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SUPREME COURT OF INDIA
ARUN MISHRA, VINEET SARAN, S. RAVINDRA BHAT, JJ.
Dheeraj Mor – Appellant
Versus
Hon’ble High Court of Delhi – Respondents
Civil Appeal No. 1698, 1699, 1700, 1701, 1702, 1703, 1704, 1705, 1706, 1707 Of 2020 [Arising Out of S.L.P. (C) No.14156, 14676, 24219 & 30556 of 2015, 15764, 23823, 24506 of 2016 & 8480 of 2018 With 4778, 4781 of 2020 [Arising Out of S.L.P. (C)...CC No. 15304 & 15018 of 2016] T.P. (C) No. 272 of 2018 and W.P. (C) No. 77, 130, 405, 414, 423, 600, 598, 601, 602, 733 of 2016, 189, 222, 316, 334, 371 of 2017, 96, 102, 103, 108, 110, 106, 146, 123, 124, 138, 155, 145, 158, 174, 291, 287, 344, 352, 387, 392, 396, 530, 519, 535, 581, 578, 612, 629, 596, 616, 632, 608, 628, 617, 624, 631, 635, 636, 641, 642, 639, 640, 650, 644, 658, 659, 680, 671, 677, 681, 686, 703, 696, 717, 728, 726, 727, 1272, 1302 of 2018, 656, 744, 999, 1054, 1053, 1080, 1073, 1089, 1086, 1150, 1266 of 2019 & Conmt. Pet. (C) No. 1023 of 2019
Decided On : 19-02-2020
Per ARUN MISHRA, J.
(A) Service Law – Appointment as District Judge – A person in judicial service is eligible to be appointed as District Judge, but it is only by way of promotion or by way of merit promotion – 25% of posts in cadre of District Judge have to be filled by direct recruitment amongst Advocates based on a competitive examination, both written and viva voce – In order to prove merit of in-service candidates, a limited departmental competitive examination has also been provided, so that they can take march to hold post of District Judges on the basis of their merit – They are not deprived of any opportunity in their pursuit once they have joined judicial stream, they are bound to follow the provisions – Opportunities are provided not only to in-service candidates but also to practising candidates by Constitutional Scheme to excel and to achieve what they aspire i.e. appointment as District Judge – However, when someone joins a particular stream, i.e. a judicial service by his own volition, he cannot sail in two boats – His chance to occupy post of District Judge would be by a two-fold channel, either in 50% seniority/merit quota, by promotion, or quota for limited competitive examination – There is no scope for considering provisions of Constitution to provide eligibility for in-service candidates for direct recruitment for post of District Judge – Existing provisions are not restrictive but provide wider choice to improve and strengthen judicial system and in tune with Articles 14 and 16 – Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, eligibility is governed by Rules framed under Articles 234 and 235. (Paras 23, 25, 28, 33, 37 and 43)
(B) Constitution of India – Article 233 – Eligibility of members of subordinate judicial service for appointment as District Judge as against quota reserved for Bar by way of direct recruitment – Members in judicial service of State can be appointed as District Judges by way of promotion or limited competitive examination – Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in judicial service of Union or a State – For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge – Members of judicial service having 7 years’ experience of practice before they have joined service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge – In cases where such in-service incumbents have been appointed by way of direct recruitment from bar, they have to be reverted to their original post – In case their right in channel for promotion had already been ripened and their juniors have been promoted, High Court has to consider their promotion in accordance with prevailing rules – However, they cannot claim any right on the basis of such an appointment obtained under interim order which was subject to outcome of writ petition and they have to be reverted – Rules debarring judicial officers from staking their claim as against posts reserved for direct recruitment from bar are not ultra vires as rules are subservient to provisions of Constitution. (Paras 45 to 48)
Per S. RAVINDRA BHAT, J. (Assenting View)
Constitution of India – Article 233 – Eligibility of members of subordinate judicial service for appointment as District Judge as against quota reserved for Bar by way of direct recruitment – Article 233 (2) renders ineligible all those who hold civil posts under a State or Union, just as it renders all Advocates with less than seven years’ practice ineligible, on the date fixed for reckoning eligibility – Equally, those in judicial service [i.e. holders of posts other than District Judge, per Article 236(2)] are not entitled to consideration because provision (Article 233 [2]) does not prescribe any eligibility condition – Constitution makers clearly wished to draw distinction between two sources of appointment to post of District Judge – For one, i.e. Advocates, eligibility was spelt out in negative phraseology, i.e. not less than seven years’ practice; for judicial officers, no eligibility condition was stipulated in Article 233 (2): this clearly meant that they were not eligible to be appointed (by direct recruitment) as they did not and could not be considered Advocates with seven years’ practise, once they entered the judicial service. The only channel for their appointment, was in accordance with rules framed by High court, for promotion (as District Judges) of officers in judicial service (defined as those holding posts other than District Judges, per Article 236 [b]) – If rules of any State permit judicial officers to compete in quota for appointment as District Judges, they are susceptible to challenge – Members of judicial service of any State cannot claim to be appointed for vacancies in cadre of District Judge, in quota earmarked for appointment from amongst eligible Advocates, under Article 233. (Paras 25, 27, 32 and 35)
Facts of the Case:
Question involved in the matters is the interpretation of Article 233 of Constitution of India as to the eligibility of members of subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yet another category is that of persons having completed only 7 years of service as judicial service. They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years' by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota.
