On January 6, the Supreme Court's division bench, led by Justices Sanjay Kishan Kaul and Abhay S Oka, issued an important clarification regarding how vacancies in a High Court should be classified when a judge transfers there from another High Court.

The proportion of judges drawn from the bar and from service is maintained. In general, two-thirds of High Court judges are elevated from the bar, while the remaining one-third are promoted from district judicial service. As a result, when a judge transfers to a High Court from another High Court, whether the judge should be considered to be part of the 'bar quota' or the 'service quota' was a source of contention.

Making an important clarification on this issue, the bench stated that when a judge is transferred from one High Court to another, the said judge does not go to the transferred High Court with a label of a 'bar judge' or the 'service judge'. The judge is transferred to the High Court, and it is up to the Chief Justice of the High Court to determine how the vacancies should be classified.

Justice Kaul explained that the preceding clarification was required because, "The Ministry is at times issuing letters on the presumption as if bar judges are transferred there, so bar vacancies will be gone. No, that is not the way it operates. They may be from the bar or service, it is up to the Chief Justice. This is creating impediments in recommendations from some courts".

In light of this ambiguity, the bench made the following observations in the following order:

"It should be appreciated that in every High Court there is a sanctioned strength of judges. 2/3rd of the judges are from the bar and 1/3rd are from the service. If a judge is transferred from a court, it is not as if a replacement can be provided from the bar or the service from that court, as the total strength of a court is specified."

The bench noted in the order, further emphasizing the nature of a transferred judge:

"When a judge is transferred to another court, he is a transferred judge - neither categorised from the bar nor from the service. In the Court where he is transferred, he occupies a physical position in the strength of that court and unless correspondingly judges are transferred from that court, there will be lesser persons appointed in that court from bar/service, as the total strength of the court to which the transfer has been made cannot be exceeded."

The bench further dictated in the order:

"The transferred judge does not carry the label of a bar or a service judge and it is up to the Chief Justice of Court where to he is transferred to reduce the inflow in the Court of transfer, i.e from the bar or the service. Similarly, if from the Court where to judges are transferred, in turn judges from other category are transferred to other courts, they in turn will carry the label of a transferred judge and not from the bar or from service. This aspect is being clarified as there appear to be some doubts expressed as to how the system of transfer will operate".

After dictating the order, Justice Kaul orally explained the order as follows:

"I am clarifying the position. Let us say, from one court, 3 bar judges are transferred to another court. In the Court where they go to, they occupy the position of a transferred judge, which means that if no judge is being transferred out from there, there will be three less local judges. It is not as if three bar judges are transferred, so three bar judges become less. No. It can be either from the bar or from the service depending on the Chief Justice. What is happening at times is that the Ministry is issuing letters on a presumption as if if three bar judges are transferred, three bar vacancies are gone. No. That is not how it operates. The vacancies may be from the bar or service, it is left to the Chief Justice".

Because of the confusion, Justice Kaul stated that making recommendations for vacancies is difficult. As a result, many High Courts are delaying recommendations. According to Justice Kaul, the clarification is being made with the goal of removing confusion so that the High Courts do not delay in recommending names.

"See it is very simple to understand. I don't know why it is difficult to understand. If a judge goes to another court, he does not carry the label of a service judge or bar judge. He goes as a transferred judge.  Consequently, where he goes, there will be naturally a reduction in the number of people who can be elevated. Whether it should be reduced from bar or service, it is the Chief Justice's wisdom", Justice Kaul added.