of appointment by President of India in view of law declared in Kumar Padma Prasad Vs Union of India and Others [AIR 1992 SC 1213] and so also in terms of law declared in S. P. Gupta Vs Union of India. [(1981) Supp SCC 87].
(iii)
To issue an appropriate writ, order or direction declaring the Notification dated 12.5.2017 (Annexure P/2) to be non est and void ab initio, and consequently issue an appropriate writ setting aside the same, in so far it relates to the appointment of Respondent No.2 and Respondent No.3 as an Additional Judge of Rajasthan High Court.
(iv)
Any other order which this Hon’ble Court deem
fit
and
proper
in
facts
and
69
circumstances of the case in conformity with the constitutional principles may also be passed.
AND
FOR
KINDNESS,
THE
AFORESAID
PETITIONER
ACT
SHALL
OF
EVER
PRAY
Filed on:-17.5.2017 Jaipur
Your humble Petitioner (Petitioner-in-Person)
70
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.________/2017
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) (WITH PRAYER FOR INTERIM RELIEF)
IN THE MATTER OF:-
SUNIL SAMDARIA PETITIONER Versus UNION OF INDIA AND OTHERS -RESPONDENTS
71
AFFIDAVIT IN SUPPORT OF WRIT PETITION I, Sunil Samdaria s/o Late Sh. B. L. Samdaria aged about 43 years, r/o C-235, Nirman Nagar, Lane Opp. Shyam Nagar Police Station, King’s Road, Jaipur, take oath and state on solemn affirmation as under:1. That, I am the petitioner in the above noted matter and as such I am well conversant with the facts of the case. Hence, I am competent to swear and affirm this affidavit. 2. That, I have read and understood the contents of accompanying Synopsis and List of Dates and Memo of Writ Petition and of Interim Application and have understood the contents thereof and I say that the facts stated therein are true to best of my knowledge and no part of it is false and nothing material has been concealed therein.
3. That, the Annexure(s) filed along with the petition are true copies of their respective originals.
DEPONENT
72
VERIFICATION I, the named deponent, do hereby verify that the facts stated in the above affidavit are true to my knowledge. No part of the same is false and nothing material has been concealed there from. Verified at Jaipur on this 17 the day of May, 2017.
DEPONENT
73
Annexure-P/1
SUNIL SAMDARIA Advocate C-235, Nirman Nagar Lane Opp. Shyam Nagar Police Station King’s Road (Ajmer Road), Jaipur-19 ******** Phone Nos.:- 0141-2812890, 0145-2423443 Mob:-94146-26335 Jaipur 8.2.2017 REPRESENTATION INVITING ATTENTION OF THE GOVT. OF INDIA TOWARDS APPONTMENTS OF ADDITIONAL JUDGES IN HIGH COURTS UNDER ARTICLE 224(1) OF THE CONSTITUTUION OF INDIA FOR A PERIOD LESS THAN 2 YEARS, IN HIGH COURTS WHERE ARREARS OF PENDENCY OF CASES IS MORE THAN 2 YEARS, CONTRARY TO
7-JUDGES
CONSTITUTIONAL
BENCH
JUDGMENT RENDERED IN THE CASE OF S. P. GUPTA VS UNION OF INDIA [1981 (SUPP.) SCC 87]
74
AND THAT TOO AMONGST JUDICIAL OFFICERS WHO HAD RETIRED FROM ‘JUDICIAL SERVICES’ OF STATE AND THEREBY HAD CEASED TO BE PART
OF
‘JUDICIAL
SERVICE’
OF
STATE,
THEREBY CEASING TO HOLD JUDICIAL OFFICE, ON THE DATE OF ISSUANCE OF PRESIDENTIAL NOTIFICATION OF APPOINTMENT (WARRANT OF APPOINTMENT), IN UTTER CONTRAVENTION OF INTERPRETATION OF ARTICLE 217 (2) (a) OF CONSTITUTION
OF
INDIA
RENDERED
BY
HON’BLE SUPREME COURT OF INDIA IN THE CASE OF KUMAR PADMA PRASAD VS UNION OF INDIA (AIR 1992 SC 1213). ***** To, 1. Sh. Ravishankar Prasad Hon’ble Union Minister of Law and Justice 4th Floor, ‘A’ Wing Shastri Bhawan, Rajendra Prasad Road New Delhi-01
2. Sh. P. P. Choudhary Hon’ble Union Minister of State
75
Ministry of Law and Justice 4th Floor, ‘A’ Wing Shastri Bhawan, Rajendra Prasad Road New Delhi-01
Dear Mr Hon’ble Law Minister(s), Apropos the above, I address you as under:1. Through this representation, I wish to bring to your
kind
appointment
notice of
anomaly
Additional
in
Judges
making under
Article 224(1) of the Constitution of India for a period less than 2 years, in High Courts where arrears of pending cases is more than 2 years and that too amongst judicial officers who have retired from judicial services of the state and thereby have ceased to be part of judicial services of the State as contemplated under Article 236(b) of the Constitution of India, on the
date
of
issuance
of
Presidential
Notification appointing them as Additional Judges of High Court. 2. There is direct 7-Judges constitutional bench judgment rendered in the S. P. Gupta Vs Union of India [1981 (Supp) SCC Page 87] which says in most unequivocal terms that Additional Judges under Article 224(1) of the Constitution of India cannot be appointed for
