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Report No. 245

6. Timely filling of vacancies; increase in age of retirement of the Subordinate Judiciary:

As Table XIII indicates, most High Courts have a high vacancy in Subordinate Courts. Additionally, every year many vacancies are created through retirement. It takes time to select and train new judges to replace the retiring ones. In the meantime, the backlog piles up. To deal with this concern, the Commission recommends that in addition to recruiting new judges, the age of retirement of subordinate judges be raised to 62 in order to meet the need for a large number of adequately trained judicial officers.

The benefit of increase in the retirement age can be made available to judicial officers in terms of the directions of the Supreme Court in All India Judges' Association v. Union of India.40 Further, the directions of the Supreme Court in Malik Mazhar Sultan v. U.P. Public Service Commission, (2008) 17 SCC 703 regarding the time bound filling of vacancies, needs to be strictly adhered to.

40. In All India Judges' Association v. Union of India, decided on November 13, 1991, AIR 1992 SC 165, the Supreme Court had directed that the age of superannuation be for subordinate Court Judges be raised to 60 years. Modifying this direction in an order dated August 24, 1993, the Court held that

The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service.

It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers' past record of service, character rolls, quality of judgments and other relevant matters.

The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement.

The Commission's recommendation in this report is along the same lines, with the exception that we recommend that the service of judges who are about to retire be extended till such time as the vacancy caused by their retirement is filled, subject to a maximum period up to which such extension is possible.

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