DHEERAJ MOR versus HON’BLE HIGH COURT OF DELHI
[2020] 2 S.C.R. 161, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Ratio
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DHEERAJ MOR
v.
HON’BLE HIGH COURT OF DELHI
(Civil Appeal No. 1698 of 2020)
FEBRUARY 19, 2020
[ARUN MISHRA, VINEET SARAN AND
S. RAVINDRA BHAT, JJ.]
Constitution of India – Arts.233-235 – Interpretation of
Art.233 – Eligibility of members of subordinate judicial service for
appointment as District Judge against the quota reserved for bar
members by way of direct recruitment – Petitioners who are in judicial
service inter alia claimed that there are two sources of recruitment
u/Art.233(2)- from judicial service and from the bar; thus, a person
in judicial service with 7 years practice at the bar before joining
service (or combined with service as a judicial officer), can compete
with members of the bar (with 7 or more years’ practice), for direct
recruitment, in the quota earmarked to be filled by such advocates
– Matter referred by Division Bench of Supreme Court – Answering
the reference, Held: Per Arun Mishra and Vineet Saran, JJ. –
Members in the judicial service of the State can be appointed as
District Judges by way of promotion/limited competitive examination
– For the purpose of Art.232(2), an advocate continuing in practice
for not less than 7 years as on the cut-off date and at the time of
appointment as District Judge can be appointed as District Judge
by way of direct recruitment if he is not already in the judicial service
of the Union or a State – Members of judicial service having 7
years’ of practice before joining service (or combined with
service
as a judicial officer) are not eligible to apply for direct recruitment
as a District Judge – Rules framed by 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, are not ultra vires and are in conformity with Arts.14,
16 & 233 – In cases where in-service incumbents were appointed
by way of direct recruitment from bar (in view of various interim
orders passed by Supreme Court in Dheeraj Mor and other cases,
though later vacated), in view of dismissal of the writ petitions filed
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by judicial officers, they cannot continue as District Judges – To
be reverted to their original post – In case their right in channel for
promotion had already ripened, and their juniors were promoted,
High Court to consider their promotion in accordance with prevailing
rules – Per S. Ravindra Bhat, J. (Supplementing) – Under Art.233,
a judicial officer, regardless of her or his previous experience as
an Advocate with seven years’ practice can not apply, and compete
for appointment to any vacancy in the post of District Judge – Her/
his chance to occupy that post would be through promotion, in
accordance with Rules framed u/Art.234 and proviso to Art.309 –
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
Arts. 233-235, and the rules are valid – Service Law – Higher
Judicial Service – Interpretation of Statutes.
Constitution of India – Arts. 233(1), 234, 235 – Held: Per
Arun Mishra and Vineet Saran, JJ. – Governor of a State is the
authority for the purpose of appointment, promotion, posting and
transfer – Eligibility is governed by Rules framed u/Arts. 234 &
235 – Per S. Ravindra Bhat, J. (Supplementing) – Governor of a
State has the authority to make “appointments of persons to be,
and the posting and promotion of, district judges in any State –
While so
appointing, the Governor is bound to consult the High
Court – Art. 233 (1) cannot be construed as a source of appointment;
it merely delineates as to who is the appointing authority – In matters
relating to initial posting, initial appointment, and promotion of
District Judges, the Governor has the authority to issue the order;
thereafter it is up to the High Court, by virtue of Art.235, to exercise
control and superintendence over the conditions of service of such
District Judges – Service Law – Higher Judicial Service.
Constitution of India – Art. 233(2) – Eligibility of judicial
officers to compete as against the post of District Judge by way of
direct recruitment – Participation in selection process vis-a-vis
appointment – Plea of petitioners placing reliance on Vijay Kumar
Mishra & Anr. v. High Court of Judicature at Patna & Ors. reported as
[2016] 3 SCR 806 in which it was held that the bar prescribed
u/Art.233(2) prohibits only the appointment of persons in service
of Central/State Govt. and not their participation in the recruitment
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process and in case they are selected, they can resign and join the
post – Held: Per Arun Mishra and Vineet Saran, JJ. – Vijay Kumar
Mishra providing eligibility of judicial officer to compete as against
the post of District Judge by way of direct recruitment, does not lay
down the law correctly – Overruled – Per S. Ravindra Bhat, J.
(Supplementing) – Vijay Kumar Mishra, as far as it makes a
distinction between consideration of a candidate’s eligibility at the
stage of selection, and eligibility reckonable at the time of
appointment, is incorrect – Eligibility of any candidate is to be
reckoned not from the date of his or her selection, but in terms of
the rules, or the advertisement for the post – Service Law – Higher
Judicial Service.
Service Law – Higher Judicial Service – Recruitment to the
posts of District Judges from two sources- in-service and from the
Bar – Claim by candidates from judicial service as against the posts
reserved for direct recruitment from the Bar – Held: Per Arun Mishra
and Vineet Saran, JJ. – Makers of the Constitution visualised and
the law administered in the country for last seven decades reveals
that the aforesaid modes of recruitment and two separate sources
are recognised – No room to entertain submission of discrimination
based on Arts.14 & 16 – Art.233(2) starts with the negative “not,”
which disentitles the claim of judicial officers against the post
reserved for practicing advocates/pleaders – Per S. Ravindra Bhat,
J.
(Supplementing) – Since the Constitution itself makes a distinction
between advocates on the one hand, and judicial officers, on the
other, the argument of discrimination is insubstantial – Constitution
of India – Arts.14, 16 & 233.
Constitution of India – Arts. 124, 217, 233(2) – Eligibility of
judicial officers to compete as against the post of District Judge by
way of direct recruitment – Plea  that practice as an advocate and
service as a judicial officer for 10 years is to be treated at par as
per explanation added to Arts. 124 & 217 – Held: In Rameshwar
Dayal, this question has been considered and it was held that
Art.233(2) could not be interpreted in view of the explanations added
to Arts. 124 & 217.
Words & Phrases – “appointment”, “advocates”, “pleaders”
– Meaning of – Discussed – Constitution of India – Art.233.
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Answering the reference, the Court
PER ARUN MISHRA, J. [FOR HIMSELF AND VINEET
SARAN, J.]
HELD: 1.1 The Hindi translation of the Constitution signed
by the members of the Constituent Assembly was published in
1950 under the authority of the President of the Constituent
Assembly. The translation of the Constitution shall be deemed
to be the authoritative text thereof in the Hindi language.
Considering the version in the Hindi language as well as in the
English language, the meaning is the same, and interpretation
does not change. There is no room for any confusion that they
are two different sources of appointment provided in Article 233.
[Paras 9, 11][184-A, C-D]
1.2 Article 233(1) provides for appointments by way of
posting and promotion. It is apparent from Article 233 that the
appointing authority the Governor has to exercise the power of
appointment in consultation with the High Court. The term
‘appointment’ is broader and includes appointment by way of
direct recruitment or by way of promotion, and sometimes it may
also include, if so provided in the rules, by way of absorption.
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. Requirement of 7 years’ experience for advocate or
pleader is qualified with a rider that he should not be in the service
of the Union or the State. Article 233 provides two sources of
recruitment, one from judicial service and the other from
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advocates or pleaders. There are two separate streams provided;
one is for persons in judicial service, and the other is for those
not in judicial service of the Union or the State and have practiced
for seven years. The expression ‘in service of the Union or the
State’ has been interpreted in Chandra Mohan to mean judicial
service, not any other service of the Union or the State. Thus, it
is clear that the members of the judicial service alone are eligible
for appointment as against the post of District Judge as the only
mode provided for the appointment of in-service candidates is
by way of promotion. They can stake their claim as per rules for
promotion or merit promotion as the case may be. This Court
has excluded the persons from the Indian Civil Service, the
Provincial Judicial Service, or other Executive Services, before
Independence, recruitment to the post of District Judge was
provided from other services also. Article 233(2) provides that if
an advocate or a pleader has to be appointed, he must have
completed 7 years of practice. It is coupled with the condition in
the opening part that the person should not be in service of the
Union or State, which is the judicial service of the State. The
person in judicial service is not eligible for being appointed as
against the quota reserved for advocates. Once he has joined
the stream of service, he ceases to be an advocate. The
requirement of 7 years of minimum experience has to be
considered as the
practising advocate as on the cut-off date, the
phrase used is a continuous state of affair from the past. The
context ‘has been in practice’ in which it has been used, it is
apparent that the provisions refers to a person who has been an
advocate or pleader not only on the cut-off date but continues to
be so at the time of appointment. [Paras 12-14][184-D-H;
185-A-H]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]
1 SCR 77 : AIR 1966 SC 1987 – followed.
1.3 In-service candidates cannot apply as against the post
reserved for the advocates/pleaders as he has to be in continuous
practice in the past and at the time when he has applied and
appointed. Thus, the decision in Vijay Kumar Mishra cannot be
said to be laying down the law correctly. A person in judicial
service is eligible to be appointed as District Judge, but it is only
by way of promotion or by way of merit promotion, which concept
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has been evolved in All India Judges Association and Ors. v. Union
of India and Ors. (2002) 4 SCC 247. [Paras 24, 25][204-C-E]
Vijay Kumar Mishra & Anr. v. High Court of Judicature
at Patna & Ors. (2016) 9 SCC 313 : [2016] 3 SCR 806
– overruled.
All India Judges’ Association v. Union of India (2002)
4 SCC 247 : [2002] 2 SCR 712 – relied on.
1.4 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. 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. 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. The members of the Bar also become experts in
their field and gain expertise and have the experience of appearing
in various courts. The makers of the Constitution visualised and
the law administered in the country for the last seven decades
clearly reveals that the aforesaid modes of recruitment and two
separate sources, one from in-service and other from the Bar,
are recognised. No room to entertain submission of discrimination
based on Articles 14 and 16. Article 233(2) starts with the negative
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“not,” which disentitles the claim of judicial officers against the
post reserved for the practicing advocates/pleaders. [Paras 28-
31][208-F-H; 209-A-G]
1.5 No benefit can be derived on the basis of certain
observations and suggestions made by the Law Commission as
to what may happen in case All India Judicial Service is formed.
The existing provisions are not restrictive but provide wider
choice to improve and strengthen the judicial system and in tune
with Articles 14 and 16. [Paras 36, 37][212-B-D]
1.6 In Rameshwar Dayal, this Court held that Article 233(2)
could not be interpreted in view of the explanations added to
Articles 124 and 217. There is no violation of equal opportunity.
There is no violation of any principle of the Universal Declaration
of Human Rights and the International Covenant on Civil and
Political Rights and International Covenant on Economic, Social
and Cultural Rights. [Paras 42, 43][214-E; 215-G]
1.7 In service jurisprudence, it is always permissible to
provide different sources of recruitment and quotas along with a
qualification. Equal opportunity is given, and seniority and
competence are criteria for promotion, and in merit promotion,
seniority is not to be considered. [Para 44][216-C]
1.8 The reference is answered as under :-
(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-
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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 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.
In the cases where such in-service incumbents were
appointed by way of direct recruitment from bar as no merit is
found in the petitions and due to dismissal of the writ petitions
filed by the judicial officers, as sequel no fruits can be ripened on
the basis of selection without eligibility, they cannot continue as
District Judges. They have to be reverted to their original post.
In case their right in channel for promotion had already been
ripened, and their juniors have been promoted, the High Court
has to consider their promotion in accordance with prevailing
rules.
However, they cannot claim any right on the basis of such
an appointment obtained under interim order, which was subject
to the outcome of the writ petition and they have to be reverted.
[Paras 47, 48][216-G-H; 217-A-H]
Rameshwar Dayal v. State of Punjab & Ors. AIR 1961
SC 816:[1961]  SCR  874 – followed.
Satya Narain Singh v. High Court of Judicature at
Allahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCR
112; Deepak Aggarwal v. Keshav Kaushik & Ors.
(2013) 5 SCC 277 : [2013] 1 SCR 402; Sushma Suri v.
Govt. (NCT of Delhi), (1999) 1 SCC 330 : [1998] 2
Suppl. SCR  187; All India Judges Association and Anr.
v. Union of India (II) (2010) 15 SCC 170; P.
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Ramakrishnam Raju v. Union of India and Ors. (2014)
12 SCC 1 : [2014]  4  SCR 562; Government of NCT of
Delhi and Ors. v. All India Young Lawyers’ Association
and Anr. (2009) 14 SCC 49 : [2009] 3 SCR 555 – relied
on.
High Court of Punjab & Haryana v. State of Haryana
(1975) 1 SCC 843 : [1975] 3 SCR 365; All India Judges’
Association v. Union of India (2010) 15 SCC 170;
Punjab & Haryana High Court v. State of Punjab
(2018) SCC OnLine SC 1728; O.P. Garg v. State of
U.P. (1991) Supp. 2 SCC 51 : [1991] 2 SCR 424; The
State of Assam and Anr. v. Kuseswar Saikia and Ors.
AIR 1970 SC 1616 : [1970] 2 SCR 928; All India
Judges’ Association v. Union of India and Ors. (1992)
1 SCC 119 : [1991] 2 Suppl. SCR 206; All India Judges’
Association and Ors. v. Union of India and Ors. (1998)
8 SCC 771; Pandurangam Rao v. State of Andhra
Pradesh and Ors. AIR 1975 SC 1922 : [1976] 1 SCR
620; Chandra Mohan v. State of U.P. and Ors. (II) AIR
1976 SC 1482; Prof. Chandra Prakash Aggarwal v.
Chaturbhuj Das Parikh and Ors. (1970) 1 SCC 182 :
[1970] 3 SCR 354; State of Bihar and Ors. v. Bal
Mukund Sah and Ors. (2000) 4 SCC 640 : [2000] 2
SCR 299 – referred to.
The Construction of Statutes 202 (1940) by Crawford –
referred to.
PER S. RAVINDRA BHAT, J. (SUPPLEMENTING)
HELD : 1.1 A close reading of Article 233, other provisions
of the Constitution, and the judgments discloses the following:
(a) That the Governor of a State has the authority to make
“appointments of persons to be, and the
posting and promotion of,
district judges in any State (Article 233 [1]);
(b) While so appointing the Governor is bound to consult
the High Court (Article 233 [1]: Chandra Mohan (supra) and
Chandramouleshwar Prasad v Patna High Court [1970] 2 SCR
666);
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(c) Article 233 (1) cannot be construed as a source of
appointment; it merely delineates as to who is the appointing
authority;
(d) In matters relating to initial posting, initial appointment,
and promotion of District Judges, the Governor has the authority
to issue the order; thereafter it is up to the High Court, by virtue
of Article 235, to exercise control and superintendence over the
conditions of service of such District Judges. (See State of Assam
v Ranga Mahammad [1967] 1 SCR 454);
(e) Article 233 (2) is concerned only with eligibility of those
who can be considered for appointment as District Judge. The
Constitution clearly states that one who has been for not less
than seven years, “an advocate or pleader” and one who is “not
already in the service of the Union or of the State” (in the sense
that such person is not a holder of a civil or executive post, under
the Union or of a State) can be considered for appointment, as a
District judge. Significantly, the eligibility- for both categories, is
couched in negative terms. Clearly, all that the Constitution
envisioned was that an advocate with not less than seven years’
practise could be appointed as a District Judge, under Article
233 (2).
(f) Significantly, Article 233 (2) ex facie does not exclude
judicial officers from consideration for appointment to the post of
District Judge. It, however, equally does not spell out any criteria
for such category of
candidates. This does not mean however,
that if they or any of them, had seven years’ practise in the past,
can be considered eligible, because no one amongst them can be
said to answer the description of a candidate who “has been for
not less than seven years” “an advocate or a pleader” (per Deepak
Agarwal, i.e. that the applicant/candidate should be an advocate
fulfilling the condition of practise on the date of the eligibility
condition, or applying for the post). The sequitur clearly is that a
judicial officer is not one who has been for not less than seven
years, an advocate or pleader.
