No ‘deemed appointment’ of judges if Centre delays in notifying Collegium recommendations: SC

There is a warrant of appointment to be issued by the President of India. How can they be deemed to be appointed? There cannot be (deemed appointment), said a Supreme Court bench

New Delhi: The Supreme Court on Monday said that there could not be “deemed appointment” of judges if the Centre delays in notifying recommendations made by the Collegium.

“There is a warrant of appointment to be issued by the President of India. How can they (names reiterated by the Collegium) be deemed to be appointed? There cannot be (deemed appointment),” said a bench of Justices S.K. Kaul and Sudhanshu Dhulia while hearing a plea seeking contempt action against the Union government over delays in notifying appointment of judges after recommendations are forwarded by the Collegium.

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The bench further said that it cannot pass directions in the nature of a writ of mandamus to the President to sign warrants appointing or transferring judges in the higher judiciary. During the hearing, advocate Prashant Bhushan contended that the government cannot stall the process of appointment despite repeated recommendations made by the SC Collegium, adding that if a period of one month is elapsed after a recommendation is reiterated by Collegium, the recommended name should be deemed to have been appointed as a judge.

Bhushan said that before a recommendation is reiterated by the SC Collegium, the government already has “two bites of the cherry. He stated: First, when the High Court sends it, they (government) send the objections to the Collegium. Then, when Collegium makes the recommendation, they again object.

Then, when it is reiterated how long can this go on? The top court said that it will take up the issue for next two months at a regular interval. It noted that a large number of recommendations from High Courts which were pending with the Ministry have finally been forwarded to the SC Collegium.

Attorney General R. Venkataramani submitted that the file relating to appointment of Chief Justice of Manipur High Court has been cleared by the Centre and an official notification will be published very soon. In July this year, the SC Collegium had recommended appointment of Justice Siddharth Mridul as the Chief Justice of the Manipur High Court. Justice Mridul was appointed as a Judge of the High Court of Delhi in March 2008 and has been functioning as the senior-most puisne Judge in his parent High Court.

The office of the Chief Justice of the High Court of Manipur fell vacant in February 2023 consequent upon the elevation of Justice P.V. Sanjay Kumar to the Supreme Court of India. The earlier recommendation made for appointment of Justice Dhiraj Singh Thakur as the Chief Justice of the High Court of Manipur was earlier not acted upon by the Central government.

Later, the SC Collegium recommended appointment of Justice Thakur as the Chief Justice of the Andhra Pradesh High Court. Venkatramani further apprised the top court that the files in 14 cases have been cleared by the Centre and the remaining 12 are under process. In the last hearing, the Supreme Court had said that it will closely monitor the delay made by the Centre in clearing Collegium recommendations made for appointment and transfer of judges in higher judiciary. It told AG Venkataramani that around 70 recommendations made by the SC Collegium are pending with the Union government for clearance.

In February, the Supreme Court had warned the Centre over the delay saying it may result in both administrative and judicial actions which may not be palatable. “Don’t make us take a stand which will be very uncomfortable…”, it had said.