76
a period less than 2 years, if temporary increase in business of High Court or arrears of pending cases in a High Court is more than 2 years. Para 44 of
S. P. Gupta Vs Union of
India, for ready reference and convenience is reproduced herein below:“44. One last argument now remains, when an additional judge is appointed, what should be the term for which his appointment is made. Clause (1) of Article 224 provides that an Additional Judge may be appointed for a period not exceeding two years. This is outside limit prescribed by Article 224, Clause (1) and it was therefore contended by the learned Attorney General that appointment of Additional Judge can be made for any term, howsoever short it be, so long as it does not exceed two years. The appointment of O.N. Vohra, S. N. Kumar and S. B. Wad for six months were thus defended by the learned Attorney General as being within the scope and ambit of clause (1) of Article 224. We cannot accept this argument. It is no doubt true that clause (1) of Article fixes the outer limit for the term for which an Additional Judge may
77
be appointed, but that has been done because there may be cases where the temporary increase in business or arrears of pendency cases are so small that it may be possible to dispose them of by appointing Additional Judges for a term less than two years. If the temporary increase in business or arrears of pendency cases can be disposed of within shorter
time
why
Additional
Judges
be
appointed for a full period of two years. That is why Parliament provided that an Additional Judge may be appointed for a term not exceeding two years. But when the arrears of pending cases are so large that it would not be possible to dispose them of even within ten years-and when we say ten years, we are making a very conservative estimate-what justification
there
can
be
for
appointing
Additional Judges for a period less than two years. That, would be plainly outside the scope of the power conferred under clause (1) of Article 224. When the arrears of pending cases are such that they possibly cannot be disposed
78
of within a period of less than two years, Additional Judges must be appointed for a term of two years and no less. Mr Mridul informed us towards the close of the arguments that Union Government had decided that ordinarily further appointment of Additional Judge will not be made for a period less than one year, but we cannot regard his statement as being fully
in
compliance
with
constitutional
requirement. The term for which an Additional Judge is appointed must not be less than two years,
unless
the
temporary
increase
in
business or arrears of pending cases are so small that they can be reasonably be disposed within shorter period , which of course today is only an idle dream in most of the High Courts.” After reading of aforesaid Para 44, it is crystal clear that contention of Union of India that Additional Judges under Article 224(1) of Constitution of India could be appointed for a period less than 2 years, stood specifically rejected by constitutional bench of Hon’ble Supreme Court in S. P. Gupta Vs Union of
79
India even 36 years back, especially in High Courts, where arrears of pendency of cases is more than 2 years.
3. That, in view of above, there could not have been any appointment of any Additional Judge under Article 224(1) of the Constitution of India for a period less than 2 years, in a High Court, where arrears of pending cases is more than 2 years. It may be pertinent to mention over
here
that
appointment
of
Judge
/Additional Judge is effective from the date he assumes the office and not from any other date anterior to it.
4. Despite the aforesaid constitutional embargo
declared by S.P. Gupta Vs Union of India (supra),
many
Additional
Judges
were
appointed in the year 2016, for a period of less than 2 years, in High Courts, where arrears of pending cases were more than 2 years. Details of appointment of some of the Additional Judges are as follows:-
80
S. Date of Name of No. Notification Hon’ble appointing Judge Additional Judges.
High Court in which appointment have been made
Period of appointment (From –To) (Approx. period)
1.
Hon’ble Mr Justice Ved Prakash Sharma
Madhya Pradesh High Court
4.4.20161.1.2018
Hon’ble Mr Justice Alok Kumar Mukherjee
Allahabad High Court
2.
3.
4.4.2016
5.4.2016
5.4.2016
(1year 8 months) 5.4.201617.1.2017 (9 months)
Hon’ble Ms Allahabad Justice Vijay High Court Laxmi
5.4.201630.6.2017 (1 year 2months)
4.