The net result of the decision in Chandra Mohan, and
subsequent decisions which followed it, is that Article 233 (2)
renders ineligible all those who hold civil posts under a State or
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the Union, just as it renders all advocates with less than seven
years’ practice ineligible, on the date fixed for reckoning
eligibility. Equally, those in judicial service [i.e. holders of posts
other than District Judge, per Article 236 (2)] are not entitled to
consideration because the provision (Article 233 [2]) does not
prescribe any eligibility condition. Does this mean that any judicial
officer, with any length of service as a member of the judicial
service, is entitled to consideration under Article 233 (2)? The
answer is clearly in the negative. This is because the negative
phraseology through which eligibility of holders of civil posts, or
those in civil service (of the State or the Union) and advocates
with seven years’ service is couched. However, the eligibility
conditions are not spelt out in respect of those who are in the
judicial service. [Paras 24, 25][237-B-E; 238-A-D; 239-A-E]
1.2 The omission- in regard to spelling out the eligibility
conditions vis-à-vis judicial officers, to the post of District Judge,
in the opinion of this court, is clearly by design. This subject
matter is covered by three provisions: Article 233 (1) – which
refers to promotions to the post of District Judge; Article 234,
which, like Article 233 (1) constitutes the Governor as the
appointing authority in respect of judicial posts or services, (other
than District Judges), and like Article 233 (1), subject to
recommendation of the High Court concerned. This
position is
most definitely brought home by the fact that Article 235 vests in
the High Courts the power of supervision and control of the judicial
service, “including the posting and promotion of, and the grant of
leave to, persons belonging to the judicial service of a State and
holding any post inferior to the post of district judge.” The corollary
to this is that the Governor is appointing authority for the post of
District Judge, and other judicial posts; both are to be filled after
prior consultation with the High Court, and crucially, the promotion
of judicial officers, to the post of District Judge, is regulated by
conditions (read rules) framed by the High Court. The
Constitution makers clearly wished to draw a distinction between
the two sources of appointment to the post of District Judge. For
one, i.e. Advocates, eligibility was spelt out in negative
phraseology, i.e. not less than seven years’ practice; for judicial
officers, no eligibility condition was stipulated in Article 233 (2):
this clearly meant that they were not eligible to be appointed (by
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direct recruitment) as they did not and could not be considered
advocates with seven years’ practise, once they entered the
judicial service. The only channel for their appointment, was in
accordance with rules framed by the High court, for promotion
(as District Judges) of officers in the judicial service (defined as
those holding posts other than District Judges, per Article 236
[b]). [Paras 26, 27][239-E-H; 240-A-C]
1.3 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. Since the Constitution itself makes a distinction between
advocates on the one hand, and judicial officers, on the other, the
argument of discrimination is insubstantial. Even today, judicial
officers are entitled to be considered for appointment, by
promotion, as District Judges, to the extent of 75% of the cadre
relating to that post, in every State. It is therefore, held that the
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. [Paras 30, 31][241-
A-D, G-H]
1.4 This court is also of the opinion that if rules of any State
permit judicial officers to compete in the quota for appointment
as District Judges, they are susceptible to challenge. The reason
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for this conclusion is that where a dichotomy is maintained, and
two distinct sources for appointment are envisaged, like the
present, enabling only judicial officers to compete in the quota
earmarked for advocates would potentially result in no one from
the stream of advocates with seven or more years’ practice, being
selected. This would be contrary to the text and mandate of Article
233 (2), which visualized that such category of candidates would
always be eligible and occupy the post of District Judge. Clear
quotas for both sources have been earmarked by High Courts. If
one those in one stream, or source- i.e. judicial officers- are
permitted to compete in the quota earmarked for the other (i.e.
advocates) without the converse situation (i.e. advocates
competing in the quota earmarked for judicial officers- an
impossibility) the result would be rank discrimination. Another
strong reason drives us to this conclusion. 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.  This view is fortified by Article 217 (2),
which spells out two sources from which appointments can be
resorted to for the position of judge of a High Court: firstly,
member of a judicial service of a State [Article 217 (a)] and an
advocate with ten years’ experience [Article 217 (b)]. For the
Supreme Court, Article 124 (3) (a) enables consideration of a
person with five years’ experience as a High Court judge; Article
124(3)(b) enables consideration of an advocate with ten years’
experience at the bar in any High Court; Article 124(3)(c) enables
consideration of a distinguished jurist. Significantly, advocates
with stipulated experience at the bar are entitled, by express
provisions of the Constitution [Articles 233 (2), Article 217 (b)
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and Article 124 (3) (b)] to be considered for appointment to the
District Courts, High Courts and the Supreme Court, respectively.
However, members of the judicial service can be considered only
for appointment (by promotion) as District Judges, and as High
Court judges, respectively. Members of the judicial service
cannot be considered for appointment to the Supreme Court.
Likewise, academics or distinguished jurists, with neither practise
at the Bar, nor any experience in the judicial service, can be
considered for appointment as District Judge, or as High Court
judge. [Paras 32-34][242-A-H; 243-A-B]
1.5 The Constitution makers, in the opinion of this court,
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. 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. The decision in Vijay Kumar
Mishra, as far as it makes a distinction between consideration, of
a candidate’s eligibility, at the stage of selection, and eligibility
reckonable at the time of appointment, is incorrect.
There is clear
authority to the proposition that eligibility of any candidate is to
be reckoned, not from the date of his or her selection, but in
terms of the rules, or the advertisement for the post. Therefore,
the observation in Vijay Kumar Mishra that “the right of such a
person to participate in the selection process undertaken by the State
for appointment to any post in public service (subject to other rational
prescriptions regarding the eligibility for participating in the selection
process such as age, educational qualification etc.) and be
considered is guaranteed under Art. 14 and 16 of the Constitution”
is not correct. With respect, the distinction sought to be made,
between “selection” and “appointment” in the context of
eligibility, is without foundation. Vijay Kumar Mishra, to the extent
that it is contrary to Ashok Kumar Sharma, as regards participation
in the selection process, of candidates who are members of the
judicial service, for appointment to the post of District Judge,
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from amongst the quota earmarked for advocates with seven
years’ practice, was wrongly decided. To that extent, Vijay Kumar
Mishra is overruled. [Paras 35-37][243-C-G; 244-G-H;
245-A, E]
Vijay Kumar Mishra & Anr. v. High Court of Judicature
at Patna & Ors. (2016) 9 SCC 313 : [2016]  3 SCR
806 – overruled.
1.6 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. [Para 38][245-F-G]
Chandra Mohan v. State of Uttar Pradesh & Ors. [1967]
1 SCR 77 : AIR 1966 SC 1987; State of Assam and
Ors. v. S.N. Sen & Ors [1972] 2 SCR 251 – followed.
Satya Narain Singh v. High Court of Judicature at
Allahabad & Ors. (1985) 1 SCC 225 : [1985] 2 SCR
112; Deepak Aggarwal v. Keshav Kaushik & Ors.
(2013) 5 SCC 277 : [2013] 1 SCR 402; State of West
Bengal v. Nripendra Nath Bagchi [1966] 1 SCR 771;
High Court of Punjab and Haryana etc. v. State of
Haryana [1975] 3 SCR 365; Chandramouleshwar
Prasad v. Patna High Court [1970] 2 SCR 666; State
of Assam v. Ranga Mahammad [1967] 1 SCR 454;
Ashok Kumar Sharma & Ors. v. Chander Shekhar &
Ors (1997) 4 SCC 18 : [1997] 2 SCR  896 – relied on.
Rameshwar Dayal v. State of U.P. AIR 1961 SC 816 :
[1961] SCR  874;
Mahesh Chandra Gupta v. Union of
India and Ors. (2009) 8 SCC 273 : [2009] 10 SCR
921 State of Haryana v. Inder Prakash Anand H.C.S.
& Ors. [1976] 2 SCR 977; All India Judges’ Association
v. Union of India (2010) 15 SCC 170; U.P. Public
Service Commission v Alpana (1994) 2 SCC 723 :
[1994] 1 SCR 131; Bhupinderpal Singh & Ors. v. State
of Punjab & Ors. (2000) 5 SCC 262 – referred to.
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Case Law Reference
IN THE JUDGMENT OF ARUN MISHRA, J. (FOR
HIMSELF AND VINEET SARAN, J.)
[1961] SCR 874
followed
Para 2
[1967] 1 SCR 77
followed
Para 2
[1985] 2 SCR 112
relied on
Para 2
[1975] 3 SCR 365
referred to
Para 3
[2002] 2 SCR 712
relied on
Para 3
[2016] 3 SCR 806
overruled
Para 4
[2013] 1 SCR 402
relied on
Para 5
(2010) 15 SCC 170
referred to
Para 5
[1998] 2 Suppl. SCR 187
relied on
Para 23
(2010) 15 SCC 170
referred to
Para 25
[1991] 2 SCR 424
referred to
Para 26
[2014] 4 SCR 562
relied on
Para 34
[2009] 3 SCR 555
relied on
Para 34
[1970] 2 SCR 928
referred to
Para 35
[1991] 2 Suppl. SCR 206
referred to
Para 38
(1998) 8 SCC 771
referred to
Para 39
[1976] 1 SCR 620
referred to
Para 40
AIR 1976 SC 1482
referred to
Para 41
[1970] 3 SCR 354
referred to
Para 42
[2000] 2 SCR 299
referred to
Para 43
IN THE JUDGMENT OF S. RAVINDRA BHAT, J.
(SUPPLEMENTING)
[1961] SCR 874
referred to
Para 2
[1967] 1 SCR 77
followed
Para 2
[1985] 2 SCR 112
relied on
Para 2
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C
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E
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H
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[2013] 1 SCR 402
relied on
Para 2
[2016] 3 SCR 806
overruled
Para 2
[2009] 10 SCR 921
referred to
Para 4
[1966] 1 SCR 771
relied on
Para 11
[1975] 3 SCR 365
relied on
Para 11
[1976] 2 SCR 977
referred to
Para 11
[1972] 2 SCR 251
followed
Para 12
[1970] 2 SCR 666
relied on
Para 24
[1976] 1 SCR 454
relied on
Para 24
(2010) 15 SCC 170
referred to
Para 31
[1997] 2 SCR 896
relied on
Para  36
[1994] 1 SCR 131
referred to
Para  36
(2000) 5 SCC 262
referred to
Para  36
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
: Civil Appeal No. 1698 of 2020.
From the Judgment and Order dated 19.02.2015 of the High Court
of  Delhi at New Delhi in Writ Petition (Civil) No. 9303 of 2014
With
Civil Appeal Nos. 1699, 1700, 1701, 1702, 1707, 1703, 1704, 1706,
1705 of 2020.
Writ Petition (Civil) Nos. 77, 130, 405, 414, 423, 600, 598, 601,
602, 733 of 2016, 189, 222, 316, 334, 371 of 2017, 96, 102, 103, 108, 110,
106, 146, 123, 124, 138, 155, 145, 158, 174, 291, 287, 352, 387, 392, 396,
530, 519, 535, 581, 578, 612, 629, 596, 616, 632, 608, 628, 617, 624, 631,
635, 636, 641, 642, 639, 640, 650, 644, 658, 659, 680, 671, 677,  681, 686,
703, 696, 717, 728, 726, 727, 1272, 1302 of 2018, 656, 744, 999, 1054,
1053, 1080, 1073, 1089, 1086, 1150, 1266 of 2019, T.P. (C) No. 272 of
2018, Contempt Petition (C) No. 1023 of 2019 in W.P. (C) No. 414 of
2016.
A. N. S. Nadkarni, ASG, Ashish Kumar, AAG, Sunil Fernandes,
AAG, MP, Ms. Vibha Dutta Makhija, Ms. Kiran Suri, P. V. Surendranath,
DHEERAJ
MOR v. HON’BLE HIGH COURT OF DELHI
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A. Mariarputham, S. R. Singh, Pravin H. Parekh, Ms. Priya Hingorani,
Shekhar Naphade, Jaideep Gupta, Dr. K. P. Kylasanatha Pillay, Ms.
Anjana Prakash, R.Venkataramani, Ritin Raj, KTS Tulsi, Ajit Kr. Sinha,
V. Giri, Rajiv Dutta, P. Ravindran, Purushaindra Kaurav, Jayant Bhushan,
P.S. Patwalia, Sr. Advs., Santosh Kumar, Deepak Anand, Bharat Singh,
Ms. Rashmi  Malhotra,  Ms. Prerna Kumari, M. K. Maroria, B. V.
Balram Das, Aishwarya Kumar, Ms. Resmitha R. Chandran, Sawan
Kumar Shukla, Biju Joseph, Anan D. N. Rao, Venkatesh Rao, Rahul
Mishra, Ms. Sangeeta M.R., Ms. Avni Sharma, Adarsh Upadhyay,
Kshatrshal Raj, Ms. Tanya Chaudhary, Ms. Nitika Pandey, Nikhil
Ramdev (for M/s. Parekh & Co.), Vivek Singh, Ashwani Kumar Dubey,
Pankaj Sharma, Prashant Kumar Umrao, Sandeep Kr. Mishra, Chandra
Shekhar Mishra,  Ashihsh Chaubey, Ms. S. Lakshmi Iyer, Ms. Aishwarya
Dash, D.K. Devesh, U.P. Singh, A.B. Singh, Piyush Upadhyay, Kunal
Chatterji, Ms. Maitrayee Banerjee, Pradeep C., A. Venayagam Balan,
Ms. V. S. Lakshmi, Zartab Anwar, P. Prabhakar, D. Srinivas, A.
Venkateswara Rao, Aljo K. Joseph, Ms. Shelna K., Siddhartha Jha,
Deepak Goel, Ms. S. Janani, Kamal Kumar Pandey, Jitendra Kr. Yadav,
Anurag Singh, Ms. Nikita Pandey (for M/s. Parekh & Co.), TGN Nair,
Arjun Garg, S. Mahesh Sahasranaman, Anuradha Mishra, A.V. Rangam,
B.A. Ranganadhan, Raunak Jain, Ketan Paul, Tushar Bhushan, Amartya
Bhushan, Tushar Bakshi, Shovit Singh, Ms. Harshika
Verma, Akshay
Chadha, Dhruv Sheron, A. P. Mayee, Ms. Deepanwita Priyanka, A.
Rajarajan, Himanshu Sharma, Ms. Aditi Sharma, Seeta Ram Sharma,
Ram Niwas Sharma, Ms. Archana Pathak Dave, Manoj Goel, A. Kumar,
Wajeeh Shafiq, Harish Pandey, Yunus Malik, Anish Maheshwari, Ms.
Saroj Bala, Aman Malik, Samir Malik, Rohit K. Singh, Dushyant Kumar,
T. V. George, Govind Narayan Kaushik, Ms. Neha Dutt Sharma, V.
Sushant, Ram Naresh Yadav, Apoorv Kurup, Ms. Upama Bhatacharjee,
Vijay Pratap Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Manoj
Shrivastava, Rakesh Kumar, Pankaj Kumar Mishra, Sanjay Kumar
Dubey, Ms. Archana Mishra, Ms. Nupur Kumar, Zeeshan Diwan, Prastut
Dalvi, Rahul Kaushik, K. Parameshwar, M. V. Mukunda, G. Prakash,
Jishnu M. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Ms. Uttara
Babbar, Ms. Bhavana Duhoon, Manan Bansal, Amol B. Karande,
Ravindra H., Rahul Chitnis, Aaditya A. Pande, Sachin Patil, Ms. Nidhi,
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Vaisal Dathan, Arjun Garg, Devansh Srivastava, Rati Tandon, P.
Prabhakar, D. Srinivas, Sanjeev Kumar, Anurag Dubey, Ms. Chhaya
Kumari, Bhupendra Kr. Bhardwaj, S.R. Setia, Fuzail Ahmad Ayyubi,
Abdul Qadir, Ms. Aditi Gupta, Ankur Chhiber, R.C. Kaushik,
Yashvardhan, Jagjit Singh Chhabra, Alok Kumar, Sadashiv, Shantanu
Kumar, Shakti Vardhan, Ajay Kr. Talesara, Himanshu Mehra, Ms.
Vaishali Gupta, Abhishek Atrey, Ms. Vidyottma, Arvind Gupta, Sameer
Kumar Tiwary, Mahesh Chaurasia, Sujit Kumar, Sanjeev Kumar Verma,
Anil Kumar Sahu, Rakesh Kumar, Ajay Kumar Singh, Vinay Kumar,
Ajay Bansal, Sanjay Kr. Visen, Mrs. Veena Bansal, Gaurav Yadava,
Animesh Kumar, M. Kumar, Nishant Kumar, Ambuj Dixit, Ms. Ekta
Bharti, Neeraj Shekhar, Yunus Malik, Anish Maheshwari, Ms. Khushali,
MNA Chaudhary,  G.N.  Reddy,  T.  Vijay  Bhaskar  Reddy, Ms. Debjani
Das P., Rajiv Kataria (for M/s. Delhi Law Chambers),  Shekhar G
Devasa, Manish Tiwari, Luv Kumar (for M/s. Devasa & Co.), M.C.
Dhingra, Anurag Shukla,  Gaurav  Dhingra,  Kandra  Indira,  Abhishek,
Ms. Deepthi Raj,  Niraj  Gupta,  Ms. Anshu Gupta, Gaurav Kumar, Ms.
Rachana Srivastava, Pankaj Kr. Mishra, Suchi Singh, Sanjay Kr. Yadav,
Ashok Kumar, Devvrat, Rishabh Sancheti, Ms. Padma Priya, Anchit
Bhandari (for K. Paarivendhan), Amitanand Tiwari, Ashutosh Jha,
Ashutosh Gupta, Sunil K. Jain, Ms. Anubha Agarwal, Anuj Prakash,
Panshul Chandra, Ms. Aditi Kumar, K. Murli Manohar, Akhilesh Tripathy,
Ms. Pooja, Ravi S. Jha, D.K. Tripathi,
Shailesh Madiyal, Kartik Anand,
Sudhanshu Prakash, Daya Krishan Sharma, Ravindra S. Garia, Subhasish
Bhowmick, Rajiv Ranjan Dwivedi, Abhishek, Ajay Pal, Pranab Prakash,
Rajesh Srivastava, Sanjay Kumar Dubey, Neeraj Shekhar, Arvind Gupta,
Shantanu Kumar, Niraj Gupta, Pankaj Kumar Mishra, Rakesh Kumar-I,
Dr. Surender Singh Hooda, Amit K. Nain, Ajay Kumar Singh, Satish
Kumar, Devvrat, Ashwani Kumar Dubey, Gaurav, Venkateswara Rao
Anumolu, Kunal Chatterji, Arjun Garg, V. N. Raghupathy, Ashok Mathur,
Ardhendumauli Kumar Prasad, Rohit K. Singh, Gaurav Agrawal, Sunny
Choudhary, Sunil Kumar Jain, Ms. Hemantika Wahi, Adarsh Upadhyay,
Arvind Kumar Sharma, Guntur Prabhakar, John Mathew, Sanjay Kumar
Tyagi, Vivek Singh, Mrigank Prabhakar, Krishna Kumar Singh, Kumar
Dushyant Singh, Smarhar Singh, M. C. Dhingra, Advs, for the appearing
parties.
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Petitioner-in-person
The Judgments of the Court were delivered by
ARUN MISHRA, J.
