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CASE NO.:

Transfer Case (civil) 22 of 2001

PETITIONER:

BRIJ MOHAN LAL

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 06/05/2002

BENCH:

B.N. Kirpal, K.G. Balakrishnan & Arijit Pasayat

JUDGMENT:

WITH

[T.C. No. 23/2001, SLP No. 7870/2001, SLP No. 10645/2001and

T.P. No. 407-410/2001]

J U D G M E N T

ARIJIT PASAYAT, J.

All these cases relate to the establishment and functioning of

Courts described as Fast Track Courts and, therefore, are disposed of

by this common judgment. The Eleventh Finance Commission

(hereinafter referred to as the 'Finance Commission') allocated

Rs.502.90 crores under Article 275 of the Constitution of India, 1950

(in short 'the Constitution') for the purpose of setting up of 1734

Courts in various States to deal with long pending cases, particularly,

Sessions cases. As allocation of funds made by the Finance

Commission stipulated time bound utilization within a period of five

years, various State Governments were required to take necessary

steps to establish such Courts. It appears that the Finance Commission

had suggested that the States may consider re-employment of retired

judges for limited period, for the disposal of pending cases, since

these Courts were to be ad hoc in the sense that they would not be a

permanent addition to the number of Courts within a particular State.

Challenge was made to the Scheme known as the Fast Track Courts

Scheme in various High Courts, primarily on the ground that there

was no constitutional sanction for employment of retired judges and

effective guidelines were not in operation. It was also highlighted that

infrastructural facilities were not available so as to make Scheme a

reality. Several such deficiencies were pointed out. A plea was made

that instead of retired officers, eligible members of the Bar should be

considered for appointment.

Stand of the Union of India on the other hand was that on the

recommendations of the Finance Commission, a note was prepared by

the Department of Justice, Government of India. There is no

mandatory requirement for appointment of retired Sessions/Additional

Sessions Judges or other officers. Ad hoc promotion of judicial

officers was also contemplated. It was pointed out that consequential

vacancies created on account of ad hoc promotions can be filled up by

a special drive so that there is no shortfall in the personnel of the

lower Courts.

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Learned counsel appearing for the various parties were

unanimous on one important aspect i.e. the problems created by long

pendency of cases in different Courts all over the country. It was also

conceded that any effort for reducing the pendency is a welcome step.

Keeping in view the importance of the matter, learned counsel for the

parties were asked to give their suggestions. Mr. Harish N. Salve,

learned Solicitor General has given several suggestions with which we

shall deal later. Learned counsel for the other parties have more or

less agreed to the suggestions, except to the suggestion regarding

appointment of retired judges, more particularly, those with adverse

service records.

The anxiety of all concerned about quick dispensation of

justice has been succinctly stated by one of us (Hon'ble Justice

Kirpal) in All India Judges Association & Ors. v. Union of India &

Ors. (JT 2002 [3] SC 503) in the following words:

"An independent and efficient judicial system is one of

the basic structures of our Constitution. If sufficient

number of judges are not appointed, justice would not be

available to the people, thereby undermining the basic

structure. It is well known that justice delayed is justice

denied. Time and again the inadequacy in the number of

judges has adversely been commented upon. Not only

have the Law Commission and the standing committee of

Parliament made observations in this regard, but even the

head of the judiciary, namely, the Chief Justice of India

has had more occasions than once to make observations

in regard thereto. Under the circumstances, we feel it is

our constitutional obligation to ensure that the backlog of

the cases is decreased and efforts are made to increase

the disposal of cases. Apart from the steps which may be

necessary for increasing the efficiency of the judicial

officers, we are of the opinion that time has now come

for protecting one of the pillars of the Constitution,

namely, the judicial system, by directing increase, in the

first instance, in the judge strength from the existing ratio

of 10.5 or 13 per 10 lakhs people to 50 judges for 10 lakh

people. We are conscious of the fact that overnight these

vacancies cannot be filled. In order to have additional

judges, not only the posts will have to be created but

infrastructure required in the form of additional court

rooms, building, staff, etc., would also have to be made

available. We are also aware of the fact that a large

number of vacancies as of today from amongst the

sanctioned strength remain to be filled. We, therefore,

first direct that the existing vacancies in the subordinate

courts at all levels should be filled, if possible, latest by

31st March, 2003, in all the States. The increase in the

judge strength to 50 judges per 10 lakh people should be

effected and implemented with the filling up of the posts

in a phased manner to be determined and directed by the

Union Ministry of Law, but this process should be

completed and the increased vacancies and posts filled

within a period of five years from today. Perhaps

increasing the judge strength by 10 per 10 lakh people

every year could be one of the methods which may be

adopted thereby completing the first stage within five

years before embarking on further increase if necessary."

