J.P. Desai, J.@mdashThis petition is filed by Mr. A.D. Padival, an Advocate practising in this Court, praying that appropriate writ may be issued directing the respondents to appoint sufficient number of Judges in this Court. The present strength of Judges in this Court is 17 including the Hon''ble Chief Justice. 18 posts of permanent Judges have been sanctioned for this Court and out of them only 17 posts are filled up. Three posts of Additional Judges have been sanctioned but they are not still filled up. Out of 21 sanctioned posts, only 17 posts are filled up and that way, this Court is short of four Judges even as per the sanctioned strength. Two Hon''ble Judges of this Court are retiring-one in the month of July this year and another in the month of October, also this year. If no appointment is made by that time, then the strength of the Judges in this Court will be reduced to 15 by the month of October, 1988. Out of 17 Judges, one Hon''ble Judge is appointed as a Member of the Finance Commission and, therefore, the said Hon''ble Judge is hardly available for any judicial work in this Court. Three other Hon''ble Judges are Chairman of different Boards and they are also not available for full-time work in this Court. One Hon''ble Judge is also appointed as Member of one Board and he is also not available for full-time. This is the state of situation, so far as the position of Judge-strength is concerned.
2. The Government of India has agreed in principle to create five posts of permanent Judges and four posts of Additional Judges looking to the huge arrears of cases pending in this Court. As on 1-3-1988 the position of pending file is as follows:
(1) Civil Matters 45,489
(2) Criminal Matters 9,347
(3) O.J. Matters 4,984
59,820
Looking to the above state of affairs of the file as on 1-3-1988, it is crystal clear that as many more Judges as possible should be appointed so that the arrears are reduced and matters are disposed of at the earliest.
3. So far as Criminal Matters are concerned. Criminal Appeals which are more than three years old are pending in this Hon''ble Court. In many of these appeals, the appellants are in custody. The appeals could not be taken up for hearing and disposed of in time inspite of the best efforts made by the present Judges to dispose of the same.
4. Article 19 of the Constitution of India, which deals with protection of certain rights regarding freedom of speech, etc. says that all citizens shall have the right to move freely throughout the territory of India. This fundamental light is being restricted on account of the fact that matters in which citizens are in custody cannot be taken up in time.
5. Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law.
6. Article 22 of the Constitution, which deals with protection against arrest and detention in certain cases deals with detention. It lays down certain period during which reference has to be made to the Advisory Board and the Advisory Board has to give its opinion within a particular period as laid down in Article 22. The matters in which such detention orders are challenged before this Court are also required to be given top priority and are required to be decided as early as possible. It takes time to hear and dispose of such petitions challenging detention. Looking to the huge arrears and looking to the Judge-strength of this Court as stated above, persons remain in Jail for a longer period on account of the fact that such matters could not be taken up by this Court for disposal at the earliest. In view of the above state of affairs, even petitions of persons who are detained for a period of one year are not being heard for a period of more than six to eight months and in some cases, for more than even ten to eleven months. This results in undue detention of persons who are ultimately out of custody on account of the orders which may be passed by this Court.
7. Article 217 of the Constitution deals with appointment of Judges of the High Court, while Article 224 deals with appointment of Additional Judges. The procedure for appointment of Judges as well as Additional Judges is the same. It should not take more than 8 to 10 weeks to finalize the appointment once the proposal is made. In past it did not take longer time. But the present experience is otherwise. It takes a very long time to finalize the appointment, whatever may be the reasons and on account of the same, many posts have remained vacant for long, resulting in increase in the file of this Court. It cannot be gainsaid that speedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 of the Constitution of India and the Spirit of the same has been violated because citizens are deprived of life and personal liberty for a longer period than required on account of the delay caused in disposing the matters which come before this Court.
8. Apart from the matters in which persons are under detention either on account of detention orders or on account of orders of conviction passed by the subordinate Courts, there are many other matters on Civil side which require urgent attention. A person may be out of job and the challenge to the order of termination of service would take a long time before the matter is finally disposed of. A person who is out of job will then get reinstatement and even back wages in case he succeeds but that too, after long and undue delay which can be avoided if the matters are taken up and disposed of at the earliest. The matters under the Contempt of Courts Act arising out of non-compliance of orders passed by this Court, other Courts or Tribunals also await final hearing for a long period depriving the aggrieved persons of the fruits of the orders passed in their favour by Courts and Tribunals. The aim of disposal of matters earlier can be achieved if sufficient number of Judges are appointed in this Court.