1. A Division Bench of this Court has referred the matters. 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. The petitioners who
are in judicial service, have 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. 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 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.
2. The central argument advanced 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
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 Chandra Mohan v. State of Uttar Pradesh & Ors., (1967) 1 SCR
77 = AIR 1966 SC 1987 to submit that under Article 233(2) there are
two sources of direct recruitment to the higher judicial service; one from
the Bar and the other from service. The decisions of Constitution Bench
in Chandra Mohan (supra) and Rameshwar Dayal (supra) are binding.
The decision to the contrary in Satya Narain Singh v. High Court of
Judicature at Allahabad & Ors., (1985) 1 SCC 225 taking a departure
negating the right of the member of the judicial service and confining the
direct recruitment from the Bar through practicing advocates effectively
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whittle down the law laid down in Chandra Mohan (supra) and
Rameshwar Dayal (supra).
3. It is 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 Court’s rules would have to be declared ultra
vires being violative of Article 233. It was further submitted that the
rules framed by various High Courts arbitrarily discriminate between
advocates and the members of the judicial service in the matter of direct
recruitment, the rules suffer from the vice of arbitrariness. It was also
submitted that the decision in All India Judges’ Association v. Union
of India, (2002) 4 SCC 247 has been rendered by a Bench of three
Judges. The decision cannot overturn the two earlier Constitution Bench
judgments of this Court. In All India Judges’ Association case (supra),
the Court proceeded on the basis that there was only one source of
direct recruitment to the higher judicial service, which is violative of
the
dictum laid down by a larger Bench of this Court in Rameshwar Dayal
(supra) and Chandra Mohan (supra). The decision in All India Judges’
Association case (supra) is inadvertent and cannot be said to be binding.
The quota system from the service and the Bar would apply to those
who apply within the quota. The quota system cannot override the
constitutional scheme of Article 233(1) and (2).
4. Reliance has also been placed on behalf of the petitioners 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.
5. On the other hand, it was submitted on behalf of various High
Courts as well as on behalf of the practicing advocates that Article 233(2)
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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. 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 as
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. 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.
6. The main question for consideration is the interpretation of
Article 233 of the Constitution of India, and based upon its interpretation,
the question concerning the rules being ultra vires of the same has to be
examined. Rules of various High Courts, as existing preclude members
of the judicial service from staking their claim as against the posts reserved
for direct recruitment from the Bar. Article 233 is extracted hereunder:
“233.Appointment of district judges— (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.”
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7. The Hindi version of Article 233 has also been relied upon.
The same is extracted hereunder:
^^v/;k; 6&v/khuLFk U;k;ky;
233- ftyk U;k;k/kh'kksa dh fu;qfDr & ¼1½ fdlh jkT; esa ftyk U;k;kèkh'k
fu;qDr gksus okys O;fDr;ksa dh fu;qfDr rFkk ftyk U;k;k/kh'k dh inLFkkiuk
vkSj izkséfr ml jkT; dk jkT;iky ,sls jkT; ds laca/k esa vf/kdkfjrk dk
iz;ksx djus okys mPp U;k;ky; ls ijke'kZ djsxkA
¼2½ og O;fDr] tks la?k dh ;k jkT; dh lsok esa igys ls gh ugha gS] ftyk
U;k;k/kh'k fu;qDr gksus ds fy, dsoy rHkh ik= gksxk tc og de ls de
lkr o"kZ rd vf/koDrk ;k IyhMj jgk gS vkSj mldh fu;qfDr ds fy,
mPp U;k;ky; us flQkfj'k dh gSA**
8. It was submitted that Article 394A had been inserted by way of
the Constitution (Fifty-eighth Amendment) Act, 1987.  The same provides
as under:
“394A. Authoritative text in the Hindi language.— (1) The
President shall cause to be published under his authority,—
(a) the translation of this Constitution in the Hindi language,
signed by members of the Constituent Assembly, with such
modifications as may be necessary to bring it in conformity
with the language, style and terminology adopted in the
authoritative texts of Central Acts in the Hindi language, and
incorporating therein all the amendments of this Constitution
made before such publication; and
(b) the translation in the Hindi language of every amendment
of this Constitution made in the English language.
(2) The translation of this Constitution and of every amendment
thereof published under
clause (1) shall be construed to have the
same meaning as the original thereof, and if any difficulty arises
in so construing any part of such translation, the President shall
cause the same to be revised suitably.
(3) The translation of this Constitution and of every amendment
thereof published under this article shall be deemed to be, for all
purposes, the authoritative text thereof in the Hindi language.”
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9. The Hindi translation of the Constitution signed by the members
of the Constituent Assembly was published in 1950 under the authority
of the President of the Constituent Assembly. The translation of the
Constitution shall be deemed to be the authoritative text thereof in the
Hindi language.
10. Crawford in The Construction of Statutes, 202 (1940) has
also been referred to, especially the following observations:
“In some jurisdictions statutes may be enacted in more than one
language. Where this is the situation, both texts constitute the law
and each must be considered in ascertaining the meaning of the
legislature.”
11. Considering the version in the Hindi language as well as in the
English language, the meaning is the same, and interpretation does not
change. There is no room for any confusion that they are two different
sources of appointment provided in Article 233.
12. Article 233(1) provides for appointments by way of posting
and promotion. It is apparent from Article 233 that the appointing authority
the Governor has to exercise the power of appointment in consultation
with the High Court. The term ‘appointment’ is broader and includes
appointment by way of direct recruitment or by way of promotion, and
sometimes it may also include, if so provided in the rules, by way of
absorption.
13. 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. Requirement of 7 years’ experience
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for advocate or pleader is qualified with a rider that he should not be in
the service of the Union or the State. Article 233 provides two sources
of recruitment, one from judicial service and the other from advocates
or pleaders. There are two separate streams provided; one is for persons
in judicial service, and the other is for those not in judicial service of the
Union or the State and have practiced for seven years. The expression
‘in service of the Union or the State’ has been interpreted in Chandra
Mohan (supra) to mean judicial service, not any other service of the
Union or the State. Thus, it is clear that the members of the judicial
service alone are eligible for appointment as against the post of District
Judge as the only mode provided for the appointment of in-service
candidates is by way of promotion. They can stake their claim as per
rules for promotion or merit promotion as the case may be. This Court
has excluded the persons from the Indian Civil Service, the Provincial
Judicial Service, or other Executive Services, before Independence,
recruitment to the post of District Judge was provided from other services
also. In Chandra Mohan (supra), this Court held that no person from
the Executive Service can be promoted as District Judge. There is
separation of the judiciary in terms of Article 50 of the Constitution of
India.  It mandates the State to take steps to separate the judiciary from
the Executive in the public services of the State.
Article 50 is extracted
hereunder:
“50. Separation of judiciary from executive. — The State
shall take steps to separate the judiciary from the executive in the
public services of the State.”
14. Article 233(2) provides that if an advocate or a pleader has to
be appointed, he must have completed 7 years of practice. It is coupled
with the condition in the opening part that the person should not be in
service of the Union or State, which is the judicial service of the State.
The person in judicial service is not eligible for being appointed as against
the quota reserved for advocates. Once he has joined the stream of
service, he ceases to be an advocate. The requirement of 7 years of
minimum experience has to be considered as the practising advocate as
on the cut-off date, the phrase used is a continuous state of affair from
the past. The context ‘has been in practice’ in which it has been used, it
is apparent that the provisions refers to a person who has been an advocate
or pleader not only on the cut-off date but continues to be so at the time
of appointment.
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15. Reliance has been placed on Chandra Mohan v. State of
U.P., (supra) by both the sides, facts of which reflect that Allahabad
High Court called for applications for recruitment to 10 vacancies in the
Uttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakils
and pleaders of more than 7 years’ standing and from judicial officers.
Six incumbents were selected - three advocates and three judicial officers.
The Selection Committee sent two lists, one comprising the names of
the three advocates and the other comprising the names of three judicial
officers to the High Court. There was agreement that the selection from
the Bar was good. The question arose about the legality of the
appointment of judicial officers. The question arose was whether the
incumbents who were not members of the judicial service could have
been appointed as District Judges under Rule 14. This Court while striking
down the Rules interpreted Article 233 thus:
“7. The first question turns upon the provisions of Art. 233 of the
Constitution. Article 233(1) reads:
“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.”
We are assuming for the purpose of these appeals that the
“Governor” under Art. 233 shall act on the advice of the Ministers.
So, the expression “Governor”
used in the judgment means
Governor acting on the advice of the Ministers. The constitutional
mandate is clear. The exercise of the power of appointment by
the Governor is conditioned by his consultation with the High Court,
that is to say, he can only appoint a person to the post of district
judge in consultation with the High Court. The object of consultation
is apparent. The High Court is expected to know better than the
Governor in regard to the suitability or otherwise of a person,
belonging either to the “judicial service” or to the Bar, to be
appointed as a district judge. Therefore, a duty is enjoined on the
Governor to make the appointment in consultation with a body
which is the appropriate authority to give advice to him. This
mandate can be disobeyed by the Governor in two ways, namely,
(i) by not consulting the High Court at all, and (ii) by consulting
the High Court and also other persons. In one case he directly
infringes the mandate of the Constitution and in the other he
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indirectly does so, for his mind may be influenced by other persons
not entitled to advise him. That this constitutional mandate has
both a negative and positive significance is made clear by the
other provisions of the Constitution. Wherever the Constitution
intended to provide more than one consultant, it has said so: see
Arts. 124(2) and 217(1). Wherever the Constitution provided for
consultation of a single body or individual it said so: see Art.
222. Art. 124(2) goes further and makes a distinction between
persons who shall be consulted and persons who may be consulted.
These provisions indicate that the duty to consult is so integrated
with the exercise of the power that the power can be exercised
only in consultation with the person or persons designated therein.
To state it differently, if A is empowered to appoint B in consultation
with C, he will not be exercising the power in the manner
prescribed if he appoints B in consultation with C and D.”
This Court in Chandra Mohan v. State of U.P. (supra) also
observed, concerning recruitment from the Bar under Article 233(2),
the Governor can appoint only advocates recommended by the High
Court to the judicial service. This Court has held:
“11. The position in the case of district judges recruited directly
from the Bar is worse. Under Art. 233(2) of the Constitution, the
Governor can only appoint advocates recommended by the High
Court to the said service. But under the Rules, the High Court
can either
endorse the recommendations of the Committee or
create a deadlock. The relevant rules, therefore, clearly contravene
the constitutional mandates of Art. 233(1) and (2) of the
Constitution and are, therefore, illegal.”
(emphasis supplied)
16. Rule 14 of U.P. Rules which came up for consideration of this
Court in Chandra Mohan (supra) is extracted hereunder:
“Rule 14. Direct Recruitment.-(1) Applications for direct
recruitment to the service shall be called for by the Court and
shall be made in the prescribed form which may be obtained from
the Registrar of the Court.
(2) The applications by barristers, advocates, vakils or pleaders,
should be submitted through the District Judge concerned and
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must be accompanied by certificates of age, character, nationality,
and domicile, standing as a legal practitioner, and such other
documents as may be prescribed in this behalf by the Court.
Applications from Judicial Officers should be submitted in
accordance with the rules referred to in clause 2(b) of rule 5 of
these Rules. The District Judge or other officer through whom
the application is submitted shall send to the Court, along with the
application, his own estimate of the applicant’s character and
fitness for appointment to the service.”
17. After having answered the question about recruitment from
the Bar, the further question considered in Chandra Mohan
(supra) was whether the Governor could directly appoint persons
from service other than judicial service as District Judges in
consultation with the High Court. They belonged to the executive
branch of the Government and performed certain revenue and
ministerial functions. This Court took note of the fact that in the
pre-Independence era, there was a demand that the judiciary
should be separated from the Executive, and that was based upon
the assumption that unless they were separated, independence of
the judiciary at the lower level would be a mockery. Thus, Article
50 of Directive Principles of State Policy provides that States to
take steps to separate judiciary from the executive in public
services of the State. There shall be separate judicial service
from
the executive service. This Court considered the provisions of
Articles 234, 235, 236 and 237 and observed that there are two
sources of recruitment, services of the Union or State and members
of the Bar. This Court observed thus:
“15. With this background, if the following provisions of the
Constitution are looked at, the meaning of the debated expressions
therein would be made clear:
We have already extracted Art. 233.
Article 234. Appointments of persons other than district judges
to the judicial service of a State shall be made by the Governor
of the State in accordance with rules made by him in that behalf
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after consultation with the State Public Service Commission
and with the High Court exercising jurisdiction in relation to
such State.
Article 235. The control over district courts and courts
subordinate thereto including the posting and promotion of, and
the grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district
Judges shall be vested in the High Court; but nothing in this
Article shall be construed as taking away from any such person
any right of appeal which he may have under the law regulating
the conditions of his service or as authorising the High Court
to deal with him otherwise than in accordance with the
conditions of his service prescribed under such law.
Article 236. In this Chapter-
(a) the expression “district judge” includes judges of a city
civil court, additional district judge, joint district judge, assistant
district judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency magistrate,
sessions judge, additional sessions judge and assistant sessions
judge:
(b) the expression “judicial service” means a service consisting
exclusively of persons intended to fill the post of district judge
and other civil judicial posts inferior to the post of district judge.
Article 237. The Governor may by public notification direct
that the foregoing provisions of this Chapter and any rules made
thereunder shall with effect from such date as
may be fixed
by him in that behalf apply in relation to any class or classes of
magistrates in the State as they apply in relation to persons
appointed to the judicial service of the State subject to such
exceptions and modifications as may be specified in the
notification.
The gist of the said provisions may be stated thus: 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. There
are two sources of recruitment, namely, (i) service of the Union
or of the State, and (ii) members of the Bar. The said judges from
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the first source are appointed in consultation with the High Court
and those from the second source are appointed on the
recommendation of the High Court. But in the case of appointments
of persons to the judicial service other than as district judges they
will be made by the Governor of the State in accordance with
rules framed by him in consultation with the High Court and the
Public Service Commission. But the High Court has control over
all the district courts and courts subordinate thereto, subject to
certain prescribed limitations.”
(emphasis supplied)
As to the question whether persons from other services can be
appointed as District Judges, the expression service of Union or State,
has been held to be construed to be judicial service in Article 233(2)
thus:
“16. So far there is no dispute. But the real conflict rests on the
question whether the Governor can appoint as district judges
persons from services other than the judicial service; that is to
say, can he appoint a person who is in the police, excise, revenue
or such other service as a district judge? The acceptance of this
position would take us back to the pre-independence days and
that too to the conditions prevailing in the Princely States. In the
Princely States one used to come across appointments to the
judicial service from police and other departments. This would
also cut across the well-knit scheme of the Constitution and the
principle
underlying it, namely, the judiciary shall be an independent
service. Doubtless if Art. 233(1) stood alone, it may be argued
that the Governor may appoint any person as a district judge,
whether legally qualified or not, if he belongs to any service under
the State. But Art. 233(l) is nothing more than a declaration of
the general power of the Governor in the matter of appointment
of district judges. It does not lay down the qualifications of the
candidates to be appointed or denote the sources from which the
recruitment has to be made. But the sources of recruitment are
indicated in cl. (2) thereof. Under cl. (2) of Art. 233 two sources
are given, namely, (i) persons in the service of the Union or of the
State, and (ii) advocate or pleader. Can it be said that in the context
of Ch. VI of Part VI of the Constitution “the service of the Union
or of the State” means any service of the Union or of the State or
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does it mean the judicial service of the Union or of the State? The
setting, viz., the chapter dealing with subordinate courts, in which
the expression “the service” appears indicates that the service
mentioned therein is the service pertaining to courts. That
apart, Art. 236(2) defines the expression “judicial service” to mean
a service consisting exclusively of persons intended to fill the post
of district judge and other civil judicial posts inferior to the post of
district judge. If this definition, instead of appearing in Art. 236, is
placed as a clause before Art. 233(2), there cannot be any dispute
that “the service” in Art. 233(2) can only mean the judicial service.
The circumstance that the definition of “judicial service” finds a
place in a subsequent Article does not necessarily lead to a contrary
conclusion. The fact that in Article 233(2) the expression “the
service” is used whereas in Arts. 234 and 235 the expression
“judicial service” is found is not decisive of the question whether
the expression “the service” in Art. 233(2) must be something
other than the judicial service, for, the entire chapter is dealing
with the judicial service. The definition is exhaustive of the service.
Two expressions in the definition bring out the idea that the judicial
service consists of hierarchy of judicial officers starting from the
lowest and ending with district judges. The expressions
“exclusively” and “intended” emphasise the fact that the judicial
service consists only of persons intended to fill up the posts of
district judges and other civil judicial posts and that is the exclusive
service of judicial officers. Having defined “judicial service” in
exclusive terms, having provided for appointments to that service
and having entrusted the control of the said service to the care of
the High Court, the makers of the Constitution would not have
conferred a blanket power on the Governor to appoint any person
from any service as a district judge.
18. We, therefore, construe the expression “the service” in cl. (2)
of Art. 233 as the judicial service.”
(emphasis supplied)
18. In Chandra Mohan v. State of U.P. (supra), this Court further
noted the history that the Governor-General in Council had issued a
notification in 1922 empowering the local Government to make
appointments to the said service from the members of the Provincial
Civil Service (Judicial Branch) or the members of the Bar. This Court
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had also noted that earlier till India attained Independence, the Governor-
General made appointments of District Judges from three sources: (i)
Indian Civil Service; (ii) Provincial Judicial Service; and (iii) the Bar.