5.
6.
7.
8.
5.4.2016
5.4.2016
5.4.2016
6.4.2016
Hon’ble Mr Justice Ravindra Nath Mishra-II
Allahabad High Court
Hon’ble Mr Justice Prabhat Chandra Tripathi
Allahabad High Court
Hon’ble Mr Justice Vinod Kumar ShrivastavaIII
Allahabad High Court
Hon’ble Mr Justice Kailash Chandra Sharma
Rajasthan High Court
12.11.2016 Hon’ble Mr Justice Sheo Kumar Singh-I
5.4.20165.11.2017 (1 year 7 months) 5.4.201625.1.2018 (1 year 9 months) 5.4.201624.3.2018 ( 1year 11 months and 20 days) 6.4.201631.12.2017 (1 year 8 months 20 days)
Allahabad High Court
12.11.201616.1.2018
81
(1 year 2months) 9.
10
12.11.2016 Hon’ble Mr Justice Shailendra Agarwal
Allahabad High Court
12.11.2016 Hon’ble Mr Justice Satya Narain Agnihotri
Allahabad High Court
12.11.20169.4.2018 (1 year 6 months) 12.11.201629.4.2018 (1 year 6 months)
There could be many more examples of Additional Judges
who
might have
been
appointed for a period less than 2 years in the High Courts, where arrears of pending cases were more than 2 years. Abovementioned examples are sufficient to demonstrate blatant violation of the constitutional mandate of S. P. Gupta Vs Union of India which stipulates minimum period of 2 years for appointment as an Additional Judge, in a High Court, where arrears of pendency of cases is more than 2 years. 5. Statistics of arrears of cases in Rajasthan High Court shows pendency of cases of more than 10 years. Chart of pendency of cases as
82
31.12.015
which
stood
published
by
Rajasthan High Court in Annual Report of 2015 in their is reproduced herein below :-
Type
of
Cases
0-1
1 to 5
5-10
More
Total
year
years
years
than
pendency on
10
31.12.2015
years Civil
33,962
67,389
51,778
29,372
1,82,501
Criminal
14,081
17,201
13,662
17,421
62,365
Total
48,043
84,590
65,440
46,793
2,44,866
Though statistics of other High Courts are not available with me but arrears of pending cases in M. P. High Court and Allahabad High Court are undeniably more than 2 years. Rather it could be more than 10 years at par with Rajasthan High Court. In view of aforesaid huge pendency of cases, there could not have been any appointment of Additional Judges for a period less than 2 years in exercise of power available
under
Article
224(1)
of
the
Constitution of India in view of constitutional mandate of S. P. Gupta Vs Union of India and Others. It may be pertinent to mention over here that all the above appointments of Additional Judges were effective from the date
83
they would assume their offices till the date they would superannuate on attaining 62 years of age, which happens to be the superannuation age
for
Judges/Additional
Judges of High Court. Thus, ex-facie period of appointment
of
all
the
above
Additional
Judges (mentioned against their names) was less than 2 years contrary to minimum period prescribed by S. P. Gupta Vs Union for a Additional Judge for a High Court, where arrears pending cases in the High Court were more
than
2
years.
Surprisingly
and
interestingly enough, Hon’ble Mr Justice Alok Kumar
Mukherjee
stood
appointed
as
Additional Judge in Allahabad High Court for 9 months only, expressly contrary to the statement of Union of India made before Hon’ble Supreme Court in S. P. Gupta Vs Union of India. Even the statement made by Union of India was not accepted by Hon’ble Supreme Court and it was ordered that “The term
for
which
an
Additional
Judge
is
appointed must not be less than two years,
84
unless the temporary increase in business or arrears of pending cases are so small that they can be reasonably be disposed within shorter period, which of course today is only an idle dream in most of the High Courts.” Thus, when 36 years ago, in the year 1981, appointment of an Additional Judge under Article 224(1) for a period less than 2 years was not thought to be proper, same cannot be said to be proper in the year 2016, when pendency is exponentially high as compared to year 1981. It may be interesting to note that Hon’ble Justice Alok Kumar Mukherjee took oath as permanent Judge on 16.1.2017, a day before his retirement as Judge of Allahabad High
Court.
