Once A Judge Is Appointed Government Shouldn't Be Concerned Where He Works: SC Says Transfer Of Judges Being Done Selectively, Warns Of Unpalatable Action

Today, the Supreme Court once again sternly rebuked the Central Government, expressing concern over the delays in acting upon the names recommended by the Collegium for transfers and judicial appointments. The Court also cautioned the Government, while expressing the hope that the situation does not deteriorate to the point where the Court or the Collegium must make decisions that may be deemed contentious.

The Bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia were dealing with a batch of Petitions highlighting the alleged delay by the Central Government in acting upon the names recommended by the Collegium for judicial appointments. Representing the Union of India, Attorney General R. Venkatramani requested the Bench to adjourn the matter for a week. The AG stated that he had been out of town and that efforts were underway to expedite the process.

However, Justice Kaul expressing displeasure stated, "As of now, there are 5 names which are pending after being reiterated. And apart from that, 14 names which are in nearer proximity of time, are pending. Now troublesome aspect about these 14 names is that in some of them, you have appointed numbers 3, 4, or 5 and have not appointed numbers 1 and 2, they lose out on seniority and they have already lost on that. Now suppose someone has a reasonable practice, why should he put his neck on the block and keep hoping that you will clear them? Among the names sent, I have found in the last 13-14 months not even 50% of names are cleared."

Continuing the Judge said, "Some process was expedited, I appreciate that. But people who are senior, if they lose out, they will withdraw. There are 14 names of this nature which are pending with you. In times to come, it will get very difficult. I pose this question to myself, with what face should I pursue a young good competent lawyer who has a good practice in the bar to make the sacrifice and accept the position on the Bench." Justice Kaul stated, "I am unable to say this today because I don't know whether it is worth the while to put the neck on the block."

Justice Kaul further told the AG, "You managed to clear a lot of names on the list when you were appointed. But now we have the same problem. From the list cleared by us, some people are appointed some are not. On transfers, 16 transfers were issued and you had assured us 11 more will be issued. Don't make us take the step... but it is not beyond our powers to do so. This is something we will not countenance. The transfers are really troubling us... first, it took many months and now again we are facing the same position concerning the transfers."

On the other hand, while representing the Petitioners, Advocate Prashant Bhushan expressed concern about the prolonged duration of the hearing. He stated, "Unfortunately, your lordships have heard the matter for many months and the AG is not able to push through. Lordships have given more than a long rope in this matter. There are instances when reiterations have been made several years ago. How long can this go on? It cannot go on indefinitely. This has been going on for at least the last few months. The time has come to crack the whip. The government is getting the impression that it can get away with anything, you have to crack the whip. Summon the Law Secretary... let them come and say that we have instruction from higher up to delay. This is gross contempt of the Court."

Asking the Attorney General to make sure that this pick and choose must stop, the Bench ordered, "We have expressed our concern to the learned Attorney General over the lack of progress since the last date. The pendency of transfer is an issue of great concern as it has been selectively done. The Attorney General submits that the issue has been taken by him with the government. We emphasize to him again that once these people are already appointed as judges, where they perform the judicial duties could not be a matter of concern to the government and we hope that the situation would not come to pass where this Court or the collegium has to take some decision which may not be palatable."

Continuing, the Bench in its order stated, "There are 14 recommendations which are pending with the government on which there has been no response. In the recommendation process even recently made, selective appointments have been made. We have put to the learned Attorney General that this again is a matter of concern that if some appointments are made and some are not, the inter-se seniority is disturbed. This is hardly conducive to persuade successful lawyers to join the Bench. There are also 5 names which are pending after a second-time reiteration. This issue of pending names also needs to be addressed. The learned Attorney General requested some time period to have fruitful discussions with the government. List on 28th November".

Accordingly, the Court adjourned the matter to November 28 for the Attorney General to seek some instructions. Justice Kaul asked the AG, "Attorney, show us some progress. The transfer is something which stares us in the face immediately, apart from the other. This transfer should happen quickly."

The Court had earlier stated the centre is sitting on 9 collegium recommendations, 7 reiterated names, 80 high court recommendations and 26 transfers.

Cause Title: Advocates Association Bengaluru v. Barun Mitra And Anr. [CONMT.PET.(C) No. 867/2021 in T.P.(C) No. 2419/2019]