9. Looking to the present High Court building, which are again ranked premises, it may not be possible to appoint and accommodate 30 Judges, but the necessary appointments can be made of as many Judges as can be accommodated in the present building. The question of accommodation also requires to be given top priority so that all the posts which are sanctioned and which are agreed in principle to be sanctioned can be filled up so that the problem of arrears can be solved.
10. It appears that a convention has grown up three decades back that till all the vacancies are filled in, the Chief Justice cannot resort to Article 224A of the Constitution, which provides for appointment by the Chief Justice of a High Court for any State wish the previous consent of the President, of 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 that State. The convention was established in the background of the fact that vacancies were filled in very expeditiously. The situation today is depressingly different. If the convention is respected in the altered circumstances, it would render Article 224A nugatory, which the framers of the Constitution could not have anticipated. Therefore, the problem can be approached from two independent angles.
11. The vacancies occur on retirement or death of a Judge in position. Death is such an uncertain event that one cannot foresee it and rationally deal with it, but retirement is known well in advance. Therefore, even if steps are taken considerably in advance to fill in the incoming vacancies, yet if the vacancy is not filled in the outgoing Judge may be continued to be in position till the incumbent is appointed. The second alternative involves utilisation of the services of retired Judges by appointing them under Article 224A of the Constitution.
12. It appears that the Law Commission of India which is very much concerned with the arrears and delay in disposal of cases also appears to be thinking on the above lines. It is high time that the concerned authorities give a serious thought to this problem and see that the appointment of the Judges are made as early as possible and may also give a serious thought to the question of either continuing a retired Judge till his successor is appointed or to have resort to Article 224A of the Constitution till the situation is improved.
13. If Courts are not able to provide quick and cheap justice to the common man, a time may come when he will take law to the streets. It is desirable that before such a situation develops, the concerned authorities give anxious thought to the question of appointment of Judges and see that appointments are made as expeditiously as possible without any delay whatsoever. The Judiciary is one of the three organs of the State established by the Constitution and is entitled to as much importance and attention as other organs by the concerned authorities. Otherwise an impression is bound to be created that this important organ is being neglected by them.
14. In view of the above discussion, I am inclined to issue Notices to the respondents, pending admission returnable on July 12, 1988. I am inclined to give such a long date so that in the meantime the authorities may expedite the appointment of Judges and apprise this Court of the progress made in that direction. While issuing notice pending admission, speaking order would not have been ordinarily passed, but looking to the seriousness of the question involved in this petition, I have thought it proper to pass the above speaking order.
15. The Registrar of this Court is directed to forward copies of this order to the secretaries of the respective respondents by Registered Post with forwarding letters which should be marked ''TOP PRIORITY'' and impress upon them to place the same before the respective respondents at the earliest as the matter requires very urgent attention. The Registrar is also directed to forward a copy of this order to the principal Secretary to the Hon''ble Prime Minister of India by Registered Post with a forwarding letter which should also be marked ''TOP PRIORITY'' and the said secretary should also be requested to place the same before the Hon''ble Prime Minister at the earliest for his perusal so that proper and urgent attention is given to this matter at the highest level and any avoidable delay is avoided in the appointment of Judges of this Court. I am conscious of the fact that the Hon''ble Prime Minister is pre-occupied with many matters of National and International importance. But this is also an important matter which affects the common man in the country. This Court, therefore, expects that the Hon''ble Prime Minister will find some time to bestow his attention upon this matter so that the problem can be solved as early as possible before the situation worsens further. In fact, this petition was filed before this Court in the month of December, 1987 and was also heard in the same month. The news about filing of this petition were also published in newspapers in the month of December 1987. I also thought it proper to wait for some time in expectation that some appointments might be announced in the meantime. But nothing is known till today and hence this order.
16. The Registrar of this Court is also directed to forward a copy of this order by Registered Post to the Secretary, Law Commission, Government of India with a forwarding letter marked ''TOP PRIORITY'' with a request to place the same before the Hon''ble Chairman of the Law Commission at the earliest.
Notices pending admission returnable on 12-7-1988. To be treated as part heard before me.