There
could
not
be
bigger
mockery than this that a person stands retired from state judicial services, thereafter after almost 1 year 3 months he is appointed as Additional Judge of High Court under Article 224(1) of the
Constitution of India and
thereafter a day before his retirement as Judge of High Court, he subscribes to the
85
oath of a permanent Judge of High Court and day thereafter he retires as permanent Judge of High Court. What could be more blatant violation of constitutional mandate that a person makes his entry and exit, both, as Judge of High Court within short period of 9 months! 6. That, it would be apposite to mention over here that aforesaid minimum period of 2 years prescribed by S. P. Gupta Vs Union of India and Others (supra) in relation to appointment of Additional Judges under Article 224(1) of the Constitution of India, in a High Court where arrears of pending cases is more than 2 years has not been varied / modified / altered or annulled by any subsequent judgment of Supreme
Court.
Even
9
Judges
Bench
Judgement rendered in the case of Supreme Court on Record Advocate Association Vs Union of India [(1993) 4 SCC 441] and Special Reference No.1 of 1998 [(1998) 7 SCC 739] wherein judgment of S.P. Gupta Vs Union of India came up for re-examination before
86
Supreme Court, also did not vary the aforesaid minimum period of 2 years qua appointment of an Additional Judge under Article 224 (1) of the Constitution of India, in a High Court where arrears of pending cases before High Court is more than 2 years. Ratio of S. P. Gupta Vs Union of India stood varied by Hon’ble Supreme Court in Advocate-on-Record Association Vs Union of India (supra) only to the
extent
executive
of in
primacy relation
of to
judiciary matters
over of
appointment / transfer of Judges of High Court and in relation to justiciability of strength of Judges. Thus, in absence of any variance qua period / term of appointment of an Additional Judge under Article 224(1) of the Constitution of India, ratio of S. P. Gupta Vs Union of India, prescribing minimum period of 2 years, for an Additional Judge, in a High Court, where the arrears pending cases is more than 2 years, is intact and binding upon Supreme Court and upon Govt. of India.
87
7. There is one more interesting aspect of the matter. All the above persons, who had been appointed as Additional Judges for a period less than 2 years, were not the part of judicial services of the State on the date of issuance of Presidential notification, in view of the fact that they had retired from judicial services on the date of issuance of Presidential Notification. There is a clear judicial pronouncement of Hon’ble Supreme Court in the case of Kumar Padma Prasad Vs Union of India (A.I.R 1992 SC 1213) which states in most unequivocal terms in it’s Para 25 that ‘In order to qualify for appointment as a Judge of High Court under Article 217 (2) (a), a person must hold a “judicial office” which must be a part of judicial service of State. Para 25 for ready reference and convenience is reproduced here- inbelow:-
“25. It is thus clear that the expression “judicial office
under
Constitution
Article has
to
217 be
(2)
(a)
of
interpreted
the in
88
consonance with the scheme of Chapters V and VI of Part VI of the Constitution of India. We therefore hold that the expression “judicial office”
under
Article
217
(2)
(a)
of
the
Constitution means a “judicial office” which belongs to the judicial service as defined under Article 236 (b) of the Constitution of India. In order to qualify for appointment as a Judge of High Court under Article 217 (2) (a), a person must hold a “judicial office” which must be a part of judicial service of State. Hon’ble Supreme Court further clarified in Para 35 of judgment supra that word “judicial office” under Article 217 (2) (a) means a subsisting office with a substantive position. For ready reference and convenience Para 35 of
judgment
supra
is
reproduced
herein
below:-
“35. The word “office” has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the context it appears in the Constitution. We are of
89
the view that the framers of the Constitution did not and could not have meant by “judicial office” which did not exist independently and duties or part of duties of which could be conferred on any person whether trained or not in administration of justice .The word “judicial office” under Article 217(2) (a) in our means a subsisting office with a substantive position which has an existence independent from it’s holder.” In
view
above,
Hon’ble
Supreme
Court
concluded that Sh. K. N. Shrivastava was not qualified to be appointed as Judge on the date of
issuance
of
Presidential
warrant.
The
relevant part of Paragraph 41 for ready reference
and
convenience
is
reproduced
herein below:“41. We allow transferred petition of Kumar Padma
Prasad
and
declare
that
K.
N.
Shrivastava, on the date of issue of the warrant by the President of India was not qualified to be appointed as a Judge of High Court. As a
90
consequence, we quash his appointment as Judge of the High Court.”
Aforesaid Para 41 made it crystal clear that eligibility / qualification of Judge/Additional Judge of a High Court is to be seen on the date of issuance of Presidential Notification and not on any other date.
