The SC said the government cherry-picking from the collegium’s recommendations was not acceptable, pointing out that the collegium‘s recommendation for transferring four judges of Gujarat HC had not been acted upon.
A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, which has been monitoring the progress in the appointment and transfer of judges in various HCs, said the Centre was sending a wrong signal by delaying decisions. Transfers of 26 HC judges were pending before the government but after the court’s intervention in September, the judges were transferred in a phased manner and now only six judges — four from Gujarat HC and one each from Delhi and Allahabad HCs — remain to be transferred.“It does not send a good signal. Do not do selective transfers, six transfers are still pending. It is not acceptable. What signal are you sending?”1 the bench said.
The bench elaborated that there were still 10 names pending before the Centre for appointment as HC judges out of which five had been reiterated.
In its order, the court also recorded its appreciation of Gujarat HC for delaying the oath of a judge as the Centre did not clear the name of another candidate for judgeship when both had been recommended together by the collegium. It also praised the Centre for then clearing the other name without delay.
At the outset of the hearing, the AG sought adjournment for a week saying that not much progress took place due to various reasons and assured the court that a decision on the pending recommendations would be taken. The bench said it was difficult to convince a bright lawyer to accept judgeship if his seniority was not assured and he had to keep waiting for his name to be cleared by the Centre. “If candidates do not know what seniority they will have on becoming a judge, it becomes difficult to persuade eligible and deserving candidates to accept the position,” the bench said.
Senior advocate Dushyant Dave said the time had come for the court to pass an order to the Centre to clear all pending names within 24 hours but the bench deferred the hearing, hoping that the AG would be able to convince the Centre and the court would not be disappointed on the next date.
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The issue of appointment of judges has witnessed a tug of war between the Centre and the judiciary with the government attacking the collegium system of appointment of judges to the higher judiciary, arguing that it should also have a say in the process. The SC, on the other hand, has passed a slew of directions and orders to push the Centre to take time-bound decisions on the collegium’s recommendations and set a timeframe for the process.