After India attained freedom, recruitment from Indian Civil Service was
discontinued by the Government of India, and it was decided that the
members of the newly created Indian Administrative Service would not
be given judicial posts. Thereafter District Judges were appointed only
from either the judicial service or from the Bar. The rules framed by the
Governor empowering him to recruit District Judges from the judicial
officers were held to be unconstitutional. This Court has observed thus:
“20. The history of the said provisions also supports the said
conclusion. Originally the posts of district and sessions judges and
additional sessions judges were filled by persons from the Indian
Civil Service. In 1922 the Governor-General-in-Council issued a
notification empowering the local government to make
appointments to the said service from the members of the
Provincial Civil Service (Judicial Branch) or from the members
of the Bar. In exercise of the powers conferred under S. 246(1)
and S. 251 of the Government of India Act, 1935, the Secretary
of State for India Framed rules styled Reserved Posts (Indian
Civil Service) Rules, 1938. Under those Rules, the Governor was
given the power to appoint to a
district post a member of the
judicial service of the Province or a member of the Bar. Though
S. 254(1) of the said Act was couched in general terms similar to
those contained in Art. 233(1) of the Constitution, the said rules
did not empower him to appoint to the reserved post of district
judge a person belonging to a service other than the judicial service.
Till India attained independence, the position was that district judges
were appointed by the Governor from three sources, namely, (i)
the Indian Civil Service, (ii) the Provincial Judicial Service, and
(iii) the Bar. But after India attained independence in 1947,
recruitment to the Indian Civil Service was discontinued and the
Government of India decided that the members of the newly
created Indian Administrative Service would not be given judicial
posts. Thereafter district judges have been recruited only from
either the judicial service or from the Bar. There was no case of
a member of the executive having been promoted as a district
judge. If that was the factual position at the time the Constitution
came into force, it is unreasonable to attribute to the makers of
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the Constitution, who had so carefully provided for the
independence of the judiciary, an intention to destroy the same by
an indirect method. What can be more deleterious to the good
name of the judiciary than to permit at the level of district judges,
recruitment from the executive departments? Therefore, the history
of the services also supports our construction that the expression
“the service” in Art. 233(2) can only mean the judicial service.
(21)  For the aforesaid reasons, we hold that the Rules framed by
the Governor empowering him to recruit district judges from the
“judicial officers” are unconstitutional and, therefore, for that
reason also the appointment of respondents 5, 6 and 7 was bad.
(23)  In the result, we hold that the U.P. Higher Judicial Service
Rules providing for the recruitment of district judges are
constitutionally void and, therefore, the appointments made
thereunder were illegal. We set aside the order of the High Court
and issue a writ of mandamus to the 1st respondent not to make
any appointment by direct recruitment to the U.P. Higher Judicial
Service in pursuance of the selections made under the said Rules.
The 1st respondent will pay the costs of the appellant. The other
respondents will bear their own costs.”
(emphasis supplied)
19. It is apparent from the decision in Chandra Mohan v. State
of U.P., (supra) that this Court has laid down that concerning District
Judges recruited directly from the Bar, Governor can
appoint only
advocates recommended by the High Court and Rule 14 which provided
for judicial officers to be appointed as direct recruits was struck down
by this Court to be ultra vires. Thus, the decision is squarely against the
submission espoused on behalf of in-service candidates. In the
abovementioned para 11 of Chandra Mohan (supra), the position is
made clear. In Chandra Mohan (supra) the Court held that only
advocates can be appointed as direct recruits, and inter alia the Rule 14
providing for executive officers’ recruitment was struck down. This Court
has held that the expression ‘service of State or Union’ means judicial
service, it only refers to the source of recruitment.  Dichotomy of two
sources of recruitment/appointment has been culled out in the decision.
20. Reliance has also been placed on the decision in Rameshwar
Dayal v. State of U.P., AIR 1961 SC 816. The question which arose for
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consideration there was as to the eligibility of persons on the roll of
advocates of East Punjab High Court before the partition of India in
1947 for appointment as a District Judge. This Court held that the period
of practice before Lahore High Court could be counted as against the
required period of 7 years for appointment as District Judge. This Court
laid down that practice rendered in or before the Lahore High Court
before partition was not open to objection under Article 233(2) of the
Constitution. Even if the word ‘advocate’ in clause (2) of Article 233
meant an advocate of a court in India, and the appointee must be such
an advocate at the time of his appointment, no objection can be raised on
this ground because being factually on the roll of  Advocates of the
Punjab High Court at the time of appointment, the candidate was
admittedly an advocate in a court in India and continued as such till the
date of his appointment. This Court also considered the principle applied
to the East Punjab High Court. An advocate of the Lahore High Court
was entitled to practice in the new High Court counted his seniority on
the strength of his standing in the Lahore High Court.  It was held that a
person who continued as advocate at the time of his appointment as
District Judge fulfilled the requirement of Article 233. Emphasis was
laid by this Court that such a practice was recognised under clause 6 of
the High Court of Punjab
Order, 1947. Earlier, the High Court used to
maintain the rolls of advocates. The question which arose for
consideration was whether respondent Nos.2 to 6 fulfilled the
requirements of having been 7 years an advocate or pleader. The
submission made was that practice rendered outside the territory of India
cannot be counted as practice for counting 7 years. This Court interpreted
Article 233 distinguishing it from Article 124 and Article 217 and held
that under clause (1), the Government can appoint such a person who is
already in the service of the Union or State. No special qualifications
were prescribed under clause (1) of Article 233. The Governor can
appoint such a person as District Judge. However, as to a person not
already in service, the qualification prescribed in Article 233 is that he
should be an advocate or a pleader of 7 years’ standing. This Court
answered the question thus:
“11. This is the background against which we have to consider
the argument of learned counsel for the appellant. Even if we
assume without finally pronouncing on their correctness that
learned counsel is right in his first two submissions viz. that the
word “advocate” in clause (2) of Art. 233 means an advocate of
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a court in India and the appointee must be such an advocate at
the time of his appointment, no objection on those grounds can be
raised to the appointment of three of the respondents who were
factually on the roll of Advocates of the Punjab High Court at the
time of their appointment; because admittedly they were advocates
in a court in India and continued as such advocates till the dates
of their appointment. The only question with regard to them is
whether they can count in the period of seven years their period
of practice in or under the Lahore High Court. The answer to this
question is clearly furnished by clause 6(2) of the High Courts
(Punjab) Order, 1947, read with S. 8(3) of the Bar Councils Act,
1926. That clause lays down that the right of audience in the High
Court of East Punjab shall be regulated in accordance with the
principle in force in the Lahore High Court immediately before
the appointed day. The relevant rule in the Lahore High Court
Rules laid down that Advocates who are Barristers shall take
precedence inter se according to the date of call to the Bar;
Advocates who are not Barristers, according to the dates when
they became entitled to practice in a High Court. The same
principle applied to the East Punjab High Court, and an advocate
of the Lahore High Court who was recognised as an advocate
entitled to practise in the new High Court counted his seniority on
the strength of his standing in the Lahore High Court. He did not
lose
that seniority, which was preserved by the Bar Councils Act,
1926, and we see no reasons why for the purpose of cl. (2) of
Art. 233 such an advocate should not have the same standing as
he has in the High Court where he is practising.
12. Learned counsel for the appellant has also drawn our attention
to Explanation I to cl. (3) of Art. 124 of the Constitution relating to
the qualifications for appointment as a Judge of the Supreme Court
and to the explanation to cl. (2) of Art. 217 relating to the
qualifications for appointment as a Judge of a High Court, and
has submitted that where the Constitution makers thought it
necessary they specifically provided for counting the period in a
High Court which was formerly in India. Articles 124 and 217 are
differently worded and refer to an additional qualification of
citizenship which is not a requirement of Art. 233, and we do not
think that cl. (2) of Art. 233 can be interpreted in the light of
explanations added to Arts. 124 and 217. Article 233 is a self
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contained provision regarding the appointment of District Judges.
As to a person who is already in the service of the Union or of the
State, no special qualifications are laid down and under cl. (1) the
Governor can appoint such a person as a district judge in
consultation with the relevant High Court. As to a person not
already in service, a qualification is laid down in cl. (2) and all that
is required is that he should be an advocate or pleader of seven
years’ standing. The clause does not say how that standing must
be reckoned and if an Advocate of the Punjab High Court is entitled
to count the period of his practice in the Lahore High Court for
determining his standing at the Bar, we see nothing in Art. 233
which must lead to the exclusion of that period for determining his
eligibility for appointment as district judge.
13. What will be the result if the interpretation canvassed for on
behalf of the appellant is accepted? Then, for seven years beginning
from August 15, 1947, no member of the Bar of the Punjab High
Court would be eligible for appointment as district judge — a
result which has only to be stated to demonstrate the weakness
of the argument. We have proceeded so far on the first two
submissions of learned counsel for the appellant, and on that basis
dealt with his third submission. It is perhaps necessary to add that
we must not be understood to have decided that the expression
‘has been’ must always
mean what learned counsel for the
appellant says it means according to the strict rules of grammar.
It may be seriously questioned if an organic Constitution must be
so narrowly interpreted, and the learned Additional Solicitor-
General has drawn our attention to other Articles of the
Constitution like Art. 5(c) where in the context the expression has
a different meaning. Our attention has also been drawn to the
decision of the Allahabad High Court in Mubarak Mazdoor v.
K.K. Banerji, AIR 1958 All 323, where a different meaning was
given to a similar expression occurring in the proviso to sub-sec.
(3) of S. 86 of the Representation of the People Act, 1951. We
consider it unnecessary to pursue this matter further because the
respondents we are now considering continued to be advocates
of the Punjab High Court when they were appointed as district
judges and they had a standing of more than seven years when so
appointed. They were clearly eligible for appointment under cl. 2
of Art. 233 of the Constitution.
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14. We now turn to the other two respondents (Harbans Singh
and P.R. Sawhney) whose names were not factually on the roll
of Advocates at the time they were appointed as district judges.
What is their position? We consider that they also fulfilled the
requirements of Art. 233 of the Constitution. Harbans Singh was
in service of the State at the time of his appointment, and Mr
Viswanantha Sastri appearing for him has submitted that cl. (2)
of Art. 233 did not apply. We consider that even if we proceed on
the footing that both these persons were recruited from the Bar
and their appointment has to be tested by the requirements of
cl.(2), we must hold that they fulfilled those requirements. They
were Advocates enrolled in the Lahore High Court; this is not
disputed. Under Cl. 6 of the High Courts (Punjab) Order, 1947,
they were recognised as Advocates entitled to practise in the
Punjab High Court till the Bar Councils Act, 1926, came into force.
Under S.8 (2)(a) of that Act it was the duty of the High Court to
prepare and maintain a roll of advocates in which their names
should have been entered on the day on which S. 8 came into
force, that is, on September 28, 1948. The proviso to sub-sec. (2)
of S.8 required them to deposit a fee of Rs 10 payable to the Bar
Council. Obviously such payment could hardly be made before
the Bar Council was constituted. We do not agree with learned
counsel for the appellant and the interveners (B.D. Pathak and
Om Dutt Sharma)
that the proviso had the effect of taking away
the right which these respondents had to come automatically on
the roll of advocates under S. 8(2)(a) of the Act. We consider
that the combined effect of Cl. 6 of the High Courts (Punjab)
Order, 1947, and S. 8(2)(a) of the Bar Councils Act, 1926, was
this: from August 15, 1947, to September 28,1948, they were
recognised as Advocates entitled to practise in the Punjab High
Court and after September 28, 1948, they automatically came on
the roll of advocates of the Punjab High Court but had to pay a
fee of Rs 10 to the Bar Council. They did not cease to be advocates
at any time or stage after August 15, 1947, and they continued to
be advocates of the Punjab High Court till they were appointed as
District Judges. They also had the necessary standing of seven
years to be eligible under Cl.(2) of Art. 233 of the Constitution.”
(emphasis supplied)
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21. Much was tried to be made based on the facts of Harbans
Singh and P.R. Sawhney in the decision of Rameshwar Dayal (supra).
Harbans Singh and P.R. Sawhney were having the following
qualifications as noted in the judgment:
“5. x x x
(2) Respondent 3 (Harbans Singh, J.) was also called to the Bar
and then enrolled as an Advocate of the Lahore High Court on
March 5, 1937. He worked as an Additional District and Sessions
Judge, Ferozepore, from July 2, 1947, to February 22, 1948. He
then returned to practice at Simla for a short while. On March 15,
1948, he worked as Deputy Custodian, Evacuee Property, till April
17, 1950. On April 18, 1950, he was appointed as District and
Sessions Judge and on August 11, 1958, he was appointed as an
Additional Judge of the Punjab High Court.
(5) Respondent 6 (P.R. Sawhney) was called to the Bar on
November 17, 1930, and was enrolled as an Advocate of the
Lahore High Court on March 10, 1931. After partition he shifted
to Delhi and worked for sometime as Legal Adviser to the
Custodian, Evacuee Property, Delhi. Then he practised for
sometime at Delhi; he then accepted service under the Ministry
of Rehabilitation as an Officer on Special Duty and Administrator,
Rajpura Township. On March 30, 1949, he became the Chairman,
Jullundur Improvement Trust. On May 6, 1949, he got his licence
to practise as an Advocate suspended. On April 6, 1957, he was
appointed as District and Sessions Judge.”
Two of them were not in judicial service as on the date of their
appointment; they had practised earlier for the requisite period as
advocates and later were appointed as District & Sessions Judge.
Harbans Singh was working as Deputy Custodian, Evacuee Property till
1950, when he was appointed as District & Sessions Judge. In 1958, he
was appointed as an Additional Judge of the Punjab High Court. At the
relevant time, when the appointments were made, recruitments were
permissible from executive services too. Their eligibility to be appointed
as District & Sessions Judge was tested. The question which came up
for consideration was not whether they could have been appointed being
in service of Custodian of Evacuee Property or the Improvement Trust.
What was held by this Court concerning interpretation of Article 233 in
the abovementioned para 12 of Rameshwar Dayal (supra), by a
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Constitution Bench of Court, goes squarely against the submissions raised
on behalf of the in-service candidates.
22. In Satya Narain Singh (supra), a similar question arose. The
members of Uttar Pradesh Judicial Service applied for appointment by
way of direct recruitment to the Uttar Pradesh Higher Judicial Service
claiming that they had completed 7 years of practice at the Bar before
their appointment to the Uttar Pradesh Judicial Service. Therefore, they
were eligible to be appointed by direct recruitment to the Higher Judicial
Service, i.e., to the post of District Judge. It was submitted that it would
be extremely anomalous to interpret Article 233 in a way to render judicial
officers eligible for appointment as a District Judge by direct recruitment.
This Court rejected the submission and observed thus:
“3. …Two points straightway project themselves when the two
clauses of Article 233 are read: The first clause deals with
“appointments of persons to be, and the posting and promotion of,
District Judges in any State” while the second clause is confined
in its application to persons “not already in the service of the Union
or of the State”. We may mention here that “service of the Union
or of the State” has been interpreted by this Court to mean Judicial
Service. Again while the first clause makes consultation by the
Governor of the State with the High Court necessary, the second
clause requires that the High Court must recommend a person
for
appointment as a District Judge. It is only in respect of the
persons covered by the second clause that there is a requirement
that a person shall be eligible for appointment as District Judge if
he has been an advocate or a pleader for not less than 7 years. In
other words, in the case of candidates who are not members of a
Judicial Service they must have been advocates or pleaders for
not less than 7 years and they have to be recommended by the
High Court before they may be appointed as District Judges, while
in the case of candidates who are members of a Judicial Service
the 7 years’ rule has no application but there has to be consultation
with the High Court. A clear distinction is made between the two
sources of recruitment and the dichotomy is maintained. The two
streams are separate until they come together by appointment.
Obviously the same ship cannot sail both the streams
simultaneously.”
(emphasis supplied)
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This Court has relied upon Rameshwar Dayal (supra) and
Chandra Mohan (supra) to hold:
“5. Posing the question whether the expression “the service of
the Union or of the State” meant any service of the Union or of
the State or whether it meant the Judicial Service of the Union or
of the State, the learned Chief Justice emphatically held that the
expression “the service” in Article 233(2) could only mean the
Judicial Service. But he did not mean by the above statement that
persons who are already in the service, on the recommendation
by the High Court can be appointed as District Judges, overlooking
the claims of all other seniors in the Subordinate Judiciary contrary
to Article 14 and Article 16 of the Constitution.
6. Thus we see that the two decisions do not support the contention
advanced on behalf of the petitioners but, to the extent that they
go, they certainly advance the case of the respondents. We
therefore, see no reason to depart from the view already taken by
us and we accordingly dismiss the writ petitions.”
(emphasis supplied)
The cases of Harbans Singh and Sawhney were considered
and explained in the aforesaid decision.  This Court relied upon the decision
of Rameshwar Dayal (supra) to hold that as to a person not already in-
service, a qualification is that he should be an advocate or pleader of
seven years’ standing.  The same clinches the issue against in-service
candidates and negates their claim
therefor.
23. In Deepak Aggarwal (supra) a three-Judge Bench of this
Court considered the provisions of Article 233(2) and held that service
in Article 233 to mean judicial service and there is dichotomy of sources
of recruitment, namely, (i) from judicial service; and (ii) from the advocate/
pleader or in other words from the Bar.  The meaning of the term
advocate/pleader too has been considered by this Court.  The expression
“advocate” or “pleader” refers to the members of the Bar practicing
law. Relying upon Sushma Suri v. Govt. (NCT of Delhi), (1999) 1 SCC
330, this Court further observed that members of the Bar meant classes
of persons who were practicing in a court of law as pleaders or advocates.
