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High Courts to appoint ad-hoc judge under Art. 224A if vacancies are more than 20% of the sanctioned strength: Supreme Court

The court intended to activate the dormant provisions for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts in the matter of Lok Prahari Through Its General Secretary S.N. Shukla, IAS (Retd.) v Union Of India & Ors [W.P.(C) NO. 1236 OF 2019]. The bench comprising of the Chief justice of India, Sanjay Kishan Kaul J. and Surya Kant J. noted with caution the increase in backlog cases which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40percent in the High Courts.

The petitioner in this public interest litigation has highlighted that a large number of vacancies of High Court judges coupled with mounting arrears is a scenario that requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India. Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein. The appointment of an additional judge duly qualify to be the judge of a High Court has to be for a period not exceeding two years, or as the President may specify. The ground reality, however, remains that while determining the strength of different High Courts, the practice that has been adopted is that about 25% of the strength consists of additional Judges.

The court broke down the article and observed that it begins with a non-obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court, to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting, such a judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of the High Court judge; but for all other purposes shall not be deemed to be a High Court judge.

The bench revisited some prior judgments on the issue of entitlement of allowances of such an ad hoc judge, in Justice P Venugopal vs. Union of India and Ors 3 (2003) 7 SCC 726. It was opined that an ad hoc judge does not become a part of the High Court and thus there is no question of computing his pension for the period he is appointed as an ad hoc judge. However the court, in the present instance, on account of 40% vacancies and an immense amount of talent decided that there was a definitive need for activating the provision. There are differences of perception with respect to different aspects such as, the trigger point to activate the provision, suggestion of an embargo situation, the methodology of appointment, the role of ad hoc Judges, age limit, tenure of appointment.

The court held that “The Trigger Point cannot be singular and there can be more than one eventuality where it arises –
(a) If the vacancies are more than 20% of the sanctioned strength.
(b) The cases in a particular category are pending for over five years.
(c) More than 10% of the backlog of pending cases are over five years old
(d) the percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.”

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