The following observations of a Seven Judge Bench in a recent

decision [P. Ramachandra Rao v. State of Karnataka (JT 2002 (4) SC

92)] are also relevant:

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"A perception of the cause for delay at the trial and in

conclusion of criminal proceedings is necessary so as to

appreciate whether setting up bars of limitation entailing

termination of trial or proceedings can be justified. The

root cause for delay in dispensation of justice in our

country is poor judge-population ratio. Law Commission

of India in its 120th report on man power planning in

Judiciary (July 1987), based on its survey, regretted that

in spite of Article 39A added as a major Directive

Principle in the Constitution by 42nd amendment (1976),

obliging the State to secure such operation of legal

system as it promotes justice and to ensure that

opportunities for securing justice are not denied to any

citizen. Several reorganization proposals in the field of

administration of justice in India have been basically

patch work, ad hoc and unsystematic solutions to the

problem. The judge-population-ratio in India (based on

1971 census) was only 10.5 judges per million population

while such ratio was 41.6 in Australia, 50.9 in England,

75.2 in Canada and 107 in Unites States. The Law

Commission suggested that India required 107 judges per

million of Indian population; however to begin with the

judge strength needed to be raised to five-fold, i.e. 50

judges per million population in a period of five years but

in any case not going beyond ten years. Touch of said

sarcasm is difficult to hide when the Law Commission

observed (in its 120th report, ibid) that adequate

reorganization of the Indian Judiciary is at the one and at

the same time everybody's concern and, therefore,

nobody's concern."

We find substance in the stand taken by the learned counsel

who have highlighted the non-desirability of appointing judicial

officers who did not carry good reputation so far as their honesty and

integrity is concerned. It is to be noted that in All India Judges'

Association v. Union of India and others [(1992) 1 SCC 119] and in

All India Judges' Association and Ors. v. Union of India and Ors.

[(1993) 4 SCC 288], this Court took note of the non-desirability to

grant the benefit of two years extension in service i.e. from 58 years

to 60 years in the case of officers who were not found to be of

continued utility. In each case an evaluation of the service records

was directed to be undertaken to find out whether the officer has or

lacks potentiality for getting such benefit.

The qualities desired of a judge can be simply stated: 'that if he

be a good one and that he be thought to be so'. Such credentials are

not easily acquired. The judge needs to have 'the strength to put an

end to injustice' and 'the faculties that are demanded of the historian

and the philosopher and the prophet'. A few paragraphs from the

book "Judges" by David Pannick which are often quoted need to be

set out here:

"The judge has burdensome responsibilities to

discharge. He has power over the lives and livelihood of

all those litigants who enter his court.His decisions

may well affect the interests of individuals and groups

who are not present or represented in court. If he is not

careful, the judge may precipitate a civil war or he may

accelerate a revolution. He may accidentally cause a

peaceful but fundamental change in the political

complexion of the country.

* * * *

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Judges today face tribulations, as well as trials, not

contemplated by their predecessors.Parliament has

recognized the pressures of the job by providing that

before the Lord Chancellor recommends anyone to the

Queen for appointment to the Circuit Bench, the Lord

Chancellor 'shall take steps to satisfy himself that the

person's health is satisfactory'. This seems essential in

the light of the reminiscences of Lord Roskill as to the

mental strain which the job can impose. Lord Roskill

added that, in his experience, 'the work load is

intolerable: seven days a week, 14 hours a day'

* * * *

He [judge] is a symbol of that strange mixture of

reality and illusion, democracy and privilege, humbug

and decency, the subtle network of compromises, by

which the nation keeps itself in its familiar shape."

Burger C.J. of the American Supreme Court once observed: "A

sense of confidence in the Courts is essential to maintain the fabric of

ordered liberty for a free people and it is for the subordinate judiciary

by its action and the High Court by its appropriate control to ensure

it".

One of the pleas taken by the parties questioning constitutional

validity of the Fast Track Courts Scheme is that Constitution does not

envisage establishment of Fast Track Courts. This plea is clearly

without any substance. As observed by a nine-Judge Bench of this

Court in Supreme Court Advocates-on-Record Association and Ors. v.