This Court further held that in Article 233(2), “if he has been for not less
than seven years,” the present perfect continuous tense is used for a
position which began at some time in the past and is continuing.  Therefore,
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one of the essential requirements is that such a person must with requisite
period be continuing as an advocate on the date of application.  This
Court has observed:
“70. A few decisions rendered by some of the High Courts on the
point may also be noticed here. In Sudhakar Govindrao
Deshpande v. State of Maharashtra, 1986 Lab IC 710 (Bom)
the issue that fell for consideration before the Bombay High Court
was whether the petitioner therein who was serving as Deputy
Registrar at the Nagpur Bench of the Bombay High Court, was
eligible for appointment to the post of the District Judge. The
advertisement that was issued by the High Court inviting
applications for five posts of District Judges, inter alia, stated that,
“candidate must ordinarily be an advocate or pleader who has
practised in the High Court, Bombay or court subordinate thereto
for not less than seven years on 1-10-1980”. The Single Judge of
the Bombay High Court considered Articles 233, 234 and 309 of
the Constitution, relevant recruitment rules and noted the judgments
of this Court in Chandra Mohan v. State of U.P., AIR 1966 SC
1987, Satya Narain Singh v. High Court of Judicature of
Allahabad, (1985) 1 SCC 225 and Rameshwar Dayal v. State
of Punjab, AIR 1961 SC 816.  It was observed as follows:
(Sudhakar case, Lab IC p. 715, para 16)
“16. … the phrase ‘has been an advocate or a pleader’ must
be interpreted as a person who has been immediately prior to
his appointment a member of the Bar, that
is to say either an
advocate or a pleader. In fact, in the above judgment, the
Supreme Court has repeatedly referred to the second group of
persons eligible for appointment under Article 233(2) as
‘members of the Bar’. Article 233(2) therefore, when it refers
to a person who has been for not less than seven years an
advocate or pleader refers to a member of the Bar who is of
not less than seven years’ standing.”
89. We do not think there is any doubt about the meaning of the
expression “advocate or pleader” in Article 233(2) of the
Constitution. This should bear the meaning it had in law preceding
the Constitution and as the expression was generally understood.
The expression “advocate or pleader” refers to legal practitioner
and, thus, it means a person who has a right to act and/or plead in
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court on behalf of his client. There is no indication in the context
to the contrary. It refers to the members of the Bar practising
law. In other words, the expression “advocate or pleader” in Article
233(2) has been used for a member of the Bar who conducts
cases in court or, in other words acts and/or pleads in court on
behalf of his client. In Sushma Suri v. Govt. (NCT of Delhi),
(1999) 1 SCC 330, a three-Judge Bench of this Court construed
the expression “members of the Bar” to mean class of persons
who were actually practising in courts of law as pleaders or
advocates. …
102. As regards construction of the expression, “if he has been
for not less than seven years an advocate” in Article 233(2) of
the Constitution, we think Mr Prashant Bhushan was right in his
submission that this expression means seven years as an advocate
immediately preceding the application and not seven years any
time in the past. This is clear by use of “has been”. The present
perfect continuous tense is used for a position which began at
sometime in the past and is still continuing. Therefore, one of the
essential requirements articulated by the above expression in
Article 233(2) is that such person must with requisite period be
continuing as an advocate on the date of application.”
(emphasis supplied)
It is clear from the decision of Deepak Aggarwal (supra) that
recruitment from the Bar is only from among practicing advocates and
those
continuing as advocates on the date of appointment.  The submission
that the issue of eligibility of in-service candidates did not come up for
consideration is of no consequence as provisions of Article 233(2) came
up for consideration directly before this Court.
24. The decision of Vijay Kumar Mishra and Anr. v. High Court
of Judicature at Patna and Ors., (2016) 9 SCC 313, has also been
referred in which judicial officers staked their claim as against the post
reserved for the members of the Bar i.e., advocates/pleaders.  The High
Court repelled the challenge; hence appeal was filed in this Court.  A
two-Judge Bench of this Court observed that a person who is not in
service shall be eligible to be appointed as a District Judge.  After that,
the bench distinguished between “selection” and “appointment.” It was
observed that Article 233(2) prohibits the appointment of a person who
is already in service of the Union or the State, but not selection of such
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a person.  Even if a person, who is already in service, is selected, still he
has an option to be a District Judge or continue with the existing
employment.  The relevant portion of the observations made is extracted
hereunder:
“6. Article 233(1) stipulates that appointment of District Judges
be made by the Governor of the State in consultation with the
High Court exercising jurisdiction in relation to such State.
However, Article 233(2) declares that only a person not already
in the service of either the Union or of the State shall be eligible to
be appointed as District Judge. The said Article is couched in
negative language creating a bar for the appointment of certain
class of persons described therein. It does not prescribe any
qualification. It only prescribes a disqualification.
7. It is well settled in service law that there is a distinction between
selection and appointment. Every person who is successful in the
selection process undertaken by the State for the purpose of filling
up of certain posts under the State does not acquire any right to
be appointed automatically. Textually, Article 233(2) only prohibits
the appointment of a person who is already in the service of the
Union or the State, but not the selection of such a person. The
right of such a person to participate in the selection process
undertaken by the State for appointment to any post in public
service (subject to other rational prescriptions regarding the
eligibility for
participating in the selection process such as age,
educational qualification, etc.) and be considered is guaranteed
under Articles 14 and 16 of the Constitution.
8. 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) nor contemplated under the scheme of the Constitution as
it would not serve any constitutionally desirable purpose.
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11. It appears from the reading of the judgment in Satya Narain
Singh v. High Court of Judicature of Allahabad, (1985) 1 SCC
225,  that the case of the petitioners was that their claims for
appointment to the post of District Judges be considered under
the category of members of the Bar who had completed seven
years of practice ignoring the fact that they were already in the
Judicial Service. The said fact operates as a bar undoubtedly under
Article 233(2) for their appointment to the Higher Judicial Service.
It is in this context this Court rejected their claim. The question
whether at what stage the bar comes into operation was not in
issue before the Court nor did this Court go into that question.”
We find ourselves unable to agree with the proposition laid down
in Vijay Kumar Mishra (supra). In our opinion, in-service candidates
cannot apply as against the post reserved for the advocates/pleaders as
he has to be in continuous practice in the past and at the time when he
has applied and appointed.  Thus, the decision in Vijay Kumar Mishra
(supra) cannot be said to be laying down the law correctly.
25. A person in judicial service is eligible to be appointed as District
Judge, but it is only by way of promotion or by way of merit promotion,
which concept has been evolved in All India Judges Association and
Ors. v. Union of India and Ors., (2002) 4 SCC 247, in which
recommendations of the Shetty Commission were
considered by this
Court as to the method of recruitment to the post of the cadre of Higher
Judicial Service – District Judges and Additional District Judges. This
Court took note of the fact that at that moment, there were two sources
for recruitment to the Higher Judicial Service, namely, (i) by promotion;
and (ii) by direct recruitment.  In order to strengthen the lower judiciary
and to make them more efficient, the establishment of Judicial Academies
was suggested. This Court approved the recommendations of Shetty
Commission that the recruitment to the Higher Judicial Service, i.e., the
District Judge cadre from amongst the advocates should be 25 percent
and the process of recruitment should be by a competitive examination
including both written and viva voce tests. 75 percent should be by way
of promotion and 25 percent by direct recruitment. This Court further
ordered that 50 percent of the total post in the Higher Judicial Services
must be filled by promotion on the basis of principle of merit-cum-seniority
and 25 percent of the posts in the service shall be filled by promotion
strictly on the basis of merit through the limited departmental competitive
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examination for which the qualifying service as a Civil Judge (Senior
Division) should be not less than five years. The High Courts were directed
to frame rules in this regard.  This Court also held that quota in relation
to the post is necessary, which is the basic principle on the basis of
which the 40-point roster works, it was held, seniority should be
maintained on the basis of the roster principle.  The existing seniority
had to be protected, but the roster was to be evolved for the future.  This
Court observed thus:
 “27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep
abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
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calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned: 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be not less than
five years. The High Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre of District Judges
will be:
(1)(a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited
competitive examination of Civil Judges (Senior Division)
having not less than five years’ qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the written
and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts
as early as possible.
****
29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in order to
decide the relative seniority from the officers recruited from the
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two different sources, namely, promotees and direct recruits. As
a result of the decision today, there will, in a way, be three ways
of recruitment to the Higher Judicial Service. The quota for
promotion which we have prescribed is 50 per cent by following
the principle “merit-cum-seniority”, 25 per cent strictly on merit
by limited departmental competitive examination and 25 per cent
by direct recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is where a
roster system is followed. For example, there is, as per the rules
of the Central Government, a 40-point roster which has been
prescribed which deals with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been a litigation
amongst the members of the service after their recruitment as
per the quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited. When
roster system is followed, there is no question of any dispute arising.
The 40-point roster has been considered and approved by this
Court in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.
One of the methods of avoiding any litigation and bringing about
certainty in this regard is by specifying quotas in relation to posts
and not in relation to the vacancies. This is the basic principle on
the basis of which the 40-point roster works. We direct the
High
Courts to suitably amend and promulgate seniority rules on the
basis of the roster principle as approved by this Court in R.K.
Sabharwal case as early as possible. We hope that as a result
thereof there would be no further dispute in the fixation of seniority.
It is obvious that this system can only apply prospectively except
where under the relevant rules seniority is to be determined on
the basis of quota and rotational system. The existing relative
seniority of the members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the future.
Appropriate rules and methods will be adopted by the High Courts
and approved by the States, wherever necessary by 31-3-2003.”
(emphasis supplied)
It is apparent from the aforesaid decision that 25 percent of the
posts in the cadre of District Judge have to be filled by direct recruitment
amongst the advocates based on a competitive examination, both written
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and viva voce.  The decision is in tune with the various decisions of this
Court such as Rameshwar Dayal, Chandra Mohan, Satya Narain
Singh and Deepak Aggarwal (supra). The direction issued by this
Court of 25 percent of the post to be filled by limited departmental
competitive examination has been reduced to 10 percent by this Court in
All India Judges Association and Anr. v. Union of India (II), (2010)
15 SCC 170.
26. Reliance has been placed on O.P. Garg v. State of U.P., 1991
Supp. (2) SCC 51, wherein question was of fixation of seniority. This
Court has observed that there should be equal opportunity to enter the
service for all the sources of recruitment. If recruitment rules give
unwarranted preference to one source, the seniority rule is bound to
become unworkable. Therefore, there should be equality of opportunity
to all the sources.
27. In Punjab and Haryana High Court v. State of Punjab,
2018 SCC OnLine SC 1728 [Civil Appeal Nos.5518-5523 of 2017 decided
on 3.10.2018] the question which arose was with respect to inter se
seniority dispute between three streams of Punjab Superior Judicial
Service, i.e., 50 percent by promotion based on merit-cum-seniority, 25
percent by limited departmental competitive examination and remaining
25 percent to be filled by direct recruitment from amongst eligible
advocates. The facts indicate that the All India Judges Association
(2002) decision had been implemented, and
seniority is being maintained
as directed.
28. 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
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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.
29. 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.
30. The makers of the Constitution visualised and the law
administered in the country for the last seven decades clearly reveals
that the aforesaid modes of recruitment and two separate sources, one
from in-service and other from the
Bar, are recognised. We do not find
even a single decision supporting the cause espoused on behalf of
candidates, who are in judicial service, to stake their claim as against the
posts reserved for advocates/pleaders. In all the cases right from beginning
from Rameshwar Dayal (supra) to date, a dichotomy has been
maintained, and we find absolutely no room to entertain submission of
discrimination based on Articles 14 and 16.
31. We are not impressed by the submission that when this Court
has interpreted the meaning of service in Article 233(2) to mean judicial
service, judicial officers are eligible as against the posts reserved for the
advocates/pleaders. Article 233(2) starts with the negative “not,” which
disentitles the claim of judicial officers against the post reserved for the
practicing advocates/pleaders. They can be promoted to that post as per
the rules; this Court has further laid down a wider horizon to in-service
candidates in the All India Judges Association as against the 75 percent
of the post by including merit promotion. The argument that merit should
prevail and they should be given due opportunity under the rules to prove
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their merit and to excel, in our opinion, cannot prevail.  Such judicial
officer cannot claim merit in violation of the provisions of rules framed
under Article 234 of the Constitution.  The two classes are different.  In
terms of the prevalent rules in-service candidates lack eligibility.  They
cannot contend that they are discriminated against and their merit is
ignored and overlooked.
32. Consistently, this Court in its previous judgments has taken
the view which we now take. We find absolutely no reason to take a
different view, though it was urged that mistakes committed earlier should
not continue. We find the argument to be devoid of substance and based
upon misapprehensions. We have found that the aforesaid decisions are
vivid and clear, and there is no room to entertain such a submission then
for a moment. Even otherwise, when the law has been administered in
this country after Independence in the manner mentioned above on the
principle of stare decisis and rules framed by various High Courts, we
find ourselves unable to accept the submission raised on behalf of in-
service candidates. The decisions in Satya Narain Singh (supra),
Deepak Aggarwal (supra) and All India Judges Association case
(supra) also cannot be said to be contrary to the provisions of Article
233. We unhesitatingly reject the submission to the contrary.
33. It was submitted that promotion is no substitute for direct
recruitment, as against
the post reserved for direct recruitment, an
incumbent can apply throughout India, whereas an in-service candidate
can be promoted within the State, and there is no definite period for
coming into the zone of consideration for promotion in Higher Judicial
Service. Thus, it was urged that direct recruitment is altogether different
from promotion and having practiced for 7 years, they have basic eligibility
to stake their claim for the post reserved for advocates/pleaders, and
they have additional experience of acting as a judge also. We find no
room to accept the submissions. Once the Constitution envisages separate
sources of recruitment, no case can be made out of deprivation of the
opportunity. Once service is joined, one has to go by the service rules,
and it was open to such an incumbent to practice and stake claim in
various States while remaining in practice. It is a matter of two different
streams for recruitment which is permissible, such an argument cannot
be accepted.
34. In P. Ramakrishnam Raju v. Union of India and Ors., (2014)
12 SCC 1, this Court has observed that experience and knowledge gained
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by a successful lawyer at the Bar can never be considered to be less
important from any point of view vis-à-vis the experience gained by a
judicial officer. If service of a judicial officer is counted for fixation of
pension, there is no valid reason as to why the experience at the Bar
cannot be treated as equivalent for the same purpose. In Government
of NCT of Delhi and Ors. v. All India Young Lawyers’ Association
and Anr., (2009) 14 SCC 49, this Court has directed that a certain number
of years as an advocate to be added to the judicial service for pension.
Thus, in our opinion, experience as an advocate is also important, and
they cannot be deprived of their quota, which is kept at 25 percent only
in the Higher Judicial Service.
35. It was submitted that ultimately the appointment of the Bar
member is also made under Article 233(1). In The State of Assam and
Anr. v. Kuseswar Saikia and Ors., AIR 1970 SC 1616, this Court
observed that both appointment and promotion are included in Article
233(1). Following observations have been made:
“5. The reading of the article by the High Court is, with respect,
contrary to the grammar and punctuation of the article. The learned
Chief Justice seems to think that the expression “promotion of”
governs “District Judges” ignoring the comma that follows the
word “of”. The article, if suitably expanded, reads as under:
“Appointments of persons to be, and the posting and promotion
of (persons to be), District Judges
etc.”
   It means that appointment as well as promotion of  persons to
be District Judges is a matter for the Governor in consultation
with the High Court and the expression “District Judge” includes
an additional District Judge and an Additional Sessions Judge. It
must be remembered that District Judges may be directly appointed
or may be promoted from the subordinate ranks of the judiciary.
The article is intended to take care of both. It concerns initial
appointment and initial promotion of persons to be either District
Judges or any of the categories included in it. ….”
The decision is of no avail as the question in the present case is
different. Though the appointment is made under Article 233(1), but the
source and the channel for judicial officers is the promotion, and for the
members of the Bar is by direct recruitment.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[ARUN MISHRA, J.]
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36. The 116th Report of Law Commission on All India Judicial
Services published in November 1986 has been referred to, which
observed that chances of promotion of the subordinate ranks will be
proportionately reduced to the extent direct recruitment is made. The
Law Commission was not considering the provisions of Article 233 but
had made certain observations, and there is no formation of the All India
Judicial Service so far what would be the provisions when it is constituted,
will have to be considered when they are formulated. Thus, no benefit
can be derived on the basis of certain observations and suggestions made
by the Law Commission as to what may happen in case All India Judicial
Service is formed.
37. Certain recommendations of the Shetty Commission have been
referred to, but after their consideration in the All India Judges’
Association case, there is no scope for considering the provisions of the
Constitution to provide eligibility for in-service candidates for direct
recruitment for the post of District Judge. The existing provisions are
not restrictive but provide wider choice to improve and strengthen the
judicial system and in tune with Articles 14 and 16.
38. Reference has been made to the decision in All India Judges’
Association v. Union of India and Ors., (1992) 1 SCC 119, in which
following observations have been made:
“9. We shall first deal with the plea for setting up of an All India
Judicial
Service. The Law Commission of India in its Fourteenth
Report in the year 1958 said:
“If we are to improve the personnel of the subordinate
judiciary, we must first take measures to extend or widen our
field of selection so that we can draw from it really capable
persons. A radical measure suggested to us was to recruit the
judicial service entirely by a competitive test or examination. It
was suggested that the higher judiciary could be drawn from
such competitive tests at the all-India level and the lower
judiciary can be recruited by similar tests held at State level.
Those eligible for these tests would be graduates who have
taken a law degree and the requirement of practice at the bar
should be done away with.