8. Thus,
the
principle
which
emerges
from
combined reading of Para 25, 35 and 41 reproduced herein above and other parts of the judgment supra is that, a person must hold ‘judicial office’ on the date of issuance of warrant by Hon’ble President of India. As a consequence / corollary thereof, if any person do not hold “judicial office” in the “judicial service” of the State ‘on the date of issuance of Presidential
warrant’,
he
would
not
be
qualified / eligible to be appointed as Judge of High Court under Article 217 (2) (a) of the Constitution of India.
91
9. All the above persons, who were appointed Additional
Judges,
were
part
of
‘judicial
service’ of the State before their retirement from state judicial services, but after their retirement from state judicial services, they ceased to be part of judicial services of the state as contemplated under Article 236 (b) of Constitution of India and consequently ceased to hold “judicial office” after their retirement from judicial services. It is reiterated that on the
date
Notification,
of
issuance
none
of
of
persons,
Presidential who
were
appointed Additional Judges of High Court, were part of state judicial services, thus none were holding “judicial office”. Thus, in view of Para 25, 35 and 41 of the judgment of Supreme Court, none of them were eligible to be been appointed as Judges of High Court on the date of issuance of Presidential warrant of appointment as Additional Judges.
Thus,
they could not have been appointed as Judges / Additional Judges of High Court after their retirement from judicial services of the state.
92
Thus, Judges
their were
appointments void
ab
as
Additional
initio.
Moreover,
appointment of all the Additional Judges had been made for a period less than 2 years in the High Courts whereas pendency of cases before the High Courts were more than 10 years,
therefore
their
appointment
were
otherwise contrary to minimum period of 2 years
prescribed
by
constitutional
bench
judgment rendered in the case of S. P. Gupta Vs Union of India. Thus, if any incumbent had not been left with 2 years to serve he could not have been appointed as Additional Judge under Article 224(1) of the Constitution of India in a High Court, where arrears of pending cases were more than 10 years because in that event he would not be able to serve minimum term prescribed by S. P. Gupta Vs Union of India. Otherwise also, a Judge/Additional
Judge
must
get
some
minimum time in High Court, which has reasonably been fixed to be 2 years. Thus,
93
appointment of Judge/Additional Judge must conform to constitutional standards.
10.
Thus, appointment of incumbents as
Additional Judges in Rajasthan, M.P and Allahabad High Court for a period less than 2 years and that to after retirement from judicial services were ex facie contrary to judgments of Supreme Court in the cases of S. P. Gupta Vs Union of India and Others (1981) Supp SCC 87 and Kumar Padma Prasad Vs Union of India [AIR 1992 SC 1213].
11.
That, because appointment of Additional
Judges
was
per
se
contrary
to
binding
judgment(s) of Supreme Court (supra), I filed Division Bench Writ Petition No. 4578/2016 (Sunil Samdaria Vs Union of India and Others) before
Rajasthan
High
Court
inter
alia
challenging the appointment of one Additional Judge,
Sh.
Rajasthan
Kailash High
Chandra
Court,
who
Sharma had
in
been
appointed vide Notification dated 6.4.2016 for
94
the period from the date of assumption of his office till 31.12.2017. Sh. Kailash Chandra Sharma assumed the office on 11.4.2016. Thus, his appointment is to remain in vogue from 11.4.2016 to 31.12.2017 period of which comes to 1 year 8 months 20 days which is exfacie
less
than
2
years,
less
than
the
minimum prescription of S. P. Gupta Vs Union of India because arrears of pending cases before Rajasthan High Court is more than 10 years. Moreover, Sh. Kailash Chandra Sharma had retired from judicial services of the state on 31.12.2015. Thus, on the date of issuance of presidential notification, Sh. Sharma was neither part of judicial service of the state nor he was holding judicial office. Thus, in view of judgment of Kumar Padma Prasad Vs Union of India [AIR 1992 12 13] (Para 25, 35 and 41), he
was
ineligible
/not
qualified
to
be
appointed as Judge of the High Court. Thus, in view of binding judgment of Supreme Court in case of S. P. Gupta Vs Union of India and in the case of Kumar Padma Prasad Vs Union of
95
India [AIR 1992 12 13] appointment of Sh. Sharma
was
contrary
to
constitutional
mandate and was thus grossly illegal. Despite binding judgment of Hon’ble Supreme Court, wherein
it
had
been
concluded
that
qualification for appointment of a Judge of High Court is to be seen on the date of issuance of presidential notification and that an incumbent must ‘hold’ judicial office, which is part of judicial service of the State on the date of issuance of Presidential warrant of appointment, Hon’ble High Court dismissed my
petition
in
limine
upholding
the
appointment of Sh. Kailash Chandra Sharma on the incorrect premise that eligibility
/
qualification for Judge of a High Court is to be seen on the date of recommendation of collegium, contrary to interpretation of Article 217(2) (a) of Constitution of India
given by
Hon’ble Supreme Court in Kumar Padma Prasad Vs Union of India [AIR 1992 SC 1213 (Para
25,
35
and
41)].
