The top court said in the appointment process, when the government appoints somebody and doesn’t appoint others, the “very premise of seniority gets disturbed”.
“This pick and choose creates a lot of problems,” observed Justice Kaul, who is also a member of the apex court collegium.
The court was hearing two pleas including the one alleging delay by the Centre in clearing the names recommended by the collegium for appointment and transfer of judges.
The bench said the appointment process is consultative but in case of transfers the person whose name has been recommended is already a judge, and in the wisdom of five senior judges of the collegium, he or she is supposed to serve better in another court.
It said there should not be an impression that for somebody there is a delay while for somebody else there is no delay.
“I must appreciate there have been considerable movements in the last one month, (something) that had not happened in last five-six months,” Justice Kaul said.
“In the appointment process, when you appoint some and don’t appoint others, the very premise of seniority gets disturbed,” he, however, said.
The bench said the incentive to join the bench changes when there is a delay in the process of appointment and a person takes it or leaves it depending on where he or she will stand.
The counsel appearing for one of the petitioners said as far as reiterated names are concerned the apex court has already fixed a timeline for clearing them.
“On transfers, don’t take it to a level where we have to say should they (the judges recommended for transfer) perform their task in the present courts or should not perform their tasks there,” the bench told the Centre’s counsel.
After the Centre’s counsel sought two weeks to have the process expedited, the bench said, “We appreciate what has been done but more push in necessary.”
One of the advocates appearing for the petitioners also deprecated the exercise in “pick and choose” by the Centre with regard to the collegium’s recommendations for appointment and transfers.
“That is troublesome,” the court acknowledged.
“The idea is to put you to notice that it should not happen,” the bench told the Centre’s counsel.
The bench said due to the delay in the process some people, out of frustration, have withdrawn their names for elevation as judges. “We have lost good people. I keep saying it is a challenge these days to make people come to this side (to bench). It becomes a greater challenge to make people come if this happens,” Justice Kaul said.
The bench posted the matter for next hearing on November 7 while noting that the Centre’s counsel has assured the court that these issues were being sorted out.
When the Centre’s counsel said the matter can be posted for a week after November 7, the bench said, “Let us have some progress before Diwali. We will celebrate it better”.
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The appointment of judges through the collegium system has often become a major flashpoint between the Supreme Court and the Centre, with the mechanism drawing criticism from different quarters.
The top court was hearing the petitions, including the one filed by the Advocates Association Bengaluru seeking contempt action against the Union Ministry of Law and Justice for allegedly not adhering to the timeline set by the court in a 2021 judgement.
One of the pleas in the apex court has alleged “wilful disobedience” of the time frame laid down in its April 20, 2021 order to facilitate the timely appointment of judges.
In that order, the apex court had said the Centre should appoint judges within three-four weeks if the collegium reiterates its recommendations unanimously.
