The petitioners who are in judicial service, have claimed by filing
Writ Petition, which has been filed in the honourable Supreme Court by the
mechanism of SLP, that in the 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 in 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 experience serving as a judicial officer and
as an advocate. They claim to be eligible to stake their claim against the above
The argument of Parties:
The central argument advanced by the petitioners 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 of 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
v. State of Uttar Pradesh & Ors
It is also 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 Courts rules would have to be declared ultra vires being violative
of Article 233.
Petitioners also placed reliance upon the decision in Vijay Kumar Mishra & Anr.
v. High Court of Judicature at Patna & Ors
., (2016) 9 SCC 313 in which it has
been held that the bar prescribed under Article 233(2) prohibits only the
appointment of persons in service of Central/State Government and not their
participation in the recruitment process. It is the constitutional right of such
persons as well to participate in the selection process. In case they are
selected, they can resign and join the post
On the other hand, it was submitted on behalf of various High Courts as well as
on behalf of the practising advocates that Article 233(2) contemplates direct
recruitment only from the Bar and the person should not be in judicial service
for the post of direct recruitment. They can only be promoted. By their
volition, they can join the subordinate judicial service. Having done so, they
can only be promoted to the higher judicial service as provided in the rules.
was further submitted that the decisions in Rameshwar Dayal (supra) and Chandra
Mohan (supra) rather than espousing the submissions on behalf of in−service
candidates, negate the same. The decision in Satya Narain Singh (supra) has also
considered the aforesaid decisions and has opined that there are two different
streams, and the candidates from the judicial service cannot stake their claim
as against the posts reserved for direct recruitment from the Bar.
the law laid down by this Court in the case of Deepak Aggarwal v. Keshav Kaushik
., (2013) 5 SCC 277. It was further submitted that the decision in All
India Judges Association (supra) has prescribed a quota for merit promotion from
the in-service candidates and 25% of the quota for direct recruitment from the
Also, the quota for limited competitive examinations fixed was reduced to
10% in All India Judges' Association v. Union of India
, (2010) 15 SCC 170. It
was further submitted that there is a separate quota provided under the rules
framed by various High Courts, but now there is a roster system as well. The
roster system has also been made applicable for fixing the seniority of the
incumbents recruited from in−service candidates as well as directly from the
Bar. In this regard reference has been made to the decision of this Court in
Punjab & Haryana High Court v. State of Punjab
, (2018) SCC Online SC 1728.
What does the lower Court hold:
On the basis of various reasons and grounds discussed and provided in the Writ
Petition, the Honorable Delhi High Court held that the present writ petition
does not have any merit and should be dismissed without ordering any costs on
What is a question of law?
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.
Supreme Court Observation:
Article 233(2) starts with a negative stipulation that a person who is not
already in the service of the Union or the State, shall be eligible only to be
appointed as District Judge if he has been an advocate or a pleader for not less
than 7 years and is recommended by the High Court for appointment. The
expression in the service of the Union or of the State has been interpreted by
this Court to mean the judicial service.
A person from judicial service can be
appointed as a District Judge. However, Article 233(2) provides that a person
who is not in the service of the Union shall be eligible only if he has been in
practice, as an advocate or a pleader for 7 years; meaning thereby, persons who
are in service are distinguished category from the incumbent who can be
appointed as District Judge on 7 years practice as an advocate or a pleader.
Article 233(2) nowhere provides eligibility of in−service candidates for
consideration as a District Judge concerning a post requiring 7 years practice
as an advocate or a pleader Justice Mishra, writing for himself and for Justice
Saran, hence, held:
- The members in the judicial service of the State can be appointed as
District Judges by way of promotion or limited competitive examination.
- The Governor of a State is the authority for the purpose of appointment,
promotion, posting and transfer, the eligibility is governed by the Rules
framed under Articles 234 and 235.
- 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 the judicial service of the 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
of experience of practice before they joined the service or having a
combined experience of 7 years as a lawyer and member of the judiciary are
not eligible to apply for direct recruitment as a District Judge.
- The rules framed by the High Court prohibiting judicial service officers
from staking claim to the post of District Judge against the posts reserved
for Advocates by way of direct recruitment, cannot be said to be ultra vires and are
in conformity with Articles 14, 16 and 233 of the Constitution of India.
The text of Article 233(2) only prohibits the appointment of a person as a
District Judge, if such person is already in the service of either the Union or
the State. It does not prohibit the consideration of the candidature of a person
who is in the service of the Union or the State. A person in the service of
either the Union or the State would still have the option, if selected, to join
the service as a District Judge or continue with his existing employment.
Compelling a person to resign from his job even for the purpose of assessing his
suitability for appointment as a District Judge, in our opinion, is not
permitted either by the text of Article 233(2) or contemplated under the scheme
of the Constitution as it would not serve any constitutionally desirable
Writing down a separate but concurrent view, Justice Bhat states "that I have
gone through the draft judgment proposed by the Arun Mishra, J. I agree with his
analysis; however, I have given additional reasoning as well in respect of the
issue involved. Therefore, I am supplementing this with my separate opinion.
also held that under Article 233, a judicial officer, regardless of her or his
previous experience as an Advocate with seven years' practice cannot apply, and
compete for appointment to any vacancy in the post of 30 District Judge; her or
his chance to occupy that post would be through promotion, in accordance with
Rules framed under Article 234 and proviso to Article 309 of the Constitution of
Honourable Apex Court Finally Held:
A 3-judge bench comprising Justice Arun Mishra, Vineet Saran and S. Ravindra
Bhat, has held that members of the judicial service of any State cannot claim to
be appointed for vacancies in the cadre of District Judge, in the quota
earmarked for appointment from amongst eligible Advocates, under Article 233 of
- Pranjal Chaturvedi, 5th Year, At Sharda School Of Law, Sharda
- Aishwarya, 5th Year, At Sharda School Of Law, Sharda