Why High Court judges are not transferred despite collegium recommendations, SC asks Centre

The Supreme Court on Monday questioned the Centre as to why judges and chief justices of high courts are not being transferred despite the recommendations of the collegium and asked it to file a status report on such pending transfers with detailed reasons in two weeks.

The apex court said it gives rise to "speculation and misgivings" due to continuance of such judges in the same high court and instead of sitting over the recommendation, the Centre should return back to the collegium for reconsideration.

"Continuance of judges in the same high courts despite being transferred is giving rise to speculation and misgivings. If you (the Centre) have any problem with the recommendations then send it back to us. We will look into it. There is no point sitting over it," a bench headed by Chief Justice T S Thakur told Attorney General (AG) Mukul Rohatgi.

Justice Thakur, who is demitting office on Tuesday as the Chief Justice of India, has been regularly questioning the government over the appointment of judges for higher judiciary and both (the Centre and the judiciary) are at loggerheads with each other over the issue.

The AG said that the collegium has sent back 37 names of judges to the government which is looking at them.

"What about the transfers of judges which has been recommended by the collegium? You are sitting over them for over 10 months," a bench also comprising Justices A M Khanwilkar and D Y Chandrachud said.

Rohatgi said he needs to take instructions on the pending recommendations of transfers and sought three weeks of time.

Senior advocate Ram Jethmalani said the top law officer of the government should have all the information.

"I have no information about the transfers. Give me some time. I will come back in three weeks with full details," Rohatgi said.

Jethmalani said that transfer recommendation of Justice M R Shah of the Gujarat High Court is pending since February 2016.

"I do not understand why is the government so interested to keep this man over there," he said.

At the outset, senior advocate Yatin Oza said, "Things are really bad. I cannot say a lot of things in open court in the presence of journalists and media. Recommendations which were made six months after Justice Shah's have seen light of the day."

Oza said that the court should pass some orders on the issue in the interest of justice and institution. The bench asked the Attorney General to file the status report with detailed reasons in two weeks.

The apex court had on November 18, last year said that it has not accepted the Centre's stand of rejecting the 43 names recommended by the Supreme Court Collegium for their appointment as judges of the various high courts and most of the names have been sent back for reconsideration.

The Centre had told the court that it has cleared 34 names out of the 77 recommended by the collegium for appointment as judges in various high courts in the country.

Rohatgi, on November 11, had told the court that the Centre had already sent the fresh draft of the Memorandum of Procedure (MoP) for consideration of the collegium on August 3, last year, but so far no response has been received by the government.

The apex court had earlier rapped the government for delay in appointments to higher judiciary despite recommendations made by the collegium in this regard and had said the entire institution cannot be brought to a grinding halt.

Maintaining that the appointment process "cannot be stalled" due to non-finalisation of the MoP, the court had criticised the tardy progress in processing files pertaining to judges' appointment and even warned that it may summon the secretaries of the PMO and the Ministry of Law and Justice to ascertain the factual position.

The Attorney General had said that non-finalisation of the MoP was one of the issues and had assured the bench that more progress will be seen in the near future on the appointment of judges.

The apex court had said it would not tolerate "logjam in judges' appointment" and would intervene to "fasten accountability as the justice delivery system is collapsing".

The bench had said that if the government had reservation about any name, it could always come back to the collegium.