Such a scheme, it was urged, would result in bringing
into the subordinate judiciary capable young men who now
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prefer to obtain immediate remunerative employment in the
executive branch of government and in private commercial
firms. The scheme, it was pointed out, would bring to the higher
subordinate judiciary the best talent available in the country as
a whole, whereas the lower subordinate judiciary would be
drawn from the best talent available in the State.
….”
A further recommendation was made for the formation of the All
India Judicial Service. The suggestion was made that practice at Bar for
induction at the lower level should be done away with. Be that as it may.
Theprescription of the practice period of 3 years, has been changed
time to time, but the facts remain that when it comes to the eligibility and
recruitment from the Bar to the post of District Judge, practicing
advocates from the Bar can be inducted by way of direct recruitment as
against the quota fixed for them. The question involved in the matter is
not whether the practice is necessary to join the subordinate judiciary.
39. In All India Judges’ Association and Ors. v. Union of India
and Ors., (1998) 8 SCC 771, this Court has considered the question of
permitting the Legal Assistants working in different institutions other
than the courts for the purpose of appointments in the judiciary. This
Court observed that Legal Assistants do not get experience and exposure,
which is important for manning judicial posts. The observations made
are extracted hereunder:
“1. The question of permitting the
Legal Assistants working in
different institutions other than the courts for the purpose of
appointments on the ground that they should be treated as having
experience at the Bar cannot be entertained. The Legal Assistants
working in different institutions and bodies do not get the
experience and exposure which is important for the purpose of
manning judicial posts, and it is not possible to lay down guidelines
on the basis of a few appearances but what is important is not
mere appearance but actual intimate knowledge and association
with the system itself. We, therefore, reject the applications.”
40. The decision in A. Pandurangam Rao v. State of Andhra
Pradesh and Ors., AIR 1975 SC 1922, has been referred to, in which
question arose as to the appointment of District Judges by direct
recruitment from the Bar. The Court held that a candidate for direct
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[ARUN MISHRA, J.]
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recruitment from the Bar does not become eligible for the appointment
of District Judges in any State without the recommendation of the High
Court. The final authority is the Government in the matter of appointment.
There is no dispute with the aforesaid proposition, the decision also
indicates that direct recruitment is from the Bar. Obviously, the
appointment has to be made by the Government. The decision rather
than supporting defeats the cause espoused on behalf of in-service
candidates.
41. The decision in Chandra Mohan v. State of U.P. and Ors.
(II), AIR 1976 SC 1482, has also been referred to in which question
arose of seniority only. This Court has taken note that Rules 8, 13, 14,
15, 17, and 19 of the U.P. Higher Judicial Service Rules (1953) were
held to be unconstitutional as offending Article 233. The question arose
of determining seniority in accordance with Rule 20. The decision is not
an authority on the question of interpretation of Article 233 but was
rather a fallout of Chandra Mohan-I (supra).
42. It was also submitted that practice as an advocate and service
as a judicial officer for 10 years is to be treated at par as per explanation
added to Articles 124 and 217 of the Constitution of India.  In Rameshwar
Dayal (supra), this question has been considered, and this Court held
that Article 233(2) could not be interpreted in view of the explanations
added to Articles 124 and 217.  In Satya Narain
Singh (supra) the
aforesaid decision has been considered, and following observations have
been made:
“3. …Again dealing with the cases of Harbans Singh and Sawhney
it was observed:
“We consider that even if we proceed on the footing that both
these persons were recruited from the Bar and their appointment
has to be tested by the requirements of clause (2), we must
hold that they fulfilled those requirements.”
Clearly, the Court was expressing the view that it was in the case
of recruitment from the Bar, as distinguished from Judicial Service,
that the requirements of Clause (2) had to be fulfilled. We may
also add here earlier the Court also expressed the view:
“… we do not think that Clause (2) of Article 233 can be
interpreted in the light of Explanations added to Articles 124
and 217”.”
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Reliance placed on Prof. Chandra Prakash Aggarwal v.
Chaturbhuj Das Parikh and Ors., (1970) 1 SCC 182, dealing with the
interpretation of Article 217, is of no avail.
43. The argument has been raised with respect to the violation of
basic human rights. The findings of the Advisory Panel on Judicial
Diversity in the U.K. in 2010 have been referred to as under:
“22. Equal opportunities. All properly qualified people should have
an equal opportunity of applying and of being selected for judicial
office. Well-qualified candidates for judicial office should be
selected on their merits and should not be discriminated against,
either directly or indirectly.
23. Inherent in the concept of human equality is the principle that
talent is randomly and widely distributed in society, and not
concentrated in particular racial or other groups. It therefore
follows that the more widely one searches for talent, the more
likely it is that the best candidates will be identified.
“You should not be looking for unusual talent, but looking for talent
in unusual places”.
24. The current under-representation of certain well-qualified
groups within the judiciary suggests that factors other than pure
talent may be influencing either people’s willingness to apply or
the selection process, or both.”
We find that there is no violation of equal opportunity. There is a
wide search for talent for inducting in the judicial service as well as in
direct recruitment from Bar, and the best
candidates are identified and
recruited. Persons from unusual places are also given the opportunity to
stake their claim in pursuit of their choice. In State of Bihar and Ors. v.
Bal Mukund Sah and Ors., (2000) 4 SCC 640, this Court has observed
that onerous duty is cast on the High Court under the Constitutional
Scheme. It has been given a prime and paramount position in the matter
with the necessity of choosing the best available talent for manning the
subordinate judiciary. Thus, we find that there is no violation of any
principle of the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights and International
Covenant on Economic, Social and Cultural Rights.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[ARUN MISHRA, J.]
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44. Article 2 of the Universal Declaration of Human Rights has
also been relied upon, which provides thus:
“Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”
The aim of our Constitution is also the same, and there is no
violation of any of human rights. The submission is far-fetched.  In service
jurisprudence, it is always permissible to provide different sources of
recruitment and quotas along with a qualification. Equal opportunity is
given, and seniority and competence are criteria for promotion, and in
merit promotion, seniority is not to be considered.
45. In view of the aforesaid discussion, we are of the opinion that
for 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.
46. In view of the aforesaid interpretation of Article 233, we find
that rules debarring judicial officers from staking their claim as against
the posts reserved for direct recruitment from bar are not ultra vires as
rules are subservient to the provisions of the Constitution.
47. We answer the reference as under :-
(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.
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(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.
48. In the case of Dheeraj Mor and others cases, time to time
interim orders have been passed by this Court, and incumbents in judicial
service were permitted to appear in the examination. Though later on,
this Court vacated the said interim orders, by that time
certain
appointments had been made in some of the States and in some of the
States results have been withheld by the High Court owing to complication
which has arisen due to participation of the ineligible in-service candidates
as against the post reserved for the practising advocates. In the cases
where such in-service incumbents have been appointed by way of direct
recruitment from bar as we find no merit in the petitions and due to
dismissal of the writ petitions filed by the judicial officers, as sequel no
fruits can be ripened on the basis of selection without eligibility, they
cannot continue as District Judges. They have to be reverted to their
original post. In case their right in channel for promotion had already
been ripened, and their juniors have been promoted, the High Court has
to consider their promotion in accordance with prevailing rules. However,
they cannot claim any right on the basis of such an appointment obtained
under interim order, which was subject to the outcome of the writ petition
and they have to be reverted.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[ARUN MISHRA, J.]
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49. The civil appeals, writ petitions, Transfer Petition and contempt
petition are, accordingly, disposed of. No order as to costs.
S. RAVINDRA BHAT, J.
1. 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.
2. This judgment answers a reference made to the present three
judge bench. The referral order1 noticed several previous decisions of
this court (in Rameshwar Dayal v. The State of Punjab & Ors. 1961
(2) SCR 874; Chandra Mohan v. The State of Uttar Pradesh and
Ors. (1967) 1 SCR 77; Satya Naraian Singh v High Court of
Judicature 1985 (2) SCR 112; Deepak Aggarwal v Keshav Kaushik
2013 (5) SCC 277 and felt that the observations in a judgment, Vijay
Kumar Mishra & Anr v. High Court of Judicature at Patna & Others
(2016) 9 SCC 313, necessitated a re-consideration on the issue as to the
eligibility of judicial officers, of any State, to apply for selection and
appointment to the quota earmarked to be filled by Advocates with seven
years’ practice.
3. The controversy in these petitions is 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.
4. All petitioners
hold posts in the judicial services [and in one
group, non-judicial service] of various States. Broadly, they fall in three
categories: those selected to judicial service without any, or with less
than seven years’ experience at the Bar; those who had seven years’
experience at the Bar, before appointment to the judicial service; and
those with seven years or more experience at the Bar, but are working
in non-judicial posts. Those with seven years’ experience, prior to their
appointment falling in the second and third categories mentioned above,
argue that the Constitution does not preclude them from participating in
the process of recruitment for District Judges, in the 25% Advocates’
1 Order dated 23-01-2018 in SLP (C) 14156/2015, Dheeraj More v High Court of Delhi
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quota earmarked for that purpose. These set of petitioners strongly rely
on the decision reported as Rameshwar Dayal (supra), especially the
ruling of this Court (in answer to the alternative argument that two
candidates were ineligible, as they were serving in the Government),
and Mahesh Chandra Gupta v. Union of India and Ors. (2009) 8
SCC 273. Reliance is also placed on Chandra Mohan (supra). It is
submitted that in Chandra Mohan(supra), this Court categorically held
that the disqualification attached to persons in the service of the Union
or a State [under Article 233(1)], expressly excludes those in the
employment of the State, holding executive posts and discharging purely
executive function, but does not prevent those in judicial service. It was
pointed out that the rule considered in Chandra Mohan (supra) – clearly
entitled judicial officers (along with advocates) with seven years’
experience at the Bar, to compete in the recruitment process.
5. Counsel for the petitioners in the second category (i.e. those
with less than seven years’ experience at the Bar, and who have been
working as judicial officers) submit that neither Article 233(1) nor Article
233(2) bar the participation of such candidates (as long as they have an
overall combined experience of seven years – at the Bar and in judicial
service) in the recruitment process along with members of the Bar, for
appointment to the cadre of District Judges.
6. The argument of some of the
petitioners is that Articles 233 (1)
and 233 (2) operate in two different fields. Article 233 (1), the argument
goes, confers power upon the Governor to make appointments, subject
to consultation with the High Court of the State. It is urged that this is an
independent source of power; in exercise of this provision, the Governor
can make appointment of persons in the judicial service. Another argument,
in the context of power under Article 233 (2) is that the experience of
seven years’ at the bar, applies only to those in practise at the bar. It
cannot apply to those already in the judicial service of the State. The
decision in Rameshwar Dayal (supra) is relied upon.  The petitioners
also urge that Chandra Mohan (supra) decided that it is only members
of the judicial services of any State, who can be considered for
appointment, as District Judges [in addition to Advocates with seven
years’ practise at the Bar, per Article 233 (2)] and not members of the
executive branch of the States or the Union. It is emphasized that in
fact, the rule which this court had to consider, permitted judicial officers
to compete along with members of the Bar, for selection and appointment
to the post of District Judge.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[S. RAVINDRA BHAT, J.]
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7. It was argued, in addition, that the provision by which the quota
earmarked for members of the Bar, to be exclusively competed for by
them and for which members of the judicial services are prohibited from
applying, is discriminatory. Learned counsel highlighted that such a bar
(preventing members in the judicial services) from applying and
competing, along with members of the Bar, is arbitrary, because there is
no basis for such classification. It was submitted in this regard that the
Constitution makers envisaged that only those with talent could be
recruited and appointed as District Judges; if that were the true objective,
a restriction placed on those in judicial service undermines that purpose.
It was submitted that experience gained as a judge is as, if not more,
relevant in discharge of duties and functions as District Judges; on the
other hand, Advocates with enrolment and experience of seven years at
the Bar, have no manner of experience. Counsel emphasized that the
phrase used in Article 233 i.e. being an advocate of not less than seven
years’ standing, has to be considered along with the bar to members of
the services or holders of posts under the Union or the States, from
competing for the post of District Judge. The Constitution merely
underlined that the lawyer, competing for that post should not have less
than seven years’ experience; however, for members of the judicial
service, neither is a bar
(or restriction) expressed, nor can an implied bar
be discerned. Therefore, the absolute restriction placed on members of
any judicial service, from competing along with lawyers in the quota
earmarked for that purpose, is unconstitutional and void. It was submitted
that the decision in Satya Naraian Singh (supra), to the effect that the
Constitution made a clear distinction between the two sources of
recruitment and the dichotomy is maintained, and that the two streams
are separate until they come together by appointment, is erroneous and
needs correction. It is further submitted that the decision of this court in
Deepak Aggarwal (supra) to the effect that Article 233 (2) mandates
that an applicant has to be in practise as a member of the Bar, at the
time of making the application (for appointment), was wrongly decided.
Deepak Aggarwal (supra) held as follows:
“This is clear by use of ‘has been’. The present perfect
continuous tense is used for a position which began at some
time in the past and is still continuing. Therefore, one of the
essential requirements articulated by the above expression in
Article 233 (2)  is that such person must with requisite period
be continuing as an advocate on the date of application.”
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8. It was submitted that besides being unduly narrow, the literal
interpretation of Article 233 (2) defeats the broad objective that the
framers of the Constitution had in mind, and their intent to bring in the
best minds and those with talent, irrespective of whether they were
members of the Bar, or holders of judicial office, at the time of
commencement of the recruitment process.
9. The respondents, both States and High Courts, countered the
submissions of the petitioners, contending that neither Rameshwar Dayal
(supra) nor Chandra Mohan (supra), (both Constitution Bench
decisions) held that members of any judicial service had a right under
the Constitution to apply for selection to the post of District Judges, on
the basis that they had been Advocates at some prior point of time. It
was pointed out that Article 233 (1) merely indicates that the appointment
to the post of District Judge is to be made by the Governor, on the
recommendation of the High Court; so is also the case with promotions,
postings etc. This provision merely indicates who is the appointing
authority: it also lays down that such appointment cannot be made without
the concurrence or recommendation of the High Court concerned.
Chandra Mohan (supra), it was submitted, decisively held that the
recommendation of the High Court is binding; it also clearly held that
those in the services of the State, i.e. selected and appointed to
administrative or executive departments or services, were
barred from
consideration to the post of District Judge.
10. It was submitted that for the last many decades, two clear
streams of appointment to the post of District Judge have been delineated
in the States: one, by direct recruitment (from members of the Bar with
not less than seven years’ experience) and two, from among members
of the judicial service, fulfilling the requisite criteria, necessary to be
considered for promotion. The latter category are considered and
recommended for promotion in accordance with rules framed under
Article 234 of the Constitution of India, read with proviso to Article 309.
The relevant provisions of the Constitution, for the purposes
of this judgment, are extracted below:
“Article 233 Appointment of district judges
(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.
DHEERAJ MOR v. HON’BLE HIGH COURT OF DELHI
[S. RAVINDRA BHAT, J.]
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(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 as an
advocate or a pleader and is recommended by the High
Court for appointment.
Article 233A Validation of appointments of, and judgments,
etc. delivered by, certain district judges
Notwithstanding any judgment, decree or order of any court,-
(a) (i) no appointment of any person already in the judicial
service of a State or of any person who has been for not less
than seven years an advocate or a pleader, to be a district
judge in that State, and
(ii) no posting, promotion or transfer of any such person as a
district judge, made at any time before the commencement of
the Constitution (Twentieth Amendment) Act, 1966, otherwise
than in accordance with the provisions of article 233 or article
235 shall be deemed to be illegal or void or ever to have
become illegal or void by reason only of the fact that such
appointment, posting, promotion or transfer was not made in
accordance with the said provisions;
(b) no jurisdiction exercised, no judgment, decree, sentence
or order passed or made, and no other act or proceeding
done or taken, before the commencement of the Constitution
(Twentieth Amendment) Act, 1966 by, or before, any person
appointed, posted, promoted or transferred as a district judge
in any State otherwise than in accordance with the
provisions
of article 233 or article 235 shall be deemed to be illegal or
invalid or ever to have become illegal or invalid by reason
only of the fact that such appointment, posting, promotion or
transfer was not made in accordance with the said provisions.
Article 234 -Recruitment of persons other than district judges
to the judicial service
Appointments of persons other than district judges to the
judicial service of a State shall be made by the Governor of
the State in accordance with rules made by him in that behalf
after consultation with the State Public Service Commission
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and with the High Court exercising jurisdiction in relation to
such State.
Article 235 Control over subordinate courts
The control over district courts and courts subordinate thereto
including the posting and promotion of, and the grant of leave
to, persons belonging to the judicial service of a State and
holding any post inferior to the post of district judge shall be
vested in the High Court, but nothing in this article shall be
construed as taking away from any such person any right of
appeal which he may have under the law regulating the
conditions of his service or as authorising the High Court to
deal with him otherwise than in accordance with the conditions
of his service prescribed under such law.
Article 236 {Interpretation}
In this Chapter–
(a) the expression “district judge” includes judge of a city
civil court, additional district judge, joint district judge,
assistant district judge, chief judge of a small cause court,
chief presidency magistrate, additional chief presidency
magistrate, sessions judge, additional sessions judge and
assistant sessions judge;
(b) the expression “judicial service” means a service consisting
exclusively of persons intended to fill the post of district judge
and other civil judicial posts inferior to the post of district
judge.”
