We clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article224A would not arise. This was said in the case of Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others [WRIT PETITION (C) NO. 1236 OF 2019] in the Supreme Court of India.
The facts of the case are that petitioner Lok Prahari, an NGO, had approached the Supreme Court through a Public Interest litigation filed under Article 32 seeking the invocation of Article 224A to tackle the problem of mounting case arrears in High Courts and the large number of vacancies in High Court judges.
The Union of India contended that ad-hoc appointments can be made only after regular vacancies are filled. However, the bench rejected this stance by saying that “this would be a self-defeating argument because the very reason why at present Article 224A has been resorted to is non-filling up of vacancies and the mounting arrears”.
The three-judge Bench while carving out the role of the ad hoc judges stated that primary objective would be to deal with long pending arrears and that the said objective will be “subserved by assigning more than five year old cases to the ad hoc Judges so appointed”. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind. Moreover, they stuck to para 24 of the Memorandum of Procedure laying down a procedure for appointment under Article 224A of the Constitution and said that “MoP has no force of a law” as specified under under Article 141, but as a starting point, this process can be followed.
The Court opinioned that“However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court”.
The Supreme Court after noting that the case contains mandamus elaborated that “We may note that unlike a writ remedy, a continuing mandamus is an innovative procedure not a substantive one which allows the Court an effective basis to ensure that the fruits of a judgment can be enjoyed by the right-bearers, and its realisation is not hindered by administrative and/or political recalcitrance. It is a means devised to ensure that the administration of justice translates into tangible benefits”. It is thereby concluded that appointments can be made through Article 224 but the matter will again be heard in 4 months.