Supreme Court of India
M/S Plr Projects Pvt. Ltd. vs Mahanadi Coalfields Limited on 20 April, 2021Author: Hon’Ble The Justice
Bench: Hon’Ble The Justice, Sanjay Kishan Kaul, Surya Kant
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.2419 OF 2019
M/s. PLR Projects Pvt. Ltd. …..Petitioner
Mahanadi Coalfields Ltd. & Ors. ..Respondents
1. The High Courts are in a crisis situation. There are almost 40%
vacancies in the High Courts, with many of the larger High Courts
working under 50% of their sanctioned strength.
2. We have discussed in detail the aforesaid while dealing with the
aspect of appointment of ad hoc Judges under Article 224A of the
Constitution of India in WP(C) No.1236/2019. Vide separate order in the
aforementioned matter passed today, we have also discussed the process
of appointment under Articles 217 & 224 of the Constitution of India.
3. Learned Attorney General has placed before us the appointment
position in the High Courts to contend that against the sanctioned strength
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of 1080 Judges, 664 Judges have been appointed with vacancies of 416
Judges. However, the recommendations received and under process with
the Government are 196 leaving 220 recommendations to be received.
4. We cannot but note the importance of the Chief Justices of the
High Courts making recommendations in time. The vacancies are known
and the norms permit making recommendations up to six months in
advance. However, even recommendations for 220 existing vacancies
appear not to have been made much less for vacancies, which are going to
arise in the next six months.
5. We, thus, once again, emphasise the requirement and desirability of
the Chief Justices of the High Courts, who will make endeavour to
recommend vacancies as early as possible even if they are not made at
one go. We may add that even in the earlier orders we have noted the
apparent hesitation of some High Courts to recommend names when the
earlier list(s) is in the pipeline. We have opined that there is no such
impediment to initiate a new process without waiting for the result of the
6. We had handed over a chart in the previous proceedings to the
learned Attorney General of the names recommended from the High
Courts which were still pending with the Government for more than six
months, numbering 45. The last couple of weeks has seen progress in this
behalf and those names have reached the Collegium. The second was the
list of old proposals in pipeline pending with the Government of India
after the Supreme Court Collegium recommendations numbering 10.
These have been pending for considerable period of time. On the last
date of hearing, the learned Attorney General had made a statement that a
decision would be taken in this behalf within the next three months. Six
names reiterated by the Supreme Court Collegium a second time, are also
7. Learned Attorney General did not differ with the requirement of
time bound schedule for filling the vacancies at every stage though he
emphasised that the trigger for filling up of the vacancies is the
recommendations made by the Chief Justices of the High Courts.
However, once the recommendations are made, there are two stages at
which the matter rests with the Government – the first when the Ministry
processes the names; and the second post the Collegium of the Supreme
Court taking a call in recommending such of the names as are approved
by the Collegium.
8. Insofar as the Judiciary is concerned, the second stage after the
recommendations are made by the Collegium of the High Courts is the
time period taken by the Collegium of the Supreme Court in consulting
the consultee Judge(s) to take a call on those names.
9. We have looked at the Memorandum of Procedure (for short
‘MoP’) as finalised by the Supreme Court Collegium on 10.3.2017
(which is identical to the MoP of 1999 subsisting earlier on these aspects)
where certain timelines have been stated for appointment of Judges to the
High Court. In terms of the timeline prescribed in the MoP, the relevant
paras 21, 24 & 24.1 of the existing MoP are as under:
a. States may take not more than six weeks to send their views.
b. The Central Government can presume no objection of the State
Government, if their views are not received within six weeks.
c. No timeline prescribed for the Central Government to forward
d. The Chief Justice of India to send recommendations/advise to
the Law Minister within four weeks. (Cl. 24)
e. The Law Minister to put up the proposal to the Prime Minister
within three weeks for advise of the President. (Cl. 24.1)
10. It was submitted that if this Court considers laying down timelines,
it would be contrary to the observations made in the Third Judge’s case (!
998) 7 SCC (Special Reference 1 of 1998). In para 31, the Court referred
the Second Judge’s case and observed as follows:
“31. In the context of the judicial review of appointments, the
majority judgment in the Second Judges case said: (SCC pp.707-08, para
“Plurality of Judges in the formation of the opinion of the Chief
Justice of India, as indicated, is another inbuilt check against the
likelihood of arbitrariness or bias….. The judicial element being
predominant in the case of appointments…., as indicated, the need for
further judicial review, as in other executive actions, is eliminate.”
The judgment added : (SCC p.708, para 482)
“Except on the ground of want of consultation with the named
constitutional functionaries or lack of any condition of eligibility in the
case of an appointment, …. these matters are not justiciable on any other
It is not possible to accept this contention since the above observations of
the Court deal with the judicial review of particular appointment and not
such aspects of the appointment process like delay.
11. In the conspectus of the aforesaid and in order to facilitate timely
appointment, we are of the view that it would be advisable to follow the
following timelines in addition to the aforesaid:
i. The Intelligence Bureau (IB) should submit its report/inputs
within 4 to 6 weeks from the date of recommendation of the
High Court Collegium, to the Central Government.
ii. It would be desirable that the Central Government forward
the file(s)/recommendations to the Supreme Court within 8
to 12 weeks from the date of receipt of views from the State
Government and the report/input from the IB.
iii. It would be for the Government to thereafter proceed to
make the appointment immediately on the aforesaid
consideration and undoubtedly if Government has any
reservations on suitability or in public interest, within the
same period of time it may be sent back to the Supreme
Court Collegium with the specific reasons for reservation
If the Supreme Court Collegium after consideration of
the aforesaid inputs still reiterates the recommendation(s)
unanimously (Cl. 24.1), such appointment should be
processed and appointment should be made within 3 to 4
12. We are conscious that the aforesaid exercise is collaborative in
nature and we would expect promptness in this process to facilitate the
larger cause of dispensation of timely justice.
13. With the above directions, we close this proceeding.
[SANJAY KISHAN KAUL]
APRIL 20, 2021.