11. It would be first essential to recollect that the power of High
Courts, to recommend to the Governor, suitable persons, for appointment,
is now considered to be decisive; the
recommendation is almost always
binding, barring in exceptional circumstances. This court, in State of
West Bengal v. Nripendra Nath Bagchi (1966 (1) SCR 771) and High
Court of Punjab and Haryana etc. v. State of Haryana 1975 (3)
SCR 365 had ruled that Article 235 vests control in the High Courts over
District Courts and courts subordinate to it. The Governor (of the
concerned State) appoints, dismisses and removes Judicial Officers. The
control vested in the High Court is complete control subject to the power
of the Governor in the matter of appointment including dismissal, removal,
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reduction in rank and the initial posting and of the initial promotion to
District Judges. It was also held that nothing in Article 235 restricts the
control of the High Court in respect of Judges other than District Judges
in any manner. This position was endorsed by a four-judge bench of this
court in State of Haryana vs. Inder Prakash Anand H.C.S. & Ors.
1976 (2) SCR 977.
12. In the decision reported as State of Assam and Ors. vs. S.N.
Sen & Ors 1972 (2) SCR 251, a Constitution Bench of this court underlined
the unique nature of the power of the High Courts, while interpreting
Articles 233-235 of the Constitution of India:
“13. Under the provisions of the Constitution itself the power
of promotion of persons holding posts inferior to that of the
district judge is in the High Court. It stands to reason that the
power to confirm such promotions should also be in the High
Court.
14. This Court has on several occasions expressed its views
on Article 235 of the Constitution. In The State of West Bengal
v. Nripendra Nath Bagchi (1968) I LLJ 270 (SC), it was
pointed out:
“In the case of the judicial service subordinate to the district
judge the appointment has to be made by the Governor in
accordance with the rules to be framed after consultation
with the State Public Service Commission and the High Court
but the power of posting, promotion and grant of leave and
the control of the courts are vested in the High Court.”
15. A year later, in State of Assam v. Ratiga Mohammed and
Ors. (1968) I LLJ 282 SC this Court against observed as
follows:
“The High Court is in the day to day control of courts and
knows the capacity for work of individuals and the
requirements of a particular station or Court. The High
Court is better suited to make transfers than a Minister.
For however well-meaning & Minister may be he can never
possess the same intimate knowledge of the working of
the judiciary as a whole and of individual judges, as the
High Court. He must depend on his department for
information. The Chief Justice and his colleagues know
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these matters and deal with them personally. There is less
chance of being influenced by secretaries who may
withhold some vital, information if they are interested
themselves. It is also well-known that all stations are not
similar in climate and education, medical and other
facilities. Some are good stations and some are not so good.
There is less chance of success for a person seeking
advantage for himself if the Chief Justice and his
colleagues, with personal information, deal with the matter,
than when a Minister deals with it on notes and information
supplied by a secretary.”
16. This observation was made in relation to a case of transfer,
but it applies with greater force to the case of promotion. The
result is that we hold that the power of promotion of persons
holding posts inferior to that of the district judge being in the
High Court, the power to confirm such promotions is also in
the High Court.”
13. The decision in Rameshwar Dayal (supra) was in the context
of a challenge to the eligibility of candidates who had been selected and
appointed as District Judges. The main argument – or ground of challenge
was that the incumbents/appointees did not possess seven years’ practise
at the Bar: which was repelled by this court. The court held that the
practise of the concerned appointees, which spanned about two decades
or so, in pre-partition India, had to be included for reckoning the seven-
year period. The court considered the provisions of the
Bar Councils
Act, 1926, and the High Courts (Punjab) Order, 1947. The relevant part
of the discussion in that judgment, which repelled the challenge to the
appointments, is extracted below:
“14. Learned Counsel for the appellant has also drawn our
attention to Explanation I to clause (3) of Art. 124 of the
Constitution relating to the qualifications for appointment as
a Judge of the Supreme Court and to the Explanation to clause
(2) of Art. 217 relating to the qualifications for appointment
as a Judge of a High Court, and has submitted that where the
Constitution-makers thought it necessary they specifically
provided for counting the period in a High Court which was
formerly in India. Articles 124 and 217 are differently worded
and refer to an additional qualification of citizenship which
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is not a requirement of Art. 233, and we do not think that
clause (2) of Art. 233 can be interpreted in the light of
Explanations added to Arts. 124 and 217.
Article 233 is a self-contained provision regarding the
appointment of District Judges. As to a person who is already
in the service of the Union or of the State, no special
qualifications are laid down and under clause (1) the Governor
can appoint such a person as a district judge in consultation
with the relevant High Court. As to a person not already in
service, a qualification is laid down in clause (2) and all that
is required is that he should be an advocate or pleader of
seven years’ standing.
The clause does not say how that standing must be reckoned
and if an Advocate of the Punjab High Court is entitled to
count the period of his practice in the Lahore High Court for
determining his standing at the Bar, we see nothing in Art.
233 which must lead to the exclusion of that period for
determining his eligibility for appointment as district judge.
15. What will be the result if the interpretation canvassed
for on behalf of the appellant is accepted ? Then, for seven
year beginning from August 15, 1947, no member of the
Bar of the Punjab High Court would be eligible for
appointment as district judge - a result which has only to
be stated to demonstrate the weakness of the argument.
We have proceeded so far on the first two submissions of
learned Counsel for
the appellant, and on that basis dealt
with his third submission.
It is perhaps necessary to add that we must not be
understood to have decided that the expression ‘has been’
must always mean that learned Counsel for the appellant
says it means according to the strict rules of grammar. It
may be seriously questioned if an organic Constitution must
be so narrowly interpreted, and the learned Additional
Solicitor-General has drawn our attention to other Articles
of the Constitution like Art. 5(c) where in the context the
expression has a different meaning. Our attention has also
been drawn to the decision of the Allahabad High Court
in Mubarak Mazdoor v. K. K. Banerji AIR 1958 All 323
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where a different meaning was given to a similar expression
occurring in the proviso to sub-section (3) of section 86 of
the Representation of the People Act, 1951. We consider it
unnecessary to pursue this matter further because the
respondents we are now considering continued to be
advocates of the Punjab High Court when they were
appointed as district judges and they had a standing of
more than seven years when so appointed. They were
clearly eligible for appointment under clause 2 of Art. 233
of the Constitution.
16. We now turn to the other two respondents (Harbans
Singh and P. R. Sawhney) whose names were not factually
on the roll of Advocates at the time they were appointed as
district judges. What is their position ? We consider that
they also fulfilled the requirements of Art. 233 of the
Constitution. Harbans Singh was in service of the State at
the time of his appointment, and Mr. ViswanathaSastri
appearing for him has submitted that clause (2) of Art.
233 did not apply. We consider that even if we proceed on
the footing that both these persons were recruited from the
Bar and their appointment has to be tested by the
requirements of clause (2), we must hold that they fulfilled
those requirements. They were Advocates enrolled in the
Lahore High Court; this is not disputed. Under clause 6 of
the High Courts (Punjab) Order, 1947, they were
recognised as Advocates entitled to practise in the Punjab
High Court till the Bar Councils Act, 1926, came
into force.
Under section 8(2)(a) of that Act it was the duty of the
High Court to prepare and maintain a roll of advocates in
which their names should have been entered on the day on
which section 8 came into force, that is, on September 28,
1948. The proviso to sub-section (2) of section 8 required
them to deposit a fee of Rs. 10 payable to the Bar Council.
Obviously such payment could hardly be made before the
Bar Council was constituted. We do not agree with learned
Counsel for the appellant and the interveners (B. D. Pathak
and Om Dutt Sharma) that the proviso had the effect of
taking away the right which these respondents had to come
automatically on the roll of advocates under section 8(2)(a)
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of the Act. We consider that the combined effect of clause
6 of the High Courts (Punjab) Order, 1947, and section
8(2)(a) of the Bar Councils Act, 1926, was this : from
August 15, 1947, to September 28, 1948, they were
recognised as Advocates entitled to practise in the Punjab
High Court and after September 28, 1948, they
automatically came on the roll of advocates of the Punjab
High Court but had to pay fee of Rs. 10 to the Bar Council.
They did not cease to be advocates at any time or stage
after August 15, 1947, and they continued to be advocates
of the Punjab High Court till they were appointed as
District Judges. They also had the necessary standing of
seven years to be eligible under clause (2) of Art. 233 of
the Constitution.”
14. It is thus evident, that the main part of the discussion related
to the possession of qualification, i.e. seven years’ experience at the
Bar, of the concerned candidates. As regards some candidates, the
argument that they were not members of the Bar on the date of their
appointment (as District Judge) was rejected: “they continued to be
advocates of the Punjab High Court till they were appointed as
District Judges. They also had the necessary standing of seven years
to be eligible.”
A significant aspect, is that this court had no occasion to deal with
any rules framed under Articles 233 or 234, in relation to the appointment
or promotion to the post of District Judge.
15. The next
decision is of Chandra Mohan (supra). There, the
issue was regarding eligibility of certain candidates, who were members
of the civil services or holders of civil posts of, the State. This court first
noticed the relevant provisions and observed as follows:
“20. The gist of the said provisions may be stated thus :
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. There are two sources of recruitment, namely, (i)
service of the Union or of the State, and (ii) members of the
Bar. The said judges from the first source are appointed in
consultation with the High Court and those from the second
sources are appointed on the recommendation of the High
Court. But in the case of appointments of persons to the
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judicial service other than as district judges, they will be made
by the Governor of the State in accordance with rules framed
by him in consultation with the High Court and the Public
Service Commission. But the High Court has control over all
district courts and courts subordinate thereto, subject to
certain prescribed limitations.”
16. Thereafter, the court held that the expression “not already
in the service” of the Union or any State meant that those holding civil
posts, or members of civil services, i.e. occupying non-judicial posts,
were ineligible to compete for selection and appointment as District Judge;
thus, only those in service as judges, or members of judicial services
could be considered for appointment.
17. Satya Naraian Singh (supra) is a direct authority on the issue
which this court is now concerned with. There, members of the UP
judicial service responded and applied to direct recruitment posts in the
UP Higher Judicial Service claiming that they had acquired 7 years’
practice at the bar prior to their appointment to the judicial service. The
High Court ruled that they were ineligible for appointment by direct
recruitment to UP Higher Judicial Service. On appeal, it was urged that
any interpretation of Article 233 which would render a member of the
Subordinate judicial service ineligible for appointment to the Higher Judicial
Service by direct recruitment because of the additional experience
gained by him as a Judicial officer would
be unjustified. This court, after
noticing Rameshwar Dayal (supra) and Chandra Mohan (supra) held
as follows:
“We may mention here that Service of the Union or of the
State’ has been interpreted by this Court to mean judicial
service. Again while the first clause make consultation by the
Governor of the State with the High Court necessary, the
second clause requires that the High Court must recommend
a person for appointment as a District Judge. It is only in
respect of the persons covered by the second clause that there
is a requirement that a person shall be eligible for appointment
as District Judge if he has been an advocate or a pleader for
not less than 7 years. In other words, in the case of candidates
who are not members of a Judicial Service they must have
been advocates or pleaders for not less than 7 years and
they have to be recommended by the High Court before they
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may be appointed as District Judges, while in the case of
candidates who are members of a Judicial Service the 7 years
rule has no application but there has to be consultation with
High Court. A clear distinction is made between the two
sources of recruitment and the dichotomy is maintained. The
two streams are separate until they come together by
appointment. Obviously the same slip (sic. ship) cannot sail
both the streams simultaneously.
After quoting Chandra Mohan (supra) the court concluded:
“Subba Rao, C.J. after referring to Articles 233,234, 235,
236 and 237 stated,- E “The gist of the said provisions may
be stated thus: Appointments of persons to be, and the posting
and pro motion of, district judges in any State shall be made
by the Governor of the State. There are two sources of
recruitment, namely, (i) service or the Union or of the State
and (ii) members of Bar. The said judges from the first source
are appointed in consultation with the High Court and those
from the second source are appointed on the recommendation
of the High Court. But in the case of appointments of persons
to the judicial service other than as district judges, they will
be made by the Governor of the State in accordance with
rules framed by him in consultation with the High Court and
the Public Service Commission. But the High Court has control
over all the district courts and courts subordinate thereto,
subject to certain prescribed
limitations.”
Subba Rao, CJ. then proceeded to consider whether
the Government could appoint as district judges persons from
services other than the judicial service. After pointing out
that Art. 233 (1) was a declaration of the general power of
the Governor in the matter of appointment of district judges
and he did not lay down the qualifications of the candidates
to be appointed or denoted the sources from which the
recruitment had to be made, he proceeded to state, “But the
sources of recruitment are indicated in cl. (2) thereof. Under
cl. (2 of Are. 233 two sources are given namely, (i) persons in
the service of the Union or of the State, and (ii) advocate or
pleader.” Posing the question whether the expression “the
service of the Union or of the State” meant any service of the
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Union or of the State or whether it meant the judicial service
of the Union or of the State, the learned Chief Justice
emphatically held that the expression “the service” in Art.
233 (2) could only mean the judicial service. But he did not
mean by the above statement that persons who are already in
the service, on the recommendation by the High Court can be
appointed as District Judges, overlooking the claims of all
other Seniors in the Subordinate Judiciary Contrary to Art.
14 and Art. 16 of the Constitution.
Thus we see that the two decisions do not support the
contention advanced on behalf of the petitioners but, to the
extent that they go, they certainly advance the case of the
respondents. We therefore, see no reason to depart from the
view already taken by us and we accordingly dismiss the writ
petitions.”
18. In the decision reported as Deepak Agarwal (supra) this court
had to deal with a conflict between certain previous judgments, on the
question of whether salaried public prosecutors or government counsel,
after obtaining full time employment under the State (or the Union) could
be considered as members of the Bar, i.e. those practising in the courts,
for the purpose of Article 233 (2). The court, after an elaborate analysis
of the previous decisions, observed as follows:
“…by the above resolution of the Bar Council of India, the
second and third para of Rule 49 have been deleted but we
have to see the effect of such deletion. What Rule 49 of
the
BCI Rules provides is that an advocate shall not be a full time
salaried employee of any person, government, firm,
corporation or concern so long as he continues to practice.
The ‘employment’ spoken of in Rule 49 does not cover the
employment of an advocate who has been solely or, in any
case, predominantly employed to act and/or plead on behalf
of his client in courts of law. If a person has been engaged to
act and/or plead in court of law as an advocate although by
way of employment on terms of salary and other service
conditions, such employment is not what is covered by Rule
49 as he continues to practice law but, on the other hand, if
he is employed not mainly to act and/or plead in a court of
law, but to do other kinds of legal work, the prohibition in
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Rule 49 immediately comes into play and then he becomes a
mere employee and ceases to be an advocate. The bar
contained in Rule 49 applies to an employment for work other
than conduct of cases in courts as an advocate. In this view
of the matter, the deletion of second and third para by the
Resolution dated 22.6.2001 has not materially altered the
position insofar as advocates who have been employed by
the State Government or the Central Government to conduct
civil and criminal cases on their behalf in the courts are
concerned.
85. What we have said above gets fortified by Rule 43 of the
BCI Rules. Rule 43 provides that an advocate, who has taken
a full-time service or part-time service inconsistent with his
practising as an advocate, shall send a declaration to that
effect to the respective State Bar Council within time specified
therein and any default in that regard may entail suspension
of the right to practice. In other words, if full-time service or
part-time service taken by an advocate is consistent with his
practising as an advocate, no such declaration is necessary.
The factum of employment is not material but the key aspect
is whether such employment is consistent with his practising
as an advocate or, in other words, whether pursuant to such
employment, he continues to act and/or plead in the courts. If
the answer is yes, then despite employment he continues to be
an advocate. On the other hand, if the
answer is in negative,
he ceases to be an advocate.
86. An advocate has a two-fold duty: (1) to protect the interest
of his client and pursue the case briefed to him with the best
of his ability, and (2) as an officer of the Court. Whether full-
time employment creates any conflict of duty or interest for a
Public Prosecutor/Assistant Public Prosecutor? We do not
think so. As noticed above, and that has been consistently
stated by this Court, a Public Prosecutor is not a mouth- piece
of the investigating agency. In our opinion, even though Public
Prosecutor/Assistant Public Prosecutor is in full-time employ
with the government and is subject to disciplinary control of
the employer, but once he appears in the court for conduct of
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a case or prosecution, he is guided by the norms consistent
with the interest of justice. His acts always remain to serve
and protect the public interest. He has to discharge his
functions fairly, objectively and within the framework of the
legal provisions. It may, therefore, not be correct to say that
an Assistant Public Prosecutor is not an officer of the court.
The view in Samarendra Das to the extent it holds that an
Assistant Public Prosecutor is not an officer of the Court is
not a correct view.”
Dealing specifically with the issue of the requirement under Article
233 (1) that the applicant “has been” in practise for 7 years, this court
significantly held as follows:
“88. As regards construction of the expression, “if he has
been for not less than seven years an advocate” in Article
233 (2) of the Constitution, we think Mr. Prashant Bhushan
was right in his submission that this expression means seven
years as an advocate immediately preceding the application
and not seven years any time in the past. This is clear by use
of ‘has been’. The present perfect continuous tense is used
for a position which began at some time in the past and is still
continuing. Therefore, one of the essential requirements
articulated by the above expression in Article 233 (2) is that
such person must with requisite period be continuing as an
advocate on the date of application.
89. Rule 11 of the HSJS Rules provides for qualifications for
direct recruits in Haryana
Superior Judicial Service. Clause
(b) of this rule provides that the applicant must have been
duly enrolled as an advocate and has practised for a period
not less than seven years. Since we have already held that
these five private appellants did not cease to be advocate
while working as Assistant District Attorney/Public Prosecutor/
Deputy Advocate General, the period during which they have
been working as such has to be considered as the period
practising law. Seen thus, all of them have been advocates
for not less than seven years and were enrolled as advocates
and were continuing as advocates on the date of the
application.”