Union of India [(1993) 4 SCC 441], appointment of a person to be a

District Judge rests with the Governor, but he cannot make the

appointment unless there has been an effective and meaningful

consultation with the High Court or the High Court has recommended

the appointment. In order that the requirement of consultation does

not end up as an empty formality, in the event of difference of

opinion, there must be an effective interchange of viewpoints. In

cases governed by Article 233(2), as a matter of rule, the High Court's

recommendation must be accepted. Departure from the opinion of the

High Court should be a rare event. The Constitution relies on the

collective wisdom of the High Court as a body and not that of any

single individual. Though the Fast Tract Courts Scheme is envisaged

by the Central Government on the basis of the views indicated by the

Finance Commission, yet appointments to the Fast Track Courts are to

be made by the High Court keeping in view the modalities set out.

Therefore, merely because the suggestion has stemmed from the

Central Government; it cannot be said that there has been any

violation of any constitutional mandate. It is to be noted that Chapter

VI of the Constitution deals with Subordinate Courts. While Article

233 relates to the recruitment to the District Judges, Article 234

relates to the recruitment of members of the judicial service of the

State other than District Judges. The power of appointment under

Article 234 does not include the power to confirm the promotion of

judicial officers other than judicial officers which is vested

exclusively in the High Court by Article 234. Any rule which provides

that the authority belongs to the Governor in consultation with the

High Court, shall be void, as observed by this Court in State of Assam

and Anr. v. S.N. Sen and Anr. [1971 (2) SCC 889]. While the

promotion of District Judges shall be in the hands of the Governor

acting in consultation with the High Court in terms of Article 235, the

posting and promotion etc. of officers of the State Judicial Services

other than the District Judges lie exclusively in the hands of the High

Court. The word "control" referred to in Article 235 is used in a

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comprehensive sense to include general superintendence of the

working of the Subordinate Courts. In other words the control vested

in the High Court under this Article is complete control, subject only

to the power of the Governor in the matter of appointment and

promotion of District Judges. The provision under this Article is to

ensure independence of judiciary. Above being the position there is

nothing constitutionally improper in the scheme. It is the High Court

which has to play a pivotal role in the implementation of the scheme

for its effective implementation and achievement of the above

objectives, of course, complying with the constitutional requirements

embodied in relevant provisions of Chapter VI of the Constitution.

Keeping in view the laudable objectives with which the Fast

Tract Courts Scheme has been conceived and introduced, we feel the

following directions, for the present, would be sufficient to take care

of initial teething problems highlighted by the parties:

Directions by the Court:

1. The first preference for appointment of judges of the Fast

Track Courts is to be given by ad-hoc promotions from

amongst eligible judicial officers. While giving such

promotion, the High Court shall follow the procedures in

force in the matter of promotion to such posts in

Superior/Higher Judicial Services.

2. The second preference in appointments to Fast Track Courts

shall be given to retired judges who have good service

records with no adverse comments in their ACRs, so far as

judicial acumen, reputation regarding honesty, integrity and

character are concerned. Those who were not given the

benefit of two years extension of the age of superannuation,

shall not be considered for appointment. It should be

ensured that they satisfy the conditions laid down in Article

233(2) and 309 of the Constitution. The concerned High

Court shall take a decision with regard to the minimum-

maximum age of eligibility to ensure that they are physically

fit for the work in Fast Track Courts.

3. No Judicial Officer who was dismissed or removed or

compulsorily retired or made to seek retirement shall be

considered for appointment under the Scheme. Judicial

Officers who have sought voluntary retirement after

initiation of Departmental proceedings/inquiry shall not be

considered for appointment.

4. The third preference shall be given to members of the Bar

for direct appointment in these Courts. They should be

preferably in the age group of 35-45 years, so that they

could aspire to continue against the regular posts if the Fast

Track Courts cease to function. The question of their

continuance in service shall be reviewed periodically by the

High Court based on their performance. They may be

absorbed in regular vacancies, if subsequent recruitment

takes place and their performance in the Fast Track Courts is

found satisfactory. For the initial selection, the High Court

shall adopt such methods of selection as are normally

followed for selection of members of the Bar as direct

recruits to the Superior/Higher Judicial Services.

5. Overall preference for appointment in Fast Track Courts

shall be given to eligible officers who are on the verge of

retirement subject to they being physically fit.

6. The recommendation for selection shall be made by a

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Committee of at least three Judges of the High Court,

constituted by the Chief Justice of the concerned High Court

in this regard. The final decision in the matter shall be taken

by the Full Court of the High Court.

7. After ad-hoc promotion of judicial officers to the Fast Track

Courts, the consequential vacancies shall be filled up

immediately by organizing a special recruitment drive.

