Judges: Arun Mishra, Vineet Saran and S. Ravindra Bhat

Facts:

A Division Bench of Supreme Court has referred the matters to present three judge bench. The dispute 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. There are three categories of Petitioners who has approached the court. The first category of Petitioners are in judicial service and 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. Second 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.

Issues:

(i) What is the correct interpretation of Article 233 of Constitution of India

(ii) Whether the Rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from bar are ultra vires?

(iii) Whether officers in the judicial services of the States (holding posts below that of District Judges) can compete, with members of the Bar (with seven or more years' practice), for direct recruitment, to the post of District Judge?

Law:

Constitution of India - Articles 233, 234, 235

Contentions:

Petitioners

Article 233(2) of Constitution 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) of Constitution as against the posts reserved for those having experience of 7 years as an advocate/pleader.

Articles 233(1) and 233(2) of Constitution 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, MANU/SC/0072/1975. 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 v. State of Uttar Pradesh and Ors. MANU/SC/0052/1966 and Rameshwar Dayal v. The State of Punjab and Ors. MANU/SC/0313/1960 and the provisions contained in Article 233. The rules, which completely cut off one stream and provide only one stream of direct recruitment would have to be declared ultra vires being violative of Article 233 of Constitution.

The Rules framed by various High Courts arbitrarily discriminate between advocates and the members of the judicial service in the matter of direct recruitment and the Rules suffer from the vice of arbitrariness.

Reliance has also been placed on behalf of the Petitioners upon the decision in Vijay Kumar Mishra and Anr. v. High Court of Judicature at Patna and Ors., MANU/SC/0878/2016 in which it has been held that the bar prescribed Under Article 233(2) of Constitution 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.

Respondents

Article 233(2) of Constitution 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.

Analysis:

Justice Arun Mishra

(i) It is apparent from the decision of All India Judges Association that in order to prove the merit of in-service candidates, a limited departmental competitive examination has also been provided, so that they can take march to hold the post of District Judges on the basis of their merit. They are not deprived of any opportunity in their pursuit once they have joined the judicial stream, they are bound to follow the provisions. It was open to them not to join the subordinate services. They could have staked a claim by continuing to be an advocate to the Higher Judicial Service as against the post of District Judge. However, once they chose to be in service, if they had seven years' experience at Bar before joining the judicial service, they are disentitled to lay a claim to the 25% quota exclusively earmarked for Advocates; having regard to the dichotomy of different streams and separate quota for recruitment. Opportunities are provided not only to in-service candidates but also to practicing candidates by the 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 the post of District Judge would be by a two-fold channel, either in the 50% seniority/merit quota, by promotion, or the quota for limited competitive examination.

(ii) The recruitment from the Bar also has a purpose behind it. The practicing advocates are recruited not only in the higher judiciary but in the High Court and Supreme Court as well. There is a stream (of appointment) for in-service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the experience of appearing in various courts. Thus, not only in the higher judiciary, in-service candidates of subordinate judiciary are given the opportunity as against 75 percent to be appointed by way of promotion as provided in All India Judges Association case, and the members of the Bar are given the opportunity as against 25 percent of the post having 7 years' standing at Bar.

(iii) Direct recruitment as District Judge as against the quota fixed for the advocates/pleaders, incumbent has to be practicing advocate and must be in practice as on the cut-off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/combined and advocate/pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cut-off date fixed under the Rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practicing advocate having minimum 7 years' experience.

Justice S. Ravindra Bhat

(i) The classification or distinction made-between advocates and judicial officers, per se is a constitutionally sanctioned one. This is clear from a plain reading of Article 233 itself. Firstly, Article 233 (1) talks of both appointments and promotions. Secondly, the classification is evident from the description of the two categories in Article 233 (2): one "not already in the service of the Union or of the State" and the other "if he has been for not less than seven years as an advocate or a pleader". Both categories are to be "recommended by the High Court for appointment." The intent here was that in both cases, there were clear exclusions, i.e. advocates with less than seven years' practice (which meant, conversely that those with more than seven years' practice were eligible) and those holding civil posts under the State or the Union. The omission of judicial officers only meant that such of them, who were recommended for promotion, could be so appointed by the Governor. The conditions for their promotion were left exclusively to be framed by the High Courts.

(ii) Since the Constitution itself makes a distinction between advocates on the one hand, and judicial officers, on the other, the argument of discrimination is insubstantialThe exclusion-by the rules, from consideration of judicial officers, to the post of District Judges, in the quota earmarked for Advocates with the requisite standing, or practice, conforms to the mandate of Articles 233-235, and the Rules are valid.

(iii) The Constitution makers were aware that the judicial branch had to be independent, and at the same time, reflect a measure of diversity of thought, and approach. This is borne out by eligibility conditions spelt out clearly in regard to appointments at every level of both the lower and higher judiciary: the District court, the High Courts and the Supreme Court. In regard to judicial positions in each of these institutions, the Constitution enables appointments, from amongst members of the Bar, as its framers were acutely conscious that practising advocates reflect independence and are likely offer a useful attribute, i.e. ability to think differently and have novel approaches to interpretation of the laws and the Constitution, so essential for robustness of the judiciary, as well as society as a whole.

(iv) The Constitution makers consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District judges, High Courts and this Court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic. Similarly, their views, based on the experience gained at the Bar, injects the judicial branch with fresh perspectives; uniquely positioned as a professional, an advocate has a tripartite relationship: one with the public, the second with the court, and the third, with her or his client. A counsel, learned in the law, has an obligation, as an officer of the court, to advance the cause of his client, in a fair manner, and assist the court. Being members of the legal profession, advocates are also considered thought leaders. Therefore, the Constitution makers envisaged that at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to. For all these reasons, it is 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.

Conclusion:

Justice Arun Mishra

(i) The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.

(ii) 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.

(iii) 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.

(iv) 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 the 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.

(v) 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.

(vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled.

Justice S. Ravindra Bhat

(i) 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 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.

Important precedents:

(i) All India Judges Association and Ors. v. Union of India (UOI) and Ors. MANU/SC/0251/2002

(ii) Vijay Kumar Mishra and Ors. vs. High Court of Judicature at Patna and Ors. MANU/SC/0878/2016

(iii) All India Judges Association and Ors. v. Union of India (UOI) and Ors. MANU/SC/1120/2010