2020 Supreme(SC) 525

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., A.S. BOPANNA, V. RAMASUBRAMANIAN, JJ.
R. POORNIMA AND ORS. – APPELLANT(S)
VERSUS
UNION OF INDIA AND ORS. – RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 1172 OF 2019
Decided on : 04-09-2020

IMPORTANT POINTS
(1) Appointment as Judge of High Court – There are two separate queues, one from judicial service and another from Bar – One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in other queue.
(2) Appointment as Judge of High Court – A person holding a judicial office is better placed as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt – There is no such assurance for an Advocate.

Headnote:

(A) Constitution of India – Articles 217(2) and 233 – Appointment as Judge of High Court – Alleged discrimination by Collegium of High Court – Petitioners want experience gained by them as Advocates to be clubbed together with service rendered by them as Judicial Officers, for determining their eligibility – Once this clubbing is allowed, Petitioners would like to take advantage of their settled seniority position in cadre of District Judges, over and above that of Respondent Nos. 5 to 23 – When vacancies arose for elevation to High Court as Judges, as against 1/3rd quota meant to be filled up from among State Judicial Officers, Collegium of High Court found that Petitioners had not completed 10 years of service in a Judicial Office as required by Article 217(2)(a) – Therefore, Collegium recommended names of persons who fulfilled eligibility criteria – For the purpose of Article 233, it is not permissible anymore, for people to hop-on and hop-off between two independent streams of recruitment – Article 217(2) merely prescribes eligibility criteria and method of computation of same – If a person is found to have satisfied eligibility criteria, then he must take his place in one of queues – There are two separate queues, one from judicial service and another from Bar – One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in other queue, so that he can claim to be within zone of consideration from either of two or from a combination of both – Queue to which a person is assigned, depends upon his status on date of consideration – If a person is an Advocate on the date of consideration, he can take his place only in queue meant for members of Bar – Similarly, if a person is a judicial officer on the date of consideration, he shall take his chance only in queue meant for service candidates. (Paras 7, 9, 17, 30 and 31)

(B) Constitution of India – Articles 217(2) and 233 – Appointment as Judge of High Court – Alleged discrimination by Collegium of High Court – Hopping on and hopping off from one queue to the other, is not permissible – For the purpose of seniority, petitioners went solely by date of recruitment to cadre of District Judges and not (i) by total length of service in a judicial office or (ii) by a combination of number of years of practice at Bar and number of years of judicial service – But for the purpose of determining eligibility, they want to go by total period of practice as an Advocate and period of service in a judicial office – If clubbing is permitted, it should be permitted even for contesting respondents, which if done, would upset even seniority of petitioners – For filling up vacancies under service quota, collegiums of High courts consider ACRs and judgments of judicial officers, in ratio of 1:3 or 1:5 or so – To undertake this exercise, High courts maintain seniority lists of judicial officers – If there are 3 vacancies to be filled up, profile of 9 or 15 senior-most officers are considered – If petitioners want to be considered from category as Advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in queue intended for judicial officers – Case of petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b) – Article 217(2) does not guarantee any one with right to be appointed as a Judge of High Court – In a way, a person holding a judicial office is better placed as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt – There is no such assurance for an Advocate – Claim of writ petitioners is wholly untenable – Writ petition dismissed. (Paras 32, 33, 34, 41, 46 and 48)

(C) Words and Phrases – Words “has held” and “has been” – In common parlance, words “has held” stand in contra distinction to words “is holding” or “has been holding” – On other hand words “has been” do not have any such connotation. (Paras 44 and 45)

Facts of the case:

Persons who were appointed as District Judges (Entry Level) by way of direct recruitment vide a Government Order G.O. Ms. No. 170, Home Department dated 18.02.2011 in the Tamil Nadu State Judicial Service have come up with this Writ Petition seeking direction to call for records relating to the last list of names recommended by the Hon’ble Chief Justice of High Court of Madras to the Hon’ble Chief Justice of India for appointment as Judges of Madras High Court and quash the same in so far as it relates to the names of Respondents No. 5 to 23 herein and consequently direct the Hon’ble Collegiums of the Madras High Court to consider the names of the Petitioners also for appointment as High Court Judges. Short grievance of the petitioners is that despite being the senior-most in the cadre of District Judges, they have been overlooked and their juniors now recommended for elevation to the High Court as Judges.

Findings of Court:

Argument that it will be discriminatory to allow the benefit of clubbing only to a person who held a judicial office and later became an advocate, does not appeal to us. In fact, Article 217(2) does not guarantee any one with the right to be appointed as a judge of the High Court. In a way, a person holding a judicial office is better placed, as he is assured of a career progression (though in a limited sense) after being placed in something like a conveyor belt. There is no such assurance for an advocate. Therefore, the argument based upon Article 14 does not impress us.

Result : Writ Petition dismissed.