Facts of the Case:
The petitioners who are in judicial service, have claimed by filing Writ Petition, that has been filed in 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 a 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 is 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 an advocate. They claim to be eligible to stake their claim against the above quota.

Bench: Arun Mishra J., Vineet Saran J., S. Ravindra Bhat J.
Civil Appeal No. 1698 Of 2020
[Arising Out Of S.L.P. (C) No.14156 Of 2015]

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) 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).

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. the 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 enabled to the higher judicial service as provided in the rules.

It 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 against the posts reserved for direct recruitment from the Bar.

Similar is the law laid down by this Court in the case of Deepak Aggarwal v. Keshav Kaushik & Ors., (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 Bar.

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. the 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, Honorable Delhi High Court held that the present writ petition does not have any merit and should be dismissed without ordering any costs on petitioners.

What is the question of law?
The question involved in the matter 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 an 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 have 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 who is 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 purpose.

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 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 India.

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 Indian Constitution.

Written By:

1. Pranjal Chaturvedi, B.A.LL.B from Sharda University School of Law
   Email: [email protected]
2. Aishwarya, B.A.LL.B from Sharda University School of Law
   Email: [email protected]