Steps should be taken in advance to initiate process for

selection to fill up these vacancies much before the judicial

officers are promoted to the Fast Track Courts, so that

vacancies may not be generated at the lower levels of the

subordinate judiciary. The High Court and the State

Government concerned shall take prompt steps to fill up the

consequential as well as existing vacancies in the

subordinate Courts on priority basis. Concerned State

Government shall take necessary decisions within a month

from the receipt of the recommendations made by the High

Court.

8. Priority shall be given by the Fast Track Courts for disposal

of those Sessions cases which are pending for the longest

period of time, and/or those involving under-trials. Similar

shall be the approach for Civil cases i.e. old cases shall be

given priority.

9. While the staff of a regular Court of Additional District and

Sessions Judge includes a Sessions Clerk and an office

Peon, work in Fast Track Courts is reported to be adversely

affected due to shortage of staff as compared to regular

Courts performing same or similar functions. When single

Orderly or Clerk proceeds on leave, work in Fast Track

Courts gets held up. The staff earmarked for each such Court

are a Peshkar/Superintendent, a Stenographer and an

Orderly. If the staff is inadequate, High Court and the State

Government shall take appropriate decision to appoint

additional staff who can be accommodated within the

savings out of the existing allocations by the Central

Government.

10. Provisions for the appointment of Public Prosecutor and

Process Server have not been made under the Fast Track

Courts Scheme. A Public Prosecutor is necessary for

effective functioning of the Fast Track Courts. Therefore, a

Public Prosecutor may be earmarked for each such Court

and the expenses for the same shall be borne out of the

allocation under the head 'Fast Track Courts'. Process

service shall be done through the existing mechanism.

11. A State Level Empowered Committee headed by the Chief

Secretary of the State shall monitor the setting up of

earmarked number of Fast Track Courts and smooth

functioning of such Courts in each State, as per the

guidelines already issued by the Government of India.

12. The State Governments shall utilize the funds allocated

under the Fast Track Courts Scheme promptly and will not

withhold any such funds or divert them to other uses. They

shall send the utilization certificates from time to time to the

Central Government; who shall ensure immediate release of

funds to the State Governments on receipt of required

utilization certificates.

13. At least one Administrative Judge shall be nominated in

each High Court to monitor the disposal of cases by Fast

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Track Courts and to resolve the difficulties and

shortcomings, if any, with the administrative support and

cooperation of the concerned State Government. State

Government shall ensure requisite cooperation to the

Administrative Judge.

14. No right will be conferred on Judicial Officers in service for

claiming any regular promotion on the basis of his/her

appointment on ad-hoc basis under the Scheme. The service

rendered in Fast Track Courts will be deemed as service

rendered in the parent cadre. In case any Judicial Officer is

promoted to higher grade in the parent cadre during his

tenure in Fast Track Courts, the service rendered in Fast

Track Courts will be deemed to be service in such higher

grade.

15. The retired Judicial Officers who are appointed under the

Scheme shall be entitled to pay and allowances equivalent to

the pay and allowance they were drawing at the time of their

retirement, minus total amount of pension drawn/payable as

per rules.

16. Persons appointed under the Scheme shall be governed, for

the purpose of leave, reimbursement of medical expenses,

TA/DA and conduct rules and such other service benefits,

by the rules and regulations which are applicable to the

members of the Judicial Services of the State of equivalent

status.

17. The concerned High Court shall periodically review the

functioning of the Fast Track Courts and in case of any

deficiencies and/or shortcoming, take immediate remedial

measures, taking into account views of the Administrative

Judge nominated.

18.The High Court and the State Government shall ensure that

there exists no vacancy so far as the Fast Track Courts are

concerned, and necessary steps in that regard shall be taken

within three months from today. In other words, steps should

be taken to set up all the Fast Track Courts within the stipulated

time.

It was submitted by learned counsel appearing for some of the

parties that officers with tainted images have been appointed as Fast

Track Courts. It is for the High Court of the concerned State to see if

any undesirable person not fulfilling the requirements indicated in our

directions above has been appointed, and to take immediate steps for

terminating the appointment.

Copies of the judgment be sent by the Registry of this Court to

each High Court and the concerned State Government for ensuring

compliance with our directions.

Though these petitions are to be treated as closed, Quarterly

Status Reports shall be submitted by each High Court and the State

Government. First such report shall be submitted by the end of

August, 2002. The reports shall be placed for consideration before the

Bench to be fixed by Hon'ble the Chief Justice of India.

....J.

(B.N. KIRPAL)

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....J.

(K.G. BALAKRISHNAN)

.J.

(ARIJIT PASAYAT)

May 6, 2002

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