Findings of Court:
For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge – Members of judicial service having 7 years’ experience of practice before they have joined service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge – In cases where such in-service incumbents have been appointed by way of direct recruitment from bar, they have to be reverted to their original post.
Result : Reference answered.
JUDGMENT :
ARUN MISHRA, J.
1. A Division Bench of this Court has referred the matters. The question involved in the matters is the interpretation of Article 233 of the Constitution of India as to the eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. The petitioners who are in judicial service, have claimed that in case before joining judicial service a candidate has completed 7 years of practice as an advocate, he/she shall be eligible to stake claim as against the direct recruitment quota from the Bar notwithstanding that on the date of application/appointment, he or she is in judicial service of the Union or State. Yet another category is that of the persons having completed only 7 years of service as judicial service. They contend that experience as a judge be treated at par with the Bar service, and they should be permitted to stake their claim. The third category is hybrid, consisting of candidates who have completed 7 years' by combining the experience serving as a judicial officer and as advocate. They claim to be eligible to stake their claim against the above quota.
2. The central argument advanced is that Article 233(2) provides two sources of recruitment; one is from judicial service, and the other is from Bar. Thus, a person in judicial service with experience of 7 years practice at the Bar, before joining service (or combined with service as a judicial officer), can stake a claim under Article 233(2) as against the posts reserved for those having experience of 7 years as an advocate/pleader. Reliance has been placed on the decisions of this Court in Rameshwar Dayal v. State of Punjab & Ors., AIR 1961 SC 816 and in Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR 77 = AIR 1966 SC 1987 to submit that under Article 233(2) there are two sources of direct recruitment to the higher judicial service; one from the Bar and the other from service. The decisions of Constitution Bench in Chandra Mohan (supra) and Rameshwar Dayal (supra) are binding. The decision to the contrary in Satya Narain Singh v. High Court of Judicature at Allahabad & Ors., (1985) 1 SCC 225 taking a departure negating the right of the member of the judicial service and confining the direct recruitment from the Bar through practicing advocates effectively whittle down the law laid down in Chandra Mohan (supra) and Rameshwar Dayal (supra).
3. It is argued that articles 233(1) and 233(2) inter alia deal with direct recruitment, as is apparent from the Constitution Bench decision of this Court in the High Court of Punjab & Haryana v. State of Haryana, (1975) 1 SCC 843. The rules framed by various High Courts disqualifying the members of subordinate judicial service from direct recruitment to the higher judicial service are not in consonance with the law laid down in Chandra Mohan (supra) and Rameshwar Dayal (supra) and the provisions contained in Article 233. The rules, which completely cut off one stream and provide only one stream of direct recruitment then the High Court’s rules would have to be declared ultra vires being violative of Article 233. It was further submitted that the rules framed by various High Courts arbitrarily discriminate between advocates and the members of the judicial service in the matter of direct recruitment, the rules suffer from the vice of arbitrariness. It was also submitted that the decision in All India Judges’ Association v. Union of India, (2002) 4 SCC 247 has been rendered by a Bench of three Judges. The decision cannot overturn the two earlier Constitution Bench judgments of this Court. In All India Judges’ Association case (supra), the Court proceeded on the basis that there was only one source of direct recruitment to the higher judicial service, which is violative of the dictum laid down by a larger Bench of this Court in Rameshwar Dayal (supra) and Chandra Mohan (supra). The decision in All Ind
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