The Supreme Court has issued a mandate in the name of the Judicial Council to comply with the constitution and legal provisions regarding the appointment of judges. A joint bench of Justices Hari Prasad Phuyal and Binod Sharma issued such a mandate in the name of the council, which has Chief Justice Manoj Kumar Sharma as its chairman and senior-most judge Sapana Pradhan Malla as its member.

Releasing the full text of a writ filed by advocate Deepak Bikram Mishra, the joint bench issued such an order stating that Section 4 of the Judicial Council Act, which requires appointments to be made one month in advance in the case of the Supreme Court and within three months in the case of the Chief Justice and judges of the High Court, has not been complied with. After this order of the Supreme Court, immediate recommendations have to be made for the time being, and in the future, this limit will not be exceeded.

'Since the important fact that the case load has increased in the Supreme Court and subordinate courts and that there has been a delay in the administration of justice has been raised, it is decided that in the event of a vacancy in the posts of the Chief Justice of the Supreme Court, judges and judges of subordinate courts due to retirement or other reasons, a mandate order will be issued in the name of the Judicial Council Secretariat and the opponents to complete the process prescribed by law and make appointments within the time limit,' the judgment said. The bench gave this judgment saying that Section 4 of the Judicial Council Act and the provisions of the Constitution should be followed.

Currently, there are three vacancies in the Supreme Court, two in the Chief Justice of the High Court and three in the High Court. After the retirement of Prakash Man Singh Raut, Prakash Kumar Dhungana and Kumar Chudal from the Supreme Court last time, no new names have been recommended for appointment. Chudal retired on Kartik 2082 and Raut retired on Chaitra 18, 2082. The last meeting of the Judicial Council held on 27 Jestha 2082 had recommended the names of Meghraj Pokharel, Chief Justice of the High Court Janakpur, and Chief Justice of the High Court Dipayal, Shantisingh Thapa, along with Meghraj Pokharel.

The Supreme Court issued this order saying that Section 4 of the Judicial Council Act had specified a time limit for appointment of judges of the Supreme Court and High Courts, but it had not been followed. The said section of the Council Act states that the Judicial Council shall determine the post of a Supreme Court judge who is retiring due to age limit and recommend for appointment at least one month in advance and in the case of a high court, it shall recommend for appointment within three months of the vacancy. Recommendations for appointment of judges in the High Court have not been made for a long time.

‘Section 4 of the Act contains a provision regarding the recommendation of vacant judges. Sub-section (1) seems to have specified a time limit of one month for the Supreme Court and sub-section (3) for the High Court, within three months. The judgment states, "In order to fulfill the responsibility of appointing judges in a timely manner, the Judicial Council Act has given the Council the responsibility of preparing a record of persons eligible to be judges, collecting details in coordination with the concerned bodies, publishing information to inform those interested in the appointment, and maintaining details of the persons received. It seems to be within the binding obligation of the officials of the Council to implement that provision objectively and transparently. Although it seems that the appointment process has not been initiated at times due to the structural and procedural complexities of the Judicial Council, the decision states that the officials of the Council have the responsibility to fulfill the responsibility given to the Council by the Constitution and the law, and that it is also a matter of accountability to the Constitution and the law.

"In a situation where the law has specified a time limit that must be completed within a certain time, it does not seem to be permissible to do otherwise." It is the responsibility of the concerned officials to fulfill the public duties prescribed by the Constitution and the law,' the judgment states, 'If the legislature, while making a law, has stipulated that a task should be completed within a certain time limit, then it must be followed compulsorily based on the importance, depth, and seriousness of such a matter.'

The Supreme Court has also cited a precedent for this. In a writ petition filed by the Constitutional Council against Pushpa Kamal Dahal by a full bench of three judges, the judgment states that if a law makes a clear and mandatory provision regarding the performance of a task, that procedure must be followed as it is. Stating that only if the law does not make a specific or mandatory provision, there is scope for the use of discretion or discretion, the Supreme Court has stated that it is inevitable and desirable to use the mandatory provision in accordance with the law and not through discretion.