Challenging
the
judgment of High Court, I preferred Special
96
Leave
Petition
No.
35445/2016
before
Supreme Court. The latter also rejected the petition in limine ignoring the constitutional mandate of Kumar Padma Prasad Vs Union of India and S. P. Gupta Vs Union of India. I have now preferred Review Petition before Supreme Court on the premise that rejection of S.L.P by Supreme Court is contrary to binding judgment of Supreme Court rendered in the cases of Kumar Padma Prasad Vs Union of India and S. P. Gupta Vs Union of India.
12.
That, it appears to me that my petitions
had been dismissed by High Court and Supreme Court for the tacit reason that appointment of Judges of High Court is made on the basis of recommendation of collegiums of High Court and Supreme Court and it is difficult to find fault with decision making process of oneself.
13.
That, position of Additional Judges in S.
P. Gupta’s matter was far better than the
97
position of Additional Judges appointed in the 2016, yet their appointment for short period was deprecated by Hon’ble Supreme Court and it was categorically propounded that Additional Judges under Article 224(1) of the Constitution of India cannot be appointed for a period less than 2 years in a High Court where arrears of pendency of cases is more than 2 years. In S. P. Gupta’s matter, Additional
Judges
whose
short
term
appointments were put to judicial scrutiny, had remained Additional Judges for 2 years and thereafter they had been appointed for 3/6/9 months, which too was deprecated by Hon’ble Supreme Court. When short term appointment
as
completing
2
Additional years
of
Judges initial
after
term
of
appointment as Additional Judges could not be approved by Hon’ble Supreme Court, present short term appointment which were even less than minimum period of 2 years could not have been approved by High Court
98
or Supreme Court, but unfortunately same have been done.
14.
That, it may be not be exaggerative to
reproduce
relevant
extract
of Para
9
of
constitutional bench judgment rendered in M. Nagraj Vs Union of India (2006) 8 SCC 212 which is as follows:-
“The Constitution, according to Respondents, is not merely what it says.
It is what the last
interpretation of the relevant provision of the Constitution given by Supreme Court which prevails as Law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and is therefore, it is open to amendment
under
Article
368
of
the
Constitution of India. An interpretation placed by
the
Court
on
any
provision
of
the
Constitution gets inbuilt in the provisions interpreted.
Such
articles
are
amendment under Article 368”
capable
of
99
Thus, unless constitutional provisions are amended, interpretation given by Supreme Court is binding on all, even upon Supreme Court. Aforesaid paragraph of M. Nagraj was reiterated and relied upon by Hon’ble Supreme Court while deciding N. Kannadasan Vs Ajay Ghose (2009) 7 SCC 1 but unfortunately in the petition filed by me before High Court and Supreme Court, none of the Courts followed their own binding judgments, presumably for the reason that appointment of Judges of High Court are made on the recommendation of collegiums of High Court and Supreme Court and any interference by them would have been contrary to their own recommendation and would not have been conducive and palatable to the system.
15.
That, anathema of short appointments of
Additional
Judges
and
that
to
amongst
judicial officers who had ceased to be part of judicial services of the State after their retirement from judicial service is that within
100
short period of their appointment, there would again be a vacancy of Judge, which would compel the collegiums to re-start the process the appointment, which is not only time consuming but wastage of national resources.
16.
Sir, I may or may not succeed before
Supreme Court in Review Petition and Hon’ble Supreme Court may feel itself bound or not by it’s own judgment, but I believe declaration of law made by Supreme Court Kumar Padma Prasad Vs Union of India [AIR 1992 SC 1213] and S. P. Gupta Vs Union of India 1981(Supp) SCC 81 must be respected.
In conspectus of aforesaid state of facts you are requested to revisit the position of law in relation to appointment of Additional Judges under Article 224(1) of the Constitution of India especially in light of constitutional bench judgment rendered in the case S. P. Gupta Vs Union of India which has remained unaltered even by 9 Judges Bench judgment rendered in
101
the
cases
of
Supreme
Court
on
Record
Advocate Association Vs Union of India [(1993) 4 SCC 441] and Special Reference No.1 of 1998 [(1998) 7 SCC 739] in relation to minimum term / period of appointment of an Additional Judge in a High Court, where arrears of pending cases is more than 2 years.
