new DElhi, Nov 22
REITERATING ITS displeasure over what it termed as a “pick and choose” practice adopted by the Centre in clearing the Collegium’s recommendations for appointment and transfer of High Court (HC) judges, the Supreme Court said on Monday that this “sends a very wrong signal”.
A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia said of the names recommended for appointment as HC judges recently, eight have not been cleared, including some who are senior to those who have been appointed. Besides, five names from the earlier lot which were reiterated, too, have not been appointed, it said.
“In Punjab, two seniormost have not been appointed. This is the problem which arises when selective appointments take place, people lose their seniority. Why will people be ready to become judges,” said Justice Kaul, who is a member of the apex court Collegium.
Referring to recommendations for appointment of judges, he said: “If I may say, it can’t be a scenario that if we don’t clear a name in the perspective the government is very keen, it can’t be that you stop the other names… creates a little problem. If we have not cleared, we have consciously (done so) taking the government’s inputs, other inputs, consulting judges’ inputs, our own enquiries… Two of the candidates you have not cleared are both Sikhs. Look at the problem… My concern is only why should such a scenario arise where we had to check even these things. We were trying to clear the past problems which were there. But this is past problems plus further problems created now… These are not antagonistic issues which are being taken up. But for the system, it is necessary.” On transfers, Justice Kaul said: “Last time also, I said (it) doesn’t send a good signal. If you pick and choose transfers out of the ones recommended by the Collegium, ultimately they are going to work in one court or the other. It’s not a question of choice of the judges to be appointed. Last time also, I emphasised don’t do selective transfers.
It creates its own dynamics, and that is what has happened. One from Allahabad, one from Delhi, and some from Gujarat, six transfers are pending. This is something not acceptable.” “As per my information, you have issued transfer orders for five judges. For the rest, you have not issued; four of them are from Gujarat,” he added.
Justice Kaul said that if the transfers don’t happen as recommended, “what will happen at some stage is that you can’t let judges whom we think should not work in a court, continue to work, which will mean… something which is not very pleasant… If it is driven to that, that is what will happen.
And it will embarrass those judges if we do that. I wouldn’t like to do that because they have to go and work in some other court… Please don’t let that happen. It will dilute the authority of those judges to work wherever they go, were we to take such a step”.
The Bench was hearing two petitions including one by the Bengaluru Advocates Association seeking contempt of court proceedings against the government for alleged delay in appointment of judges.
Attorney General R Venkataramani said the delay after the last hearing was “not because of any reluctance” on the part of the government, but due to the ongoing Assembly elections and communication issues. He urged the Bench to defer the matter by a week or so.
“As far as the reiterated names are concerned, I can only say progress has been made,” the AG said.
“What has troubled us is this. Even now, the last lot of names, we considered the opinions of the government, took into account all the material, (but) not even 50 per cent of the names are cleared. Out of that also, when you detain eight names, it upsets the seniority, and sends a very wrong signal,” said Justice Kaul.
“Just wait for another week or 10 days. Many things are getting cleared with a little persuasion I am able to put in. The government has its own understanding of the dynamics,” the AG submitted.
“My concern is that these dynamics must improve,” said Justice Kaul.
The AG sought to assure the court that “it will improve”.
Senior Advocate Dushyant Dave, appearing for a petitioner, said that in Gauhati HC, the Collegium refused to administer oath to the judge whose name was recommended while another senior’s name was withheld. “Ultimately, the government cleared (it), and the Collegium under the Acting Chief Justice gave oath,” he said.
Justice Kaul recorded the court’s “appreciation” of what happened in Gauhati HC and also commended the government “that it took cognizance of it and did something”.
Earlier this month too, the SC had expressed its displeasure over the government “selectively picking” names from those recommended by the Collegium. “This selective business…This pick-and-choose must stop,” it had said on November 7.
