Article 233(2) of the Constitution requires a person to have been a member of the Bar for not less than seven years immediately prior to their appointment as a District Judge.

Headnote:
CONSTITUTION OF INDIA - ARTICLE 233(2) - BOMBAY JUDICIAL SERVICE RECRUITMENT RULES, 1956 - RULE 5(2) - INTERPRETATION - ELIGIBILITY FOR APPOINTMENT AS DISTRICT JUDGE - REQUIREMENT OF BEING A MEMBER OF THE BAR FOR NOT LESS THAN SEVEN YEARS - APPLICABILITY TO PERSONS WHO HAVE CEASED TO BE MEMBERS OF THE BAR AND ARE IN SOME OTHER SERVICE AT THE TIME OF APPLICATION - VALIDITY OF RULE 5(2) - BOMBAY JUDICIAL SERVICE RECRUITMENT RULES, 1956 - FRAMING OF RULES UNDER ARTICLE 234 AND PROVISO TO ARTICLE 309 OF THE CONSTITUTION - VALIDITY.
Fact of the Case:

The petitioner, a former Deputy Registrar of the Nagpur Bench of the Bombay High Court, challenged the validity of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956, which required candidates for the post of District Judge to have practiced as Advocates or Pleaders for not less than seven years in the High Court or courts subordinate thereto. The petitioner argued that the rule was inconsistent with Article 233(2) of the Constitution, which only required a person to have been an Advocate or Pleader for not less than seven years, without specifying that they must be currently practicing.
Finding of the Court:

The court held that Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 was valid and consistent with Article 233(2) of the Constitution. It interpreted Article 233(2) to mean that a person must have been a member of the Bar for not less than seven years immediately prior to their appointment as a District Judge. The court reasoned that this interpretation was necessary to preserve the independence of the judiciary and to prevent recruitment from the executive department or other non-judicial services.
Issues: 1. Whether Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956 was inconsistent with Article 233(2) of the Constitution. 2. Whether a person must be a member of the Bar for not less than seven years immediately prior to their appointment as a District Judge.
Ratio Decidendi: 1. The court interpreted Article 233(2) of the Constitution to mean that a person must have been a member of the Bar for not less than seven years immediately prior to their appointment as a District Judge. 2. The court held that this interpretation was necessary to preserve the independence of the judiciary and to prevent recruitment from the executive department or other non-judicial services.
Final Decision: The petition was dismissed, and the rule was discharged.

JUDGMENT - Mrs. SUJATA V. MANOHAR, J.:---The petitioner passed his L.L.B. examination from Poona University in 1968 and was enrolled as an Advocate on the rolls of the Bar Council of Maharashtra on 1-11-1968. The petitioner after his enrolment was a practising lawyer at Chandraput and Nagpur. At Nagpur he had practised mostly in the High Court.

2. On 6-10-1976 the petitioner was appointed Deputy Registrar at the Nagpur Bench of the Bombay High Court. In March 1977 an advertisement was published inviting applications for the posts of District Judges. The Petitioner applied for the post. He was, however, not called for interview. Thereafter, on 15th October, 1980 an advertisement was issued by the High Court at Bombay inviting applications for five posts of District Judges in the Judicial Service of the State of Maharashtra. Paragraph 2 of the press advertisement stated "candidate must ordinarily be an Advocate of pleader who has practised in the High Court, Bombay or courts subordinate thereto for not less than seven years on the 1st October, 1980." The petitioner applied for the post of a District Judge by his application dated 26th October, 1980. There was no reply to this application. The petitioner apprehended that he was not being considered for the post because he was holding the post of Deputy Registrar. Therefore, he was considered as ineligible for appointment as he was not a practising Advocate at the time when he made the application. He, therefore, made a representation to the Registrar of the High Court dated 13th January, 1981. The petitioner did not received any reply to this representation. Thereupon the petitioner has filed the present petition on 16th May, 1981.

3. Article 233 of the Constitution provides for appointment of District Judges. It is as follows :

"233(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an Advocate or a pleader and is recommended by the High Court for appointment."

Article 233(2) deals with persons not already in the service of the Union or the State. The phrase "in the service of the Union or of the State" has been interpreted to mean "judicial service" by the Supreme Court. See (Chandra Mohan v. State of U.P.)1, reported in A.I.R. 1966 S.C. 1987. In the case of persons who are not in judicial service, only a person who has been for not less than seven years an Advocate or a pleader shall be eligible for appointment as a District Judge.

4. Article 234 provides that appointment of persons other than District Judges shall be made by the Governor of the State in accordance with the rules made by him in that behalf as set out in that Article.

5. Article 309 of the Constitution is to the following effect :

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State :

Provided that it shall be competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of services of persons appointed, to such services and posts until provisions in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rule so made shall have effect subject to the provisions of any such Act."

6. The Governor of Bombay after consultation with the Bombay Public Service Commission

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1985 Supreme(Bom) 99

IN THE HIGH COURT OF BOMBAYMrs. Sujata V. Manohar, J.Sudhakar Govindrao Deshpande .... Petitioner.VersusState of Maharashtra others .... Respondents.Writ Petition No. 1223 of 1981, decided on 23/24-4-1985.Advocates appeared :D.K. Ghaisas, for petitioner.S.M. Shah, for respondents.

Article 233(2) of the Constitution requires a person to have been a member of the Bar for not less than seven years immediately prior to their appointment as a District Judge.

IN THE HIGH COURT OF BOMBAY
Mrs. Sujata V. Manohar, J.
Sudhakar Govindrao Deshpande .... Petitioner.
Versus
State of Maharashtra others .... Respondents.
Writ Petition No. 1223 of 1981, decided on 23/24-4-1985.
Advocates appeared :
D.K. Ghaisas, for petitioner.
S.M. Shah, for respondents.