You are further requested to revisit the position of law in relation to appointment of Judges / Additional Judges of High Court amongst the persons who have ceased to be part of judicial services of state after their retirement from judicial services and thereby ceasing to hold judicial office on the date of issuance
of
Presidential
Notification
and
therefore becoming ineligible to be appointed as Judge of the High Court in terms of Para 25, 35 and Para 41 of Kumar Padma Prasad Vs Union of India, even if for this purpose, if Presidential reference under Article 143 of the Constitution of India is required, it should be made, because no appointment contrary to
102
judgment of Hon’ble Supreme Court can be allowed to stand but unfortunately same have been allowed to stand. Thus, the dichotomy which has resulted in view of judgments of Kumar Padma Prasad Vs Union of India and S. P. Gupta Vs Union of India and upholding of appointments of Additional Judges contrary to above judgments needs to be resolved. After all, Rule of Law must prevail.
Sincerely yours
(SUNIL SAMDARIA) ADVOCATE Copy for inviting attention to:1. Sh. Mukul Rohatagi, Attorney General of India, N-234A, Greater Kailash, New Delhi110048.
2. Sh. Ram Jethmalani, Senior Advocate Member of Parliament and Ex-Union Cabinet
103
Minister 2, Akbar Road, New Delhi-11
3. Sh. Kapil Sibal, Senior Advocate Member of Parliament and Ex-Union Cabinet Minister 19, Teen Murti Marg, New Delhi-11.
4. Sh. P. Chidambaram, Senior Advocate Member of Parliament and Ex-Union Cabinet Minister 19, Safdurjang Road, New Delhi-11
****
RECEIPTS
1. SP RAJ.HIGH COURT PD JAIPUR (302005) ER355441005IN COUNTER NO.1 OP CODE SWATI TO P CHIDAMBARAM, NIRMAN BHAWAN PIN 110011 FROM: SUNIL, JAIPUR
104
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105
4. SP RAJ.HIGH COURT PD JAIPUR (302005) ER355441031IN COUNTER NO.1 OP CODE SWATI TO RAVI SHANKAR PRASAD NEW DELHI PIN 110001 FROM: SUNIL, JAIPUR WT: 200GRAMS AMOUNT 46.00 09/02/2017, 10:15 TAXES :-RS 6 (TRACK ON WWW.INDIA POST.GOV.IN)
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106
6. SP RAJ.HIGH COURT PD JAIPUR (302005) ER355441059IN COUNTER NO.1 OP CODE SWATI TO KAPIL , NIRMAN BHAWAN NEW DELHI PIN 110011 FROM: SUNIL, JAIPUR WT: 200GRAMS AMOUNT 46. 00 09/02/2017, 10:16 TAXES :-RS 6 (TRACK ON WWW.INDIA POST.
107
Annexure-P/2
TO BE PUBLISHED IN THE GAZETTE OF INDIA (PART 1 SECTION 2)
No. K-13030/01/2016-US.II Government of India Ministry of Law and Justice (Department of Justice) ….. Jaiselmer House, 26, Man Singh Road, New Delhi-110 001, dated 12th May, 2017 NOTIFICATION In exercise of the powers conferred by Clause (1) of article 224 of the Constitution of India, the President is pleased to appoint S/Shri (i) Ashok Kumar Gaur, (ii) Manoj Kumar Garg, (iii) Inderjeet Singh, (iv) Dr. Virendra Kumar Mathur, and (v) Shri Ramchandra Singh Jhala, to be Additional Judges of Rajasthan High Court, in that order of seniority. The appointment of S/Shri S/Shri Ashok Kumar Gaur, Manoj Kumar Garg, Inderjeet Singh, would be for a period of 2 years with effect from the date they assume charge of their respective offices. However, period of appointment in respect of Dr.
108
Virendra
Kumar
Mathur,
and
Sh.
of
Sh.
Ramchandra Singh Jhala are with effect from the date they assumes charge of their respective offices till 1st September, 2018 and 2nd July, 2018 respectively. Sd/-
(S.C.BARMMA) Joint Secretary to the Government of India Tele: 23072142 To The Manager Government of India Press, FARIDABAD
No. K-13030/01/2016-US.II Dated 12.05.2017 Copy to:1. S/Shri (i) Ashok Kumar Gaur, (ii) Manoj Kumar Garg, (iii) Inderjeet Singh, (iv) Dr. Virendra Kumar Mathur, and (v) Shri Ramchandra Singh Jhala C/o Registrar General, Rajasthan High Court, Jodhpur. 2. The Secretary to the Governor of Rajasthan, Jaipur. 3. The Secretary to Rajasthan, Jaipur.
