Thursday, October 21, 2021
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Injustice to the Justices

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By India Legal Bureau

The Collegium system of recommending judges for transfer, appointment and elevation is anything but transparent. Seniority is often violated, merit is not considered as a criterion and there is a complete lack of transparency. The recent recommendations of the Delhi High Court Collegium is a glaring example. It has recommended names of some district judges for elevation to the High Court while rejecting the claim of five judicial officers senior to them, and all with 17 years of unblemished service.

The list of officers, as per seniority, are:-

(1) Girish Kathpalia (Ignored)
(2) Sujata Kohli (Ignored)
(3) Poonam A. Bamba
(4) Deepak Jagotra (Ignored)
(5) Narottam Kaushal (Ignored)
(6) Yashwant Kumar
(7) R.P.Pandey (Ignored)
(8) Neena B. Krishna
(9) Dharmesh K. Sharma
(10) Dinesh K. Sharma
(11) A.K. Mendiratta

And this is nothing new. Some time back, senior district judges of Delhi, Rakesh Tewari, AS Jayachandra, OP Saini and RPS Teji were all made to retire, despite fulfilling all the criteria for elevation to the Delhi High Court and with ample vacancies of judges waiting to be filled up. The word goes around in the Bar that this is done to accommodate certain “blue-eyed boys” of the High Court. The general refrain in the Bar is that the High Court Collegium, in order to justify their recommendations for accommodating the so-called “pampered promotee judges” and ignoring eligible and senior district judges often comes up with flimsy arguments related to age restrictions—the ignored judges can’t be accommodated as they are more than 58 and half years—although there is no such rule. Recently, the Bombay High Court had made recommendations of senior district judges who were more than 58 and a half years, based on their annual confidential reports. The Supreme Court Collegium in its resolution and approved the High Court verdict. But the convention was not followed in the case of Tewari, Jayachandra, Saini and even Teji, who was below the age of 58 and a half years. Another strange argument put up is that there would be an imbalance in the High Court if judges are directly elevated from the Bar.

The overlooking of seniority and merit by the High Court Collegium has led to simmering discontent in the various district bar associations of Delhi. Members of the Bar feel let down terribly and the judicial fraternity has been forced to believe that the direct recruits from the Bar who join the higher judicial service after undergoing the qualifying examinations and the tough tests will not be considered and their rich experience at the Bar and in the higher judicial service is purposefully ignored.

As compared to the candidates from the Bar, the civil judges get a lot more opportunity for promotion—into the senior civil judge/CMM cadre, then into the higher judicial service and from there to the High Court. The direct recruits who join do not have any promotion chances from the cadre of higher judicial service, if not elevated. The advocates who are income tax assessees with minimum bar experience of 7 years and not more than 45 years are directly recruited. And there is enough data to support the conclusion that district judges who are directly recruited are often ignored for elevation to the High Court. The eight district judges directly recruited 2002 were ignored. Sources from the Bar reveal that the four juniors who were from the “promotee cadre” were accommodated in the recommendations made and only two direct recruits were recommended though there were enough vacancies to accommodate them.

Seniority can only be ignored for elevation to the higher judiciary on specific grounds, such as poor ACR grading, negative report of the Judgement Review Committee, lack of integrity, unsatisfactory judicial work and the overage of the candidates under consideration. But all the criteria in the recent cases of elevation go in favour of the judges who have been ignored. For example:

ACR Grading: Usually the grading of “B+” i.e. “Good” is considered sufficient for being elevated to the High Court. From all High Courts, except Delhi, district judges of grading of “B+” are recommended. However, the Delhi High Court has been adopting a policy of insisting on last five years ACR to be graded as “A{ for being district judges. So all the 11 judges, under the consideration, were carrying the ACR of the grading of “A”. Some of them were carrying it for a period of almost 17 years and others for periods varying between five to 17 years. Therefore, all the 11 on this count are equally placed.

Judgment Review Committee: This Committee is constituted by the senior judges of the High Court, other than members of the Collegium. It reviews or assesses the quality of judgments authored by the judges under consideration. According to reliable sources, the names recommended by the High Court Collegium are not in conformity with the views of the Committee. Moreover, the last four from the list of six recommended have remained on the judicial side for a very insignificant period in the last five or ten years. They have primarily been on administrative duties and have, therefore, not been writing many judgments. Therefore, ignoring those, who are working on the judicial side and preferring those, who have been more on the administrative side is perplexing, especially when there is huge pendency in the High Court.

Integrity: None of the ignored five judges have any blemishes on their integrity.

Age: Out of the ignored five, two are due to retire in the next year. Therefore, they ought to have been considered for elevation, if they meet other criteria. The last four, who have been recommended, still have age on their side and are relatively young and can wait for their turn.

Against the claim of 11 persons, there are 11 vacancies and all of them should have been recommended to avoid any controversy and it would have sent a positive message to the judges and the judicial service as a whole.

The unrest in the Madras High Court over the supercession of senior district Judges, particularly in the wake of the Supreme Court issuing notices on petitions filed by the superceded judges, has been conveniently ignored by the Delhi High Court Collegium. All this directly affects the goal of speedy justice delivery in the justice system.

The problem lies not only in violating the existing rules of seniority. Even the existing rules have been reframed to suit those whom the Collegium wants to elevate. The officers of the Delhi Judicial Service have already sent representations to the Delhi High Court in this regard, pleading that it must follow the Supreme Court judgement in the fixation of seniority. The Delhi High Court is likely to discuss the issue with the judicial officers and hear the grievances of those who have not been elevated despite being eligible on all counts.

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