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19. It is clear that what this court had to consider was whether
public prosecutors and government advocates were barred from applying
for direct recruitments (i.e. whether they could be considered to have
been in practise) and whether- during their course of their employment,
as public prosecutors etc, they could be said to have “been for not less
than seven years” practising as advocates. The court quite clearly ruled
that such public prosecutors/government counsel (as long as they
continued to appear as advocates before the court) answered the
description and were therefore eligible.
20. In Vijay Kumar Mishra (supra) the challenge was to the
rejection of a representation (of the petitioners) to appear in interview
for the post of District Judge Entry Level (Direct from Bar) Examination,
2015. A condition, i.e. that they had to tender their resignation, first, from
the Subordinate Judicial Service of the State of Bihar as a precondition
that they could appear in the interview was imposed. The facts were
that the petitioners, who were practising advocates with seven years’
practise, on the cut-off date (5th February, 2015) and applied as such to
the posts, responding to an application; they were permitted to and
appeared in the Preliminary as well as in the Mains Examination pursuant
to such advertisement. Before the publication of the results of the test,
for the post, they qualified in and were appointed to the
Bihar State
Subordinate Judicial Service in the 28th Batch. They accordingly joined
the subordinate judicial service in August, 2015. The result of the mains
examination of the District Judge Entry Level (Direct from Bar) was
published on 22nd of January, 2016. The petitioners qualified in the Mains
Examination. They however were not called for interview; their request
was dealt with, and they were asked to resign from the subordinate
judicial service, as a precondition, which was challenged. The High Court
repelled the challenge holding that to permit the appellant to participate
in the interview would be breaching the mandate of Article 233 (2) holding
that since before the date of interview, they joined the judicial service,
they could not in terms of the Article 233 (2) of the Constitution, be
permitted to continue with the selection process for District Judge Entry
Level (Direct from Bar) as they were, members of the judicial Service.
21. The court in Vijay Kumar Mishra (supra) after noticing
Satya Naraian Singh (supra) and Deepak Agarwal (supra) held that:
“7. It is well settled in service law that there is a distinction
between selection and appointment. Every person who is
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successful in the selection process undertaken by the State
for the purpose of filling up of certain posts under the State
does not acquire any right to be appointed automatically.
Textually, Article 233 (2) only prohibits the appointment of a
person who is already in the service of the Union or the State,
but not the selection of such a person. The right of such a
person to participate in the selection process undertaken by
the State for appointment to any post in public service (subject
to other rational prescriptions regarding the eligibility for
participating in the selection process such as age, educational
qualification etc.) and be considered is guaranteed under
Art. 14 and 16 of the Constitution.
8. 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 of 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 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) nor
contemplated under the scheme of the constitution as it would
not serve any
constitutionally desirable purpose.”
22. Justice Chelameshwar held that that neither of the two
decisions [Satya Naraian Singh (supra) and Deepak Agarwal (supra)]
dealt with the issue on hand. The other member of the Bench (Justice
Sapre) concurred, stating as follows:
“12) In my opinion, there is no bar for a person to apply for
the post of district judge, if he otherwise, satisfies the
qualifications prescribed for the post while remaining in
service of Union/State. It is only at the time of his appointment
(if occasion so arises) the question of his eligibility arises.
Denying such person to apply for participating in selection
process when he otherwise fulfills all conditions prescribed
in the advertisement by taking recourse to clause (2) of Article
233 would, in my opinion, amount to violating his right
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guaranteed under Articles 14 and 16 of the Constitution of
India.
13) It is a settled principle of rule of interpretation that one
must have regard to subject and the object for which the Act
is enacted. To interpret a Statue in a reasonable manner, the
Court must place itself in a chair of reasonable legislator/
author. So done, the rules of purposive construction have to
be resorted to so that the object of the Act is fulfilled. Similarly,
it is also a recognized rule of interpretation of Statutes that
expressions used therein should ordinarily be understood in
the sense in which they best harmonize with the object of the
Statute and which effectuate the object of the legislature. (See-
Interpretation of Statues 12th Edition, pages 119 and 127 by
G.P.Singh). The aforesaid principle, in my opinion, equally
applies while interpreting the provisions of Article 233 (2) of
the Constitution.”
23. It is thus evident, that Rameshwar Dayal (supra) was mainly
concerned with the question whether practice as a pleader or advocate,
in pre-partition India could be reckoned, for the purpose of calculating
the seven-year period, stipulated in Article 233 (2). No doubt, there are
some observations, with respect to appointments being referable to Article
233 (1). However, the important aspect which is to be kept in mind, is
that no rules were discussed; the experience of the concerned Advocates,
who were appointed as District Judges,
were for a considerable period,
in pre-partition India, in the erstwhile undivided Punjab. Chandra Mohan
(supra), on the other hand is a clear authority – and an important
judgment, on the aspect that those in the service of or holding posts,
under the Union or States, - if they are not in judicial service- are ineligible
for appointment as District Judges, under Article 233 (2) of the
Constitution. The corollary was that those holding judicial posts were
not barred as holders of office or posts under the Union or the State.
Significantly, this court in Chandra Mohan (supra), invalidated a rule
which rendered both officers holding executive positions, under the State,
and those holding judicial posts, eligible to apply for appointment under
Article 233 (2). In Satya Naraian Singh (supra) this court clearly held
that the disqualification of those holding judicial posts from applying as
Advocates, under Article 233 (2) did not violate Article 14:a “clear
distinction is made between the two sources of recruitment and the
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dichotomy is maintained. The two streams are separate until they
come together by appointment. Obviously the same slip (sic ship)
cannot sail both the streams simultaneously.”
24. A close reading of Article 233, other provisions of the
Constitution, and the judgments discussed would show discloses the
following:
(a) That the Governor of a State has the authority to make
“appointments of persons to be, and the posting and
promotion of, district judges in any State (Article 233 [1]);
(b) While so appointing the Governor is bound to consult the High
Court (Article 233 [1]: Chandra Mohan (supra) and
Chandramouleshwar Prasad v Patna High Court 1970 (2) SCR
6662);
(c) Article 233 (1) cannot be construed as a source of appointment;
it merely delineates as to who is the appointing authority;
(d) In matters relating to initial posting, initial appointment, and
promotion of District Judges, the Governor has the authority to
issue the order; thereafter it is up to the High Court, by virtue of
Article 235, to exercise control and superintendence over the
conditions of service of such District Judges. (See State of Assam
v Ranga Mahammad 1967 (1) SCR 4543);
2 The court in Chandramouleshwar Prasad held that
“No doubt the appointment of a person to be a District Judge rests with the Governor
but he cannot make the appointment on his own initiative and must do so in consultation
with the High Court. The underlying idea of the Article is that the Governor should
make up
his mind after there has been a deliberation with the High Court.”
3 This court held as follows:
 “By the first of these articles the question of appointment is considered separately but
by the second of these articles posting and promotion of persons belonging to the
judicial service of the State and holding any post inferior to the post of a district Judge
is also vested in the High Court. The word ‘post’ used twice in the article clearly means
the position or job and not the station or place and ‘posting’ must obviously mean the
assignment to a position or job and not placing in-charge of a station or Court. The
association of words in Art 235 is much clearer but as the word ‘posting’ in the earlier
article deals with the same subject matter, it was most certainly used in the same sense
and . this conclusion is thus quite apparent. This is, of course, as it should be. The High
Court is in the day to day control of courts and knows the capacity for work of individuals
and the requirements of a particular station or Court. The High Court is better suited to
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(e) Article 233 (2) is concerned only with eligibility of those who
can be considered for appointment as District Judge. The
Constitution clearly states that one who has been for not less than
seven years, “an advocate or pleader” and one who is “not
already in the service of the Union or of the State” (in the
sense that such person is not a holder of a civil or executive post,
under the Union or of a State) can be considered for appointment,
as a District judge. Significantly, the eligibility- for both categories,
is couched in negative terms. Clearly, all that the Constitution
envisioned was that an advocate with not less than seven years’
practise could be appointed as a District Judge, under Article 233
(2).
(f) Significantly, Article 233 (2) ex facie does not exclude judicial
officers from consideration for appointment to the post of District
Judge. It, however, equally does not spell out any criteria for such
category of candidates. This does not mean however, that if they
or any of them, had seven years’ practise in the past, can be
considered eligible, because no one amongst them can be said to
make transfers than a Minister. For however well-meaning a Minister may be he can
never possess the same intimate knowledge of the working of the judiciary as a whole
and of individual Judges, as the High Court. He must depend on his department for
information. The Chief Justice and his colleagues know these matters and
deal with
them personally. There is less chance of being influenced by secretaries who may
withhold some vital information if they are interested themselves. It is also well-known
that all stations are not similar in climate and education, medical and other facilities.
Some are good stations and some are not so good. There is less chance of success for
a person seeking advantage for himself if the Chief Justice and his colleagues, with
personal information, deal with the matter, than when a Minister deals with it on notes
and information supplied by a secretary. The reason of the rule and the sense of the
matter combine to suggest the narrow meaning accepted by us. The policy displayed by
the Constitution has been in this direction as has been explained in earlier cases of this
Court. The High Court was thus right in its conclusion that the powers of the Governor
cease after he has appointed or promoted a person to be a district Judge and assigned
him to a post in cadre. Thereafter, transfer of incumbents is a matter within the control
of District Courts including the control of persons presiding there as explained in the
cited case.
As the High Court is the authority to make transfers, there was no question of
a consultation on this account. The State Government was not the authority to order the
transfers. There was, however, need for consultation before D. N. Deka was promoted
and posted as a District Judge. That such a consultation is mandatory has been laid
down quite
definitely in the recent decision of this Court in Chandra Mohan v UP On
this part of the case it is sufficient to say that there was consultation.”
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answer the description of a candidate who “has been for not
less than seven years” “an advocate or a pleader” (per
Deepak Agarwal, i.e. that the applicant/candidate should be an
advocate fulfilling the condition of practise on the date of the
eligibility condition, or applying for the post). The sequitur clearly
is that a judicial officer is not one who has been for not less than
seven years, an advocate or pleader.
25. The net result of the decision in Chandra Mohan (supra),
and subsequent decisions which followed it, is that Article 233 (2) renders
ineligible all those who hold civil posts under a State or the Union, just as
it renders all advocates with less than seven years’ practice ineligible, on
the date fixed for reckoning eligibility. Equally, those in judicial service
[i.e. holders of posts other than District Judge, per Article 236 (2)] are
not entitled to consideration because the provision (Article 233 [2]) does
not prescribe any eligibility condition. Does this mean that any judicial
officer, with any length of service as a member of the judicial service, is
entitled to consideration under Article 233 (2)? The answer is clearly in
the negative. This is because the negative phraseology through which
eligibility of holders of civil posts, or those in civil service (of the State or
the Union) and advocates with seven years’ service is couched. However,
the eligibility conditions are not spelt out in respect of those who are in
the judicial
service.
26. The omission, - in regard to spelling out the eligibility conditions
vis-à-vis judicial officers, to the post of District Judge, in the opinion of
this court, is clearly by design. This subject matter is covered by three
provisions: Article 233 (1) – which refers to promotions to the post of
District Judge; Article 234, which, like Article 233 (1) constitutes the
Governor as the appointing authority in respect of judicial posts or services,
(other than District Judges), and like Article 233 (1), subject to
recommendation of the High Court concerned. This position is most
definitely brought home by the fact that Article 235 vests in the High
Courts the power of supervision and control of the judicial service,
“including the posting and promotion of, and the grant of leave to,
persons belonging to the judicial service of a State and holding
any post inferior to the post of district judge.” The corollary to this is
that the Governor is appointing authority for the post of District Judge,
and other judicial posts; both are to be filled after prior consultation with
the High Court, and crucially, the promotion of judicial officers, to the
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post of District Judge, is regulated by conditions (read rules) framed by
the High Court.
27. The upshot of the above discussion is that the Constitution
makers clearly wished to draw a distinction between the two sources of
appointment to the post of District Judge. For one, i.e. Advocates, eligibility
was spelt out in negative phraseology, i.e. not less than seven years’
practice; for judicial officers, no eligibility condition was stipulated in
Article 233 (2): this clearly meant that they were not eligible to be
appointed (by direct recruitment) as they did not and could not be
considered advocates with seven years’ practise, once they entered the
judicial service. The only channel for their appointment, was in accordance
with rules framed by the High court, for promotion (as District Judges)
of officers in the judicial service (defined as those holding posts other
than District Judges, per Article 236 [b]).
28. In view of the above discussion clearly, the decision in Satya
Naraian Singh (supra) correctly appreciated the relevant provisions
and held that the dichotomy between the two streams meant that those
in one stream (read judicial service) could not compete for vacancies
falling in the quota earmarked for advocates.
29. The petitioners had urged that the court should endeavour
and interpret the provisions of the Constitution in a broad manner, rather
than placing a narrow interpretation and that rendering
ineligible those
with seven years’ practise as advocates, but who were appointed to
judicial posts, would be violative of Article 14 of the Constitution of India.
It was emphasized in this regard, that there is no distinction between
those who continue to practice and those, who had practiced for seven
years, later joined the judicial service and continued in it, as on the date
of reckoning eligibility. It was urged that those in judicial service are in
fact better qualified, because they would be experienced in discharging
functions relating to a judicial office, whereas those who continue to
practice, and remain advocates, would not have such benefit. As between
the two, therefore, those holding judicial office, would be better suited. It
was therefore urged, that if they are permitted to compete for the post
of District Judge, without insisting that they should resign, society would
have a greater pool of merit to pick up from. The last argument was
since both categories fulfilled the basic condition of seven years’ practise,
excluding those in judicial service, does not sub-serve the object of
recruitment, i.e. selecting the best candidates.
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30. In the opinion of this court, there is an inherent flaw in the
argument of the petitioners. 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.
31. In view of the above analysis, since the Constitution itself
makes a distinction between advocates on the one hand, and judicial
officers, on the other, the argument of discrimination is insubstantial. If
one examines the scheme of appointment from both channels closely-
as Justice Mishra has done-
it is evident that a lions’ share of posts are
to be filled by those in the judicial service. For the past two decades,
only a fourth (25%) of the posts in the cadre of District Judges (in every
State) are earmarked for advocates; the balance 75% to be filled
exclusively from amongst judicial officers. 50%, (out of 75%) is to be
filled on the basis of seniority cum merit, whereas 25% (of the 75%) is
to be filled by departmental examination. This examination is confined to
members of the judicial service of the concerned State. The decision of
this court in All India Judges’ Association & Ors v Union of India &
Ors 2010 (15) SCC 170, reduced the limited departmental examination
quota (out of turn promotion quota) from 25% to 10% which took effect
from 01.01.2011. Thus, cumulatively, even today, judicial officers are
entitled to be considered for appointment, by promotion, as District Judges,
to the extent of 75% of the cadre relating to that post, in every State. It
is therefore, held that the 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.
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32. This court is also of the opinion that if rules of any State
permit judicial officers to compete in the quota for appointment as District
Judges, they are susceptible to challenge. The reason for this conclusion
is that where a dichotomy is maintained, and two distinct sources for
appointment are envisaged, like the present, enabling only judicial officers
to compete in the quota earmarked for advocates would potentially result
in no one from the stream of advocates with seven or more years’ practice,
being selected. This would be contrary to the text and mandate of Article
233 (2), which visualized that such category of candidates would always
be eligible and occupy the post of District Judge. Clear quotas for both
sources have been earmarked by High Courts. If one those in one stream,
or source- i.e. judicial officers- are permitted to compete in the quota
earmarked for the other (i.e. advocates) without the converse situation
(i.e. advocates competing in the quota earmarked for judicial officers-
an impossibility) the result would be rank discrimination.
33. Another strong reason drives us to this conclusion. 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.
34. This view is fortified by Article 217 (2), which spells out two
sources from which appointments can be resorted to for the position of
judge of a High Court: firstly, member of a judicial service of a State
[Article 217 (a)] and an advocate with ten years’ experience [Article
217 (b)]. For the Supreme Court, Article 124 (3) (a) enables consideration
of a person with five years’ experience as a High Court judge; Article
124(3)(b) enables consideration of an advocate with ten years’
experience at the bar in any High Court; Article 124(3)(c) enables
consideration of a distinguished jurist. Significantly, advocates with
stipulated experience at the bar are entitled, by express provisions of the
Constitution [Articles 233 (2), Article 217 (b) and Article 124 (3) (b)] to
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be considered for appointment to the District Courts, High Courts and
the Supreme Court, respectively. However, members of the judicial
service can be considered only for appointment (by promotion) as District
Judges, and as High Court judges, respectively. Members of the judicial
service cannot be considered for appointment to the Supreme Court.
Likewise, academics or distinguished jurists, with neither practise at the
Bar, nor any experience in the judicial service, can be considered for
appointment as District Judge, or as High Court judge.
35. The Constitution makers, in the opinion of this court,
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.
36. This court is of the opinion that the decision in Vijay Kumar
Mishra (supra), as far as it makes a distinction between consideration,
of a candidate’s eligibility, at the stage of selection, and eligibility
reckonable at the time of appointment, is incorrect. There is clear authority
to the proposition that eligibility of any candidate is to be reckoned, not
from the date of his or her selection, but in terms of the rules, or the
advertisement for the post. In Ashok Kumar Sharma & Ors. vs.
Chander Shekhar & Ors 1997 (4) SCC 18, a three-judge bench of this
court held as follows:
“6….The proposition that where applications are called for
prescribing a particular date as the last date for filing the
applications, the eligibility of the candidates shall have to be
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