the
Chief
Minister
of
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4. The Secretary to the Chief Justice, Rajasthan High Court, Jodhpur. 5. The Chief Secretary, Rajasthan, Jaipur
Government
of
6. The Registrar General, Rajasthan High Court, Jodhpur. 7. The Accountant General, Rajasthan, Jaipur. 8. President’s Secretariat (CA.II Section), New Delhi. 9. PS to Principal Secretary to Prime Minister, New Delhi. 10. Additional Registrar (Conf.) O/o Chief Justice of India, 5, Krishna Menon Marg, New Delhi. 11. PS to ML&J/PS to MoS (L&J) PSO to Secretary (J)/JS (SCB) / DS (ANS) / US.I / S.O.(Desk) 12. Notification copy uploaded on the web site of the Department of Justice, Govt. of India, New Delhi at www.doj.gov.in Sd/(S. Vijay Gopal) Under Secretary to the Government of India Tele : 2338 2978
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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION I.A.NO._______/2017 IN WRIT PETITION (CIVIL) NO.________/2017 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) IN THE MATTER OF:SUNIL SAMDARIA -PETITIONER Versus UNION OF INDIA AND OTHERS -RESPONDENTS
APPLICATION FOR INTERIM RELIEF UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
111
TO HON’BLE
THE
CHIEF
JUSTICE
AND
HIS
COMPANION HON’BLE JUSTICES OF HON’BLE SUPREME COURT OF INDIA. MAY IT PLEASE THE HON’BLE SUPREME COURT:The
petitioners
most
respectfully
showeth
as
under:1. That, the petitioner has filed the present petition challenging the legality and validity of Notification
dated
12.5.2017
whereby
Respondent No.2 and Respondent No.3 has inter alia been appointed as Additional Judges of Rajasthan High Court under Article 224(1) of the Constitution of India from the date of assuming their respective offices till 1.9.2018 and
2.7.2018
respectively
making
their
appointment as Judge of the High Court for a short period of 1 year 3months 17 days and for 1year 1 month and 17 days respectively.
2. That, the impugned Notification is ex-facie contrary to constitutional mandate of Article
112
224(1) and Article 217(2) (a) of Constitution of India in view of declaration of law made by 7Judges
constitutional
Bench
Judgment
rendered in the case of S. P. Gupta Vs Union of India and Others [(1981) Supp SCC 87] and further in view of declaration of law made by Hon’ble Court in the case of Kumar Padma Prasad Vs Union of India and Others[AIR 1992 SC 1213] qua interpretation of Article 217(2) (a) of the Constitution of India.
3. That, tested on the anvil of Article 224(1) and Article 217(2) (a) of Constitution of India in light of S. P. Gupta Vs Union of India and Others [(1981) Supp SCC 87] and Kumar Padma Prasad Vs Union of India and Others [AIR
1992
SC
1213]
,
appointment
of
Respondent No.2 and Respondent No.3 as Additional Judge is void ab initio.
4. That, the facts and the grounds stated in the writ petition may be treated as part and parcel of stay application.
113
5. That, petitioner has got a strong prima facie case as the appointment of Respondent No.2 and Respondent No.3 as Additional Judges of Rajasthan
High
Court
is
ex-facie
unconstitutional being in gross violation of Article
224(1)
and
Article
217(2)
of
the
Constitution of India as detailed out in the writ petition.
6. That, if the interim relief as prayed for is not granted, it would result in perpetuation of unconstitutional appointment, which Hon’ble Court would loathe to continue.
Prayer In conspectus of Article 224(1) and Article 217(2) (a) of the Constitution of India read with constitutional bench judgment rendered in the case S. P. Gupta Vs Union of India [(1981) Supp SCC 87] and the judgment rendered in the case of Kumar Padma Prasad Vs Union of India [AIR 1992 1213], it is prayed that effect and operation of the impugned
114
notification dated 12.5.2017 to the extent of appointment
of
Respondent
No.2
and
Respondent No.3 as Additional Judges of Rajasthan
High
consequently Respondent
Court
be
stayed
and
No.2
and
restrained
from
Respondent No.3
be
discharging the functions of the office held by them. Any other order which this Hon’ble Court deem
fit
and
proper
in
facts
and
circumstances of the case in conformity with the constitutional principles may also be issued. AND
FOR
THE
AFORESAID
ACT
OF
KINDNESS, PETITIONER SHALL EVER PRAY. Filed on:-17.5.2017 Jaipur.
Your humble Petitioner (Petitioner-in-Person)
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