- (1.) IT was about five years' back that this Court directed that existing vacancies in the subordinate courts, at all levels, should be filled, if possible, latest by 31st March, 2003, in all the States. This direction is contained in the judgement All India Judges Association v. Union of India1. IT has been noticed that an independent and efficient judicial system is one of the basic structure of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people thereby undermining the basic structure. The judicial system has been facing the problem arising out of delay in dispensation of justice for which one of the major cause is insufficient number of judges when compared to either the large number of cases pending or in relation to the average judge-population ratio going by the number of judges available in various other democracies in the world. In this light, it becomes all the more necessary to take all possible steps to ensure that vacancies in the courts are timely filled.
(2.) MR. Vijay Hansaria, learned amicus curiae, in the written submission, has pointed out that according to the figures given by the News Letter issued by this Court for the period January- March, 2006, there were 2730 posts vacant in the subordinate judiciary in the country as only 11,682 judges actually were serving out of the approved strength of 14,402 judges, i.e., on an average, about twenty per cent existing posts were lying vacant In this matter, by judgement and order dated 3rd April, 2006, it was observed that it is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of final results and issue of order of appointment. It was further directed that for all these above and other steps, it is necessary to provide to fix time schedule so that the system works automatically and there is no delay in filling up of the vacancies. The dates for taking up these steps can be provided for on the pattern similar to filling of vacancies in some other services. Adherence to strict time schedule can help in ensuring timely filling of vacancies. In this view, all the State Governments, Union Territories and/or High Courts were directed to give suggestions regarding the time schedule to be fixed so that every year vacancies that may occur are filled. This Court also requested Mr. Vijay Hansaria, senior advocate, to assist the court. Considering the suggestions that have been given by the State Governments, the learned amicus curiae submitted written submissions, which were considered by this Court on 27th November, 2006. On the said date of hearing, it was directed that the written submissions of the learned amicus curiae along with the proposed suggestion as to time schedule be sent to the State Governments/Union Territories and High Courts so that their response/suggestions can also be taken into consideration. Some of the State Governments and High Courts have responded to the directions dated 27th November, 2006. Mr. Vijay Hansaria has made additional submission having regard to the responses received from the State Governments, Union Territories and the High Courts pursuant to the order dated 27th November, 2006.
(3.) BEFORE we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and district courts, it is necessary to note that selections are required to be conducted by the concerned authorities as per the existing Judicial Service Rules in the respective States/Union Territories. We may, however, note that, progressively, the concerned authorities would consider, discuss and eventually may arrive at a consensus that the selection process be conducted by the High Court itself or by Public Service Commission under the control and supervision of the High Court. In this regard, considerable progress has already been made. Reference can be made to the decision taken in a Conference held between the Chief Justices and Chief Ministers, minutes whereof show that in some of the States, selection of subordinate judicial officers at all levels of civil judges is already being made by the High Courts. Some States, where selection is still being made by the Public Service Commission, were agreeable to entrust the selection to the High Courts whereas Chief Ministers/Ministers of Himachal Pradesh, West Bengal, Punjab and Kerala were of the view that the present system may continue but the decision taken jointly was that in the said States [Himachal Pradesh, West Bengal, Punjab and Kerala] setting up of question papers and evaluation of answer sheets be entrusted to the High Court. Further decision taken was that in other States where selection of subordinate judicial officers is not being done by the High Courts, such selection be entrusted to the High Courts by amending relevant Rules. In this connection, with the affidavit filed on behalf of the Calcutta High Court, a copy of the letter dated 15th September, 2006, addressed by the Registrar General of the said court to the Secretary, Judicial Department, Government of West Bengal, has also been annexed. That letter refers to the aforesaid decision taken in the Conference of Chief Ministers and Chief Justices held on 11th March, 2006 requesting the State Government for effecting suitable amendment in the recruitment rules in terms of the decision in the Conference above-referred. At this stage, however, these are not the issues for our consideration. As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing Rules. Though no submission was made by any learned counsel appearing for any State Government that the constitution of selection committee by the Chief Justice of the High Court to monitor the timely appointment of judges at subordinate/district level would amount to interference with the independent functioning of the State Public Service Commission, but some State Governments in their responses have indicated so. In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced. A Committee constituted by the Chief Justice of the High Court to ensure that the vacancies are timely filled and the problem of delay in dispensation of justice is tackled to some extent under no circumstances be said to be interference with the independent functioning of the authorities under the Rules or of independent functioning of the State Public Service Commission.;