Retd judicial officers can be appointed as HC judges: SC

The Supreme Court has ruled that the Constitution does not bar the President from appointing retired judicial officers as HC judges on the recommendation of the collegium.

Justices A K Sikri and Ashok Bhushan said, “In the case of judicial officers of the subordinate judiciary who are recommended for appointment to HCs, the process of appointment consumes so much time that it adversely affects their tenure. It is a matter of common knowledge that most judicial officers get a chance for elevation (appointment as HC judges) only when a few years of service are left.”

The SC observations came in a case where the appointment of two retired judicial officers to the Rajasthan HC was challenged by Sunil Samdaria on two grounds. One of them was that only serving judicial officers could be appointed as HC judges as per the Constitution.


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The petitioner had alleged that the two, who had retired as judicial officers, could not be said to be holding judicial office at the time of appointment as HC judges.

The second was that no additional judge could be appointed to the HC with a tenure of less than two years as envisaged under Article 224 of the Constitution.

Additional solicitor general Maninder Singh countered both the arguments and said under Article 217(2), a person is eligible to be appointed as an additional judge of the HC if he had rendered 10 years of service as a judicial officer. The Constitution nowhere says that s/he must be a serving judicial officer. Meeting the petitioner’s second argument, Singh pointed out that the Constitution fixed the retirement age of an HC judge at 62 years, so if a judicial officer was appointed as HC judge after retirement, he would hold office only till attaining 62 years of age, which would invariably be less than two years.

Justices Sikri and Bhushan accepted Singh’s arguments and said: “Tenure of appointment of additional judges who have less than two years to retire is not contrary to Article 224.”

Writing the judgment for the bench, Justice Bhushan said the eligibility criteria prescribed under Article 217(2) meant that a person must have held a judicial office for 10 years. “Use of the word ‘held’ in Article 217(2) does not indicate that the qualification also meant that apart from holding a judicial office for 10 years, the person should also be holding the judicial office at the time of his appointment as a judge of the HC,” the bench said.

The SC said that the appointment of additional judges to the HC was envisaged to address the increased workload in HCs. Thus, the enormous delay in the appointment of HC judges “not only frustrates the purpose and object for which Article 224(1) was brought into the Constitution, but also belies the hope and trust of litigants who come to the HC seeking justice and early disposal of their cases”.